Chukwuma a. J. Chinwo V. Okechukwu Owhonda & Ors. (2006)

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VICTOR AIMEPOMO. O. OMAGE, J.C.A.

In this appeal, the appellant seeks the order of this court to reverse the order in the ruling delivered on 29th March, 2004 by the Hon. Chief Judge, Rivers State and send the case to another court in the High Court for hearing and determination. The ruling of the Hon. Chief Judge, Rivers State is that the appellant’s claim filed on 14th January, 2004 be struck out for lack of jurisdiction on the ground that the complaint against the respondent is not justiciable as it is made against a voluntary body. The matter commenced thus: The plaintiff now appellant who is a legal practitioner took out a writ of summons on 14th January, 2004 against the then representatives of the executive of the Port Harcourt Branch of the Nigerian Bar Association. The said executives are: (1) O. Owhonda. Esq: (2) T. O. Waamah. Esq., (3) F. A. Iyagba. They are sued for themselves and on behalf of the Executive Committee of the Nigerian Bar Association, Port Harcourt Branch. In the suit, the plaintiff C.A.J. Chinwo. Esq. who is a legal practitioner seeks the following reliefs:

(1) A declaration that the bye-laws of the Nigerian Bar Association (NBA) Port Harcourt Branch in so far as it creates condition for participation in the election of officers in the Branch contrary to the Constitution of Nigerian Bar Association, the Legal Practitioners Act and the Nigerian Constitution are null and avoid.

(2) A declaration that the decision and action of the defendants in refusing to collect practicing fees and Bar due, from the plaintiff and other member or the Branch in 2004 unless they pay the same along with their welfare scheme contribution is contrary to the bye-laws itself, the Constitution of the Nigerian Bar Association, the Legal Practitioners Act and Nigerian Constitution are thus null and void and of no effect.

(3) A declaration that participation of the members of the branch in the Welfare Scheme is not mandatory and should not be the basis for denying a member of the Association who has paid his practicing fees and Bar dues of right to participate in activities and partake in privileges ordinarily available to members of the Association such as voting and being voted for in elections, having court sessions, where necessary, held in one’s honour, being recognized and recommended as a financial member of the Association where necessary.

(4) A declaration that the decision and action of the defendants without the approval of the general meeting of the Branch refusing to collect Bar dues and practicing fees from members of the Branch in 2004 unless they accompanied same with their “welfare scheme contribution” is aimed at or will result in disenfranchising a majority of the members of the election and result in the election of an unpopular executive, if any, contrary to the Constitution of the Nigerian Bar Association, the bye-laws of the Branch and the Constitution of the Federal Republic of Nigeria.

(5) An order of perpetual injunction restraining the defendants, their agents, servants and privies from continuing to implement the Welfare Scheme in such a way as to:

(a) Deprive members of the Port Harcourt Branch of the Bar Association of the traditional privileges ordinarily available and due to members who have paid their practicing fees and Bar dues such as voting and being voted for in elections into the branch executive, having court sessions held for where necessary and being recognized and recommended as financial members or the Association where necessary and thus putting them in a position more disadvantageous than their counterparts in other branches.

(b)Make the participation the welfare, insurance or other such schemes mandatory using the machinery and facilities of the Nigerian Bar Association contrary to the Constitution of the Nigerian Bar Association and the Constitution of Federal Republic of Nigeria.

Both parties filed their pleadings in the court below, and the defendants filed a motion supported by an affidavit. In it as in para, 8 of the statement of defence, the defendant urged the court in the motion to strike out the suit because the defendants prayed (1) The suit is frivolous. (2) The suit is not justiciable.

The learned Chief Judge decided to hear the motion of the defendants. The defendants urged the coul1 to strike out the suit because the court lacks jurisdiction, the subject matter of the suit. The defendants deposed in para. 3 of the affidavit that the pleadings of the appellant show that the latter objected to the defendants’ imposing the dues to be paid for welfare on the local branch, with payment for dues payable to the national body and seeks the intervention of the court because the Port Harcourt Branch of the Nigerian Bar Association made bye-laws which create conditions for participation in the elections to offices and holding of offices.

The appellant averred that the defendants are enforcing payment of welfare levies (made) under bye-laws, as a condition for collecting the practicing fees and for Bar dues. Defendants said it is for this reason that the plaintiff/appellant seeks the intervention of the court, whereas the bye-laws which are contained in part ix, paras. 1 & 5 of the bye-laws have been thoroughly debated and considered by members of the port Harcourt Branch of the Nigerian Bar Association before the same was submitted to the National Executive Council of the Bar Association at the Jos meeting of the National Executive body who approved of same. Counsel for the defendants submitted that the Port Harcourt Branch of the Nigerian Bar Association is a voluntary Association, and not statutory association since Article 4 of the Constitution of Nigerian Bar Association makes membership of an enrolled lawyer automatic on being called to the Bar, therefore whatever takes place in its meeting is a domestic affair. He referred to Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558, (1989) 2 NSCL 43 at 86 per Karibi-White, JSC. Ukala of counsel to the defendants, now respondents submitted further in the court below that the grouse of the plaintiff is the welfare levy, and the method of enforcing its payment. The plaintiff also objected to the pre-conditions imposed in the bye-laws for holding an elective position in the Nigerian Bar Association, which the appellant said is in conflict with the Constitution of Nigeria and the Constitution of the Nigerian Bar Association. The defendants’ counsel in the court below submitted that the principle of ultra vires has no place in a voluntary organization, and the court leaves a voluntary organization like the NBA to manage its affairs in accordance with the rules of majority. He referred to Onuoha v. Okafor (1983) 2 SCNL p. 244 at 254; Foss v. Harborttle (1843) 2 Hare 461.

In reply to the submission of the applicant on the motion filed by Ukala of counsel for the defendant/applicant, Chinwo of counsel to the plaintiff asked the following:-

(1) Whether the statement of claim discloses any right of the plaintiff which is breached or threatened to be breached.