The Electoral Committee of the Nigerian Bar Association, NBA, Kano Branch in the discharge of it duties, found that the aspirants for the seat of chairman of the branch are not qualified to contest the race in the forthcoming election. The Committee based its reason on the provision of the NBA uniform bylaws more particularly article 6(3) that provides that any member that has held a branch office for two tenure shall not be eligible to context any executive seat in the branch.
The two disqualified aspirants reacted to their disqualification and both argued that the NBA Constitution cannot apply retrospectively and in addition one of the aspirant further argued that since he served as NEC Representative then he cannot be treated as an officer of the branch.
I have considered both arguments and after going through the Uniform bylaw and after consulting the recent decisions of the apex Court of the land I arrived at the following opinion.
1. The argument that the bylaw cannot not have effect retrospectively is misconceived and not inline with the recent reality of the law as it is today in the land. The decision of Apex Court in the case of KUSAMOTU v. APC (2019)LPELR 46802, the Apex Court held as follows:
On the 4th of June 2018, before the instant appeal was heard on the 21/11/18 and judgment reserved for 15/02/19, the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No 21) Act 2017 on being assented to by the President, further amended Section 285 of the Constitution by specifically providing in Subsection 12 thereof thus:-
“(12)An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal……”, “Certainly, appellant’s cause of action predates the alteration. There is undeniably this argument that the alteration should not commence earlier than the time of its enactment. Since appellant’s cause of action predates the enactment of the sub-section the subsection, it is part of the argument, should not be given retrospective effect by extending its scope to matters that had occurred earlier to its coming into being.
Certainly, this is a very legitimate concern. Courts frown on retrospective legislation which they consider to particularly impinge upon the concept of fair hearing. Being dutifully aware of the doctrine of separation of powers, however, the Courts have always recognised the overriding constitutional function of the legislature to make and amend laws including their revocation. The Courts limit themselves to the task of interpreting the laws, amendments or revocation to give effect to the intention of the legislature. Thus, where the intention is clear and ambiguous, the Courts have always interpreted the provision of the legislation to reflect such intention
“In particularly Ojokolobo V. Alamu (supra) this Court has held that Subsection 12 to Section 285 which stipulates time frame within which proceedings may be taken and concluded and couched in such clear and unambiguous terms must be so construed. The provision is adjectival and must operate as such notwithstanding the retrospective effect it may have on accrued rights of the party such as the appellant herein. See also the recent decision of this Court restating and abiding by the principle in the Court’s recent decision in Appeal No. SC. 307/2018 between Obayemi Toyin V. Arogundade Samuel Musa and 4 ors delivered on the 18th January 2019.
It is for the foregoing that I find the instant appeal filed on 23/5/2018, two hundred (200) days more than the sixty (60) days Section 285 (12) allows for it to be heard and determined to be statute-barred. This Court lacks the jurisdiction of hearing and determining the appeal. It is accordingly hereby struck out” The above law remain the law until review by same court and therefore the argument that adjectival law are not to be invoked retrospectively cannot stand in the face of the above decision which is the position of the law and I here aligned with the ELCOM in their decision that the bylaw will apply retrospectively.
The disturbing part of the argument that the bylaw will not apply retrospectively is to say that the bylaw will be seen to have been rendered useless as the aim and objectives of the law will not come into effect as argued by Usman Umar Fari in an interview with Judicial Sketch on 7th June, 2020 the argument I so adopt.
2. The argument that a NEC Rep is not an elected branch officer by General Secretary of the Bar as cited by Mr. A.S. Gadanya one of the aspirants in the next coming election in an interview with Judicial Sketch on the 7th June, 2020. To my understanding this cannot be right since the bylaw specified who nominates the NEC Representative and even provides for the criteria for persons that will be the NEC Representative. The Rep is voted in an election conducted by the local branch and he sit with the executive and also give opinion in reaching the decisions made by the EXCO and his vote in reaching the EXCO’s decision is important cannot be said not to be part of branch executive in my opinion.
In all I want to commend the ElCom for standing by the law and advise that all disqualified aspirants take it in good faith just like the disqualified aspirants for the seat of secretary did in his interview with Judicial Sketch and since we are all Muslims let take it in good faith and believe it is destined by Allah the most High.
Let strive away from what can lead our branch to disunity.
Mal. Abdurrazaq A. Ahmed, Esq. 8/6/2020