A Non-Statutory Entity like the NBA, Cannot Carry out the Statutory Duties of Another Entity – Steve Sun Replies NBA

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First, I think it is rather unhelpful and perhaps unprofessional to send out a rebuttal to my article to the email addresses of tens of thousands of Nigerian lawyers without the corresponding benefit of availing them the full picture.

Lawyers are not kindergartners; they can most certainly make informed appraisals when presented with facts.

I have received dozens of messages from colleagues calling my attention to the circulated email and wondering about the facts leading to the email. I have had to manually send the links to the various blog publications to such colleagues. Some people are not social media enthusiasts, hence developments on facebook and/or Whatsapp are very likely to elude such folks. In contrast, most Nigerian lawyers would most likely open and peruse an email emanating from NBA.

The point I’m labouring to make is that in sending out these nature of emails in future, it might be better, in the interest of fairness, to equally avail the recipients/addressees, a copy of the article under review, or at least, a web link to same, so that you don’t leave them confused/lost.

That being said, let me quickly make the following reply to the said rebuttal:

1. It is trite that where a court lacks jurisdiction, parties cannot confer jurisdiction by consent or acquiescence. Please see ORHENA ADUGU GBILEVE & ANOR v. MRS. NGUNAN ADDINGI & ANOR, LEGALPEDIA ELECTRONIC REPORTS (LER)[2014] SC 193/2012; and a plethora of other authorities. Hence, the Chief Registrar of the Supreme Court cannot, even if he wanted, consent to the setting up of the BPF portal by the NBA.

One point to be constantly borne in mind as we discuss this issue is that BPF is payable to the Supreme Court and not to the NBA. Hence a Nigerian Lawyer is referred to as _“Barrister and Solicitor of the Supreme Court of Nigeria“_ and not Barrister and Solicitor of the Nigerian Bar Association.

Continuing therefore, the NBA for instance cannot set up a portal on behalf of the Nigerian Law School for the payment of any manner of fees by call to bar candidates. Neither can the Nigerian Law School set up a portal on behalf of the Supreme Court for the payment of any fees whatsoever. If that were to be the case, then it can equally be argued that the NBA can also set up a portal on behalf of the Supreme Court for the payment of filing fees on the ground that the said filing fees are going into the account of the Supreme Court. They can also set up a portal on behalf of the Corporate Affairs Commission for the payment of certain fees also on the argument that the monies are heading straight to CAC designated accounts. The summary being that for the sake of record-keeping, no entity can set up a portal for another entity. And more particularly, a non-statutory entity like the NBA, cannot carry out the statutory duties of another entity which is a creation of statute.

Secondly and most importantly, public records ought not be kept by private entities. The portal in question is the property of the NBA and not the Supreme Court, hence all data flowing through and/or stored thereon is not under the control/supervision of the Supreme Court but under the control of the NBA, which is an absurdity. Likewise, the e-receipts generated upon payment is equally stored in NBA database, since the portal itself belongs to the NBA.

The LPA having mandated payments to be made to the CRSC; Section 102 of the Evidence Act having defined what constitute Public Documents and Section 104 supra having obligated every proper custodian of Public Documents to issue CTCs upon request; pray then, if a person were to make an application to the CRSC for the CTC of such e-receipt, would it not be absurd that the public officer who is deemed to be in proper custody of it, would have to fall back to the de-facto owners of the portal for assistance??
The whole essence of record-keeping in relation to the term “proper custody” is to reduce to the barest minimum, the possibility of manipulation or alterations on public documents.

If the Roll of Legal Practitioners were to be under the control and supervision of the NBA for instance, nobody can guarantee that names will not be mysteriously smuggled in or out of same. Somebody can wake up one day and find out that his/her name is no longer there.
Since the LPA has appointed the Chief Registrar of the Supreme Court as the proper custodian of BPF prior to NBA remittances, the provisions of Sections 102 and 104 of the Evidence Act become indispensable and instructive.
As i said in my main article, these things have far-reaching legal implications. They are not to be taken lightly and they are not for fancy.

The NBA must swallow its pride and retrace its steps forthwith. Things do not always have to be resolved by litigation; especially things that are commonsensical.

The options I highlighted in my main article remain very much viable; that is to say, the NBA can lobby the CRSC to have such portal set up for the benefit of its members. The NBA cannot undertake such services for the reasons adduced above and for very many other reasons.

Lastly, considering the legal issues i have raised thus far, i would think that the input of the Legal Adviser of the NBA ought to be sought. This debate, I’m afraid, cannot be left exclusively for the publicity team, even though their prompt response is well appreciated.

Many thanks.

Steve Sun.


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