WOME MOSES, ESQ v. NIGERIAN BAR ASSOCIATION
In the Supreme Court of Nigeria
Wednesday, February 20, 2019
WALTER SAMUEL NKANU ONNOGHEN
AMINA ADAMU AUGIE
SIDI DAUDA BAGE
WOME MOSES, ESQ
NIGERIAN BAR ASSOCIATION (NBA)
DEFINITION OF AN ARTIFICIAL PERSON
“An artificial person is defined in Black’s Law Dictionary. 9th Ed., as: An entity, such as a corporation, created by law and given certain legal rights and duties of a human being, a being, real or imaginary, who for the purpose of legal reasoning is treated more or a less as a human being.”
WHETHER THE LEGAL PRACTITIONER DISCIPLINARY COMMITTEE IS AN ARTIFICIAL BODY
“The NBA is not a juristic person but the same cannot be said for the LPDC, which was created by the Legal Practitioners Act. So, the LPDC is a legal person, which means it can sue and be sued in its name – see LPDC V. Fawehinmi (1985)2 NWLR (Pt. 7) 300 SC.”
WHERE TO LODGE A COMPLAINT AGAINST A LEGAL PRACTITIONER
“By virtue of Rules 2A (2) and 3 of the Legal Practitioners (Disciplinary Committee) Rules, as amended, a complaint received by any of the persons specified in Rule 2A (1), shall be forwarded to the NBA, which shall cause the complaint to be investigated.
ROLE OF THE NIGERIAN BAR ASSOCIATION WHEN A COMPLAINT IS MADE AGAINST A LEGAL PERSONEL
“In any case where “in pursuance of Section 10 (1) of the Legal Practitioners Act”, the NBA is of the opinion that a prima facie case is shown against a legal practitioner, the NBA shall forward a report of such a case to the Secretary of the LPDC. The said Section 10 (1) (b) of the Legal Practitioners Act provides: The Body of Benchers shall be responsible for – (b) The exercise of disciplinary jurisdiction over members of the legal profession and over students seeking to become legal practitioners.
DUTIES OF THE LPDC
“And Section 11(1) of the said Legal Practitioners Act provides that: There shall be a committee of the Body of Benchers to be known as the Legal Practitioners Disciplinary Committee (in this Act referred to as “the Disciplinary Committee”) which shall be charged with the duty of considering and determining any case where it is alleged that a person whose name is on the Roll has misbehaved in his capacity as a legal practitioner or should for any other reason be the subject of proceedings under this Act.”
LEGAL STATUS OF THE NIGERIAN BAR ASSOCIATION
“The respondent is simply the Nigerian Bar Association (NBA), which by law is not a juristic person as it can neither sue nor be sued in a Court of law – see the case of Fawehinmi vs Nigerian Bar Association (NBA) (No 2) (1989) 2 NWLR (pt. 105) 558 at 595.”
RAISING A PRELIMINARY OBJECTION
“The Preliminary Objection takes priority because it is well settled that where one Party is not a legal person capable of exercising any legal rights and obligations under the law, the other Party can always raise this fact as a preliminary objection, which if upheld, normally leads to the action being struck out – see Admin/Execs, Estate, Abacha V. Eke-Spiff & Ors. (2009) 7 NWLR (Pt. 1139) 975C. In other words, Respondent’s Objection must be considered first.”
(DELIVERED BY BAMINA ADAMU AUGIE, J.S.C.) The Appellant, a Legal Practitioner practicing in Port Harcourt, Rivers State, represented a Member of the Rumu-Amadi Family at the High Court of Rivers State, in a case involving family land. The Appellant’s client lost at the High Court and he appealed to Court of Appeal, which is when things got out of hand, leading up to a Petition written by the Representatives of the Family to the Chairman of the Respondent [the NBA]’s Port-Harcourt Branch. In the Petition dated 23/3/2013, it was alleged that while the matter was on appeal, Appellant partitioned the family land and sold plots of land; and he misrepresented himself as the Family’s lawyer and began negotiating more sales without valid authority. The Petition was referred to the Disciplinary Committee of the NBA, who after its investigations, made the following findings: Parties were invited by the panel to give oral evidence. A thorough examination of the evidence, both oral and documentary, by the Panel revealed that the land for which the Respondent received advanced payment and issued receipt therefor was part of the land in dispute, now on appeal. It is, therefore, the conclusion of the Panel that the Respondent [i.e. Appellant] tampered with the subject of litigation, contrary to Rules 30 and 32(k) of the Rules of Professional Conduct for Legal Practitioners 2007. Armed with the said Report of its Disciplinary Committee, the NBA [Respondent] filed a Complaint against the Appellant at the Legal Practitioners Disciplinary Committee [LPDC]; it states as follows: 1. That you Wome Moses, Esq., Male, a Legal Practitioner, practicing in Port-Harcourt, Rivers State retained by Franklin Amadi represented the aforesaid Franklin Amadi in a case invoking family land of Rumu-Amadi Family in the High Court of Rivers State and that the Suit was decided against your client and you thus appealed to the Court of Appeal and that while the Appeal is pending, you assisted your client in partitioning the land and sold the plots of land to unsuspecting members of the public and by so doing, you have failed to maintain the high standard of professional conduct expected of a Legal Practitioner by engaging in an illegal conduct all contrary to Rules 1, 15(i)and (j), 55 and liable under Section 12 of the Legal Practitioners Act 2004 as Amended. 2. That you Wome Moses, a Legal Practitioner practicing in Port-Harcourt in a Suit involving landed property owned by Amadi family and known as Rumu-Amadi Family land without the authority of the Family partitioned the land and sold plots of the land while the appeal filed by you is pending and by so doing have conducted yourself in a manner inconsistent with your status as a Minister in the Temple of Justice and in a manner that will adversely affect the administration of justice all contrary to Rules 1, 30, 32 (k)55 and liable under Section 12 of the Legal Practitioners Act 2004 as amended. In its Final Direction delivered on 11/11/2015, the LPDC found him guilty of infamous conduct in the course of performing his duty as a Legal Practitioner “as set out in Counts 1 and 2 of the Complaint”; and it directed the Chief Registrar of the Supreme Court to strike out the name of the Appellant from the roll of Legal Practitioners. The Appellant appealed to this Court with a Notice of Appeal containing six Grounds of Appeal. However, the Respondent raised a Notice of Preliminary Objection in its Brief of Argument praying that the Notice of Appeal and “Appellant’s purported Brief of Argument” be struck out and dismissed for being incompetent as the Court lacks jurisdiction to hear the matter or alternatively, strike out the Suit because NBA is not a juristic person and cannot sue or be sued eo nomine. The Grounds for the Objection are that: There is no valid appeal before this Court. The Appeal is incompetent as no person whether natural or artificial has been named in this Suit. It was held in Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt.105) 558 that the NBA cannot be sued eo nomine in that case — A person who should commence an action in Court must be a person known to the law, i.e. a legal person. If it is successfully shown that a Party to an action is not a legal person, the Party should be struck out of the Suit. The Preliminary Objection takes priority because it is well settled that where one Party is not a legal person capable of exercising any legal rights and obligations under the law, the other Party can always raise this fact as a preliminary objection, which if upheld, normally leads to the action being struck out – see Admin/Execs, Estate, Abacha V. Eke-Spiff & Ors. (2009) 7 NWLR (Pt. 1139) 975C. In other words, Respondent’s Objection must be considered first. The Respondent submitted in its Brief of Argument that the issue for determination as regards the Preliminary Objection is: “whether (it) is a juristic person known to law that can be sued “and it is its contention that it is not a juristic person but a juridical person, so it can only sue or be sued in a representative capacity. It referred the Court to -Fawehinmi V. NBA (No. 2) (supra), Tsokwa & Ors. V. Alh. Mijinyawa & Ors. (2014) LPELR-24200 (CA) and Usuah V. G.O.C. Nigeria Ltd. & Ors. (2012) LPELR-7913(CA), and argued that the Appellant’s Appeal is incompetent and lacks merit by virtue of the decision in Fawehinmi v. NBA (No. 2) (supra). The Appellant argued in his Reply Brief that the Complainant at the LPDC was referred to and known as the NBA; that even the Complaint that originated the proceedings filed before the LPDC is captioned Nigerian Bar Association v. Wome Moses; and that this is an Appeal, not a trial, and at appeal stage, Parties cannot be changed/altered, citing Obi V. Etiaba (2015) 6 NWLR (PT. 1455) 389. He further argued that assuming without conceding that the case of Fawehinmi v. NBA (No.2) (supra)is applicable in this case, as argued by the Respondent, it means that the Respondent were instructed by a non-legal person; that in essence the Respondent has admitted that his trial was a nullity; and that it also means that the entire proceedings at the LPDC leading to the Final Direction of the LPDC against him, were a nullity having been prosecuted by a non-legal person. And the Appellant urged this Court to so hold. Clearly, the Issue in this Appeal is whether the Respondent is a juristic person capable of suing and of being sued in its name, which is why Fawehinmi V. NBA (No.2) (supra), takes center stage in this Appeal, because the exact same Issue was determined by this Court in that case, which involved the Order made by the NBA to its Members to boycott Special Military Tribunals established by the Federal Military Government in 1984, to try public officers. In that case, Fawehinmi V. NBA (No.2) (supra), NBA filed an Application at the Lagos State High Court for an Order inter alia, striking out its name on the ground that it is not a juristic person, and so cannot be sued. The learned trial Judge, Johnson, CJ, held: It is my considered view, having taking account of the implication of the different legislations recognizing, imposing duties and granting privileges to the Association as a body, that it is meant to give the Association, even though unincorporated, a legal personality and I so hold. I, therefore, rule on that Issue that 1stDefendant [NBA] is a juristic person and properly sued by the Applicant as a Defendant in this Suit. The Court of Appeal, however, held to the contrary that the NBA is NOT a juristic person and so, it cannot be sued legally in its name. In agreeing with the Court of Appeal, this Court explained that – The Constitution of the NBA is not a statutory instrument- – It is a pure and simple private document, which members of NBA, were entitled to draw up in exercise of their right to provide a constitution for the Association to regulate its affairs. It was accorded its due superior position by the Legal Practitioners Act in the conduct of (its) affairs by the General Council of the Bar. This does not make the NBA a juristic person. It only gives the body recognition as a legal entity- – The fact that the legislature has in the legal Practitioners Act and the Legal Education (Consolidation etc.) Act given NBA representation on the Body of Benchers and Council of Legal Education is not an indication that the Legislature constituted the Association a suable entity. So. this Court made it clear in Fawehinmi V. NBA (No.2) that NBA, the Respondent in this Appeal, is not a juristic or artificial person. An artificial person is defined in Black’s Law Dictionary. 9th Ed., as: An entity, such as a corporation, created by law and given certain legal rights and duties of a human being, a being, real or imaginary, who for the purpose of legal reasoning is treated more or a less as a human being. In Fawehinmi V. NBA (No.2) (supra), Karibi-Whyte, JSC, observed: Chief Fawehinmi submitted – – that membership of the Association is regulated by statutes, Legal Practitioners Act and the Constitution of the NBA. The basis for this submission is because Article 4 of the Constitution of the Association provides that – “Every person duly enrolled by virtue of the Legal Practitioners Act shall be a member of the Association – -“. I do not think this Article can be construed as having any statutory effect or to have converted a non-statutory provision of the Constitution of the Association (the Constitution not being a creation of a statute), into a statutory pro vision. Membership of the Association on being a legal practitioner is automatic, but this is merely a pre-condition of Membership – – as provided by Article 4 of the [Association’s] Constitution, which is not a statutory provision. What regulates Membership of the Association is the provision of its Constitution and not the provision of the Legal Practitioners Act 1975. The fact that reference is made to Membership of the Association ina legislation did not alter the true legal situation. The Recognition accorded the Association and its Constitution did not give statutory effect to [its] Constitution or make the Association a Statutory Body. Our Constitution in Item 48 of the Second Schedule provides that incorporation of professional bodies can only be attained through a legislation of National Assembly. This has not been done in this case. The bottom line is that the Respondent cannot be sued in its name, which is what this Court held in Fawehinmi V. NBA (No.2) (supra), decided in April 1989, and it is safe to say that nothing has changed since then for this Court to hold otherwise today in February 2019. The decision still stands; the Respondent is not a juristic person. The Appellant argued that assuming without conceding that the case of Fawehinmi V. NBA (No.2) is applicable, it means that the Respondent admitted that his trial was a nullity and that the proceedings at the LPDC leading to its Final Decision is a nullity. From his argument, which is clearly misconceived, it seems that the Appellant did not consider the status of the NBA and LPDC in the eyes of the law, and the different rates assigned to each one. The NBA is not a juristic person but the same cannot be said for the LPDC, which was created by the Legal Practitioners Act. So, the LPDC is a legal person, which means it can sue and be sued in its name – seeLPDC V. Fawehinmi (1985)2 NWLR (Pt. 7) 300 SC. They also play different roles in the disciplinary proceedings on professional misconduct. Byvirtue of Rules 2A (2) and 3 of the Legal Practitioners (Disciplinary Committee) Rules, as amended, a complaint received by any of the persons specified in Rule 2A (1), shall be forwarded to the NBA, which shall cause the complaint to be investigated. In any case where “in pursuance of Section 10 (1) of the Legal Practitioners Act”, the NBA is of the opinion that a prima facie case is shown against a legal practitioner, the NBA shall forward a report of such a case to the Secretary of the LPDC. The said Section 10 (1) (b) of the Legal Practitioners Act provides: The Body of Benchers shall be responsible for – (b) The exercise of disciplinary jurisdiction over members of the legal profession and over students seeking to become legal practitioners. And Section 11(1) of the said Legal Practitioners Act provides that: There shall be a committee of the Body of Benchers to be known as the Legal Practitioners Disciplinary Committee (in this Act referred to as “the Disciplinary Committee”) which shall be charged with the duty of considering and determining any case where it is alleged that a person whose name is on the Roll has misbehaved in hiscapacity as a legal practitioner or should for any other reason be the subject of proceedings under this Act. So, the NBA plays its part, and the LPDC is left to decide the case. As this Court stated in Okike V .LPDC (2005)15 NWLR (Pt. 949) 471: It is not the Charge forwarded to the Respondent [the LPDC] that gives it jurisdiction to “try” a legal practitioner against whom a complaint is made, but Section 10(1) (b) of the Legal Practitioners Act. However, the Appellant has also argued that since the NBA was the Complainant at the LPDC, and this is an Appeal and not a trial, Parties to this Appeal cannot be changed or altered at this stage. I am baffled, and it appears to me that the import of the finding that the Respondent is not a juristic person, is lost on the Appellant. The Issue is not whether the Parties can be changed or not. The issue is whether the Appeal is competent bearing in mind that the NBA, who cannot be sued in its name, is the only Respondent, and the LPDC, who could be sued in its name, is not a Respondent. It is well settled that for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on the matter, there must be a competent Plaintiff and a competent Defendant, and where either of them is not a legal person, the action is liable to be struck out for being incompetent – see Agbonmagbe Bank V. General Manager, G. B. Ollivant Ltd. & Anor. (1961) All NLR 116. In this case, there is only one Appellant and one Respondent, who is a non-juristic person, and as it cannot be sued in its name, it must be struck out as a Party to this Appeal. It also follows as a matter of course that the Appeal itself must be struck out as well. The outcome would have been different if the LPDC was also made a Party to the Appeal along with the NBA or even on its own (the cases referred to above had LPDC as a Party to the Appeal). The position of the law is that once there is a Plaintiff or Defendant with requisite juristic capacity to sue and be sued, such an action would be properly constituted as to Parties, and the action cannot be defeated on the ground of want of capacity to sue and be sued – see Nigerian Nurses Assoc. & Anor V. A-G., Fed. (1981) 11 – 12 SC 1. In the final analysis, the Objection raised by the Respondent to the competency of the Appeal is sustained. The Respondent is struck out as a Party to the Appeal and the Appeal is struck out. WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: Ihave had the benefit of reading in draft, the lead judgment of my learned brother AUGIE, JSC just delivered. I agree with his reasoning and conclusion that the preliminary objection has merit and ought to be sustained. It should be noted that the Legal Practitioners Disciplinary Committee (LPDC) is not a party to the action leading to this appeal. The respondent is simply the Nigerian Bar Association (NBA), which by law is not a juristic person as it can neither sue nor be sued in a Court of law – see the case of Fawehinmi vs Nigerian Bar Association (NBA) (No 2) (1989) 2 NWLR (pt. 105) 558 at 595. It is for the above reasons and the more detailed reasons assigned in the lead judgment that I too find the appeal incompetent, as constituted and consequently strike same out. I abide by the consequential orders made in the lead judgment including the order as to costs. Preliminary objection sustained, appeal struck out. OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Augie, JSC just delivered. I agree entirely with the reasoning therein and the conclusion arrived thereat, that the objection raised by the respondent to the competency of the appeal is sustained. The respondent is struck out as a party to the appeal and the appeal is struck out. Appeal struck out. EJEMBI EKO, J.S.C.: The issue resolved in the judgment just delivered by my learned brother, AMINA ADAMU AUGIE, JSC, in this appeal is not about the juristic personality of the complainant at the Legal Practitioners Disciplinary Committee but only as to whether the Respondent, the Appellant has complained against in this appeal is a juristic persona. The judgment of my learned brother has resolved that issue to my satisfaction. Accordingly, I endorse the judgment and do hereby adopt it. In the course of preparing this opinion I came across the obiter dictum of Oputa, JSC in FAWEHINMI v. LPDC (1985) 2 NWLR (pt. 7) 300 @391, to wit: – Discipline in the Legal Profession is very necessary. There is an urgent need foran amendment of the Law (the Legal Practitioners Act) to provide for two ancillary but yet independent bodies namely: a. An Investigating Panel which will conduct one necessary investigation regarding allegations of misconduct against a Legal Practitioner. If this Panel is satisfied that there is a prima facie case made out, then it will prefer charges. But it will not “consider or determine” those charges. That function which is really adjudicative will then be left to second body: – b. The Legal Practitioners Disciplinary Tribunal. This Tribunal will then try the Legal Practitioner and if it finds him guilty, it will feel free to impose the appropriate penalty. To ensure the observance of the rules of natural justice, no one person will serve on both bodies. This will inspire confidence. That is the position in England; that was the position in Nigeria under the 1962 Legal Practitioners Act. I share this sentiment. I wish to add that if the Nigeria Bar Association (NBA) cannot be made a corporate entity either by legislation or under the Companies And Allied Matters Act (CAMA), then like the Legal Practitioners Disciplinary Committee (LPDC),the Legal Practitioners Investigating Panel (or Committee) should be clothed with juristic personality and clearly empowered as such to be also the prosecuting body on behalf of the NBA. In the event of an appeal against the direction of the LPDC, such arrangement obviates the confusion as to who the respondent is or should be. This is necessary in view of Order 2, Rule 8 of the Rules of this Court that provides 8. Notice of Appeal, Application for leave to appeal, Briefs and all other documents whatsoever prepared in pursuance of the appellate jurisdiction of the Court for filing in accordance with the provisions of these Rules, shall reflect the same titles as that which obtained at the Court of Trial. SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Amina Adamu Augie, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The objection raised by the Respondent is hereby sustained. Appeal struck-out.
Okey Owhonda, Esq. with him, Eric Chukwelu for Appellant(s)|Doyin Rhodes-Vivour, Esq. for Respondent(s)|