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Prominent Lawyer Files Objection To Amendment Of NIgerian Bar Association Constitution

September 18, 2016

Mr. Olasupo Ojo, a former Secretary of the Constitution Review Committee of the Nigerian Bar Association (NBA), has filed an objection to the amended constitution adopted at the Annual General Meeting of the Association, held in Abuja, on  August 27, 2015.

Ojo’s objection was contained in an application to the Corporate Affairs Commission (CAC). The NBA, seeking approval of the Commission for the amendment of the constitution by its Incorporated Trustees, had issued a public notice calling for objections to its application to the CAC.

Ojo’s application (Ref No.CAC/IT/MIA/No.2365), was dated 14 September and filed on his behalf by his solicitors, Lawbold LP.
Signed by Mrs. Modupe Ogunajo and addressed to the Registrar-General of the CAC, the application lists grounds on which Ojo’s objection is based.

First, according to the application, is that the 2015 Amended Constitution, for which the endorsement of the CAC is being sought, did not amend or alter the subsisting 2001 Amended NBA Constitution approved by the CAC.

The 2001 amended constitution of the NBA, adopted at the Calabar Delegates' Conference of August 31, 2001, as approved by the CAC in compliance with the provisions of the Companies and Allied Matters Act, said Ojo in his application, is the extant and valid constitution of the NBA. This, he pointed out, was confirmed by the CAC through its issuance of a Certified True Copy to his lawyers.

The validity of the constitution, Ojo’s application explained, was also confirmed by the search his lawyers conducted on his behalf at the CAC on July 13, 2016.

Ojo’s application argued that the procedure for amendment in the approved 2001 NBA Constitution is contained in Section 26, which states:“This Constitution shall not be amended except at an Annual General Conference of the Association by a two-thirds majority of those present and entitled to vote, provided that two-thirds of Branches of the Association are represented and provided further that at least 60 days notice of the proposed amendment shall have been given to the General Secretary, who shall have circulated same to delegates at least 30 days before the proposed amendment is tabled for discussion at the Annual General Conference. For the avoidance of doubt, a two-thirds majority of members present and voting shall be approximated to the nearest whole number.”

Ojo’s application pointed to Section 21 of the amended constitution for which approval is being sought, as clearly and expressly stating: “The Nigerian Bar Association Constitution, amended and adopted at the Delegates Conference held in Lagos on the  August 20th, 2009, and further amended and adopted at the Annual General Conference held in Owerri on 28th August 2014 is hereby repealed.”

Ojo called the attention of the CAC to the amended NBA Constitutions 2009 and 2014 for which the NBA failed to obtain the approval of the CAC till date.

This, said Ojo’s application, implies that the two amendments violate Section 598 and are void under Section 600 of the Company and Allied Matters Act (CAMA).

The application quoted Section 598 as saying: “Subject to sections 593 and 594 of this Part of this Act, an association whose trustees are incorporated under this Part of this Act may alter its Constitution by a resolution passed by a simple majority of its members and approved by the Commission”.

It also quoted Section 600 as stating:     “Any change or alterations purported to be made in contravention Of Sections 597, 598 OR 599 of this part of this Act shall be void.” As such, Ojo’s application contends that the repeal of the amended NBA 2009 and 2014 Constitutions excludes and spares the 2001 amended constitution. “This is a clear admission that the 2001 amended Constitution was never legally or validly amended or repealed by the 2015 amendment hence it is still the extant, valid and binding amended constitution approved by the CAC to govern the operation, administration and activities of the Nigerian Bar Association till date,” said the application.

Ojo’s lawyers also called the attention of the CAC to the deliberate concealment by the NBA in the published public notice of the specific constitution it amended and for which it is seeking CAC’s approval.

The application noted that the NBA’s  failure to first expressly amend or repeal the approved 2001 NBA amended Constitution constitutes the reason why its application for approval from the CAC is a failure from the start and renders it incapable of being approved by the CAC.
“It is trite law that no one can place something on nothing and expect it to stand. In this instance, the NBA has applied for approval of the amendment of another amended constitution different from the one approved by the CAC in the file of the NBA in the CAC Registry hence the application must fall and fail as made. We, therefore, urge the Corporate Affairs Commission to uphold this ground of objection and refuse the application for approval as made,” Ojo’s solicitors stated.

The second ground of objection,  Ojo’s  application stated, is that the unapproved amendment is invalid, given that it is being operated without prior approval by the CAC and is incapable of being approved.
The NBA, Ojo’s application noted,  has published distributed/circulated this same amended Constitution and operated same since 2015 without the mandatory prior approval of the CAC.

“In fact, the NBA has conducted elections in various national and branch offices and has spent the fund of the organization pursuant to this same amended constitution for which approval is now being sought belatedly,” Ojo said in its application.

Section 598 of CAMA, Ojo argued permits the amendment and alteration of the Constitution of the NBA by a resolution passed by a simple majority of its members and approved by the CAC.                                     

Ojo contended the CAC cannot approve an amended constitution if there is no application made to that effect.

"It is not enough for the NBA’s constitution to be amended by a resolution passed by a simple majority of its members. The amendment must also be approved by the Commission. The use of the word 'AND' is conjunctive. The effect and implication of the 'and is that both requirements of simple majority and approval by the Commission must be satisfied together," submitted Ojo.

On the first requirement of simple majority under Section 598, observed Ojo, no resolution passed by a simple majority of its members was filed by the NBA when his lawyers conducted a search on the NBA at the CAC on 22 July 2016. 

"Non-satisfaction of this first requirement disables the realization of the second requirement of approval by the Corporate Affairs Commission," Ojo submitted.

He further argued that CAC's The approval is contingent upon the NBA satisfying all the requirements listed in Section 68 of the Companies Regulation 2012, as made and published by the CAC pursuant to sections 16, 585 and 609 of the Companies and Allied Matters Act LFN 2004.
Section 68, said Ojo,  provides as requirements for change of objects and amendment of a constitution of an association whose trustees are incorporated under the Act as including:
 

"i.    Duly completed application form

ii.    Formal application for amendment of constitution signed by the Chairman and Secretary or the Solicitor.

iii.    Extracts of minutes of general meeting where amendment of constitution was approved signed by the Chairman and Secretary.

iv.    Two copies of the constitution as amended and marked “Amended.”
v.    A copy of the public notice as pasted at the registered office of the association
vi.    Updated annual returns
vii.    Payment of fees.
viii.    The extract of minutes shall state the names of members present and details of provisions of the constitution to be amended and the fact that the resolution was duly passed by the required majority of its members.
ix.    Cuttings (or National Library certified copy) of publication page of 3x2 notice of application for amendment of the constitution in two daily newspapers one of which must circulate in the locality of the association and the other a national newspaper.

x.    The notice of application published in the newspapers shall state the provisions of the constitution to be amended and invite objections to the application within 28 days of the publication."

In the instance, said Ojo,  the NBA failed to comply with the mandatory requirements of the law on account of its failure to obtain CAC's before commencing the operation of the 2015 amended constitution.

"We submit that by a combined reading and application of sections 598 and 600 of CAMA and Section 68 of the Companies Regulation 2012 to this case, the deducible position of the law is that the Nigerian Bar Association may amend its constitution at any time but such amendment must satisfy all statutory requirements and be filed with CAC in the prescribed manner and the CAC must approve  such amended constitution before it can be operated by the NBA otherwise that purported amendment is void,"  reasoned Ojo's lawyers. 

His lawyers also asserted that the NAB had no plan to seek the approval of the CAC before operating the 2015 amended constitution, citing Section 22 on page 35 of the constitution for which approval is now being sought. Headlined “Citation and Commencement," the section states: This Constitution may be cited as the Nigerian Bar Association Constitution 2015 and shall come into effect upon its being approved by the General Meeting.”

This provision, Ojo's solicitors argued, also confirms that the NBA has displaced, substituted itself for and taken over the performance of the functions of the CAC.                           "This is a most shameful, ridiculous, criminal, and reckless act of crude impunity unbecoming of the NBA as an Association of legal practitioners in Nigeria and has brought reproach and opprobrium to the Association in the eyes and mind of any reasonable common person on the street," Ojo's lawyers reckoned, adding that Section 
600 of the association's constitution regards what has been done as a nullity.   

The lawyers argued that the NBA has changed its amended constitution adopted at the Calabar Delegates' Conference of 2001, as approved by the CAC and has been operating the constitution purportedly amended and adopted at the August  2015 Annual General since that date without compliance with the law.                    

"This is a clear illegality, which indicates the negligent, felonious, delinquent and reckless manner in which the corporate affairs of the NBA are being managed," stated Ojo's lawyers. 
The lawyers also notified the CAC of a pending suit filed by Ojo before the Federal High Court, Abuja.

The suit (FHC/ABJ/CS/545/2016), between Ojo and the Registered Trustees of the NBA, is challenging the 2015 amended constitution. The lawyers advised the CAC to wait for the judgment of the court before acting on the approval being sought by the NBA. 

Part of the principal reliefs being sought in the suit is for the Court to make a pronouncement on the legality/validity of the 2015 NBA amended constitution for which a belated approval is being sought from the CAC.

"The move by the Nigerian Bar Association to now seek the belated approval of the commission for its already operational amended Constitution 2015, after having been duly served with the court processes challenging the validity of the constitution itself is an admission of the claims before the court and is also a calculated attempt by the NBA to overreach our client and circumvent the outcome of the substantive suit.

"Approval by the Corporate Affairs Commission is a statutory requirement that confers validity on all amended Constitutions operated by all Incorporated Trustees, and it is to all intent and purpose, a condition precedent for the valid operation of the amended Constitution of all incorporated trustees including the Nigerian Bar Association and same cannot have a retroactive effect," wrote Ojo's lawyers.

Given that a court of competent jurisdiction is already dealing with subject matter, argued the lawyers, it is imperative for the CAC to stay action on the instant application until the final determination of the suit.

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