The powers of the Body of Benchers are contained in sections 3 and 10 of the Legal Practitioners Act (LPA), CAP L11, LFN, 2004.
But, it appears that it is section 10 (2)-(6) LPA that permits the BOB to intervene in affairs of the NBA strictly upon the happening of certain events.
Unfortunately, some lawyers have suggested that the BOB may rely also on the provisions of section 10(1)(c)LPA to intervene in NBA’s affairs.
This commentary examines the provisions of these provisions vis-à-vis BOB’s powers in relation to NBA’s affairs and concludes that nothing in any of the mentioned sub-sections of the LPA authorises the BOB to institute investigations into any elections of the NBA which have been concluded.
Section 10(1) provides that “The Body of Benchers shall be responsible for taking all measures (whether by making regulations pursuant to the powers conferred on it by this section or otherwise howsoever) which appears to it to be necessary or expedient for maintaining at all times the traditional values of the legal profession”.
On its part, section 10(2)&(3) LPA provides: “(2) Notwithstanding anything contained in the Constitution of the Association, the Body of Benchers shall have and may exercise any or all the power specified in subsection (3) of this section whenever — (a) the term of office of the officer or the elected members of the National Executive Committee of the Association has expired and it is impossible for the Association to hold the necessary elections for a period of 30 days thereafter; or (b) the Body of Benchers is satisfied that by reason of dispute among the members of the National executive Committee of the Association, it is impossible or impracticable for the National Executive Committee to undertake or continue its functions of managing the affairs of the Association; or (c) the National Executive Committee of the Association passes a resolution calling upon the Body of Bencher to exercise such powers”. “(3) Whenever the event specified in subsection (2) of this section occurs, the Body of Benchers shall have power to – (a) inquire into the cause of the default in holding the necessary elections or of the dispute among members of the National Executive Committee of the Association; (b) appoint (whether or not from among the Body of Benchers) such other suitable persons to run the affairs of the Association, and such persons shall be known as the Caretaker Committee of the Nigerian Bar Association (in this Act referred to as “the Caretaker Committee”)”.
By virtue of section 10(4), any Caretaker Committee set up under section 10(3)(b) LPA shall manage the affairs of the NBA for such period as the BOB may prescribe, but not exceeding 12 months. Please note the following:
DISCUSSION:
What section 10(2)(a) LPA says is that the BOB may intervene where it is IMPOSSIBLE or IMPRACTICABLE for the NBA to conduct necessary elections within 30 days of the expiration of the tenure of the immediate past National Executive Committee [s. 10(2)(a) LPA] or a crises in the National Executive Committee HAS MADE IT IMPOSSIBLE/IMPRACTICABLE for the National Executive Committee to perform its functions.
BOB’s intervention may take the form of an enquiry “into the CAUSE OF THE DEFAULT in holding necessary elections…” [see section 10(3)(a) LPA]; and/or setting up a Caretaker Committee to run the affairs of the NBA in order to avoid vacuum in NBA leadership, because nature abhors vacuum [see section 10(3)(b) LPA].
Thus, in such circumstances, the BOB may either investigate the cause of the INABILITY TO HOLD ELECTIONS [s. 10 (3)(a) LPA], or (without such investigations) set up a committee to manage NBA affairs for not more than one year [s. 10(3)(b) LPA].
The necessary implication of this provision is that once NBA has conducted elections and the winners have been sworn in, the BOB does not possess any power under any circumstances whatsoever to purport to set up a Committee to “investigate NBA elections”. It is therefore submitted that while the that BOB may investigate the cause of IMPOSSIBILITY TO CONDUCT NBA ELECTIONS, it has NO powers to conduct investigations into NBA elections that are already CONDUCTED or into any allegations of malpractices surrounding NBA elections that are already concluded/conducted.
Further, after the NBA has concluded/conducted necessary national elections and members of of the National Executive Committee have been sworn in, the BOB is barred from meddling in the election or otherwise in NBA’s affairs unless any of the following two other events then happens:
(A). There’s a crisis in the National Executive Committee which has made it impossible or impracticable for the National Executive Committee to continue with its job under the NBA Constitution [see section 10(2)(b) LPA]; or
(B). The National Executive Committee has passed a resolution calling on the BOB to intervene. [see section 10(2)(c) LPA].
It could therefore be seen that, with due respect, it is incorrect to argue that there’re circumstances upon which the Body of Benchers is legally empowered to investigate NBA’s Elections or allegations of malpractices arising from any NBA elections; NO part of section 10 of the LPA authorises the Body of Benchers to set up a committee under any circumstances to such an investigation. Indeed, after a successful conduct of NBA national elections, the only body with legitimate power/jurisdiction to look into the elections or any allegations arising from the elections is the National Officers Elections Committee of the NBA. [see section 14(1)(L) and (14)(2)(L) of the NBA Constitution].
The NBA Constitution, 2015, is recognised by extant statutes in Nigeria, and has the force of law, although where any provisions in the NBA Constitution are inconsistent with the provisions of the LPA, the LPA must prevail.
Luckily, there appears to be NO provision of the LPA that could be considered inconsistent with the provisions of section 14(1)(L) and (14)(2)(L) of the NBA Constitution.
At this juncture, the facts of the scenario leading to the present controversy need to be recalled:
(A). The Nigerian Bar Association (NBA) conducted its national elections in July 2022, which led to election of members of the National Executive Committee of the NBA who later got sworn in, on 26 August 2022;
(B). The NBA had immediately after the elections, constituted the National Officers Election Appeal Committee of the NBA (NBA-NEAC).
However, following complaints raised by one of the Presidential candidates, Mr. Joe-Kyari Gadzama, SAN, of likelihood of bias on the part of some members of the NBA-NEAC, all members of the NBA-NEAC resigned en masse on July 02, 2022.
Thereafter, a new NBA-NEAC was constituted, which called for petitions (if any). Surprisingly, Mr Gadzama, SAN, declined to send his complaints to the reconstituted NBA-NEAC.
The time set out for filing of petitions expired without the NBA-NEAC receiving any petitions/complaints from any candidate. All these were in July 2022.
(C). Then, suddenly, on 24 January 2023, the Body of Benchers announced its decision to constitute a committee to “investigate allegations of malpractices surrounding the last NBA national elections”.
This sudden decision of the BOB, coming six months after the 2022 national elections, has led to argument among lawyers as to whether or not the BOB has powers to investigate NBA elections, and as to the actual object of such an investigation.
In part one of my reaction to this latest controversy, titled “Body Of Benchers Lacks Jurisdiction To Conduct Investigations Into Any Elections Of The Nigerian Bar Association”, I argued that the BOB possesses no such powers to investigate any elections of the NBA. [The piece was published in BarristerNG; TheNigeriaLawyer; LawAndSociety; NewsWireLawAndEvents, etc, on 24 January 2023).
It was my conclusion in the commentary, that ‘…even the powers reserved for the BOB under section 10 (2)-(5) of the Legal Practitioners Act, CAP L11 LFN 2004 does not by any stretch and under any circumstances extend to investigating or setting up a committee to investigate (purported) “allegations of malpractices surrounding NBA elections”’.
However, following further suggestions that somewhere within section 10(1)(c), (2), & (3) of the Legal Practitioners Act (LPA) could possibly lie some legal justification for BOB’s decision to investigate the 2022 NBA elections, the present Part (Part Two) has become necessary, dedicated to offering an objective interpretation of, and projecting the actual horizons of the powers donated to the BOB under section 10(1)(c) and section 10(2)&(3) of the LPA, to see whether there is anything in any of those provisions that could be relied upon to justify the actions of the BOB in constituting a committee to investigate NBA 2022 elections.
For this purpose, three major canons/principles of statutory interpretation are considered relevant: (1) The “Expressio unius est exclusio alterius” Rule, (2) The “Generalia Specialibus Non Derogant” Rule; and (3) The purposive and the Mischief Rules:
(1). The “Expressio unius est exclusio alterius” rule states that the express mention of one thing in a statute excludes all other things not mentioned therein. Section 10(2)&(3) LPA does not leave anyone in doubts about the specific/particular and LIMITED instances that could warrant BOB’s intervention in NBA’s affairs including NBA’s elections.
From those provisions, it is clear that the makers of the statute does not intend nor expect the BOB to possess (or to otherwise arrogate to itself) wide and unrestrained powers to interfere in NBA ‘s affairs, anytime the BOB wants or as it wants.
This is because the BOD is not, and not meant to be, a controller nor a leader or supervisor of NBA’s affairs, NBA being an independent association of all lawyers in Nigeria, the undisputed leader of the Nigerian Bar and therefore able and capable of running its own affairs and also handling and resolving any internal squabbles or crises (if such arises) without any meddlesomeness by any other association.
Thus, the powers given to the BOB in section 10(2)-(6) LPA are SPECIAL-PURPOSE powers, meant solely and strictly to avert (and may only be activated for the sole purpose of preventing) any repeat of the ugly scenario/crisis of the early 1990’s which had left the NBA without any leadership at the national level for years.
Recall that, as a result of leadership crisis, NBA had no President at the national level between 1992 and 1998, and was run at the Branch level only.
It is this mischief that section 10(2)-(6) LPA [which was introduced by the LPA (Amendment) Act of 1994 (Decree 21 of 1994)] has come to cure; it is not an avenue, a license or a cloak for the BOB to engage itself in unauthorized intermeddling or meddlesome intrusiveness in NBA’s affairs.
Thus, outside the three specific conditions/instances expressly stated in section 10(2) LPA and outside the limited and express powers given to the BOB (in section 10(3) LPA) in the event of any of those instances arising/occuring (the purpose of this special power being solely to avert a leadership vacuum in the NBA, and not to give the BOB any supervisory powers over NBA’s affairs), any other conditions or circumstances not therein mentioned is IMPLIEDLY AND NECESSARILY EXCLUDED.
Thus, conduct of investigations into the elections of the NBA (when none of the conditions mentioned in section 10(2) has occured) clearly falls outside the powers donated to the BOB in section 10 (2)&(3) LPA.
If the makers of the LPA had intended to include “investigations into the elections of the NBA”, the LPA would have included same.
The fact that the LPA does not include such means that such was/is not intended by the makers of the LPA. In a paper titled, “Does the Nigerian Federal Legislature Have Constitutional Powers to Summon the President of the Republic Over Matters of National Importance?” Udemezue and Chioke give more insights into the operation and application of this rule:”… the Expressio unius est exclusio alterius” Rule of Statutory Interpretation … states that the express mention of one thing in a statute excludes all other things not mentioned therein. This is illustrated in the case of R v Inhabitants of Sedgely.
The “Noscitur a sociis” Rule appears also relevant; it postulates that “words (used in a statute) have no meaning except in the context they are used”.
The meaning of an enactment must be ascertained from its text, in light of its purpose and in its context.
The legislature must be taken in a statute to have said exactly what it means, and also to mean exactly what it has said therein.
It therefore goes without saying that interpretation of a word or expression must depend on the text and the context.
In People v. Jefferson,31 the California Court of Appeals, 4th District, USA, observed that the role of the courts in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law.
Also, according to the Court of Appeal of the US state of Indiana, “the first and often last step in interpreting a statute is to examine the language of the statute”.
Indeed, the statutory test should be both the ending point as well as the starting point of statutory interpretation.
This is because words are the skin of the language, while language is the medium of expressing the object that a particular provision or the Act seeks to achieve”.
(2) Generalia Specialibus Non Derogant. The Latin legal maxim and canon of statutory interpretation, “generalia specialibus non derogant” is relevant also.
