Senior Advocate of Nigeria, and Human Right Crusader, Ebun Olu-Adegboruwa SAN has berated the Leadership and the Elders of the Nigerian Bar Association, NBA, for their fatal error of judgement in ratifying the suspension of the General Secretary of the Association, Joyce Oduah, while there is a pending court case against the purported suspension by the other EXCO members of the Association.

In a statement yesterday, Adegboruwa SAN warned that the NBA should not get to the Level of provoking the Bench.

He described the NBA action as “Sad Commentary stating that he was not surprised that the Federal High Court declared the action null and void.

SEE THE FULL COMMENT:

This was easily predictable. It is shocking that the “Elders of the Bar” could not extricate themselves from this fatal error of judgment.

We shouldn’t get to the level of provoking the Bench against us. NBA lost the battle for sanity, rule of law and due process on behalf of all lawyers and it is a sad commentary, given what the NBA President himself had represented in times past, at the NJC meetings, BOB meetings, etc.

This calls to question the quality of representation at the NBA NEC. I have admired the administration of Mr Olumide Akpata but when we fail to look at wrong in it’s ugly face, we end up the way it has ended at the Federal High Court today.

It was an unnecessary battle for the NBA, as to all intents and purposes, it has taken the shine off the on-going Conference.

What message are we preaching to other Nigerians with all the topics that we have beautifully outlined for the Conference if it was so difficult to observe common rule of law and due process, by the only Association of lawyers put together? The NBA failed the test. Charity should always begin at home.

In respect of the current crisis within the NBA (JOYCE ODUAH V. REGISTERED TRUSTEES OF THE NBA), the view has been expressed in some quarters, that *fair hearing is not necessary for purposes of suspension but for removal. Those who hold this view argue that the issue of fair hearing does not arise in SUSPENSION cases, but only in cases of outright REMOVAL.

I respectfully disagree. In my humble opinion, whether you want to suspend or to remove,  based on allegations of misconduct, even where you have express powers to REMOVE and you elect to SUSPEND, you still have an obligation to comply with the requirements of fair hearing. Look at these:

1. Fair hearing has two arms — (1) The Audi Altarem Partem (Hear the other side) and (2) The Nemo Judex In Causa Sua (You can’t be a judge in your own case).

In respect of Audi Altarem Partem, IBINGO INYO EVANS wrote in a paper titled, _” RIGHT TO FAIR HEARING IN NIGERIA UNDER THE IMPERATIVES OF COVID-19 CONTROL” as follows:

“As a matter of fact, this right has a primordial origin, traceable to the days when mankind was under the direct rulership of God Almighty. That society later adopted it and hallows it for all times, is a testimony not only of its social essence as an invaluable contribution, but also an inherent part of the human being. It is for that reason the principle is anchored on its earliest precedent which was adopted by the English Court in the 18th century thus – “Even God himself did not pass sentence upon Adam before he was called upon to make his defence.” See Liversidge v Anderson (1942) AC 206; Shugaba v Minister of Internal Affairs (1981) 1 NCLR 125; A. G. Bendel State v Aideyan (1989) 4 NWLR, Pt. 118, 646; Okogie v A. G, Lagos State (1981) 1 NCLR 218; Agbakoba v. Director of SSS (1999) 3 NWLR, Pt. 595, 314; Ubani v Director of SSS (1999 11 NWLR, Pt. 625, 129.”

Regarding Nemo Judex In Causa Sua, the same author wrote:

“Its practical test is that every person who is assigned a ‘judicial’ duty to perform stands disqualified if he has a bias which renders him otherwise than a dispassionate Judge if he has so conducted himself concerning the matters to be inquired into as to lead a reasonable man to suspect that he may have such a bias. In essence, then it is not necessary that the bias be apparent, as mere likelihood of interest in the cause is enough blemish to rob the person of the moral quality to be upright in his determination of the dispute throughout the proceedings in the eyes of neutral observers….Sanity in society and the permanency of orderliness associated with the predominant obedience to law are the visible products of unflinching confidence in the rule of law. See: R Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974) p 34; Military Governor Lagos State v Ojukwu (1986) All NLR 233; J Rawls, Legal Obligation and the Duty of Fair Play (Cambridge: Harvard University Press, 2001) p 119.

Now, on 14 August 2022, nine Members of the NBA-NECommittee submitted a WRITTEN COMPLAINT against the NBA-GS. Then, on 15 August 2022, without sending the Petition/complaint to the NBA-GS with an opportunity to react within a given time, the same nine Members of the NBA-NECommittee sat as judges and suspended NBA-GS.

The same Members of the NBA-NECommittee presided over a Meeting of NBA-NECouncil whereat the same NBA-GS was again suspended. There is no evidence that NBA-NECouncil’ had given the NBA-GS an opportunity of being heard before suspending the NBA-GS on 21 August 2022.

Are we saying that neither of these two rules was violated in the all these scenarios? Was it in line with natural justice, that the Petitioners/Accusers/Complainants were the ones who sat to suspend the NBA-GS?

Are we saying that the NBA-GS was not entitled to be given an opportunity of making a representation before she would be suspended, whether by the NBA-NECommittee (purporting to act pursuant to section 9(6)(d) of the NBA Constitution, 2015 or by the NBA-NECouncil acting pursuant to section 20(1) NBA Constitution, 2015?

Please see my article titled, “Joyce Odua’s Case: Members Of The NBA National Executive Committee Are The Accusers, Prosecutors, Trial Judges, Appellants And Then Presiding Justices Of The Appellate Court”(23 August 2022: TheNigeriaLawyer)

• Are we aware that Bayo Akinlade (as then Chairman of NBA, Ikorodu Branch) was suspended by the NBA-NECouncil in 2019, under the Paul Usoro leadership. Do you recall that the suspension of Bayo Akinlade was later quashed by a court of law on grounds ONLY  that Bayo Akinlade was not granted a fair hearing before he was suspended?  In other words, if he had been given a fair hearing, (an opportunity to make a defence), the court would not have tampered with the suspension. See “Lagos High Court Nullifies Suspension Of Ikorodu NBA Branch Chair, Bayo Akinlade, By NBA NEC”  (January 09, 2020: OfCounselNigeria). In the judgment delivered by Hon. Justice S.B.A. Candide- Johnson on 24 December 2019, the Court held that the suspension of Bayo Akinlade by NBA-NECouncil contravened Bayo Akinlade’s right to fair hearing because Bayo Akinlade was not afforded an opportunity to defend himself before a decision was taken to suspend him. Having concluded that Bayo Akinlade (the Claimant) was denied fair hearing before his SUSPENSION by the NBA-NECouncil, the Court then granted the following reliefs in favour of Bayo Akinlade, against NBA and NBA-NECouncil:

“On all of the foregoing, I am satisfied that the Fundamental Rights of the Claimant for a Fair Hearing was violated by the 1st Defendant and the Claimant is entitled to judicial reliefs from this Court as follows:

(1).A DECLARATION that the purported suspension of the Claimant as the Chairman of the Ikorodu Branch of the Nigerian Bar Association on March 28, 2019 by the NEC of the Nigerian Bar Association is illegal, null and void; (

2). A DECLARATION that the purported suspension of the Claimant as the Chairman of the Ikorodu Branch of the Nigerian Bar Association on March 28, 2019 by the NEC of the Nigerian Bar Association is illegal, null and void as it violates Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Article 7 of the African Charter on Human and People’s Right Act; (3). A DECLARATION that the purported suspension of the Claimant as member of NEC of NBA is illegal, null and void as it violates Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Article 7 of the African Charter on Human and People’s Right Act; (4). A DECLARATION that the appointment of the 2^nd Defendant as the Acting Chairman of the Ikorodu Branch of the Nigerian Bar Association by the 1st Defendant is illegal, null and void…”._ (See: SUIT NO: ID/6127GCM/2019: BAYO AKINLADE V. REGISTERED TRUSTEES OF THE NBA).

Bayo Akinlade’s scenario was even better than JOYCE ODUAH’s. In the Bayo Akinlade scenario, Bayo Akinlade was actually asked to respond (however the response was not given to NEC members before Bayo Akinlade was suspended), unlike in the Joyce Oduah case where Joyce Oduah was not given any opportunity to send a response to the written complainant made against her by nine Members of the NBA-NECommittee. See what happened in the Bayo Akinlade scenario, as the court found in the judgement referred to above:

“Paragraph 9 appears to admit that the Claimant’s letter of defence dated 19/3/2019 came too late to be circulated to the members of the NEC thereby admitting an absence of fair hearing whilst paragraph 10 is contradictory in yet still contending that “Claimant was given adequate opportunity to defend himself at the meeting”. How exactly would Claimant have defended himself when his letter of defence dated 19/3/2019 was not even circulated and therefore not read or available?…I, therefore, hold that the fundamental withholding and/or failure to produce the minutes of the NBA NEC minutes of 23/3/2019 held in Abuja which could have been produced but was not produced would if produced be unfavorable to the 1st Defendant who has withheld the document”

Please, you can DOWNLOAD and read a copy JUDGMENT of Lagos High Court in Suit Number: ID/6127GCM/2019  nullifying the suspension Bayo Akinlade as Ikorodu NBA Branch Chairman. on the following link of TheNigeriaLawyer of 9 January 2020 (<https://thenigerialawyer.com/download-judgment-lagos-high-courthttps://thenigerialawyer.com/download-judgment-lagos-high-court-nullifies-suspension-of-ikorodu-nba-branch-chair-bayo-akinlade-by-nba-nec/-nullifies-suspension-of-ikorodu-nba-branch-chair-bayo-akinlade-by-nba-nec/> ).

The decision in the Bayo Akinlade scenario has not been appealed against. So, it remains the extant law within the NBA: neither the NBA-NECommittee nor the NBA-NECouncil may exercise its power to suspend or remove without first complying with the fair hearing requirements of the constitution of the Federal Republic of Nigeria as entrenched in section 36 thereof, as well as in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, LFN, 2004, and the United Nations Declaration on Human Rights.

• Then, see Section 333(2),(3),&(4)of Companies and Allied Matters Act (CAMA),  2020 with respect to the position of law on procedure for REMOVAL or SUSPENSION of  a Secretary in public corporate governance. NBA is a public corporate organisation that ought to be in the forefront of promoting corporate governance and rule of law. In no aspect of public corporate governance is it permissible to purport to SUSPEND the secretary on grounds of misconduct without affording the affected secretary an opportunity to respond to the allegations against him/her. Section 333(2),(3),&(4) of CAMA 2020 provides:

“Where it is intended to remove the secretary of a public company, the board of directors shall give him notice‐ (a) stating that it is intended to remove him; (b) setting out the grounds on which it is intended to remove him; (c) giving him a period not less than seven working days within which to make his defence; and  (d) giving him an option to resign his office within a period of seven working days. (3) Where, following the notice prescribed in subsection (2) of this section, the secretary does not within the given period resign his office or make a defence, the board may remove him from office and shall make a report to the next general meeting; but where the secretary, without resigning his office, makes a defence and the board does not consider it sufficient, if the ground‐ (a) on which it is intended to remove him is that of fraud or serious misconduct, the board may remove him from office and shall report to the next general meeting; and  (b) is other than of fraud or serious misconduct, the board shall not remove him without the approval of the general meeting, but may suspend him and shall report to the next general meeting. (4) Notwithstanding any rule of law, where a secretary suspended under paragraph (b) of subsection (3) of this section is removed with the approval of the general meeting, the removal may take effect from such time as the general meeting may determine”.

 A close look at Section 333 of CAMA reveals that even in cases of SUSPENSION of a public company secretary, based on grounds other than misconduct, the Board of Directors (Board) must follow the same procedure–  (1) Give the affected Secretary a 7-day Notice, and also inviting the secretary to make a response in writing. Thus, the Board must not take any steps in respect of the Secretary (whether to suspend or to remove) until after seven days unless the secretary has made a response (whichever is shorter). Fair hearing is therefore a mandatory requirement for suspension or removal of the Secretary of any public corporate organization such as the NBA is. Meanwhile, section 3(11) of the NBA Constitution requires the NBA to promote Rule of Law and Human Rights.

• Even in the Civil Service or Public Service, planned suspension of an employee must follow due process of law, especially where the planned suspension is based on allegations of a specifically alleged misconduct against the affected employee. In such a case, that employer must communicate the allegations to the employee, and the employee must be given fair hearing. Usually, such an opportunity comes in form of a Query and an opportunity to reply to it. Further, where SUSPENSION is provided for in the Contract of Employment,  the planned Suspension must comply with the Contract of Employment. See ELECTRICITY CORPORATION OF NIGERIA V GEORGE NICOL (1968) LCN/1594(SC) ; Bird v. BCL  (1945). Where power to suspend is provided for in a Statute, Suspension against such statutory provision is wrongful. This is in addition to compliance with natural justice. See also Hanley v Pease & Partners (1915);  Olifimiham v Nova Lay-Tech (1998). See finally Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40.

• The requirement of compliance with natural justice is also provided for in section 36 of the Constitution of the Federal Republic of Nigeria, 1999. Thus, according to section 36(1), in the determination of his [example, NBA-GS’]  civil rights and obligations, including any question or determination by or against any government or authority [the NBA-NECommittee and NBA-NECouncil are examples of such authorities], a person [such as the NBA-GS]  shall be entitled to a fair hearing within a reasonable time. Even where a law or other statutory instrument [such as the NBA Constitution], confers on any authority [such as the NBA-NECommittee or NBA-NECouncil]  power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person [such as the NBA-GS], an authority (example: NBA-NECommittee or NBA-NECouncil) must comply with all relevant statutory provisions for an opportunity for the [such] persons whose rights and obligations may be affected to make representations to the
• authority before that authority makes the decision affecting that person. See section 36(2) CFRN, 1999. See also BAYO AKINLADE V REGISTERED TRUSTEES OF THE NBA (2019) (supra).

Respectfully,

 Sylvester Udemezue (Udems)

08109024556.

[email protected].

“There is a great difference between mob activism rooted in egotistical self-help and undiluted obedience to rule of law. Where the rule of law reigns supreme rule of force and majoritarian tyranny has no room for survival. We speak law in practice and not a theory of law.” – Jibrin Okutepa, SAN

On the 23rd day of August 2022, the Federal High Court sitting in Abuja faulted the ratification of the suspension of Mrs. Joyce Oduah as the GS of NBA by NBA NECouncil during the pendency of an action challenging the lawfulness and or legality of her suspension by NBA NEC.

 It described the action of the NBA NECouncil in the ratification of her suspension as GS during the pendency of her action in court as a breach of the rule of law and subsequently set aside the said ratification which was done to resuscitate the suspension and to give it further life for further action that may lawfully be taken thereafter.

After that decision, many NBA Bar politicians cum those who are legal practitioners came out to say that Mrs. Joyce Oduah was still on suspension. The National Publicity Secretary of NBA in his reaction widely circulated informed the public rightly that what the FHC did was to set aside the ratification of the suspension done during the pendency of litigation, but proceeded with due respect to ingeniously misinform the general public and some Bar politicians that Joyce Oduah is still on suspension.  Like in my previous intentions let me say that I will not support misconduct on the part of Joyce Oduah. If she deserves to be punished she must be punished in accordance with due process and as allowed by law. I may not like Joyce Oduah. Members of NBA NEC may no longer want to sit on the same table with her during their remaining tenure which lapses in a few days time, but can the NBA NEC still insists and indeed any lawyer properly admitted to practice law in Nigeria still say that Mrs. Joyce Oduah is still on suspension given the unambiguous language used in the terms of her purported suspension as seen in their own resolution.

The answers to this poser can only be found in the language used to suspend her. This is what NBA NEC said in their resolution No 5 which purported to suspend the GS Mrs. Joyce Oduah pending a fixed date: It reads:

“5. 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”.

The suspension of GS Joyce Oduah was pending the pre-conference meeting of the NBA -NEC scheduled to hold on the 21st of August 2022. That meeting ie pref-conference NBA-NEC was held on the fixed date, that is 21st August 2022, in which NBA NECouncil purported to have ratified the suspension which was pending a named event and date. The decision taken at that occasion has been set aside by a judicial decision within the legitimate disciplinary jurisdiction of the Federal High Court.

 Any lawyer duly called to the Bar does not need further ingenious beclouded vision to understand resolution No 5 quoted above. How did the NBA National Publicity Secretary and other lawyers who have issues with the style of leadership of GS Joyce Oduah or who may have personal grudges against her, come to their jaundiced conclusions that Joyce Oduah is still on suspension?

As one of my learned friends put it on the Legal Discourse platform “It appears to me that members of this EXCO are intent on deliberately misapprehending the law. This ought to be a time for deep introspection on their part, and not a time for obfuscation, entrenching ambiguity in clear situations, and flinging red herrings about. Their own resolution, which they penned by themselves, tenured their purported suspension to efflux on Sunday. The suspension order did not say “pending when NEC ratifies it”. It pinned the suspension to ratification on Sunday by NEC. That ratification indeed took place, albeit illegally, much to the chagrin of the court which has now restored its majesty over the situation. How then can the National Publicity Secretary, one who ought to be acutely contrite and penitent at this stage, say that the suspension still stands as the court did not nullify it??? If this is the case, why was NEC prompted, both in the resolution and at the meeting to ratify it?? Is an insistence that she is still suspended not tantamount to adding, varying, and subtracting from the judgement, against the express provision of section 128 of the Evidence Act? Let us not even talk about the Rules of Professional Conduct which have been pulverised to smithereens by this disgraceful matter. His position, if properly reported, turns against the express wording of his own resolution which he himself signed. Is that then not a lie? For the life of me, I cannot see what is so special about this General Secretary situation that certain members of the Bar have chosen it as an altar upon which they would like to be so sacrificed. While they can choose this option for themselves, should they be allowed to demarket, demystify and reduce the estimation of Nigeria’s professional body of lawyers on top of Joyce Oduah? Do they have that mandate?? The proverbial physician is still refusing to heal itself”.

I cannot improve more on what this learned mind said. Another learned friend again on the same forum posited on this matter and I quote him thus:

“Please, do people cease to be lawyers immediately they become NBA excos? Because I really do not understand what this Publicity Secretary is doing with this misinformation. Are we sure these our excos are not planning another show of shame with this hint provided by their Publicity Secretary? I think the embarrassment should be enough by now. Do you really need another court order to tell you that you have failed, when you suspended someone “pending” the doing of a thing/the happening of an event”, which said condition subsequent eventually failed/was nullified by the court”. ” By this our learned friend’s misinterpretation, imagine the court grants an exparte injunction pending the hearing of a motion on notice; then the motion on notice was heard and granted, then you appeal the Ruling on the Motion on Notice to the Court of Appeal and the COA sets aside the Ruling on the Motion on Notice. Will it still lie in anyone’s mouth to argue that what was set aside is the Ruling on the Motion on Notice, that the ex parte order still subsists?  This learned friend of ours will confidently and erroneously argue that since the COA did not set aside the ex parte order, that the respondent  is still bound by the exparte order.”

” I will humbly advice all our excos, intending excos, and NBA politicians to take their practice of the law an inch as seriously as they are taking NBA politics. If they do/are doing so, we would have been spared of some of these unpardonable blunders”.

Honestly, this Joyce Oduah saga is a serious lesson to us as lawyers.  As I keep saying NBA is a professional Association.  No lawyer was called to NBA. Let us not introduce the attitudes of conventional politicians into NBA politics where we fight dirty even when there is no need. As lawyers, we are learned friends.  We are not learned enemies. The hallmark of and the nobility of this profession is the ability to throw in the towel when the law is against you.

No lawyer was trained to insist on what he or she wants even when the law says he or she cannot have what he or she wants. In this case let us take this Joyce Oduah case as a case study of how, as lawyers, we must be patient to fight a cause we reasonably believe in within the ambit of the rule of law and couch our intentions in precise terms of what we desired to achieve. If the desire of the Olumide Akpata-led NBA NEC was that it did not want to see Joyce Oduah near the conference venue to function as GS, it woefully failed to communicate so in resolution 5 supra.

In my humbly but firm view, the pending case has nothing to do with the question of whether Joyce Oduah is still on suspension. No, it has not.  It only has to do with the question of whether members of  NBA NEC who purported to have suspended her from the office she was elected by those who loved her, pending pre-Conference NEC of NBA which held on 21st August 2022 had the constitutional right to do so.

That question is still a live constitutional question for the benefit of NBA and NBA Bar politicians.  But certainly not about whether Joyce Oduah is still on suspension as GS. The suspension whether rightly or wrongly has lapsed by effluxion of time. The only decision that gave life and oxygen to the suspension was set aside by the decision of FHC on 23rd August 2022. The suspension no longer has life support. It no longer has life. It does not exist and it cannot exist as of now. It will be an abuse of language to say Joyce Oduah is still on suspension after the decision of Hon Justice A R Mohammed of the Federal High Court rendered on the 23rd of August 2022. This is my firm but the honest view and it will pay NBA and the image of the legal profession better to avoid any rowdy and thuggish actions in the remaining period of the conference that could further damage the already battered and damaged image of the legal profession in Nigeria.

A Comment by Sylvester Udemezue

Gentlemen, I have got a copy of the originating processes from TheNigeriaLawyer. I can confirm that the Registered Trustee of the NBA is sued as the first Defendant in suit number:

FHC/ABJ/CS/1426/2022, challenging the 15 August 2022 suspension of Joyce Oduah as the NBA General Secretary (NBA GS). Temitope Onabanjo wrote on DNLLEGALANDSTYLE, and I agree, as follows:  ‘The meaning of lis pendens is – ‘a pending legal action’, wherein Lis means the ‘suit’ and Pendens means ‘continuing or pending’. The doctrine has been derived from the Latin maxim “Ut pendent nihil innovetur” which means that during litigation nothing should be changed.’

Gbenga Ojo wrote, “Lis pendens denotes those principles and rules of law which define and limit the operation of the common law maxim, to the effect that nothing relating to the subject matter of a suit can be changed while the suit is pending”. See: ”Defining the Scope and Limit of the Doctrine of Lis Pendens: Need for a Restatement of Principles” by Gbenga Ojo (públished in The Gravitas Review of Business & Property Law, Vol.6 No.3 (Sept 2015)  Pages: 11.

The implication of the aforesaid, in the instant case, is that no arm, organ, or section of the NBA is entitled to take any further steps in respect of the suit unless and until the final determination thereof. Accordingly, the following are barred from taking any further steps in respect of the subject matter: NBA-AGM, NBA-NECouncil, NBA-NECommittee, NBA-SBL, NBA-SLP, NBA-SPIDEL, NBA President, etc. In respect of any further steps taken by any of these while this case is pending, a disciplinary injunction may lie to quash it.

However, this is not the end of the discussion. A second question raised is what would amount to “further steps” especially in the following instance.  MRS Joyce Oduah was suspended by the NBA-NECommittee on 15 August 2022. She filed an action on 16 August 2022, challenging the suspension. The implication of Mrs. Oduah’s action is that she had acknowledged that she had already been suspended although she says illegally because she doesn’t agree that the NBA-NECommittee has powers to do what it did. On 21 August 2022, the NBA-NECouncil (an organ of the NBA) “ratified” the suspension, saying it wouldn’t talk about “removal” since the matter was in court. With due respect to NBA-NECouncil, the subject matter of the suit is SUSPENSION and not REMOVAL. By taking steps on suspension, you’ve taken steps on the subject matter. LoL. Recall that Section 3(11) of the NBA Constitution says one of the NBA’s major objectives is to promote the Rule of Law and human rights.

So, NBA-NECouncil obviously took steps in respect of the subject of the pending suit. However, another question is, can the NBA-NECouncil be said to have taken a “further step”_ which has altered the status quo while a case is pending?

1. Some say no because even Joyce Oduah had admitted she had been suspended albeit illegally. So, all the NBA-NECouncil did on 21 August 2022 was to say let the status quo (the suspension of Joyce Oduah) remain in place pending the determination of the case in court. They ask: How does this amount to any further steps? How does this alter the status quo?

•  On the other hand, some others would argue that the NBA-NECouncil has on 21 August 2022  actually taken a further step and has thereby altered the status quo when the NBA-NECouncil (an organ of the NBA, and as such a party to the pending suit) took a decision to suspend or (as they called it) to ratify the PURPORTED suspension of Joyce Oduah, the claimant in the case already pending in court. How does the action of NBA-NECouncil amount to a further step? The proponents of this argument would answer this way: ▪️NBA-NECommittee “suspended” Joyce Oduah on 15 August 2022 saying it acted in pursuance of section 9(6)(d) of the NBA Constitution ▪ Joyce Oduah went to court on 16 August 2022, to challenge the “suspension”. One of her major grounds for questioning the suspension is that NBA-NECommittee does not have the powers to suspend her, and that even if they do, that the suspension violated all rules of due process. Accordingly, the actual status quo is before 21 August 2022 was “suspension by the NBA-NECOMMITTEE  in pursuance of *section 9(6)(d) of the NBA Constitution” and not suspension by the NBA-NECouncil, púrsuant to section 20(1), which is an entirely different thing and only happened on 21 August 2022.

The best way to agree that the two are entirely different is, assuming the initial suspension on 15 August 2022 was done by the NBA-NECouncil, do you think Joyce Oduah would have gone to court to challenge the powers of the NBA-NECouncil to suspend her, bearing in mind the provisions of section 20(1) of the NBA Constitution, 2015 which expressly confers on NBA-NECouncil powers to remove any National officer from office. If the NBA-NECouncil has powers to remove, powers to suspend is implied. Thus, by taking a decision to ratify the NBA-NECommittee-suspension of Joyce Oduah, the NBA-NECouncil has altered the original status quo which was suspension by NBA-NECommittee.

Another, easier way to agree that the status quo was actually altered on 21 August 2022 is to ask whether suspension by NBA-NECommittee is exactly coterminous with suspension by NBA-NECouncil. Note NBA-NECommittee had acted pursuant to section 9(6)(d) of the NBA Constitution while NBA-NECouncil acted in pursuance of its powers under section 20(1). Further, does suspension by the NBA-NECommittee have the same legal effects as a suspension by the NBA-NECouncil? The answer to the last question is no. While the decision taken by NBA-NECommittee to suspend Joyce Oduah can’t stand unless ratified by the next NBA-NECouncil meeting, on the other hand, a decision by the NBA-NECouncil to suspend Joyce Oduah automatically becomes effective without the need for any further action by anyone. Hence, it could be argued that NBA-NECouncil’s purporting to “ratify” the suspension done by NBA-NECommittee actually amounts to NBA-NECouncil taking a decision to suspend Joyce Oduah. This appears to be an entirely different step from the suspension done by the NBA-NECommittee.

 Another issue that arises is, could NBA-NECOUNCIL, a party to the pending suit, validly and legally proceed to take any action on the subject matter of the pending suit? I believe no one will validly argue that an action against the NBA is not an action NBA-NECouncil. That would be a bizarre argument to advance.  So, there is no doubt that NBA-NECouncil is a party to the pending suit.

The next question to ask is, has the decision of the NBA-NECouncil on 21 August 2022 not foisted a situation of hopelessness and helplessness on the Court before whom the case is pending? Has the 21 August 2022 decision of the NBA-NECouncil not overreached the pending suit on the subject?

What the NBA-NECouncil did on 21 August 2022 could be interpreted thus: it’s possible the NBA-NECouncil is perhaps saying,  “Look, guys, since she went to court to argue that NBA-NECommittee does not have powers to suspend her, let’s frustrate her by suspending her since at least, we have the power; in this way, she would not have any reasons to wriggle out, since our own powers to remove/suspend is expressly set out in the NBA constitution. Yes, alleluia alleluia, eureka, even if the FHC declares suspension by NBA-NECommittee illegal on grounds that NBA-NECommittee lacks such powers, she would still remain suspended based on our own suspension which is expressly set out in the NBA Constitution. We have won!!!   It could therefore be said that what the NBA-NECOUNCIL, a party to the pending suit, did on 21 August 2022 was to frustrate the court and the litigant by rendering nugatory, of no use, whatever order the FHC decides to make in the case in respect of the suspension by the NBA-NECommittee.

Some may be forced at this juncture to ask: if this is not a violation of lis pendens, what else is? If this is not a gross violation of the principle set out in Military Governor of Lagos State v. Odumegwu-Ojukwu, what else is? If this action by the NBA-NECouncil, a party to the pending suit, to frustrate a court of law, is not contempt of court, what else is? If this is not self-help through the back door, what’s it? The Court of Appeal in Akiboye v. Adeko (2011) 6 NWLR (part 1244) 415, said that the doctrine of lis pendens has evolved for the purpose of preventing one party from fraudulently seeking to overreach the decision of the court. However, for the doctrine to apply, the following mandatory conditions must be fulfilled:

(I). That at the time of taking the action complained of, the suit regarding the dispute/subject was already pending. The doctrine of Lis pendens will apply only if the action was taken after the matter was already brought before the Court.

(II). That the other party had been served with the originating processes in the pending action, and

(III). That the action complained of relates to the subject of the dispute and is capable of overreaching the decision of the court in the suit.

Gentlemen, it may be further reasonably argued that the NBA-NECouncil has (by its decision of 21 August 2022) frustrated both the Claimant in suit number FHC/ABJ/CS/1426/2022 (JOYCE ODUAH V. REGISTERED TRUSTEES OF THE NBA) and the Court.  Considering the actions of the NBA-NECouncil on 21 August 2022, which in effect means (freshly) suspending Joyce Oduah (ie, means NBA-NECouncil has suspended Joyce Oduah pursuant to section 20(1) NBA Constitution), any decision of the FHC on the suspension done by NBA-NECommittee will not be of any use to Joyce Oduah since the later suspension by NBA-NECouncil will still be in place. Thus, any victory Joyce Oduah hopes to get at the FHC in FHC/ABJ/CS/1426/2022 will at best be a pyrrhic victory, and of no use.

 CONCLUSION:

The implications of the NBA-NECouncil’s 21 August 2022 “ratification” of the suspension done by NBA-NECommittee on 15 August 2022 are as follows:

1️. The action of the NBA-NECOUNCIL amounts to a fresh suspension of Joyce Oduah. In other words, even if the NBA-NECommittee didn’t do it well, the NBA-NECouncil has now “done it well”, since NBA-NECouncil has express powers so to do, under section 20(1).

2️. The said action of NBA-NECouncil on 21 August 2022 is an obvious further step which has altered the status quo that was in place before 21 August 2022;

3️. By virtue of the fact that NBA itself is a party to the pending suit, NBA-NECouncil being an arm/organ of the NBA, is a party to the pending suit and is bound by both lis pendens and any outcome and legal implications or effects of the pending suit. The mere fact that the Court had not made any restraining order yet, is immaterial. See ‘Military Government of Lagos State V Emeka Odumegwu-Ojukwu (1986) 1 NWLR (Pt.18) 621, (2001); (2001) FWLR (Part 50) 1779 at 1800 where the Supreme Court stated as follows: “After a defendant has been notified with the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he (the defendant) acts at his own peril and subject to the power of the court to restore the status wholly irrespective of the merits as may be ultimately decided….

They [parties] have no right to take the matter into their own hands once the court was seised of it.”’ In the United States of America case of Porter v. Lee, 328 U.S. 246, at page 251, 66 S.Ct. 1096, at page 1099, 90 L. Ed. 1199, the court had declared that “where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo.” See also Darnell Garcia v. John C. Lawn  C.A.9 (Cal.) 1986 and Turney v. Shriver, 269 Ill. 164, 109 N.E. 708. In the case of Bello v. AG of Lagos State (2007) 2 NWLR (Pt.1017) pg.115, while the matter was still pending in court, the appellant did a publication in a newspaper in respect of the subject matter of the suit, the lower court held that the appellant (as applicant/plaintiff in the court below) was in contempt of court. The Court of Appeal in affirmed the decision of the lower court. See also Elf Marketing (Nigeria) Limited v. J. L. Oyeneyin And Sons Limited [1995] 7 NWLR (pt. 407) 371.

In Peter Obi v. INEC (SC No:2) [2007] Vol. 9 M.J.S.C 1, the Supreme Court said, “The 1st respondent (INEC) was aware at that time that the appellant was in court pursuing his legal rights. A body that has respect for the rule of law, which the Independent National Electoral Commission ought to be, would have waited for the outcome of the court proceedings; particularly when it was aware of it…. As at 14th April 2007 when the 1st respondent (Independent National Electoral Commission) was conducting gubernatorial election in Anambra State, the seat of the governor of that State was not vacant. That election was a wasteful and unnecessary exercise. The 1st respondent (INEC) was aware at that time that the appellant was in court pursuing his legal rights. A body that has respect for the rule of law, which the Independent National Electoral Commission ought to be, would have waited for the outcome of the court proceedings; particularly when it was aware of it.”

4️. With due respect to NBA-NECouncil, the subject matter of the suit is SUSPENSION and not REMOVAL. By taking steps on suspension, you’ve taken steps on the subject matter.

5️NBA-NECouncil is thus not entitled to have taken any further steps in respect of the pending suit. If it did, as it has done, such action (further step) is liable to be quashed vide a DISCIPLINARY INJUNCTION. For meaning, scope, implication, and uses of Disciplinary Injunctions, please find time to read my piece titled, “Contempt of Court: Why Nigeria’s Federal High Court is Right on Rivers State APC” By Sylvester Udemezue. . (Published on 7 and 8  January 2019 by BarristerNG, TheNigeriaLawyer, etc). My article had followed a Federal High Court order on Monday, 7 January 2019, nullifying the direct and indirect primary elections allegedly conducted by two factions of the All Progressives Congress (APC) in Rivers State. The court order itself had followed a suit filed by an APC governorship aspirant in Rivers State.. According to the presiding judge, both factions of the APC had acted in disrespect of a pending suit… by purporting to have produced candidates for governorship, national and state assembly polls, while the suit was still pending.  In my said article, after taking a position, I had counseled all and sundry, as follows: 

“A final lesson one must take away from all these is that litigants and their lawyers alike who are involved in proceedings before courts of law must imbibe the appropriate manner of dealing with pending courts proceedings, court orders, and the judiciary as a whole, bearing in mind what negative or disastrous consequences their contemptuous and disdainful conducts towards judicial officers and their orders may have on the litigants themselves, and on administration of justice and rule of law, without which democracy cannot survive”.

Meanwhile, the Federal High Court decision subsequently went up to the Supreme Court through the Court of Appeal. I am happy to announce that my position in the article which (was written on the same date the Federal High Court decision) was later endorsed by the Supreme Court of Nigeria. Glory be to God! Please, see also my humble thoughts on the 15 August 2022 suspension by NBA-NECommittee: “The Suspension Of NBA General Secretary By The National Executive Committee: Corollary Legal Issues” by Sylvester Udemezue (published on 15 August 2022 by TheNigeriaLawyer, BarristerNG, DNLLEGALANDSTYLE, Newswirelawandevents, Lawandsocietymagazine, etc). Meanwhile, before anyone tells me that I cannot make public comments on this matter because it’s pending in court, as in subjudice, I refer you to an article titled,

 “Limits of Trial Publicity and Right to Free Speech: A Diagnostic Appraisal of Influence of the (Social) Media on Judicial Proceedings” by Sylvester C. Udemezue. (2021) Vol 3 No. 1 Nile University Law Journal. 145. (you can find it online at https://www.sciencegate.app/document/10.2139/ssrn.3802807>)

Finally, for the avoidance of doubts, may I state unequivocally that my opinion in the instant case of Joyce Oduah v. NBA is without prejudice to whatever might be the final decision/position of the Court of Law on the matter. I am bound by the decisions of our courts for whom I have tremendous respect. As Sir Oliver Wendell Holmes Jnr said in his book, The Path Of The Law, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law“ (see http://www.constitution.org/lrev/owh/path_law.htm). Thank you for reading me. Your comments, queries, and ripostes are welcome, to continue this discussion in the interest of the law Profession and of rule of law.

Yours faithfully,

 Sylvester Udemezue (Udems)

08109024556.

[email protected].

(22 August 2022)