By Sylvester Udemezue
(1). BACKGROUND:
Following the earlier case of Fawehinmi v. NBA (No 2) (1989) 2 NWLR (pt. 105) 558 at 595, Nigeria’s Supreme Court recently held (in 2019) that the Nigerian Bar Association is not a Juristic person (a person in law). In the case, Moses v. NBA (2019) LPELR-46918(SC), Onnoghen JSC declared as follows:
“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.”
In support of Onnoghen, JSC (as he then was), His Lordship, Amina Augie JSC had this to say, in the same case:
“… 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.”
Based on these pronouncements, some Nigerian lawyers have argued that the Nigerian Bar Association is merely a juridical but not a juristic person. In my opinion, these learned friends are both correct and incorrect, wrong and right, at the same time. They are right only to the extent that it’s legally wrong, improper, to commence any action in court in the name of the “Nigerian Bar Association” without complying with the provisions of sections 825(1)(a) and 830(1)(c), of the Companies and Allied Matters Act (CAMA), 2020. However, and with the greatest respect, they’re wrong in making a blanket statement or declaration to the effect that the NBA as an organization, is not a legal person duly registered and having legal capacity to sue or be sued in court. The only caveat is that, by virtue of the fact that NBA is deemed to have been registered under Part F of CAMA, 2020, whenever NBA decides to institute any action in court, the NBA must comply fully with the mandatory requirements of Part F of CAMA.
Section 823(1) CAMA, 2020 provides, “Where two or more trustees are appointed by any community of persons bound together by custom, religion, kingship or nationality or by anybody or association of persons established for any religious, educational literary, scientific, social, development, cultural, sporting or charitable purpose, they may, if so authorized by the community, body or association (hereinafter in this Decree referred to as “the association”) apply to the Commission in the manner provided for registration under this Decree as a corporate body.” Section 825(1)(a) CAMA, 2020, provides that any such organization seeking to register (by extension, registered or deemed to be registered) under PART C of CAMA must state its name to begin with the words, “Incorporated Trustees of ……’” By virtue of of section 823 (2) CAMA 2020, upon the trustees of such an organization being so registered with/by the Corporate Affairs Commission (CAC), the trustees shall become a corporate body in accordance with the provisions of section 830. Section 830(1), CAMA, 2020 provides as follows:
“From the date of registration, the trustees shall become a body corporate by the name described in the certificate, and shall have – (a) perpetual succession; (b) a common seal if they so wish; (c) power to sue and be sued in its corporate name as such trustees; and (d) subject to section 836 of this Part, power to hold and acquire, and transfer, assign or dispose of any property, or interests therein belonging to, or held for the benefit of such association, in such manner and subject to such restrictions and provisions as the trustees might without incorporation, hold or acquire, transfer, assign or otherwise dispose of the same for the purposes of such community, body or association of persons”.
(2). REGISTRATION OF TRUSTEES OF THE NBA UNDER PART F OF CAMA, 2020?
It should be recalled that the NBA was duly registered through its trustees, as “Registered Trustees of NBA” under the Land (Perpetual Succession) Ordinance 1924, contained in CAP 98, Laws of the Federation and Lagos 1958. By virtue of this registration which occurred on April 08, 1983, the “Registered Trustees of NBA” became a juristic personality, a legal person with full powers. Note that CAP 98, LFN 1958 (ie, Land (Perpetual Succession) Ordinance 1924) later got incorporated into the CAMA, and thus became known as Part C of the CAMA, 1990 1990 CAP 59, LFN, 1990, (which was later known as “CAP C20, VOL III, Laws of the Federation 2004”; it is now “Part F of CAMA, 2020” ).
- VALIDATION OF PREVIOUS REGISTRATIONS, BY CAMA 1990 AND CAMA 2020
Section 612 of CAP C20, CAMA, 2004, provides that “All trustees duly registered as bodies corporate under the Land (Perpetual Succession) Act shall, as from the date of coming into operation of this Act, be deemed to be registered under and in accordance with this Part of this Act and the provisions of this Part of this Act shall apply in respect of such trustees accordingly”. On its part, section 869(1) and (2) of CAMA, 2020 provides:
“Subject to the provisions of this section, the Companies and Allied Matters Act, 1990, the Companies and Allied Matters (Amendment) Act 1990, the Companies and Allied Matters (Amendment) Act, 1991, the Companies and Allied Matters (Amendment) Act, 1992 and the Companies and Allied Matters (Amendment) Act, 1998 are, on the commencement of this Act, are repealed. (2) Nothing in this Act shall affect any order, rule, regulation, appointment, conveyance, mortgage, deed or agreement, made, resolution passed, direction given, proceeding taken, instrument issued or thing done under the enactment hereby repealed; but any such order, rule, regulation, appointment, conveyance, mortgage, deed, agreement, resolution, direction, proceeding, instrument or thing if in force immediately before the commencement of this Act shall, on the commencement of this Act, continue in force, and so far as it could have been made, passed, given, taken, issued or done under this Act shall have effect as if so made, passed, given, taken, issued or done”.
Thus the NBA is deemed to be duly registered under Part F, CAMA, 2020. Besides, it’s a strict requirements the law (see section 825(1)(a) and 830(1)(c), CAMA, 2020) that if you want to register any organization under Part F of CAMA 2020, you must do so by the Trustees of such organization, which registration shall thereafter confer legal personality on the trustees who shall then become the BODY legally authorized to exercise all the powers of the organization, including the power to hold property and the power to sue and be sued. Hence, any suit by or on behalf of the organization must then be commenced in the name of the registered trustees of the organization. This is why actions by, on behalf or, or against, the NBA must be commenced in the name, “Incorporated Trustees of the Nigerian Bar Association”.Compliance with section section 825(1)(a) and 830(1)(c), CAMA 2020 is mandatory.
This being the case, I respectfully submit that it was the neglect, omission or failure by the Plaintiff/Applicant/Appellant (in each of FAWEHINMI V. NBA and MOSES V. NBA) to adhere to this compulsory requirement of the law that had led to the declaration by the Courts in each of those cases, that “NBA is not a juristic person”. Since, as shown above, it is the “Incorporated Trustees of the NBA” that was registered and upon such registration, became a body corporate with perpetual succession and a common seal, capable of suing or being sued in its corporate name, and capable of holding land or disposing of land and other priorities in its own name, in line with section 830(1) CAMA, the LAW remains that any case against or by the “Nigerian Bar Association” simplicita is incompetent and liable to be struck out on grounds of mis-joinder while a suit commenced in the name “Incorporated Trustees of the Nigerian Bar Association” is competent, being in line with extant law.
In view of the aforesaid, it is respectfully submitted with due respect, that the observation made by His Lordship, Ejembi Eko, JSC, in the latter case (Moses v. NBA, to the effect 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,” was made in error, albeit because information about NBA’s deemed registration with CAC (under CAMA) was not brought to the court’s attention in that case and the court processes corrected for NBA’s segment to read “Incorporated Trustees of Nigerian Bar Association” instead of just “Nigerian Bar Association”.
However, I find it hard to agree with the suggestion in some quarters that the judgement (in both Fawehinmi’s case and Moses’ case) would have been different if the attention of their lordships had been brought to the correct information regarding the registration status of the NBA. I have already submitted that, although the NBA is deemed to possess legal capacity to sue or be sued, such power is exercisable only through or by its Trustees. It is further submitted that the true construction of the combined effect of sections 823, 825 and 830 of CAMA 2020, is that all suits by or against the NBA must be commenced in the name, “Incorporated Trustees of the Nigerian Bar Association” failing which any such suits would be liable to be struck out for being in gross violation of extant law and a flagrant abuse of the process of court. Hence, the decision would have been the same even if the fact of NBA’s earlier registration was brought to the attention of the court in those cases, because the suit as constituted failed to comply with the requirements of law, as explained above. However, an amendment of the court processes may have cured the defect which was procedural since NBA was still is, in reality a legal person having been registered through its trustees.
In conclusion, it is my opinion that NBA is a legal/juristic person capable of suing and being sued in its own name, save that such right/power, in order to be deemed to be validly exercised according to law, must be exercised by/through or against the “Incorporated Trustees of the NBA” .
Thank you.
Respectfully,
Sylvester Udemezue (udems)
NBA Member
08109024556.
(07 October 2022)
