By Femi Falana SAN

INTRODUCTION 

I was the former Secretary- General of the defunct African Bar Association (2000-2002) and former President of the West African Bar Association (2004-2009). I am a current life member of the Pan African Lawyers Union. Owing to my involvement in unifying African lawyers at the continental and regional levels I have been reluctant to join the campaign for the bulkanisation of the Nigerian Bar Association (NBA). However, I am compelled to react to the debate on the compulsory membership of the Nigerian Bar Association by all Nigerian lawyers for two reasons. First, I was privileged to have handled some of the cases in which  the democratic space in Africa has been expanded by municipal and regional courts. Second, I have noted that some respected colleagues who have contributed to the debate did not advert their minds to the several decisions of the Supreme Court and Court of Appeal which have upheld the fundamental right of the Nigerian people to freedom of association guaranteed by the Constitution and the African Charter on Human and People’s Rights.

ILLEGALITY OF COMPULSORY MEMBERSHIP OF NBA 

In making a strong case for the compulsory membership of the Nigerian Bar Association (NBA) by all lawyers who have been called to the bar not a few colleagues have placed a high premium on the Court of Appeal case of the Nigerian Bar Association. v. Kehinde (2017) 11 NWLR (PT 1576) 225. In the leading judgment of the Court, her Ladyship NIMPAR, JCA, had held that:

“The Nigerian Bar Association (NBA) was established for the purpose of regulating the affairs and conduct of all legal practitioners in Nigeria and upon being called to the Nigerian Bar, there is automatic membership to the NBA on a lawyer. See Chinwo v. Owhonada (2008)3 NWLR (Pt.1074)341. Hence, as long as one has elected to join and remain within the noble profession, he is a member and ought to comply with the directive of the Association.” 

With respect, the law does not support the statement of the Court of Appeal that the NBA has been founded “for the purpose of regulating the affairs and conduct of all legal practitioners in Nigeria”. Indeed, the NBA was founded in 1900 as a friendly society to protect the  interests of  the first generation of Nigerian lawyers led by the late Mr. Sapara Williams. The  NBA Constitution has since been registered with the Corporate Affairs Commission as a voluntary professional body of lawyers with full and honorary membership. Under the Legal Practitioners Act it is the Legal Practitioners Disciplinary Committee, General Council of the Bar, Legal Practitioners Privileges Committee and Body of Benchers that are empowered to “regulate the affairs and conduct of all legal practitioners in Nigeria”. Even though the NBA is represented in these statutory bodies it does not have the legal capacity to regulate the conduct of any lawyer who has been called to the Bar in Nigeria.

Therefore, while the NBA is a LEGAL association of lawyers because it has been incorporated under the CAMA other associations formed by lawyers are LAWFUL whose members are entitled to associate for the protection of their interests pursuant to section 40 of the Constitution of Nigeria. The distinction between an incorporated and an unincorporated organisation was brought out vividly in the case of Fawehinmi v. N.B.A (No. 2) (1989) 2 NWLR (Part 105) 558 at 633 wherein Karibi Whyte JSC said:

“Thus the right to form any association for the protection of the interests of the members is guaranteed under this provision of the Constitution 1979 and is an entrenched right. However, such an association of persons, though recognised by the Constitution does not ipso facto vest in the association the attributes of incorporation, which alone confers legal personality… . Thus an association of persons recognised by section 37 is a lawful association simpliciter. It is a recognition of the reality that the group of persons who have formed an association has an existence in fact.”

Notwithstanding the  automatic membership of the NBA by all lawyers the Constitution of the NBA has accorded recognition to other associations of lawyers representing regional, religious, ideological and other interests. Such associations include the Arewa Lawyers Association, Eastern Bar Forum and Egbe Amofin. While it may be said that the regional bodies operate within the NBA others like the Federation of Women Lawyers, National Association of Democratic Lawyers, Christian Lawyers Association and Muslim Lawyers Association have Independent existence.

Even though the NBA is affiliated to the Pan African Lawyers Union there are some Nigerian lawyers who belong to the African Bar Association. To the extent that these groups of lawyers are allowed to operate without let or hindrance the right of others to form another national lawyers’ associations cannot be challenged without infringing on the fundamental right to freedom of association. In other words, the compulsory membership of the NBA cannot debar lawyers from exercising their fundamental rights of assembly and association by forming or belonging to another national body of lawyers for the protection of their interests pursuant to sections 39 and 40 of the Constitution.

VOLUNTARY MEMBERSHIP OF NBA

It is submitted that the automatic membership of the NBA or or any other private organisation constitutes a flagrant infringement of the fundamental right to freedom of association. In Agbai v. Okogbue (1991) 7 NWLR (Part 204) 391, the Appellant had kicked against his automatic membership of an age group in his village on religious grounds and therefore challenged the power of the Respondents to induct him into the group by force. Nwokedi JSC who read the leading judgment of the apex court stated that:

“One does not automatically become a member of the association because he was so grouped. One was not under compulsion to join the age group association under which he was grouped as he had the option to join any other age group of his liking… Much as one would welcome development projects in the community, there must be caution to ensure that the fundamental rights of a citizen are not trampled upon by popular enthusiasm. These rights have been enshrined in a legislation, that is, the Constitution, which enjoys superiority over local customs.” 

In concurring with the leading judgment of the Court, Karibi-Whyte JSC , emphatically stated that “the concept of age-grade per se, does not offend the provisions of the Constitution. On the other hand the idea of the automatic membership … is an infringement of the freedom of association which is the fundamental right of the individual…” Similarly, in the case of Independent National Electoral Commission v Balarabe Musa (2003) 10 WRN 1, the Supreme Court struck down the guidelines drawn up by the appellant on the grounds that they constituted a breach of the fundamental right of the Respondents to free association. Tobi JSC who dwelt in extenso on Section 40 of the Constitution stated that:

“By the section, every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.”

In view of the authoritative pronouncement of the apex court on the voluntariness of private associations the automatic membership of the NBA by all lawyers is a constitutional aberration under the current democratic dispensation. The point that I am labouring to make is that no Nigerian or group of Nigerians can be compelled to belong to or remain in any association by force. In other words,  the compulsory membership of the NBA, a private body, has not obliterated or extinguished the fundamental right of lawyers to form or belong to other societies of lawyers. In Fawehinmi v NBA (supra) Obaseki JSC said that:

“The Constitution of the Nigerian Bar Association is not a statutory instrument. It is not a subsidiary legislation to the Legal Practitioners Act. It is a pure and simple private document which the members of the Nigerian Bar Association 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, 1975 in the conduct of the affairs of the Nigerian Bar Association by the General Council of the Bar.”

It is trite law that members of a private association are entitled to draw up a Constitution to bind the members inter se. The voluntariness of the membership of private associations was judicially recognised by Supreme Court in Onuekwusi v The Registered Trustees of The Christ Methodist Zion Church (2011) 6 NWLR (Pt 1243) 341 where Fabiyi JSC held that:

“The representatives of the respondent belong to a domestic association in which they are only bound by their own voluntary submission. See Akintemi v Onwumechili 1985 1 NWLR (Pt 1) 68. Their liberty on the matter perpetually inheres in them. They can hardly be compelled to act in the contrary fashion.”

In Inspector General of Police v All Nigeria People’s Party (2008) 12 WRN 65, the Court of Appeal affirmed the decision of the Federal High Court which had annulled the issuance of police permit for rallies and other public meetings on the grounds that it was a breach of the fundamental rights of citizens to freedom of expression and association guaranteed by sections 39 and 40 of the Constitution.

SECURING THE FUTURE OF THE NBA 

A few years ago, a group of Nigerian lawyers decided to revive the African Bar Association notwithstanding that the body had dissolved into the Pan African Lawyers Union in 2002.  Some top official of the PALU had wanted me to sue the leaders of the AFBA in a Nigerian court. But I turned down the request and made them to realise that the action would not succeed in view of article 10 of the African Charter on Human and People’s Rights which has guaranteed the human right of all Africans to freedom of association. They became persuaded when I referred them to the case of the Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria (1995) 186 wherein the African Commission on Human and People’s Rights held that “Freedom of association as an individual right and is first and foremost a duty of the State to abstain from interfering with the free formation of associations. There must be a general capacity for citizens to join, without State interference, associations in order to attain various ends.

It is submitted that under the current human rights regime in Africa the compulsory membership of any lawyers’ body is an anathema.  If the NBA continues to operate outside the ambit of its aims and objects lawyers have the constitutional liberty to form alternative national law societies. For instance,  article 3 (9) & (11) of NBA Constitution provides that the NBA shall ensure the encouragement and protection of the right of access to courts at reasonably affordable fees and of representation by counsel before courts and tribunals as well as the promotion and protection of the principles of the rule of law and respect for the enforcement of fundamental rights, human rights, and people’s rights.To achieve the aforementioned objectives the 1st Vice President of the NBA is saddled with the responsibility to coordinate the activities of the branches including their human rights programmes while each of the 125 branches of the NBA has a human rights committee headed by the vice chair of the branch.

This means that the NBA is the most territorially spread non governmental human rights body in the country. But due to the  persistent failure of the NBA to galvanise its members to address the mounting abuse of human rights in the country a number of public spirited lawyers have established human rights bodies or join existing ones to defend the human rights of the Nigerian people under the rule of law. Such bodies which are usually led by lawyers include the Socio Economic and Accountability Rights Project (SERAP), Access to Justice, Committee for the Defence of Human Rights (CDHR), Civil Liberties Organisation (CLO), National Association of Democratic Lawyers, Human Rights Defenders, Women Empowerment and Legal Aid (WELA), Network of Human Rights Lawyers etc. Without any input from the NBA some of these bodies successfully campaigned for the amendment of the  Fundamental Rights Enforcement Procedure Rules 2009, National Human Rights Act and the Legal Aid Council Act which have  facilitated the enforcement of fundamental rights and enhancement of access to justice for poor and vulnerable citizens.

In addition, these human rights groups have, through human rights cases filed by them convinced the Supreme Court to jettison the colonial doctrine of locus standi and endorse public interest litigation. The point that I am labouring to make is that the NBA is becoming increasingly irrelevant in the defence and promotion of human rights of the Nigerian people. Even the NBA no longer takes up cases of lawyers  that are arrested and detained illegally by the police and other security agencies.  For instance, the NBA has not joined the campaign for the release of Mr. Emperor Ogbonna who has been detained since March 2020 in defiance of three orders of the Federal High Court directing the SSS to restore his liberty. Therefore, the NBA cannot muster the moral will or courage to restrain lawyers from forming or joining other societies of lawyers for the protection of human rights and promotion of popular causes that will benefit the Nigerian people.

It will be recalled that the Ibrahim Babangida junta had taken advantage of the 1992 internal crisis of the NBA over election to take over the body. Thus, pursuant to the Legal Practitioners (Amendment) Decree No 21 of 1994, a caretaker committee was imposed on the NBA. The Ikeja branch of the NBA approached the Lagos State High Court to enforce the fundamental right of the members to freedom of association. The order of interim injunction granted by the High Court to restrain the junta and members of the caretaker committee from interfering in the internal affairs of the NBA was challenged at the Court of Appeal in the case of Williams v Akintunde (1998) 3 NWLR (Pt 381) 101. In its epochal judgment the special panel of 5 Justices of the Court of Appeal unanimously dismissed the appeal and set aside section 23A of the decree which had not only ousted the jurisdiction of the trial court but also criminalise the filing of any action connected to or arising from the management of the NBA.

In his contribution to the leading judgment of the Court Pats-Acholonu JCA (as he then was)  said that the military junta might have enacted the decree to “restore sanity and I dare say unbridled and frightening incipience and un-lawyer-like behaviour that seemed then to envelop and overwhelm the once proud professional association.” However, his Lordship cautioned the legal profession not to wait for military dictators “to put its house in order.” No doubt, the NBA took the advice of his Lordship by putting its house in order. Regrettably, the house has been turned upside down, once again, as its foundation is under serious attack from a a cabal of bar leaders who have institutionalised the biennial imposition of national officers through e-fraud elections. Even branch elections of the NBA are also manipulated with impunity by the same reactionary forces. Hence, many branches of the NBA are managed, from time to time,  by caretaker committees imposed on them by national officers whose own mandate is questionable.

If  the NBA does not arrest the ugly development in a decisive manner, as soon as possible, there is going to be an implosion with dire consequences. Therefore, the lawyers who are desirous to have a united bar should be prepared to ensure that the elections of the officers of the NBA are conducted in a credible and transparent manner while the affairs of the body are managed in a democratic manner. Otherwise, the bulkanization of the NBA is a matter of time. After all, it has just been confirmed that only 18,000 out of the over 200,000 lawyers on the roll of legal practitioners in Nigeria participated in the just concluded controversial 2020 NBA election. The implication of the increasing loss of interest in the affairs of the NBA by a large majority of lawyers ought to engage the attention of those who  are desirous to have a united bar. They owe it a duty to make conscious efforts to restore sanity in the bar and reposition the NBA to defend the rights of the Nigerian people which are under renewed assault under a civilian regime whose sheer contempt for the rule of law is legendary.

Lawyers who have insisted on the compulsory membership of the NBA may wish to consider the implications of certain provisions of the CAMA 2020 on freedom of association in the country.  By virtue of section 839 (1) of the law the Corporate Affairs Commission may by “order suspend the trustees of an association and appoint an interim manager or managers to manage the affairs of an association where it reasonably believes that — (a) there is or has been any misconduct or mismanagement in the administration of the  association; (b) it is necessary or desirable for the purpose of — (i) protecting the property of the association, (ii) securing a proper application for the property of the association towards achieving the objects of the association, the purposes of the association of that property or of the property coming to the association, (iii) public interest; or (c) the affairs of the association are being run fraudulently.” It is hoped that the axe of the CAC will not fall on the NBA since it is not prepared to stop the misconduct of conducting fraudulent elections.

CONCLUSION 

It is sad to note that after 21 years of civil rule members of the legal profession are yet to demilitarize their psyche. Hence, it is being argued that every lawyer must belong to the NBA willy nilly. Even when Nigeria was under the  jackboots and civil liberties were put in abeyance some of us defended  the fundamental right of Nigerian lawyers to exercise their freedom of association enshrined in article 10 of the African Charter on Human and People’s Rights. It ought to be pointed out that the  regimentation of lawyers espoused by some judges and lawyers is reminiscent of military rule. It cannot be justified in a democratic society. In Eperokun v University of Lagos (1986) 4 NWLR (Pt 34) 162, Irikefe CJN (as he then was) urged Nigerians to appreciate that “…constitutionally entrenched provisions, particularly those safeguarding individual rights, should not, save in a fascist system, be lightly trampled upon.”

Finally, let it be made abundantly clear that no group of Nigerians can be compelled to belong to or remain in any association by force. In other words,  the compulsory membership of the NBA for the purpose of legal practice has not obliterated or extinguished the fundamental right of lawyers to form or belong to other societies of lawyers. However,  since the NBA has apparently lost focus and relevance in the country the progressive extradition of Nigerian lawyers should continue to  defend human rights and other public interests  with renewed vigour, courage and commitment. They should continue to remember the apt words of Sapara Williams that “A lawyer lives for the direction of his people and the advancement of the cause of his  country.”

By Adetokunbo Davies, Esq

Introduction

In a bid to expeditiously resolve and determine commercial disputes and employment claims, some organizations and employers in Nigeria have taken the initiative of including arbitration clauses in many of their contract agreements, including contracts of employment, by designating arbitration as the preferred means of resolving any dispute arising from such contracts.

This epiphany could not have come at a better time as most employers, especially corporate bodies, are averse to the length of time spent on litigation. Also, most corporate bodies prefer confidentiality as against the exposure associated with litigation, hence arbitration is often their preferred choice as it offers privacy and faster resolution of dispute.

The Arbitration and Conciliation Act 1988

The Federal law on arbitration is the Arbitration and Conciliation Act, Cap A18 Laws of the Federation of Nigeria (LFN) 2004 (“ACA”). The Act is based on the UNCITRAL Model Law and incorporates the UNCITRAL arbitration rules. Also, the ACA ratifies and incorporates the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC).

Furthermore, apart from the ACA, which is a Federal Law, some states have their respective arbitration laws. One of such states is Lagos State which has enacted the Arbitration Law of Lagos State 2009 (LSAL) and applies to all arbitrations within the state except where the parties have expressly agreed that another law should apply.

Jurisdiction of the National Industrial Court

The jurisdiction of the NIC is as contained in section 254 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). By section 254 (C) of the constitution, the NIC has exclusive jurisdiction over Labor and Employment disputes. See Mainstreet Bank Registrars Ltd v. Ahaiwe (2019) LPELR-47057 (CA) and Chiroma v. Forte Oil Plc (2018) LPELR-43873 (CA), See also Section 7 of the National Industrial Court Act (NICA), 2006. In relation to arbitration and or arbitral proceedings, Section 254 (C) (4) specifically provides that:

“The National Industrial Court shall have and exercise jurisdiction and powers to entertain any application for the enforcement of the award, decision, ruling or order made by any arbitral tribunal or commission, administrative body, or board of inquiry relating to, connected with, arising from or pertaining to any matter of which the National Industrial Court has the jurisdiction to entertain.” 

From the above provisions, it is clear that the NIC has jurisdiction to entertain arbitral awards and or issues arising from arbitral proceedings which are connected to and bother on Labor and employment disputes. The question however is does the NIC have jurisdiction to entertain issues bothering on arbitration which have arisen from the ACA?

Applicability of the ACA to NIC

There is the argument that the ACA is not applicable to the NIC. In an obvious bid to hold the position that the ACA does not apply to the NIC, many protégés of this concept have held that the ACA applies strictly to commercial disputes and does not apply to labour and employment disputes and by a large extent, the NIC. The cornerstone of this theory is the long title of the ACA, which states as follows:

“An Act to provide a unified frame work for the fair and efficient settlement of commercial disputes by arbitration and conciliation; …..”

Reliance has also been placed on section 57(1) of the ACA, the interpretation section of the Act which defined ‘court’ to mean the High Court of a State, High Court of the Federal Capital Territory, Abuja and the Federal High Court; ‘judge’ to mean a judge of the above mentioned Court. Which seems to have precluded the NIC.

Interestingly, propagators of the above theory have argued further using the unreported case of Gluseppe Frances co E. Ravilli v. Ditisteel Integrated services Limited (Unreported) Suit No: NICN/LA/1599/2016, where the Applicant approached the NICN by an Originating Motion, praying the Court to exercise its discretion in appointing an arbitrator for the parties. The application was brought pursuant to the ACA. The Court held that the ACA does not apply to the NIC. The Court also held that the ACA applies only to commercial disputes and not to labour and employment dispute. Likewise, in Compagnie Generate de Geophysique v. Etuk (2004) 1 NWLR (pt. 853) 20 it was held that the provision of the ACA applies only to domestic commercial arbitration.

With due respect, the above contentions fly in the face of the provisions of Section 254C (4) of the Nigerian Constitution (as amended). It is explicit from the said provision that the constitution has vested the NICN with exclusive jurisdiction over any issue arising from an arbitral proceedings connected with Labor and employment disputes. Therefore, it is safe to submit that, employment disputes can be resolved through arbitration.

On Section 57 of the ACA, it is the contention of this article that the provisions of Section 57(1) of the ACA must not be read in isolation. It is imperative to consider the provision of section 54(2) of the NICA in interpreting the above section of the ACA. Section 54(2)(a)(b) of the NICA provides thus:

“for enabling full effect to be given to the provision of this Act-

a: any reference (whether express or by necessary implication) in any enactment (other than the constitution of the Federal Republic of Nigeria 1999) to the “the Federal High Court” “High Court of the Federal Capital Territory, Abuja” “High Court”, “court of law” or a “court of record”- (i) in so far as the reference relates to or is connected with the jurisdiction, powers practice and procedure of a High Court, and (ii) except in so far as it is inconsistent with the provisions of this Act, shall include a reference to the court established by the this Act.

Having expressly stated that the High Court in any enabling Act must by implication include the NIC, it is the very strong and firm view of the author that the ACA when read with the section 54  (2) of the NICA, vests jurisdiction in the NICN to entertain issues arising from arbitral proceedings which connected to labor and employment.

Unfortunately, the Court in the Ravilli case did not consider the above provision in arriving at its decision. If it had, it wouldn’t have arrived at the decision it did. Hence, that decision is, in the author’s view, per incurium. See Nikagbatse v. French & Ors (2014) LPELR-23310 (CA), Olaiya v. Lawal (2019) LPELR-48205 (CA) and Makun v. Federal University of Technology Minna SC.241/2002 Delivered on Friday 24th June, 2011.

Having demonstrated above that the NIC is a Court contemplated under the ACA, it is submitted that the ACA is applicable to the NIC contrary to the decision in the Ravelli case.

On the long title of the ACA which has been interpreted to limit the ACA to commercial disputes, it must be stated that there is no provision in the ACA that expressly excludes its applicability to Labor and employment issues. By virtue of Section 35 of the ACA the ACA will only be inapplicable to disputes where a law has expressly stated that such dispute cannot be submitted to arbitration. Instructively there is however currently no Law which expressly excludes employment disputes from arbitration.

Furthermore, by the combined provisions of Section 254 (C) (4) of the constitution, Section 57 of the ACA and Section 54 (2) of the NICA, the ACA applies to labor and employment disputes. Hence, any provision in the ACA which is to the contrary will by virtue of its inconsistency with the provisions of the constitution be null and void. See: Eligwe v. Okpokiri (2014) LPELR – 24213(SC). In any event, it is the opinion of the author that an employment dispute which seeks to determine the rights and liabilities of the parties to the contract of employment, is commercial in nature and according to Frost P, H.S Freehills and P. Goulding QC in their article titled ‘Arbitration of Employment Disputes’, arbitration is adaptable to all manners of employment disputes.

Finally, it is important to stress the point that the applicability of the ACA is determined by the agreement of parties and not the ACA itself. The implication of this is that the ACA is only ‘procedural’ and seeks to guide the arbitral proceedings which parties have submitted to freely. See: RasPalgazi Construction Company Ltd V. FCDA (2001) LPELR-2941 (SC). Where there is no arbitration agreement, the ACA cannot apply.

Therefore, where parties in an employment relationship have agreed to submit their disputes to arbitration under the ACA, it is submitted that such reference to arbitration under the ACA is valid and the NIC will have jurisdiction to entertain same without any hindrance or inhibition. In Olumuyiwa V. BMIL Nigeria Limited, Suit No. NICN/LA/313/2013(Unreported Decision) where the NICN had to consider an application to strike out the suit in enforcement of an ACA arbitration clause, which application was filed in response to an employment/labour claim filed in the Court. The sole issue for determination, as identified by the NIC, was whether the parties ought to have submitted themselves to arbitration as per the contract of employment of the claimant before coming to the court? The court held that the matter was premature as it ought to have gone to arbitration, in compliance with the arbitration clause in the claimant’s contract of employment, thus it struck out the suit.

Conclusion

The ultimate implication of the foregoing is that the ACA applies to labor and employment disputes and parties to such dispute may at anytime prior to commencement, during or after arbitral proceedings, approach the NICN for interventions as permitted under the ACA.

I will end this article by admonishing the Honourable Judges of the NICN to always hold in favor of the applicability of the ACA to the NICN in Labor and employment disputes.

ADETOKUNBO DAVIES, ESQ, MCIArb. is an Associate Partner, Pinheiro LP