By Sylvester Udemezue
- Memory Verse: Supremacy of Rule of Law in a Democracy
In a 10 August 2018 commentary titled, ‘Legal Implications of The Requirement For “Two-Thirds Majority Vote” In Relation To Removal of The Head of A Legislative House In Nigeria’, I had observed:
“Democracy is a system of rule by laws, not by individuals….the rule of law protects the rights of citizens, maintains order, and limits …power… no one is above the law. All actions of public and private individuals are governed by law…. It’s for this reason that Thomas Paine once wrote (about America) in his famous book, Common Sense: “…that the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” … rule of law … is the most civilized and least burdensome conception of a functioning state… When Rule of Law disappears, we are ruled by the whims and caprices of men in authority…rule of law is not a vehicle by which private individuals, governments or… agencies can wield and abuse their powers; on the contrary, rule of law establishes principles that constrain the power of private individuals, governments and public bodies, obliging each to conduct himself/herself/itself according to a series of prescribed and publicly known rules. (see: DNLLegalAndStyle )
Under a rule of law regime, as found in constitutional democracies, justice must be done according to the dictates of rule of law and the constitution of the land, and not vice versa. Any violation of rule of law or the supremacy of the constitution amounts to injustice or a desecration of justice. The case of African Petroleum (AP) v. Owodunni (1991) LPELR-213(SC) further illustrates the principle that justice or injustice in any constitutional democracy must be measured through the lens of what is consistent with the extant law. This is why a major objective of the Nigerian Bar Association, as set out in section 3 of the Constitution of the NBA, 2015, is “Promotion and protection of the principles of the rule of law and respect for fundamental rights, human rights, and people’s rights”.
Please, check out the following on the internet, in order to appreciate the foundation of the present scenario and the following passage:
- “AGC 2022: NBA Gives Notice Of Proposed Amendments To The NBA Constitution”: 27 July 2022 (TheNigeriaLawyer);
- “NBA Assistant General Secretary, Uchenna Nwadialo issues Further Notice of Proposed Constitution Amendment to Members”: 27 July 2022 (LegalNigeria);
- “NBA: Notice of withdrawal of Proposed Amendment to the NBA Constitution 2015 (as Amended)”. 13 August 2022 (DNLLegalAndStyle);
- “Crisis Rocks NBA, As Akpata Disowns General Secretary” 13 August 2022 (CityLawyer);
- “EXCLUSIVE: NBA CRISIS: The General Secretary, Madam Joyce Oduah Reacts, Makes Revelations” 14 August 2022 (BarristerNG); and
- “BREAKING: NBA General Secretary, Joyce Oduah suspended” 15 August 2022 (NewsWireLawAndEvents).
- The Internal Memo, Emergency Meeting of the NBA-NECommittee, & the Suspension of the NBA GS.
- In the morning of 15 August 2022, I received via email, a copy of an “Internal Memo” dated 14 August 2022 and titled, “Need for Urgent Action To Forestall A Crisis In The Nigerian Bar Association”. The Memo, which is like a complaint/allegation/petition and a Requisition for an emergency meeting of the NBA-NECommittee, is signed by all members of the NBA National Executive Committee (hereinafter referred to as “NBA-NECommittee”) excluding the President (Olumide Akpata, Esq) and General Secretary (Joyce Oduah, Esq), lists/contains a litany of allegations against the General Secretary (GS) (Joyce Oduah, Esq) and concludes as follows:
“the members of the National Executive Committee knowing that the NBA-NEC has powers to remove a national officer; considering that it is not practicable to call an NBA-NEC meeting now to address her issue and relying on section 9(6)(d) of the Constitution of the Association which provides that ‘the national officers shall have powers to take decisions on behalf of the Association in all cases of emergency or when the National Executive Council cannot be emergently convened and report to the next Executive Council for ratification’… being of the opinion that we have a case of emergency of a General Secretary that cannot be trusted not to deliberately sabotage the said events, and further considering that we are in a transition period ; We hereby call for an emergency meeting of the National executive Committee to deliberate and take urgent action regarding Mrs. Joyce Oduah, the General Secretary and report to the NBA-NEC for ratification”
- I received also a Notice and a copy of a “Resolutions Passed At An Emergency Meeting of The NBA National Executive Committee In Respect of Recent Developments At The NBA Secretariat” The Notice of Resolution said to be “reached by the National Executive Committee at its Emergency Meeting of the National Executive Committee, the meeting held on Monday 15th August 2022 by 8am” was signed and circulated by the NBA National Publicity Secretary, Mr. Rapulu Ernest Nduka, Ph.D. A summary of the Resolution, signed by all the National Officers of the NBA, except Olumide Akpata (President) and Joyce Oduah (General Secretary), is as follows:
“… the National Executive Committee by a unanimous decision, resolved to refer the General Secretary, Mrs Joyce Oduah to NBA-NEC for disciplinary action under the provisions of section 20(1) of the NBA Constitution 2015 (as amended in 2021) and to recommend her removal from office for gross misconduct. In the meantime, however, in view of the critical importance of the Annual General Meeting which is scheduled to hold on 25th August 2022, and to prevent the General Secretary, Mrs Joyce Oduah from imperiling the Annual General Meeting, the Annual General Conference or the succession to the next administration by her unilateral and unauthorised communications purporting to be legitimate communications from the Association, the National Executive Committee has unanimously exercised its emergency powers under section 9(6) (d) of the NBA Constitution 2015 (as amended in 2021) to suspend Mrs Joyce Oduah from office as the General Secretary of the Association with immediate effect pending the Pre-Conference meeting of the NBA-NEC scheduled to hold on Sunday 21st August 2022.6. The Assistant General Secretary, Ms. Uchenna Nwadialo shall immediately act as the General Secretary pending the PreConference meeting of the NBA-NEC scheduled to hold on Sunday 21st August 2022.”
- Legal Issues Arising From the Above Above Scenario
Without delving into the merit of the many, various actions taken by all and each of the many (feuding) parties in this scenario, I prefer to concentrate on procedural issues, as follows:
- Does the NBA-NECommittee have Powers to Suspend a National Officer?
Section 20 (1) of the Constitution of the NBA, 2015, provides that “(1) A National Officer may be removed from office where he/she (a)…; (b)…(d) breaches any provision of the Code of Conduct for Officers duly approved by National Executive Council; (e)…; (f) is involved in an act or behaviour that brings or is likely to bring the Association into disrepute; (g) is found culpable for acts of disobedience to the Association, National Executive Council, the President or any other of its organs or professional misconduct; provided however that such officer may only be removed from office by two-third (2/3) majority of National Executive Council [NBA-NECouncil] members present at a meeting of the National Executive Council and after such National Officer shall have been given an opportunity to defend himself/herself”. From the above, it appears that power to remove a national officer lies exclusively with a 2/3 majority vote of the NBA-NECouncil. However, this throws up another question, as to whether any powers to “suspend” (in preparation for removal of) such a national officer, is reserved for the NBA-NECommittee? I am aware that in Corporate Governance, generally, the Secretary of a Public Company may be removed or suspended from office (depending on the grounds) by the Board of Directors which/who must report same to the next General Meeting of the Company. But, in the case of suspension, such suspension shall not be effective unless and until approved by the next General Meeting which shall (if it approves same) determine the time or date the removal shall take effect. See section 333 of the Companies and Allied Matter (CAMA), 2020. However, this power of the Board to suspend a company secretary in the circumstances, is expressly provided by the CAMA, 2020, unlike in the case of the NBA-NECommittee which appears to not have such powers EXPRESSLY provided in the NBA Constitution, 2015. Nevertheless, the NBA-NECommittee, in suspending the General Secretary, has stated that it relies on section 9(6)(d) of the NBA Constitution which provides that “The National Officers shall have power to take decisions on behalf of the Association in all cases of emergency or when the National Executive Council cannot be emergently convened and report to the next National Executive Council Meeting for ratification.” This throws up a third and crucial question as to whether the NBA-NECommittee does not have emergency powers to suspend, especially in view of the fact that the NBA-AGC 2022 (NBA Annual General Conference 2022) is slated to commence on 19 August 2022, while the 2022 NBA Annual General Meeting 2022 (NBA-AGMeeting 2022) is scheduled to hold on 25 August 2022. The incumbent NBA GS is expected to play crucial roles in both annual events, and the NBA-NECommittee, in its resolution of 15 August 2022, has argued that the NBA-NECommittee is exercising its “emergency powers” to suspend the General Secretary (GS) in order “to prevent the General Secretary, Mrs Joyce Oduah from imperiling the Annual General Meeting, the Annual General Conference or the succession to the next administration by her unilateral and unauthorised communications purporting to be legitimate communications from the Association”. Now, from the contents of the Memo and the Resolution afore-mentioned, it may be seen that the NBA-NECommittee appears to have predicated its decision to “suspend” the General Secretary (without waiting for an NBA-NECouncil meeting) also on the Doctrine of Necessity, considering, according to it, “that it is not practicable to call an NBA-NEC meeting now to address her issue”. However, this aspect of the Memo and the subsequent Resolution suspending the GS has thrown up a further and crucial question as to whether the Complainants’ argument that “it is not practicable to call an NBA-NEC meeting now to address her issue” is reasonably plausible considering that a meeting of the NBA-NEC (NBA-NECouncil) is already scheduled for Sunday, 21 August 2022 — just about six days away from the date of the 15 August 2022 suspension of the NBA GS. One might be tempted to ask: Why not wait for the date of the NBA-NECouncil metting which is just six days away? But then, the NBA-NECommittee might probably argue that is it is possible that, in the intervening period (between 15 August and 25 August 2022), the GS might issue another/further “unilateral and unauthorised communications purporting to be legitimate communications from the Association” which, as the NBA-NECommittee Resolution puts it, might IMPERIL “the Annual General Meeting, the Annual General Conference or the succession to the next administration”? In the midst of all these, one wonders what exactly is valid and proper or invalid and improper. The situation is complicated! How it might end, time shall tell.
- Was the NBA GS Given A Fair-Hearing Before Her “Suspension”?
The provisions of section 20(1) of the NBA Constitution, 2015 makes it mandatory that an NBA national officer may only be removed from office “after such National Officer shall have been given an opportunity to defend himself/herself”. Now, since the NBA-NECommittee, in suspending the NBA GS, purported to have acted pursuant to section 9(6)(d) of the Constitution, which gives the NBA-NECommittee powers to act instead of the NBA-NECouncil in an emergency, is it not reasonable to argue that in any such instances in which the NBA-NECommittee is permitted to act in stead of the NBA-NECouncil, the NBA-NECommittee is under an obligation to afford the affected National Officer a fair hearing? If one agrees with this suggestion, then the necessary question to ask is as to whether the NBA GS was in this instance given any opportunity of being heard? Such an opportunity may come in the nature of either:
- Sending to her, a copy of the Complaint made against her as is contained in the Internal Memorandum ans asking for her response within a given time; or
- Giving her an opportunity of making oral representations at the 15 August 2022 Emergency Meeting of the NBA-NECommittee. However, one doubts whether such oral representation (if any) would be sufficient since the complaint against her was in writing.
In any case, was either of these two options undertaken and if yes, which of them? Where is the evidence that such an opportunity was ever afforded the NBA GS before she was “suspended”? If the Written Complaint (Memo) was served on her with an opportunity given to her to make a response or a representation for herself or on her behalf, within a specified period, please, dear National Publicity Secretary, why not publish the GS’ representations or any representation made on her behalf, in the same manner as you have published the written Complaint against her and the Resolution of 15 August “suspending” her? Compare section 36 (6) (b)&(d) of the Constitution of the Federal republic of Nigeria, 1999. Or, assuming you had given her an opportunity of making representations/a response and she failed, neglected or refused to make any response, please why not publicly provide evidence thereof? I respectfully submit that these are necessary preconditions that ought to have been satisfied by the NBA-NECommittee, since the NBA-NECommittee, in this particular instance, decided, in an “emergency”, to assume or perform the powers reserved exclusively for the NBA-NECouncil. Assuming that the NBA-NECommittee was right in “suspending” the NBA GS, I humbly further submit that there must be evidence that the NBA GS was afforded an opportunity of being heard, before the said “suspension” happened. Thus, the GENERAL PROVISIONS of section 9(6)(d) of the NBA Constitution must apply subject to the fair-hearing requirements of the SPECIFIC/SPECIAL PROVISIONS of section 20(1) of the same Constitution. The guiding/relevant Latin legal maxim and canon of statutory interpretation, is “generalia specialibus non derogant;” which states that “universal things must not detract from specific things;” “general provisions in a statute must yield to special or specific provisions in the same statute.” See Dore v. Verdom  2 SCR 862, per Hon Justice Gonthier of Canada’s Supreme Court). Thus, when a matter falls under any specific provision, then it must be governed by that provision and not by any later general provision in the same statute. Hence, the general provisions in a law must admit to the specific provisions of the same law. Applying this maxim, , “generalia specialibus non derogant,” in the case of Lalonde v. Sun Life  3 SCR 261, Hon Justice Gonthier had this to say: “this is an appropriate case in which to apply the maxim generalia specialibus non derogant and to give precedence to the special Act….” The principle is, therefore, that where there are provisions in a special Act and in a general Act on the same subject which are inconsistent, if the special Act gives a complete rule on the subject, the expression of the rule acts as an exception to the subject-matter of the rule from the general Act.” Back here in Nigeria, the maxim has been applied in several cases, including the case of Akindolire V. Akindolire (1977) 1 FCAR, 148, where the court stated that “it has been held on the same maxim of “generalis specialibus non derogant” that the position of an earlier Special Act will not be affected by that of a General Act although inconsistent with the particular Act and although they deal with the same subject matter.” Also, in Ibori v. Ogboru (2004) 15, NWLR (PT 895) 154, the Court declared as follows:
“There is a canon of construction of statutes known as “generalis specialibus non derogant”. Its application is implied thus at p. 196 of Maxwell on The Interpretation of Statutes, 12th edition by P. St. J. Langan: ‘Now if anything be certain it is this,” said the Earl of Selborne, L. C. in The Vera Cruz, (1884) 10 App. Cas. 59 at p. 68 “that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation is indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.’”
- The Nemo Judex Question
- The Gravamen of the Nemo Judex In Causa Sua Rule: The position of extant law is clear on relevant considerations regarding application of the Nemo Judex in Causa Sua (One Cannot be a judge in one’s own case/cause) to a particular instance. In the English case of v. Amber Valley DC, ex parte Jackson  1 WLR 298,  3 All ER 50), Lord Denning, MR had given an insight into the factors relevant in determining whether a person or authority should sit in judgment over a matter: “The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. and if he does sit, his decision cannot stand”. It is irrelevant whether he was in fact biased, because “justice is rooted in [public] confidence”. The Nigerian Court of Appeal gave further details in the Nigerian case of Zaman v. State (2015) LPELR-24595(CA):
“In considering whether there was a real likelihood of bias, the Court does not look at the mind of the Chairman of the tribunal, or whoever it may be.. It does not look to see if there was a real likelihood that he would, or did, in fact he would, or did, favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit…The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased.’…. As Lush, J., said in Serjeant vs. Dale (1877) 2 Q.B.D. 558, 567”.
- Application of the Rule to the Present Scenario: From the above scenario, the following facts are hardly disputable:
- The complaint against the NBA General Secretary was made in writing by all the members of the NBA-NECommittee (excluding the President and the GS), as per the “Internal Memorandum” referred to above and dated 14 August 2022. Accordingly, all the NBA-NECommittee members who signed the said “Internal Memorandum” constitute the COMPLAINANTS or the ACCUSERS in this scenario.
- As disclosed by the Resolution, the NBA President (Olumide Akpata) was present at the Emergency Meeting of the NBA-NECommittee held on 15 August 2022, at which a Resolution was passed suspending the General Secretary of the NBA. However, the President abstained from participating in passing or signing the Resolution suspending the NBA GS at the Meeting;
- All the members of the NBA-NECommittee who had signed the Internal Memorandum constituting/comprising the complaint against the NBA GS are the only members of the NBA-NECommittee who on 15 August 2022, passed a Resolution “suspending” NBA GS. Accordingly, all the member of the NBA-NECommittee who sat and passed the resolution suspending the GS constituted the JUDGES or the ADJUDICATORS in this particular instance.
- Complainants/Accusers/Requisitionists: the following members of the NBA-NECommittee authored/signed the Internal Memorandum — (1) John Aikpokpo-Martins – 1st Vice President; (2) Debo Adeyemo Kazeem – 2nd Vice President; (3) Ombo Victor Frank-Briggs – 3rd Vice President; (4) Uchenna Nwadialo – Assistant General Secretary; (5) Mercy Ijato Agada – Treasurer; (6) Raphael Nnamdi Anagor – Financial Secretary; (7) Olukunle Edun – Welfare Secretary; (8) Rapuluchukwu Nduka – Publicity Secretary; and (9) Ferdinand Naza – Assistant Publicity Secretary.
- Present at the Meeting (Attendance): The following members of the NBA-NECommittee were present at the Emergency Meeting of 15 August 2022: (1) Olumide Akpata – NBA President; (2) John Aikpokpo-Martins – 1st Vice President; (3) Debo Adeyemo Kazeem – 2nd Vice President; (4) Ombo Victor Frank-Briggs – 3rd Vice President; (5) Joyce Oduah – General Secretary; (6) Uchenna Nwadialo – Assistant General Secretary; (7) Mercy Ijato Agada – Treasurer; (8) Raphael Nnamdi Anagor – Financial Secretary; (9) Olukunle Edun – Welfare Secretary; (10) Rapuluchukwu Nduka – Publicity Secretary; (11) Ferdinand Naza – Assistant Publicity Secretary.
- The Judges (Signatories to Resolution Suspending NBA GS): The following members of the NBA-NECommittee authored/signed the resolution “suspending” the NBA GS: (1) John Aikpokpo-Martins – 1st Vice President; (2) Debo Adeyemo Kazeem – 2nd Vice President; (3) Ombo Victor Frank-Briggs – 3rd Vice President; (4) Uchenna Nwadialo – Assistant General Secretary; (5) Mercy Ijato Agada – Treasurer; (6) Raphael Nnamdi Anagor – Financial Secretary; (7) Olukunle Edun – Welfare Secretary; (8) Rapuluchukwu Nduka – Publicity Secretary; (9) Ferdinand Naza – Assistant Publicity Secretary
- The same members who signed the petition against the NBA GS are the same member who sat and suspended the NBA GS. Thus, it is reasonable to submit that the nine members of the NBA-NECommittee who sat at the emergency meeting constituted themselves into:
- The Complainants/Accusers
- The Prosecutors (unless the NBA President played (I don’t know) the role of the prosecutor since he was not among the judges, while Mrs Oduah stood as the accused); and
- The Judges/Adjudicators
- A respected learned friend, Oliver Omoredia, Esq has this to say on application for the Nemo Judex Rule to this scenario:
“Rightly, the NBA President recused himself from the meeting on the issue because he was an interested party, but from the attached statement of allegations all Excos were interested parties since it was the GS against the National Executive Committee. They all lacked locus to constitute the disciplinary hearing against her since the gravamen of the issue was her disobedience in the face of the instruction from the Excos. Nemo judex”.
- If Mr. Omoredia’s suggestions that “the NBA President recused himself from the meeting on the issue because he was an interested party” is anything to go by, then it would have helped the position of the NBA-NECommittee for Mr. Akpata to have been the one who signed the Internal Memorandum which constituted the Complaint/Allegation against the NBA GS. If Mr. Akpata had signed the Memo (of Complaint), Mr. Akpata would have properly played the role of the Accuser, Complainant and the Prosecutor while the other members of the NBA-NECommittee would have validly sat (as judged) to deliver a resolution on the matter where the NBA GS stood as the accused person, because then, they (the other members of the NBA-NECommittee) would not have been seen or recorded as Complainants/Accusers and judges at the same time in the same matter. By being the authors and signatories to the said Memorandum (of complaint), the other (9) members of the NBA-NECommittee appear to have, in flagrant violation of the Nemo Judex Rule, got themselves disqualified from sitting in judgment (as JUDGES/ADJUDICATIORS) to determine the same allegations/made by themselves against the NBA GS. A reasonable conclusion to reach in the circumstances, it is submitted, is that a situation in which the other nine members of the NBA-NECommittee (that is, excluding the President and the GS) had constituted themselves into the (a) Accusers/Complainants in the case against Mrs Joyce Oduah; and (b) the Prosecutors of in the case against Mrs Joyce Oduah; and (c) the Adjudicators/Judges in the case against Mrs Joyce Oduah, being procedurally messy, does not speak in favour of the interest of justice. Consequently, can anyone validly argue that there is absence of reasonable likelihood of bias in a situation in which the judge is at the same time the accuser (and the prosecutor)? Permit me to humbly repeat, drawing from the my argument above, that the court looks at the impression which would be given to other people. Even if the the judge was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on the part of the judge/adjudicator/arbiter, then he should not sit. and if he does sit, his decision cannot stand. It is irrelevant whether he was in fact biased, because justice is rooted in public confidence, and confidence is destroyed when right-minded people go away thinking that the judge was biased.
- Conclusion: The “suspension of the NBA GS is subject to the approval or rejection of the NBA-NECouncil. Happily, the next meeting of the NBA-NECouncil comes up in a few days’ time, on Sunday, 21 August 2022. If the suspension is ratified/approved by the NBA-NECouncil on 21 August 2022, the NBA GS (Mrs Joyce Oduah) stands removed from office on such a date as the NBA-NECouncil may determine. If, on the other hand, the resolution of the NBA-NECommittee “suspending” Mrs. Joyce Oduah as the NBA GS is rejected by the NBA-NECouncil on 21 August 2022, the decision of the NBA-NECommittee stands nullified and therefore of no effect, giving room for the NBA GS to return and continue in office until the swearing in of the next NBA GS, Mr “AA” Adegbite on/about 25 August 2022. Which way shall the NBA-NECouncil go in these circumstances? The answer is blowing in the wind/air! Great suspense! Indeed, as Seneca The Younger once said, “If one does not know to which port one is sailing, no wind is favourable”. But for those of us watching and waiting, there’s nothing as beautiful as watching the wind work its magic. Loud wind, strong wind, sweeping over the mountains, or through the sea. Fresh wind, free wind, No matter what blows in with the wind, let all remain strong enough to not break us. Whatever the wind, whenever and however it blows, may it be/blow in the very best interest of the Nigerian Bar Association. Amen!
In the meantime, ripostes, further questions, reactions and comments are happily welcome, to continue this discussion while we await further developments, as are reasonably anticipated. Thank you for finding time to read my humble thoughts on latest unfortunate happenings within an otherwise noble, honourable profession.
Sylvester Udemezue (udems)
(15 August 2022)