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:
- 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 2nd 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.
