💎 CASE SUMMARY OF:
Chief Gani Fawehinmi v. Nigerian Bar Association (NBA) & 4 Ors (No.2) (1989) – SC
Recordings at peace meetings;
Chief Gani Fawehinmi
Nigerian Bar Association And 4 Ors.
(1989) 2 NWLR (Pt.105);
(1989) All N.L.R 274;
(1989) 4 S.C. (Pt 1) 63
💎LEAD JUDGEMENT DELIVERED BY:
Abdul Ganiyu Olatunji Agbaje, JSC
💎 LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– Chief Gani Fawehinmi
FOR THE RESPONDENT
– Chief F. R. A. Williams S.A.N., for the 1st-4th Respondents;
– Kehinde Sofola, S.A.N., for the 4th Respondent;
– Mr. M. Adio, Director, Civil Litigation, Federal Ministry of Justice, appeared for the 5th Respondent;
By a Motion on Notice dated 29th April, 1985 the plaintiff (Chief Gani Fawehinmi) moved the court for the following relief: “An order of interlocutory injunction restraining Chief F. R. A. Williams, S.A.N.; Mr. Kehinde Sofola, S.A.N., and Mr. E. A. Molajo, S.A.N., from acting or from continuing to act or from representing or from continuing to represent the Nigerian Bar Association, the 1st Defendant in this suit on the ground that their appearance or representation for the Nigerian Bar Association is improper, unprofessional, dishonourable and dishonest.”
In support of the application, the plaintiff swore a 26 paragraph affidavit.
Later by a Notice of Preliminary Objection dated 10th May, 1985 the first person sought to be restrained in the application of the plaintiff of 29th April, 1985, Chief F. R. A. Williams, S.A.N. took a preliminary objection to the application.
On the same day, that is 10th May, 1985, the 1st Defendant by a motion on notice applied to the court for the following reliefs:
(a) striking out the name of the 1st Defendant on the ground that it is not a juristic person and so cannot be sued;
(b) striking out the entire action on the ground that even if all the facts pleaded in the Statement of Claim are admitted or established, the court will not grant any of the reliefs claimed in the absence of all proper parties to the action; and for such further and/or other orders as this Honorable Court may deem fit to make in the circumstances.
Arguments were taken at the trial court on the two applications to it. On 19th July, 1985 the learned trial Judge, C.A. Johnson, C.J., delivered his ruling. The first part of his ruling was concerned with the application of the 1st Defendant to strike him out and to strike out the plaintiffs action on the ground that it was incompetent. Having considered the various arguments made to him in this regard he ruled as follows on the point whether or not the first Defendant is a juristic person and capable of suing and being sued: “It is my considered view, having taken account of the implications of the different legislations recognising, imposing duties and granting privilege to the Association as a body, that it is meant to give the Association, even though unincorporated, a legal personality and I so hold. I therefore rule on that issue that the 1st Defendant is a juristic person and properly sued by the applicant as a Defendant in this suit.” All other applications were granted in favour of the Plaintiff (Chief Gani Fawehinmi).
The 1st Defendant and each of the three Senior Advocates of Nigeria with which the ruling was concerned were dissatisfied with it and they, all of them, appealed to the Court of Appeal Lagos Division against it. That Court coram Nnaemeka-Agu, J.C.A., (as he then was) Kutigi, Kolawole, JJ.C.A, in its judgment dated 13th March, 1986, unanimously allowed the appeal of the 1st Defendant and the three Senior Advocates of Nigeria. It held as regards the 1st Defendant that it was not a juristic person capable of suing and being sued. The 1st Defendant was accordingly struck out of the entire action. The Court held too that the order for injunction made against the three Senior Advocates of Nigeria, the 2nd, 3rd and 4th appellants in that appeal was wrong and the said order was discharged.
As regards the ruling of the learned trial Chief Judge on the admissibility of the affidavit evidence in support of the plaintiffs application to restrain the three Senior Advocates of Nigeria from appearing in the case the Court of Appeal ruled that the affidavit evidence was inadmissible. That Court also ruled that the plaintiff by reason of his delay in taking objection to the appearance of the three Senior Advocates of Nigeria had waived his right to raise that objection.
The plaintiff (Chief Gani Fawehinmi) is dissatisfied with the whole of the decision at the Court of Appeal and has now appealed against it to the Supreme Court.
1. Whether The Nigerian Bar Association Is A Juristic Person Capable of Suing And of Being Sued In Its Name.
2. Whether the Chief Judge was unjustified in barring Chief Williams, S.A.N., Mr. Molajo, S.A.N. and Mr. Sofola, S.A.N. From appearing for The Nigerian Bar Association consequent upon what they did and said at the meeting of the 3rd of March, 1985 in the House Of Sir Ademola.
3. Whether the affidavit evidence sworn to on the 29th of April, 1985 by the appellant is inadmissible.
4. Whether the appellant waived his right to object to the appearance of the three senior advocates.
This appeal was dismissed by the Supreme Court.
1. On issue 1, the Supreme Court held the following:
“The plaintiff has not directed us to any statute to which the 1st Defendant owes its creation. Nor has he directed us to any statute by virtue of which the 1st Respondent has been incorporated. FOR MY PART I CANNOT FIND SUCH A STATUTE. The conclusion I reach therefore is that the 1st Respondent is not a corporation. The 1st Respondent is evidently an association of individuals with its own constitution containing its aims and objectives.”
“The plaintiff has not directed us to any other statutory provision pursuant to which it may be said that the constitution of the 1st Respondent has been formulated.
For my part, I cannot find such a provision.
In the circumstances I reject the submission of the plaintiff to the effect that the constitution of the 1st Respondent is a subsidiary instrument or an enactment.”
“Having approached the matter in the correct manner, in my view, the conclusion I reach having regard to all I have hitherto said, is that the 1st Respondent cannot be sued eo nomine in this case. So for different reasons I agree that the Court of Appeal, the lower court, was correct in its decision on the point at issue.”
2. On issue 2, the Supreme Court held the following:
“From what I have said earlier on in this judgment it is apparent that the question of the three Senior Advocates of Nigeria not upholding the law by appearing for the 1st Respondent is far-fetched.
It is equally clear that the plaintiff is not a client of any of the three Senior Advocates of Nigeria. Nor is it even alleged in this case that the plaintiff has ever been a client of any of the three Senior Advocates of Nigeria. In fact the question of any of the three Senior Advocates of Nigeria betraying the confidences of the plaintiff does not arise here. None of them on the facts before us enjoyed such confidences.”
“The conclusion I reach therefore having related all the relevant rules to the facts of this case is that I am at one with the Court of Appeal that the three Senior Advocates of Nigeria have not breached any of the provisions of the Rules of Professional conduct in the legal profession by appearing for the 1st Respondent in this case.”
3. On issue 3, the Supreme Court held the following:
“So the object of the meeting was to enable the parties to come to a settlement or compromise. The convener (Sir Adetokunbo Ademola) of the meeting was a peace maker or mediator. I am prepared to hold too that the three Senior Advocates of Nigeria who were aiding the convener of the meeting in his bona fide attempt to settle the dispute were to some extent peace makers or mediators. Because of the rationale behind the principle I am now considering, namely the policy of the law to encourage settlement, it only stands to reason that this legal principle of privilege should extend to statements made by mediators in the course of their attempt to settle a dispute.
Otherwise the legal repercussions to them of such statements will deter peace makers or mediators from attempting to settle a dispute out of court.
So I am satisfied that the case of Scott Paper Co. v. Drayton Paper Works (supra) [The principle in Scott Paper Co. v. Drayton Paper Works are provided below in ‘some provisions’ section] is in point here. The fact that a party sought and even obtained permission to make accurate recordings of the proceedings at a bona fide meeting to settle a dispute or even made that a condition of his attendance will not in my view alter the legal principle that admissions at such a meeting are inadmissible in courts in subsequent legal proceedings between the parties to the peace settlement.
For the above reasons, I am satisfied that the trial court was wrong in holding that the said admissions were admissible in evidence in this case and that the Court of Appeal was right in holding to the contrary. I do not however agree with the Court of Appeal that Section 25 of the Evidence Act is irrelevant to the point at issue. The learned trial Judge was right in applying the section to the issue he had to decide. However, in my judgment, upon a correct application of the section to the point he ought to have held that the admissions were inadmissible.”
4. On issue 4, the Supreme Court held the following:
“The ground of the objection to the appearance of the three Senior Advocates of Nigeria for the 1st Respondent is that by so appearing they have breached the rules of professional conduct in the legal profession. The right founded as it were on the rules of professional conduct in the legal profession is in my view one not only for the benefit of a litigant but also for the benefit of the public.
The rules relate to a matter of public policy which has to do with the administration of justice in that lawyers being officers of the court are enjoined not to commit professional misconduct. The conclusion I reach is that on the authority of Ariori’s case [This case is provided below in ‘some provisions’ section] the right from which the objection of the plaintiff to the appearances of the three Senior Advocates of Nigeria is derived can never be waived by him. So the Court of Appeal is not in my judgment correct in saying that there was a waiver of the right. What I have just said cannot possibly alter the decision I have reached in this appeal.”
Halsbury’s Laws of England, Third Edition Volume 1 page 15 article 20;
Section 1 sub-section 1 of the Legal Practitioners Act, 1975;
Section 6 of the Constitution of the Nigerian Bar Association;
Section 24 of the High Court Law of Lagos State;
Order 13 Rule 3 of the High Court of Lagos (Civil Procedure) Rules, 1972;
Rules of Professional Conduct for Lawyers;
Phipson on Evidence, 12th Edition, page 295, paragraph 679;
💎 SOME PROVISIONS
Halsbury’s Laws of England, Third Edition Volume 1 page 15 article 20 says as follows as to who can sue and be sued: “The general rule of law is that any person, natural or artificial, may sue and be sued in the English Court.”
As to the definition of a “Corporation aggregate” Halsbury’s Laws of England, Volume 9, page 4, article 3, says as follows: “A corporation aggregate has been defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers conferred upon it, either at the time of its creation or at any subsequent period of its existence.”
Halsbury’s Laws of England, Volume 9, page 19 article 31:
“At the present day a corporation is created by one or other of two methods, namely, by royal charter of incorporation from the Crown, or by the authority of Parliament, that is to say, by or by virtue of statute.”
Order 13 rule 35 of the High Court of Lagos (Civil Procedure) Rules says:
“Any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action; and any party to an action may in such case apply by summons to a Judge in Chambers for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm to be furnished in such manner, and verified on oath or otherwise as the Judge may direct.”
On the contrary, Section 24 of the High Court Law of Lagos State provides:
“In any action in the High Court, the Court may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof.”
Phipson on Evidence, 12th Edition, page 295, paragraph 679, says:
“Offers of compromise made expressly or impliedly ‘without prejudice’ cannot be given in evidence against a party as admissions; the law, on grounds of public policy, protecting negotiations bona fide entered into for the settlement of disputes. The rationale of the doctrine is a complex of factors. The policy of the law is to encourage settlements; it is thought to be “unfair” that advantage should be taken of the willingness of one party to negotiate; and some cases discover an express or implied contract between the parties that without prejudice communications should not be disclosed. Wig (sic) more thought that the doctrine was based on the fact that the statement was conditional, but this is inconsistent with the English and Commonwealth authorities.
It is probable that the modern rule extends to all third parties who act as mediators with a view to enabling the parties to reach a settlement or compromise, whether or not that third party is a legal representative”
The paper further states,
“Without prejudice” protects subsequent and even previous letters in the same correspondence; and an admission made during a bona fide attempt to settle a dispute has been excluded even when not expressly made without prejudice.” – It cites the case of Scotts Paper Co. v. Drayton Paper Works 44 R.P.C. 151,529 in support of the latter proposition.
Ariori v. Elemo (1983) 1 S.C.N.L.R. 1, this court held as follows:
(1) Fundamental rights that are for the sole benefit of the private individual can be waived. These include the right to speedy trial which a litigant can waive by asking for an adjournment of the case in so far as the adjournment does not give rise to a miscarriage of justice.
(2) Fundamental rights that are for the benefit of the litigant and the public cannot be waived. These include the right to speedy trial which a litigant cannot waive by seeking an adjournment if the adjournment is of such a nature that the Court will lose the advantage it has of accurate assessment of the witnesses it had observed in the course of trial. This is because to permit such a waiver will lead to injustice as it is against public policy to compromise illegality, manifest or latent.”
💎 NOTABLE DICTA
So, apart from the recognition or creation of an unincorporated body as a legal entity by statute one has to look further into the relevant statutes in order to determine whether or not it has been given impliedly by legislature the capacity to sue or be sued eo nomine. – Abdul Ganiyu Olatunji Agbaje, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
As was pointed in the American case of Forest City MFG. Co. et al. v. Garment Workers’ Union (supra) the fact that [the] legislature gave an unincorporated association the right to be represented by a member on a statutory board is no indication that [the] legislature constituted such an association a suable entity. I will follow that decision. This means that I am not prepared to hold from the rights given by various statutory provisions to the 1st Respondent to appoint, nominate or elect some of its members to serve as members of various statutory bodies[, the] legislature has impliedly given the capacity to sue and be sued to the 1st Respondent. – Abdul Ganiyu Olatunji Agbaje, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
The 1st Respondent is not a trade union or for that matter a registered trade union. The 1st Respondent is not an association of persons carrying on business in partnership in the name of a firm for the provisions of Order 13 rule 35 of the High Court of Lagos (Civil Procedure) Rules to apply. – Abdul Ganiyu Olatunji Agbaje, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
From what I have said earlier on in this judgment it is apparent that the question of the three Senior Advocates of Nigeria not upholding the law by appearing for the 1st Respondent is far-fetched.
It is equally clear that the plaintiff is not a client of any of the three Senior Advocates of Nigeria. Nor is it even alleged in this case that the plaintiff has ever been a client of any of the three Senior Advocates of Nigeria. In fact the question of any of the three Senior Advocates of Nigeria betraying the confidences of the plaintiff does not arise here. None of them on the facts before us enjoyed such confidences. – Abdul Ganiyu Olatunji Agbaje, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
When one talks of administration of justice outside the court, the strict rules of admissibility of evidence are relaxed and extraneous matters which will not meet the strict rules of admissibility under the Evidence Act are admitted and considered. In the strict sense of the phrase known to law, no authority other than the courts or tribunals set up to meet the requirements of impartiality and independence provided for by the 1979 Constitution can administer justice. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
The justice in conciliation is that of concession to calm the atmosphere and bring peace. It has nothing to do with determination of the rights of the parties according to law. The misconception of the role of conciliators in conciliatory meetings in the search of settlement outside the walls of the court was a fundamental error which brought about disorientation of the learned Chief Judge in the approach to the question of injunction before him. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
It is not the law in Nigeria that any legal practitioner who participates in an effort to settle a dispute already in court out of court is disqualified and incompetent to appear for any of the parties in the suit. He is not an arbitrator or an independent arbiter in the sense in which a Judge is in a court or other tribunal whose independence and impartiality is secured and maintained by law. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
Juridical personality is acquired when the law accepts and recognizes the existence of unincorporated associations. The capacity of suing and being sued is not thereby given by the mere recognition and acceptance of its existence. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
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. This does not make the Nigerian Bar Association a juristic person. It only gives the body recognition as a legal entity made up of legal practitioners. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
The well settled judicial view in this country appears to me consistent in holding that an association of persons without incorporation cannot be regarded as a legal person for the purposes of actions in court. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
Legal personality can only be conferred by statute. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
The most fundamental of the differences between a corporation and an unincorporated association are that the corporation has “perpetual succession,” it maintains its identity and its personality, notwithstanding changes in its membership; its property does not belong to its members. But the property of an unincorporated association does belong to its members from time to time, and that property may be owned by entirely different persons at the date when the cause of action arose, at the date when the action is commenced, and at the date when the judgment is pronounced. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
Our problem is to find which law, if any, created the N.B.A., conferred on it rights and duties, and prescribed penalties for breaches of those rights and duties. All these form the contents of those jural relationships which will inevitably lead to the inference that legal personality has been conferred on a jural unit. – Chukwudifu Akunne Oputa, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)
It does not take more than one statute, in fact one Section of the Statute, to invest legal personality on an unincorporated association. If it is not possible to find that solitary statute, then the inevitable inference is that the association has not been granted juristic personality by the law. – Chukwudifu Akunne Oputa, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association And 4 Ors (No.2) (1989)