The Legality Of NBA Barring Lawyers From Representing Kidnap Suspects

The Benin Branch of the Nigeria Bar Association (NBA), on
Thursday 25^th April, 2019 barred its members from
handling cases of kidnapping. The  branch made this known in a
communiqué signed by its Chairman Mr Collins Ogiegbaen and
Secretary Mr Pius Oiwoh on Thursday in Benin. The association said
it is withdrawing its services from all suspects whose offences are
related to kidnapping against the background of incessant cases of
kidnap and attempted kidnap of its members.

“The branch hereby order the immediate withdrawal of services of
all lawyers registered with it from defending persons charged with
the grievous and felonious offences of kidnapping and armed
robbery.

“That this order for the withdrawal of services to persons
charged with the aforementioned offences shall be with immediate
effect until otherwise reviewed by a subsequent meeting of the
branch.”

January this year NBA Ado Ekiti Branch gave similar directive
and Owo Branch too gave similar one in December last year.

These directives of the NBA may receive mixed reactions from
lawyers but that is not the concern of this write-up. The concern
is the legality or otherwise of the directive. Has NBA the
requisite power to stop its members from representing people
suspected to have committed a particular category of crime? Let us
visit our Law Reports for a guide.

In Chinwo v. Owhonda (2008) 3 NWLR (Pt. 1074)
341, pronouncement on the implication of subscription to
membership of associations was made by the Court of Appeal as
follows:

“In the exercise of their constitutional rights under sections
39 and 40 of the 1999 Constitution, which guarantee freedom of
thought, assembly, association, e.t.c. individuals elect to and do
subscribe to membership in associations, which sometimes curtail
their rights. “The appellant, while exercising his right, joined an
honourable profession of formidable societal influence and
relevance which of necessity has rules and regulations to guide his
professional conduct and which along the line curtail some of his
choices. The appellant was not compelled to take up the
profession of law and its attendant compulsory membership of the
Nigerian Bar Association. However, once he made the choice
to study and practice law and thereby placing his name on the roll
of honour of belonging to the profession, he stands bound by the
internal rules and regulations of the Association… On lookers like
us can only wish him good luck.”

Per Dongban-Mensem JCA.

The above pronouncement was quoted with approval in
NYAKO v. ARDO & ORS (2013) LPELR-20848(CA)

In Alhaji Balarabe Musa v. Peoples Redemption Party
(PRP) (1981) 2 NCLR 763, Balarabe Musa who was the
governor of Kaduna State under the platform of PRP was stopped from
attending the meetings of governors by his party. Displeased with
such a directive, he sued the party on the ground that it infringed
on his right to peaceful assembly and association, movement,
freedom of expression and personal liberty. The court dismissed the
case and at 769 per Adefarasin C.J. held thus:

“The Court would not interfere in a case like this one where
members of a voluntary association have come to a decision within
the provisions of their Constitution even if the decision is
unreasonable, Circumstances have not arisen by which the court
ought to intervene. I am therefore not inclined to quash a
resolution of the PRP that PRP Governors should no longer attend
institutionalized meeting of Governors. To my mind that resolution
does not amount to a violation of the fundamental rights provided
for under Sections 32, 36, 37 and 38 of the Constitution… As a
voluntary association, it has the right to lay down its own
decisions even when they are unreasonable. They should be obeyed or
the member in disobedience is entitled to quit. The party is in its
own right supreme over its own affairs. This must be said loudly
and clearly, unless it has violated its own Constitutional
provisions the court would not interfere. The court will not
substitute its own will for that of a political party or any other
voluntary association. Those who join clubs, or associations or
political parties must be made aware of the perils of membership.
The majority will must prevail whether it is reasonable or
unreasonable.”

The law above was restated recently in MBANEFO v.
MOLOKWU & ORS.(2014) LPELR-22257(SC) and similar
position was taken in OGBORO v. REGISTERED TRUSTEES OF
LAGOS POLO CLUB & ANOR (2016) LPELR-40061(CA)

In view of the above decisions, one may be right to say that
NBA’s directive is lawful and must be complied with by all members
in that NBA is a voluntary association and no one was compelled to
be a member of NBA. To borrow from Dongban-Mensem JCA in
Chinwo v. Owhonda (supra), once one makes a choice
to study and practice law and thereby places his name on the roll
of honour of belonging to the profession, he stands bound by the
directives of the Association

Some may argue that kidnap suspects have right to counsel by
reason of section 36(6)(c) of the constitution, to my mind the
section cannot avail a lawyer who flouts the directive of NBA
because that section is meant for the benefit of an accused person,
not for the benefit of a lawyer. The section never gave lawyer any
right. Assuming (but not conceding) the section has given right to
a legal practitioner, same has been waived and made subject to the
interest of the NBA. Section 8(1) of the Legal Practitioners Act
which gives a legal practitioner the right of audience before any
court of law in Nigeria cannot also avail in the circumstance cause
same is subject to the overriding interest of NBA.

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