The body of Benchers: Whether can be sued for Violation of Fundamental Rights? – Hameed Ajibola Jimoh

Section 3(1) of the Legal Practitioners’ Act, 2004 (as amended)-herein after referred to as the LPA-, established ‘The Body of Benchers’, consisting of such members as listed thereunder. By section 3(2) of the LPA, ‘The Body of Benchers shall be a body corporate with perpetual succession and a common seal’. The functions to be performed by the Body of Benchers have been stated in section 10A of the Act. Nevertheless, it must be noted that both the Legal Practitioners’ Act, 1962, amended up to 1988 and the Legal Practitioners’ Amendment Decree, 1994 are now referred to as the Legal Practitioners’ Act, 2004 (as emended). Under the said provisions of the Legal Practitioners’ Amendment Decree, 1994 (now 2004 as amended), there is a provision in section 23A which provides that: ‘23A (1) No person shall commence or maintain an action or any legal proceeding whatsoever relating to, connected with or arising from- (b) the exercise or preparation by the Body of Benchers for the exercise of the powers conferred upon it by this Act’. (3) A person who contravenes the provisions of subsection (1) of this section commits an offence and is liable on conviction to a fine of 10,000.00 or to imprisonment for a term of one year or to both such fine and imprisonment’. From the provisions of section 23A (1) and (3) (b) of the LPA, it shows that no legal action or legal proceeding whatsoever can be commenced or maintained against the Body of Benchers by any person, corporate or incorporate (natural) and where such is made, it becomes an offence punishable upon conviction.
This paper considers whether considering the above provisions of the LPA in section 23A (1) and (3)(b), the Body of Benchers can be sued in any cause of action bothering on the violation or enforcement of Fundamental Rights?

  • It is the submission of the writer of this paper that the Body of Benchers can be sued on violation or enforcement of the provisions of the Fundamental Rights.

    First and foremost, actions and or suits bothering on the enforcement of fundamental rights have the force of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution. It is submitted that the FREPR is made pursuant to the provisions of the Constitution. In the case of Abia State University, Uturu v Anyaibe (1996) 3 NWLR (pt. 439) 646 at 661, per Katsina-Alu, JCA (as he then was) held that the Fundamental Rights (Enforcement Procedure) Rules made pursuant to the Constitution, have the force of law as the Constitution itself; and overrides the provisions of any other enactment to the contrary. In which case, such a provision has equal force of law as the Constitution itself.

In essence, actions bothering on enforcement of fundamental rights against the Body of Benchers have the force of the Constitution. Therefore, where there is any inconsistency between the provisions of the Constitution and the provisions of the section 23A (1) and (3)(b) of the LPA, the provisions of the Constitution shall prevail and that provisions of the LPA shall be null and void and of no effect to the extent of the inconsistency. Section 1(1) and (3) of the Constitution is in support of this position that ‘1(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void’.

Furthermore, it is the humble submission of the writer of this paper that the provisions of the Constitution are the grund norm and the supreme law of the land. In the case of PDP V CPC (2011) 17 NWLR (pt 1277) 485 at 511 ​it was held that: ‘The Constitution of Nigeria is the grundnorm, otherwise known as the basic norm from which all the other laws of the society derive their validity. Each legal norm of the Society derives its validity from basic norm.

Any other law that is in conflict with the provision of the Constitution must give way or abate’. Also, Ngwuta JSC held in the case of Oni v Fayemi (2013) 12 NWLR (part 1369) 431 SC. thus: ‘I wish to emphasise that the Constitution of the Federation, 1999 as variously amended, is the yardstick for determining the validity velnon of any act or decision in relation to any law in the country. Any derogation from one section is not only extraneous to the Constitution but a violation of the solemn oath undertaken by all Judges to defend and protect it’. It is further submitted that any provision of any enactment that is contrary to the provisions of the Constitution shall be declared null and void and of no effect to the extent of such inconsistency. More clearly on the submission above, the Supreme Court of Nigeria has held in A.C.B. V Losada (Nig.) Ltd. (1995) 7 NWLR (pt. 405) 26 at page 53 (paragraphs A-B) where Adio J.S.C. held thus: ‘It has never been the case in our law that the provisions of any ordinary statute would render nugatory the relevant provisions of the Constitution. See: Ishola v Ajiboye (1994) 6 N.W.L.R. (pt. 352) 506 at p. 621; (1994) 19 L.R.C.N. 35. Therefore, if any law of the State including a subsidiary legislation like the aforesaid High Court (Civil Procedure) Rules of Lagos State, is inconsistent with the provision of the constitution, the provisions of the constitution prevail and that State law is to the extent of inconsistency void’. It was also held in Achu v C.S.C. Cross Rivers State (2009) 3 NWLR (pt. 1129) 475 at page 506 (paragraphs A-B), where the court held thus: ‘The provisions of an ordinary statute would not render nugatory the relevant provisions of the constitution’.
Furthermore, the provisions of the Constitution in section 46(1) and (2) and the provisions of Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009-herein after referred to as FREPR- have conferred the right of action on any person thus ‘Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress. (2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter’.

It is further submitted that the provisions of the FREPR has now expanded those who can sue for the breach of any of those rights contained under Chapter IV of the Constitution and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1990. See: Preamble or Long Title of the FREPR in item 3(e) of the FREPR.
Furthermore, the provisions of Order III of the FREPR has prohibited any limitation of action law thus ‘An Application for the enforcement of Fundamental Right shall not be affected by any limitation Statute whatsoever’.

Also, in the case of Enukeme v Mazi (2015)17 NWLR (1488)411 C.A. at page 434 paras. A-C, Mbaba, J.C.A. (delivering the leading judgment), held thus ‘I must start by stating the obvious, that Fundamental Rights Enforcement Procedure is sui generis, being specially and specifically designed with its own unique rules by the Constitution, to address issues of fundamental rights of persons protected under the Constitution. Of course, consideration of issues founded on breaches of fundamental rights in this case must be handled within the exclusive confines of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which actually came to correct some perceived wrongs and hardship which the 1979 Rules (fashioned on the 1979 Constitution) caused to applicants seeking enforcement of their fundamental rights, especially in the areas of adherence to undue technicalities and delays in determining applications’. The case of Loveday v Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. is humble referred to.

  • Therefore, it is finally submitted by the writer of this paper that notwithstanding the provisions of section 23A (1) and (3)(b) of the LPA (supra), the Body of Benchers can be sued for any act or action of violation of human rights and such legal proceedings shall subsists and any criminal proceedings instituted against such person will be unconstitutional, null and void and of no effect. A preliminary objection will be enough to dismiss such criminal proceeding.

e-mail: hameed_ajibola@yahoo.com



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