LAWSAN NATIONAL JUDICIAL COUNCIL
HOLDEN VIRTUALLY
SUIT NO: HC/LJ/022/002
Judgement delivered on the 19th day of July, 2022.
Before their lordships:
- Hon. Justice Ogungbe Barakat Ebunoluwa (Presided and Read Lead Judgment)
- Hon. Justice Awujoola Adedamola
- Hon. Justice Aimee Luke
- Hon. Justice Ekwuenife Uche
Between:
Branham-Paul C. “PipAr” Chima – Claimant
And
National Lawsan Bar Council (NLBC) – 1st Defendant
David Godson (President National Lawsan Bar Council) – 2nd Defendant
LEAD JUDGEMENT OF HON JUSTICE OGUNGBE BARAKAT EBUNOLUWA
This case was initiated by an originating summons supported by a 16 paragraph Affidavit, a written address and Exhibits A-L. The fact of this case can be summarized as thus, the claimant participated in a moot competition organized by the National Lawsan Bar council(hereinafter referred to as NLBC). The moot competition is a segment of the the NLBC Convention 2022 which was held at Lagos state, Nigeria. The competition was to be conducted in two stages, the first stage is the Brief Writing Stage while the second Stage would be a physical moot between the qualifying teams at the convention. The plaintiff and his team mates made inquiries if it was mandatory to pay the delegate fee for the convention . He received a reply via the official email of the 1st defendant that he and his team may not pay the delegate fees but they are free to participate in the competition. Also, the organizers assured the participants that all results would be published after the grading process. The promise however was not fulfilled as a few teams received the email that they had qualified for the next stage. The remaining teams including the plaintiff’s were not carried along and this made them question the actions of the organizers . The organizers subsequently prevented any form of communication on the WhatsApp group by allowing only group admins send messages. The plaintiff therefore approached this court for redress. He couched one issue for the just determination of this honourable court:
1) Whether the Defendant is in breach of contract?
And sought the following reliefs:
- THAT the general and authentic scores of the teams memorials be released and made public.
- THAT the NLBC writes and makes a public apology for its misconduct concerning the moot competition to the Plaintiff.
- THAT the NLBC pay a sum of N200,000 as compensation to the Plaintiff.
- THAT the NLBC pay for the cost incurred in instituting this action.
- And, any other order that the justice of this case may warrant.
My lords, counsel to the defendants failed to file their processes as at when due. At a later date, the Attorney General of LAWSAN wanted to appear for the defendants. This Court raised an issue suo moto: 1. Whether the Attorney General in his capacity as Attorney general can enter an appearance for the 1st and 2nd defendant?
Both parties were allowed to argue their case with the Attorney General relying on pivotal cases to support his argument. He argued that the NLBC is an organ of LAWSAN and as such he can enter an appearance in his capacity as Attorney General.
He further argued that the second Defendant David Godson was not sued in his capacity and that he was sued in his capacity as the president of the NLBC and as such he as Attorney general can as well represent him in this suit in his capacity as Attorney General.
On this issue, the bench unanimously ruled inter alia that the NLBC is an autonomous body established under a distinct piece of legislation and not an organ of LAWSAN as argued by the Hon. Attorney General of LAWSAN and consequently the Hon. A.G’s appearance was refused.
At the continued hearing of the case, this Court deemed it fit to raise issues suo Motu for the just determination of this suit. The issues are as follows:
1) Whether the defendant is bound by the doctrine of legitimate expectation?
2) Whether by the league system of LAWSAN, a university Chapter Cannot Be held liable (directly/indirectly) for the actions of an appointee or elected representative in LAWSAN?
3) Whether under progressive jurisprudence, the Chapter of the National LAWSAN Bar council cannot be penalized and sanctioned for the direct and intentional disregard of a competent and valid court order?
4) Whether the sanctions of the court can include sacking existing LAWSAN officials of that institution and/barring further appointment and election from the institution for a period so desirable by the Court?
5) Whether the Court can order a financial deduction/witholder of the budgetary allocation of the association/agency in question?
The long settled position of law is that a Court would not raise an issue suo Motu without giving both parties the opportunity to address the court on the issued raised. See MABAMIJE V OTTO (2016) AELR 10395(CA) CBN V OHIKU (2020) LCN/14683 (CA). Both parties were given reasonable time to file their processes, however, the defendants failed to file their processes. May I also add that this honourable Court awarded cost against the defendants which they failed to obey up to the point of delivery this Judgement.
Summary Of Arguments
On the first issue, the plaintiff’s counsel argued that there was a breach of contract by the defendants by relying on the popular case of CALILL V CARBOLIC SMOKE BALL CO (1892) ECWA CIV 1, CURRIE V MISA and CHABASAYA V AWASI (2010) NWLR (pt 1201). Her contention on this issue is that the elements of a valid contract were all present. In relating the elements of a valid contract to the case at hand, she contended that there was a Unilateral offer made by the defendants of which the plaintiff accepted and the consideration furnished by the plaintiff was the submission of the briefs for the competition. She also argued that there was an intention to create legal relations. On this issue, she submitted that the subsequent insistence that #15,000 was a prerequisite for participating in the competition and non-publication of scores even after request was made was a breach of contract.
On issue two, the plaintiff counsel argued that legitimate expectation is a principle of fairness which demands that a public authority shall respect and apply its stated position or sustained practice in exercising its powers. The cases of MOBIL PRODUCING (NIG) UNLTD V FIRS (2017) JELR 55951 (CA), FBIR V HALLIBURTON (WA) LTD 204 (LPELR-24230) (CA). Succinctly put, the doctrine means that once the public is induced to act in a certain way due to the promise made by a public authority, such authority is bound to honour its promise. The learned Senior Counsel submitted on this issue that a person who has reasonably relied on a statement made by a public body should be entitled to enforce it. She relied on the case of STITCH V ATTORNEY GENERAL OF THE FEDERATION (1986) NWLR (pt. 46) 1007.
The argument on the third issue is brief, it was the contention of the plaintiff counsel that a University/chapter of a law student is responsible and can be held liable for the misconduct of the said law student. She made reference to SECTION 8(2)(A) of the NATIONAL LAWSAN CONSTITUTION 2020, which posits that all members of the National Executive council are responsible to members of the association through the chapter executives, collectively or individually. The submission on this issue is that the President of the National LAWSAN Bar Council(hereinafter referred to as NLBC) is a member of the National Executive Council hence, his chapter is concurrently liable.
On issue 4, the learned Senior council relying on SECTION 10(8) of the Judicature act 2020 contended strongly that the chapter of a defaulter can be held liable and blacklisted. SECTION 10(4) of the Judicature act makes provision for a judgement debtor to be put on the roll of LAWSAN blacklisted students. She also argued that the Attorney General of the chapter must be joined as a party in such instance, citing the case of GREEN V GREEN (1987)-SC 206/1986. It was her humble submission that the chapter of the NLBC president can be penalised by blacklisting if the President of the NLBC fails to carry out this court’s order.
Divestiture is a mode of enforcement contained in SECTION 10 (6) of the Judicature Act, 2020. The argument of the learned counsel on issue five was Divestiture as used here can include the Sacking of a existing LAWSAN Official in that institution. She submitted that existing LAWSAN Official in that chapter in which the erring official belongs can be divested, stripped or sacked from their posts and such chapter can be blacklisted thus denying them access to any elective or appointive posts until such judgement debts gave been satisfied.
On the last issue, reference was made to SECTION 10(3) OF THE JUDICATURE ACT ,2020 with the contention that there can be financial deductions of the budgetary allocation of the agency or association which flaunts the court order. Furthermore, SECTION 16(1) OF THE LAWSAN BAR ACT 2020, makes provision for the remuneration of the NLBC. The submission of the counsel on this issue was that the budgetary allocation due to NLBC can be withheld to settle the money the court ordered it to pay. She relied on the case of CENTRAL BANK OF NIGERIA V UBANA (2017) 15NWLR (pt. 1587).
Resolution of Issue 1
The word ‘Contract’ might have different meanings to persons of different profession or calling, but I am sure to a Legal mind it tilts towards the same direction. Let me begin the exposition of the term Contract with the definition of my Noble Lord, Niki Tobi JCA(as he then was) in the case of ORIENT BANK (NIG). PLC V BILANTE INT’L LTD (1997) 8NWLR (pt. 525) 37 at 67 where he defined contract to be “an agreement between two or more parties which creates reciprocal legal obligations to do or not to do particular things.” In the case of ENEMCHUKWU V OKOYE (2017) 6NWLR (pt. 1560) 37 @ 56-56 CA, the court defined contract as “an agreement between two or more parties creating an obligation that are enforceable or otherwise recognisable at law”. It is evident that a Contract in law is not a mere agreement but an enforceable agreement. How then can we verify if there’s a valid contract between parties? It is by ascertaining that all elements of contract are present that one can say there is a valid contract between parties. The elements of a Valid contract are: Offer, Acceptance, Consideration, intention to create legal relations. See the case of ORIENT BANK (NIG) LTD V BILANTE INT’L LTD (SUPRA). It is important to examine each element of a valid contract in other to resolve this issue. I begin with offer. Offer is “an expression of readiness to contract on the terms specified by the offeror which when it is accepted by the offeree will give rise to a binding contract” see the case of SPARKLING BREWERIES LIMITED & 5 ORS V UNION BANK OF NIGERIA LIMITED(2001) LPELR-3109(SC), OJO V ABT ASSOCIATES INCORPORATED (2017) 9NWLR (pt. 1570) 167 CA. An offer can be Bilateral or Unilateral.
It is bilateral when both parties exchange promises to do a particular act in the future and it is Unilateral when a party makes the promise and the actual performance is done by the other party based on that promise. See CARLILL V CARBOLIC SMOKE BALL CO(SUPRA), AMANA SUITS HOTEL V PEOPLE’S DEMOCRATIC PARTY (2007) 6NWLR(pt. 1031) 453. The Defendant in this suit made an offer to the whole world (law students across the country) to participate in a moot competition. In Exhibit “A”, the plaintiff made inquiries about the competition via the First Defendant’s official email in order to be sure of the terms of the offer. As it is trite in law that an offer must be clear as unambiguous.
Acceptance on the other hand is an answer to the offer which seems like a “question” or request. It is “the reciprocal act or action of the offeree to an offer in which he indicated his agreement to the terms of the offer as conveyed to him by the offeror” see ORIENT BANK (NIG) PLC V BILANTE INTERNATIONAL LIMITED (SUPRA). Communication of acceptance is apposite. Acceptance may be communicated to the offeror orally, in writing or by conduct. See UNION BANK V OZIGI (1991) 2NWLR (pt. 176) 77. There must be consensus Ad idem between contracting parties. The concensus Ad idem of the parties in this suit is evident in Exhibit “C” filed before this honourable Court. The correspondent of the National LAWSAN Bar council email address stated “ You guys can participate in the convention activities…. But won’t be accommodated.” The plaintiff in turn replied “Thank you, kindly send the modalities”. This statement shows the acceptance of the Plaintiff to participate in the competition even without the accommodation.
Consideration as an element of contract is guided by the Latin maxim, Quid Pro Quo which means something for something. The case of CURRIE V MISA is prominent on Consideration. It is the inducement to a contract, a basic, necessary element for the existence of a valid contract that is legally binding on the parties. See CHABASAYA V AWASI (SUPRA). One of the rules of Consideration is that it is only a party that has furnished consideration that can enforce a contract, see CARDOSO V THE EXECUTORS OF THE LATE J.A DOHERTY 4 WACA (78). The consideration furnished by the plaintiff in this suit is the submission of the memorials for the competition as Both Claimant and Respondent as evidenced in Exhibit “H”. This submission was duly Acknowledged by the correspondent of the 1st Defendant.
Intention to create legal relations as an element of contract is straightforward. Parties entering into Valid contract must have that intention to enforce the agreement if there’s any breach from the parties. Without this element, then the agreement of the parties would be a mere agreement and each party can breach it without remedy. It is however presumed that family/ domestic or social agreements do not create legally binding contract. See the case of BALFOUR V BALFOUR. However, in cases of Commercial Agreement, it is presumed that there is intention to create legal relations. See the case of MAIR HEAD AND TURNBILL V DICKSON (1905) 7468 @ 695. The relation between the Plaintiff and the defendant is surely not a domestic or social relations. It is purely commercial, hence there is an intention to create legal relations.
Breach of contract means a party in the contract has acted contrary to the terms of the contract. See BILANTE INT’L LTD V NDIC (2011) LPELEE (781) @32. A party claiming breach of contract must prove not only that there as a breach but also that there was in existence an enforceable contract which was breached as you cannot build something on nothing and expect it to stand. See BEST (NIG) LTD V BLACKWOOD HODGE (NIG) LTD &ORS (2011) LPELR (781) @32 and JOS FLOUR MILLS LTD &ANOR V MR CHRISTOPHER GIWA &ORS (2020) LPELER-51452. In this suit, the agreement of the parties is that the Payment of delegate fee is not mandatory and that results would published after the grading process. However, the subsequent insistence of the defendant that the Payment must be made after the processes by the plaintiff have been submitted and the non-publication of the general results is a breach of contract.
Premised on this, I hereby resolve this issue in favour of the plaintiff that there was breach a valid contract by the defendant.
Resolution of Issue 2
Whether the defendant is bound by the doctrine of legitimate expectation?
Legitimate expectation seeks to ensure that a promise, representation, practice or policy made, adopted, announced by or on behalf of the government or a public authority is not made without fulfilment. It sustains fairness and reasonable expectation ignited by a public authority to do a particular thing i.e a promise or to retain a well-known practice. See FEDERAL BOARD OF INLAND REVENUE V HALLIBURTON (WA) LIMITED (2016) 4NWLR (pt.1501). The Black’s Law dictionary, 11th edition defines Legitimate expectation as “expectation arising from the reasonable belief that a private person or public body will adhere to a well-established practice or will keep a promise”.
In the case of COUNCIL OF CIVIL SERVICE UNION V MINISTER FOR THE CIVIL SERVICE (1985) AC 37 @408-409, Lord Diplock explained two ways for legitimate expectation to arise. The first is if a public authority has permitted an individual to enjoy some benefits or advantage stating in clear terms the grounds on which such benefits would be withdrawn. Any action by the public authority to deprive such individual of those benefits without proper recourse to the withdrawal grounds would get be rise for legitimate expectation.
The second is if the public authority has given assurance that the opportunity, benefit or advantage enjoyed would not be withdrawn without proper reasons from the individual enjoying the benefits on why such benefits should not be withdrawn.
The Nigerian Court aligned with this position in the case of MARGARET CHINYERE STITCH V ATTORNEY GENERAL OF THE FEDERATION &ORS (1986) LPELER-SC 881 1985, where it held inter alia that an aggrieved party is entitled to invoke judicial review, if he proves that the decision of a public authority affected him by depriving him of some benefits or advantage which he had been permitted to enjoy or which he was permitted to continue to enjoy until he was given reasons for its withdrawal or the opportunity to comment on why it should not be withdrawn has it been given.
In the light of this, this court would examine the elements necessary to prove legitimate expectation: i. The representation must be clear and unambiguous; ii. The expectation must have been induced by the decision maker; iii. The expectation must be reasonable; iv. The representation must be one which is competent and lawful for the decision maker to make.
See DUNCAN V MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISM &ORS (2010) 6SA 374(SCA).
On the first element, the expectation must be clear. On this suit, the correspondent of the 1st defendant via its official email in Exhibit “C” clearly told the plaintiff to proceed with his participation in the competition but non-payment of delegate fee means accommodation would not be provided. Furthermore, in Exhibit “E”, the correspondent for the 1st defendant via its official Whatsapp Group, stated “so whether or not you register for the convention, your memorial would be graded and your scores published too”. The expectation here is very clear and unambiguous.
On the second element, the expectation was induced by the decision maker. The representative of the National Lawsan Bar council was the one who addressed the group that the results would be publicized as that the plaintiff can go ahead to participate without paying the delegates fee which was done through the Official email.
On the third element as to the expectation being reasonable, a person who has participated in a competition would surely expect results. The result is to show his grades, in most cases to show his strength and weaknesses on the subject matter competed on. Hence, it is not unreasonable that the expectation of the plaintiff was to see the performance of his team as promised by the competition organizers.
There is no need to rigmarole on the fourth element, the representation was competent as lawful.
Premised on this, this issue is resolved in favour of the plaintiff as the defendant is bound by the doctrine of legitimate expectation.
Resolution of Issue 3
Whether by the league system of LAWSAN, a university Chapter Cannot Be held liable (directly/indirectly) for the actions of an appointee or elected representative in LAWSAN?
My lords, the fons et origo of the Law Students’ Association of Nigeria (hereinafter referred to as LAWSAN) will be used as a lamp to our feet as well as a light to our way in resolving this issue. ARTICLE 27 of the LAWSAN Constitution(as amended 2020) provides for the “ League System”. It provides that “There shall be a Northern and Southern League comprising of local chapters of LAWSAN”. Pursuant to ARTICLE 10(2) of the LAWSAN Constitution(as amended 2020), the Northern and Southern Leagues are further subdivided into Six. Succinctly put, LAWSAN is not made up of individuals, but Chapters. A Chapter might fall under the Northern or Southern league. Ordinarily, an individual whose University is not a member of LAWSAN cannot for or hold any position in the Association. Hence, it is evident that individuals make up chapters, chapters make up Sub-leagues while Sub-leagues make up the League. The aim of this collectiveness is to bring into fruition the provisions of ARTICLE 2(b)(g) and ARTICLE 3(a)(b)(c)(d) and (e).
An individual as a member of a chapter to contest for an election or to be appointed for a position is expected to be a law-abiding member who would respect the wordings of the LAWSAN Constitution as well as other laws which derive their validity from the Constitution. The league system of LAWSAN favors Collective Responsibility. A Chapter which produces an office holder whether appointed or elected should be ready to play supervisory roles in ensuring that none of its members act above the law. Likewise, office holders and non-office holders of LAWSAN should strive to be good Ambassadors of this great association. It is then that the association would have all round perfect Image.
Each University/chapter can be held responsible directly or indirectly for the actions of an appointee or elected representative. If each chapter doesn’t take responsibility, then it means any member of the Chapter can act according to his/her will without recourse to the laid down laws or court orders. This reminds me of a Sierra Leone Proverb “If the Cockroach wants to rule over the Chicken, then it must hire a fox as a bodyguard”.
This issue is resolved in favour of the Plaintiff.
Resolution of Issue 4
My Lords, may I reiterate the general principle of law on court orders. It is the general principle of law that all orders of court must be obeyed and a party in disobedience of court orders cannot be heard while still in disobedience. See the cases of BARRISTER ORJER JEV V SEKR D. IYORTYON (2014) LPELR-23000 (SC) and ROSSEK V ACB (1993) 8NWLR (pt. 312) 382. However, to every general rule, there is an exception. A party in disobedience of a court order may be heard in subsequent application if: i. The party seeks to appeal against the order of which he is in contempt; ii. He challenges the order on the ground of lack of jurisdiction; iii. The order ought not to be sustained because there were procedural irregularities in the process of making the order. See CHIEF UJILE D. NGERE &ANOR V CHIEF JOB WILLIAM OKURUKET “XIV” & ORS (2014) LPELR -22883 (SC), FAME PUBLICATIONS LTD V ENCONIUM VENTURES LIMITED (2008) 8 NWLR (pt. 667) 105.
Let’s take an intellectual journey to SECTION 10 of the Judicature Act 2020, it provides that “the decision of the council shall be binding on all parties to the proceedings and in enforcement of its judgement the council shall adopt the undermentioned mechanisms in granting it’s injunctive, restorative, reparative, punitive, pecuniary and other reliefs”. Some of the modes if enforcement include witholding emoulment, blacklisting, precision, Divestiture and homeland measures. See generally SECTION 10 OF THE JUDICATURE ACT. The reasons for these measures is not far-fetched. It is in place because it is forseen that some parties may wish to carelessly flaunt the orders of the court. Hence, the measure is put in place to make examples of such unruly persons.
Parties approach the court to argue their cases because they know that justice would prevail. In order for the court to do this, it would make orders which would set things right. If these orders are flaunted with utter disregard, is it not a blow on the face of this court? Therefore enforcement modes have been put in place in order to ensure compliance of the orders. It is not enough that some of the orders are obeyed and others aren’t, all orders of this court must be complied with.
With resolve made in the above issue the chapter of the National LAWSAN Bar council President as well as the NLBC president who is the second defendant in this case can be penalized for utter disregard to the order of this court.
Resolution of Issue 5
Any of the measures of enforcement can be engaged, however, it must be appropriate for each case. A Chapter that has failed to enforce court orders or see to it that its members enforce court orders once duly informed should be ready to face the consequences of its negligence. The modes of enforcement mostly connected to this issue is Divestiture and Blacklisting. Both would have same effect on Chapters and Individuals.
Resolution of Issue 6
The NLBC is established by the NLBC Act 2022. Section 17 of the Act provides for remuneration of the NLBC. Any intentional disregard for an order of this court by the NLBC can warrant witholding of emoulment. May I add that the NLBC should be the last institution to flaunt the order of this court. A council that is saddled with the responsibility of discipline of Legal Practitioners other than Senior Advocate of the National Lawsan as stated in Section 6(3) of the NLBC Act 2020. It is absurd to find such council flaunting court orders. What example would it lay down for other student legal Practitioners or other Bar Associations in other Chapter? Definitely, order should be restored. Hence, for the institutions that fail to comply with this court order, SECTION 10(3) OF THE JUDICATURE ACT, should be invoked.
Consequence upon my resolutions, reliefs one and two are hereby granted. Other reliefs sought are hereby refused.
OPINION OF HON JUSTICE AWUJOOLA ADEDAMOLA
I had the privilege to read the lead judgement just delivered by My learned brother, HON. Justice Ogungbe Barakat. I am in agreement entirely with the reasoning and conclusion reached. I adopt all his reasoning and opinions as mine including the orders.
OPINION OF HON JUSTICE AIMEE LUKE
I had the privilege to read the lead judgement just delivered by My learned brother, HON. Justice Ogungbe Barakat. I am in agreement entirely with the reasoning and conclusion reached. I adopt all his reasoning and opinions as mine including the orders.
OPINION OF HON JUSTICE EKWUNIFE UCHE
I had the privilege to read the lead judgement just delivered by My learned brother, HON. Justice Ogungbe Barakat. I am in agreement entirely with the reasoning and conclusion reached. I adopt all his reasoning and opinions as mine including the orders.
Appearance:
V. Uhunwangbo (Lead Counsel),
K.T Phillip,
P. Usiosefe,
E.O. Achioya.
(For the claimant)