Lawyer protests NBA application to CAC for approval

Below is a reproduced letter of protest to the Corporate Affairs Commission by Olasupo Ojo Esq. in respect of the Nigeria Bar Association (NBA)’s application for approval of its amended constitution which was adopted at the AGM held in Abuja in 2015:

September 14, 2016

The Registrar-General,
Corporate Affairs Commission,
Plot 420, Tigris Crescent,
Maitama District,
Abuja.

OBJECTION TO THE APPLICATION BY NIGERIAN BAR ASSOCIATION (CAC/IT/MIA/No.2365) FOR APPROVAL OF ITS AMENDED CONSTITUTION ADOPTED AT THE ANNUAL GENERAL MEETING HELD IN ABUJA ON THE 27TH AUGUST, 2015.

We are solicitors to OLASUPO OJO ESQ, a legal Practitioner of No. 4 Nurudeen Street, Anifowose, Ikeja- Lagos State (hereinafter referred to as Our Client) and we write pursuant to his instructions on the above subject matter.

Our Client is a very active member of the Nigerian Bar Association, Ikeja branch, Lagos State who is affected by the extant lawful Constitution of the Association and who has over the years been saddled with several responsibilities and held various leadership positions within the Nigerian Bar Association including serving as a member of the Bye Law review Committee of the Ikeja Branch of the Nigerian Bar Association in 2002, Secretary of the Constitution Review Committee of the Nigerian Bar Association (National) in year 2004, Secretary of the Planning Committee of the spectacular Annual General Conference of the Nigerian Bar Association in Year 2004 for which he bagged an Award on the 2nd day of September, 2005 and member of the Conference Planning Committee in year 2006.

Sequel to the Public Notice issued by the Nigerian Bar Association calling for objections to its application to the Corporate Affairs Commission seeking approval of the Commission for the amendment of the Constitution of the Incorporated Trustees of the Nigerian Bar Association with reference number: CAC/IT/MIA/No.2365, OUR CLIENT DO HEREBY OBJECT TO THE PROPOSED APPROVAL SOUGHT BY THE NIGERIAN BAR ASSOCIATION.

GROUNDS FOR OBJECTION

1. THE FIRST GROUND OF OBJECTION BY OUR CLIENT IS THAT THE 2015 AMENDED CONSTITUTION FOR WHICH APPROVAL IS BEING SOUGHT DID NOT AMEND OR ALTER THE EXTANT 2001 AMENDED CONSTITUTION OF THE NBA APPROVED BY THE CAC:
2. The 2001 amended Constitution of the Nigerian Bar Association adopted at the Delegates Conference held in Calabar on 31st August, 2001 as approved by the Corporate Affairs Commission in compliance with the provisions of the Companies and Allied Matters Act is the subsisting, extant and valid Constitution of the Nigerian Bar Association. This was confirmed by the Corporate Affairs Commission when it issued us a Certified True Copy of the extant registered and valid Constitution of the NBA as at the 22nd day of July, 2016. This fact was also confirmed by the search we conducted at the Corporate Affairs Commission on behalf of our Client on the 13th day of July, 2016.
3. That the procedure for amendment in the approved 2001 NBA Constitution is clearly spelt out in Section 26 thereof as follows:
   “AMENDMENT
   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, two-thirds majority of members present and voting shall be approximated to the nearest whole number.
4. We refer you to Section 21 of the purportedly amended constitution adopted at the Annual General Meeting held in Abuja on 27th August, 2015 and for which approval is now being sought in which it is clearly and expressly states that “the Nigerian Bar Association Constitution, amended and adopted at the delegates Conference held in Lagos on the 20th August, 2009 and further amended and adopted at the Annual General Conference held in Owerri on 28th August 2014 is hereby repealed”
5. We caution the CAC to carefully note the above reference to the amended NBA Constitutions 2009 and 2014 for which the NBA failed to obtain the approval of the CAC till date. The implication is that the two amendments violates section 598 hence are void under section 600 of the Company and Allied Matters Act which sections provides as follows: “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”.
   600. “ANY CHANGE OR ALTERATIONS PURPORTED TO BE MADE IN CONTRAVENTION OF SECTION 597, 598 OR 599 OF THIS PART OF THIS ACTS SHALL BE VOID”.
6. The repeal of the amended NBA Constitutions 2009 and 2014 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.
   f) We also caution the CAC to note the deliberate concealment by the NBA in the published PUBLIC NOTICE of the specific constitution it has purportedly amended and for which it is seeking the approval of the CAC.
7. This gross failure by the NBA to first expressly amend or repeal the approved 2001 NBA amended Constitution is a very fatal reason why this application for approval has failed ab-initio and rendered it incapable of being approved by the Corporate Affairs Commission. 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.
8. THE SECOND GROUND OF OBJECTION IS THAT THE UNAPPROVED AMENDMENT IS VOID FOR BEING OPERATED WITHOUT PRIOR CAC APPROVAL HENCE IS INCAPABLE OF BEING APPROVED
9. The NBA has published, distributed/circulated this same amended Constitution of the Nigerian Bar Association purportedly amended and adopted at the Annual General Meeting held in Abuja on 27th August, 2015 and it has been operating the same since 2015 without the mandatory prior approval of the Corporate Affairs Commission as required by law. In fact, the NBA has conducted elections into various national and branch offices and has spent the fund of the organisation pursuant to this same amended constitution for which approval is now being sought belatedly.
10. Sections 598 and 600 of the CAMA states:
    “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”.
    600. “ANY CHANGE OR ALTERATIONS PURPORTED TO BE MADE IN CONTRAVENTION OF SECTION 597, 598 OR 599 OF THIS PART OF THIS ACTS SHALL BE VOID”.
11. Section 598 of CAMA 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 Commission. We submit that the Commission 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. Concerning the first requirement of simple majority under section 598, it is clear that no resolution passed by a simple majority of its members was filed by the NBA when we conducted a search on the NBA at the office of the Corporate Affairs Commission on the 22nd day of July, 2016. Non satisfaction of this first requirement disables the realization of the second requirement of approval by the Corporate Affairs Commission. According to Black’s Law Dictionary, Eighth Edition at page 111, the word “approve” means- to give formal sanction to; to confirm authoritatively.
12. The approval by the Commission is contingent upon the satisfaction by the NBA of all the requirements listed in Section 68 of the Companies Regulation 2012 as made and published by the Corporate Affairs Commission pursuant to Sections 16, 585 and 609 of the Companies and Allied Matters Act LFN 2004.
    The said section 68 provides as follows:

Requirements for change of objects and AMENDMENT OF CONSTITUTION of an association whose trustees are incorporated under the Act SHALL include the following:
i. Duly competed application form

1. 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.

1. Two copies of the constitution as amended and marked “Amended”.
2. Copy of the public notice as pasted at the registered office of the association
3. 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.

1. Cuttings (or National Library certified copy) of publication page of 3×2 notice of application for amendment of the constitution in two daily newspapers one of which must circulate in the locality of the association and theother 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
2. Kindly note the use of the word “SHALL” in section 68 of the Companies Regulation 2012 cited above.
   In the instant case, the NBA has failed to comply with the above mandatory requirements of the law by their failure to obtain the approval of the Corporate Affairs Commission BEFORE commencing the operation of the 2015 amended constitution. The Supreme Court has held that:
   “Where the provision of a Statute is garbed with the word “shall”, it connotes that it is imperative that the provision be obeyed. This is so because the word “shall” is a word of command. It imposes a duty and makes the provision mandatory”. See Corporate Ideals Insurance Company Ltd V Ajaokuta Steel Co. Ltd, (2014) 7 NWLR Part 1405 page 165 at page 193 paragraphs D-F
3. 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.
4. RATIONALE
   The reason and justification for the mandatory requirement for the constitution and any amended constitution of any association registered under CAMA like the Nigerian Bar Association, to be filed and approved by the CAC is to afford members of the association and the general public opportunity to know the actual constitution in force and regulating the affairs of the association at any given time. It makes for certainty, predictability and orderliness in the conduct of the internal affairs of every registered association and in its relationship with other legal persons who may have cause to engage the association in any lawful dealing such as contract. It also enables members of such association to watch over the management of the affairs of the association and to hold their officers and or leaders accountable. It prevents surreptitious and arbitrary change or amendment of the rules and regulations. It enables members check the excesses of their leaders and prevent impunity whenever any officer acts ultra-vires the powers conferred by the constitution. The registration and approval by the CAC therefore confers legal validity and enforceability status on any such amended constitution and enables any interested member of the society to apply for and obtain a copy of the extant constitution at any time. Most importantly, it provides the means and makes it easy for the courts to adjudicate on any dispute that may arise among members of the association or between the association and any other person. Failure to comply with all mandatory statutory requirements will negate all the foregoing and prepare a fertile ground for anarchy.
5. In order to expose the reason why the NBA did not bother to seek or obtain the approval of the CAC before operating the 2015 amended constitution, we refer the CAC to section 22 at page 35 of the 2015 amended constitution for which approval is now being sought which states:

“CITATION AND COMMENCEMENT
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 illegal provision is a clear confirmation that NBA has no plan or intention to seek and obtain the approval of the CAC for the amended constitution at all. It also confirms that the NBA has displaced, substituted itself for and taken over the performance of the functions of the CAC via its decree quoted above that the 2015 amended constitution “shall come into effect upon its being approved by the General Meeting” as opposed to the Corporate Affairs Commission statutorily empowered to approve such amended constitution. 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.

600. In order to avoid the operation of two constitutions and consequential anarchy in the NBA, Section 600 contains provision as to the legal consequence of changing or altering and of failure to obtain CAC approval before any association begins to operate an amended constitution such as done by the NBA as follows: “600.

ANY CHANGE OR ALTERATIONS PURPORTED TO BE MADE IN CONTRAVENTION OF SECTION 597, 598 OR 599 OF THIS PART OF THIS ACTS SHALL BE VOID”.

We urge the CAC to note the use of the word “SHALL” in the section. The Supreme Court has held that:

“Where the provision of a Statute is garbed with the word “shall”, it connotes that it is imperative that the provision be obeyed. This is so because the word “shall” is a word of command. It imposes a duty and makes the provision mandatory”.

See Corporate Ideals Insurance Company Ltd V Ajaokuta Steel Co. Ltd, (2014) 7 NWLR Part 1405 page 165 at page 193 paragraphs D-F

1. It is very clear that the NBA has changed or altered the Amended Constitution of the Nigerian Bar Association adopted at the Delegates Conference held in Calabar on 31st August, 2001 as approved by the Corporate Affairs Commission in compliance with the provisions of the Companies and Allied Matters Act and has been operating the constitution purportedly amended and adopted at the Annual General Meeting held in Abuja on 27th August, 2015 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.
2. We refer you to the case of Corporate Ideals Insurance Company Ltd V Ajaokuta Steel Co. Ltd, (2014) 7 NWLR Part 1405 page 165 at page 193 paragraphs D-F, in which the Supreme Court, relying on earlier decisions, held as follows:

“Where a statute clearly provides for a particular act to be done or performed in a particular way, failure to perform the act as provided will not only be interpreted as a delinquent conduct but also as not complying with the statutory provision. In such a situation, the consequences of non-compliance follows even though the statute does not specifically provide for sanction”.

1. We therefore submit that by the provisions of the law and authority cited above, the amended Constitution of the Nigerian Bar Association purportedly amended and adopted at the Annual General Meeting held in Abuja on 27th August, 2015 and pursuant to which the administration and affairs of the Nigerian Bar Association is being conducted without prior approval by CAC is void and same cannot be retroactively approved by the Commission vide the instant application to confer validity thereto. WE URGE THE CAC TO UPHOLD THE LAW BY VIEWING THE UNAPPROVED AMENDMENT AS VOID FOR displacing and BEING OPERATED WITHOUT PRIOR CAC APPROVAL AND REFUSE THE APPLICATION FOR THE APPROVAL OF A VOID AMENDED CONSTITUTION AS MADE.
2. WITHOUT WAIVING BUT AS AN ALTERNATIVE TO THE SECOND GROUND ABOVE AND JUST IN CASE THE CAC FEELS OVERWHELMED, CONFUSED OR UNCERTAIN ABOUT THE CORRECT DECISION TO MAKE, THE THIRD GROUND FOR OBJECTION IS THAT SUIT NO FHC/ABJ/CS/545/2016- BETWEEN OLASUPO OJO Vs REGISTERED TRUSTEES OF THE NIGERIAN BAR ASSOCIATION IS NOW PENDING AT THE FEDERAL HIGH COURT ABUJA CHALLENGING THE 2015 AMENDED CONSTITUTION OF THE NBA HENCE THE CAC SHOULD AWAIT JUDGEMENT BY THE COURT BEFORE ACTING ON THE APPLICATION FOR APPROVAL.

• Due to the clear and deliberate failure and refusal by the NBA to comply with the requirement of the CAMA for the mandatory prior approval of the CAC before the operation of the amended Constitution of the Nigerian Bar Association purportedly amended and adopted at the Annual General Meeting held in Abuja on 27th August, 2015 , a suit was instituted by our Client at the Federal High Court, Abuja with SUIT NO: FHC/ABJ/CS/545/2016- BETWEEN OLASUPO OJO Vs REGISTERED TRUSTEES OF THE NIGERIAN BAR ASSOCIATION challenging the validity of the 2015 amended Constitution of the Nigerian Bar Association and the Defendant in the said suit which is the Nigerian Bar Association has been duly served with all the Originating processes and have also acknowledged service of same.
• Part of the principal reliefs claimed in the said suit is for the Court to make a judicial pronouncement on the legality/validity of the 2015 NBA amended constitution which is now sought to be presented to the Commission for the purpose of obtaining belated statutory approval from the Commission as required by law before its operation.
  3) 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.
• In view of the fact that a Court of competent jurisdiction is already seized of the subject matter, it is imperative for the Commission to stay further action on the instant application until the final determination of the suit hereinbefore mentioned to avoid destroying the RES, rendering any pronouncement thereon nugatory and ultimately foisting a situation of helplessness upon the Court.
• In the light of the foregoing facts and state of the law governing the operations of Incorporated Trustees, it will be in the interest of justice and the Rule of Law for the Corporate Affairs Commission to tarry awhile until the final determination of the above-referenced suit before activating any process that will generate the effect of conferring validity on the 2015 amended Constitution now sought to be approved. In other words, our Client vehemently objects to the instant application by the Nigerian Bar Association and urge the Commission to stay action until the matter is pronounced upon by the Court.
  Kindly find enclosed a copy of the Originating Summons complete with the affidavit, exhibits and written address in support. We hereby incorporate into, rely on and urge the CAC to also view and use ALL THE EXHIBITS for the purpose of this objection.

Thanks for your understanding and cooperation and kindly accept assurances of our highest professional regards.
Yours faithfully,
FOR: LAWBOLD L. P.

MOPELOLA OGUNAJO (MRS)