THE LAW PROFESSION IN NIGERIA AND THE VEIL OF TRADITION  BY James Ode Abah Esq

THE LAW PROFESSION IN NIGERIA AND THE VEIL OF TRADITION
BY James Ode Abah Esq

On the 13th of December 2017, my attention was drawn to the news of a law school graduate who was denied her call to The Bar for refusing to take off her headscarf.
Amasa Firdaus Abdulsalam was not permitted by the Body of Benchers to enter the International Conference Centre on December 12 2017 where the call to bar ceremony is usually held.
According to the reports circulating online it was the position of the Body of Benchers that she was breaking the dress code set by the body and Law profession, but Amasa Firdaus Abdulsalam, who was already wearing her new gown, insisted on wearing the wig on top of her hijab and called the refusal of the Body of Benchers to call her to the bar a violation of her right to freedom of religion as protected by Section 38 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
This incident has generated a lot of controversy in Nigeria and what struck me was the veil of tradition of the law profession in Nigeria. The story also reminded me of the way the Pharisees taught their traditions in opposition to God’s laws as provided in Mathew 15 :2-9 and how many people would rather follow their own traditions rather than God’s Law as clearly provided in Colossians 2:8.
I Also remembered Matthew 22:21 where Jesus said “Render to Caesar the things that are Caesar’s; and to God the things that are God’s” and Romans 13:1 “Let every person be in subjection to the governing authorities. For there is no authority except from God and those which exist are established by God.

However, as a lawyer I kept asking myself the question was the Body of Benchers right in not calling this brave lady to The Bar? Was Amasa Firdaus Abdulsalam constitutional right to the freedom of Religion and association breached by the Body of Benchers?

The Position of the law
As a legal practitioner I was constrained to consult my oracle and by consulting my oracle I mean looking at the position of the law as regards the Constitution, statute books and decided cases to shape my legal opinion on this issue.
Section 38(1) of the Constitution provides that every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.
(2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian.
(3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.
(4) Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.

Section 40 of the Constitution 1999 of the Federal Republic of Nigeria as amended also provides that Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.
Furthermore it is important to note that Section 45 (1) (a) and (b) of the Constitution provides that nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom or other persons.

The law that deals with the call to bar in Nigeria is the Legal Practitioners Act Cap L11 Laws of the Federation of Nigeria 2004
Section 4 of the Legal Practitioners Act provides as follows

. (1) Subject to the provisions of this section, a person shall be entitled to be called to the Bar if, and only if

(a) he is a citizen of Nigeria; and

(b) he produces a qualifying certificate to the Benchers; and

(c) he satisfies the Benchers that he is of good character.

(2) The Council of Legal Education may by regulations provide that the provisions of paragraph (b) of subsection (1) of this section shall not apply in such cases and on such conditions (if any) as may be specified by the regulations.

(3) The Benchers shall issue to every person called to the Bar pursuant to subsection (1) of this section, a certificate of call to the Bar which shall be in such form as the Benchers may determine.
The question to ask at this juncture is whether the refusal of Amasa Firdaus Abdulsalam, to comply with the dictates of the Body of Benchers satisfied the Benchers that she is not of good character Or whether the demand of the Body of Benchers insisting that she removes her hijab a violation of her right to freedom of religion as protected by Section 38 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)?
However the law I submit is trite that the court would not interfere in a case where members of a voluntary association have come to the decision within the provisions of their Constitution even if the decision is unreasonable. In the case of MBANEFO V MOLOKWU (2014) 6 NWLR PT 1403 AT 377 PP PG 409, PARAS B-C, 409-410 PARAS D-A , The Supreme Court held per Peter –Odili J.S.C , delivering the leading judgment of the court held as follows :

When the appellant entered and became a full member of the Agbalanze Society, he did so with the full knowledge and free will to adhere to the rules and regulations guiding it. Therefore it is not for him to pick and choose which aspect suited him at a given time and which he was at liberty to do away with. In order to do so, he had to first disengage from the association , otherwise , he was bound wholly and entirely to what was provided by the association for the association or members on how its operations were to be conducted…..the court will not interfere in a case 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 to quash a resolution of the association that an offending member should no longer attend its meeting. That resolution does not amount to a violation of the fundamental rights provided for under the Constitution. It is open to the applicant to attend any meeting he may wish and no one may stop him. But , so far as the association is concerned , it is to have the right to discipline its members. 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 association is in its own right supreme over its own affairs. This must be said loudly and clearly, and 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 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

It is my Opinion, that the Bar is a voluntary association and the authority cited above can be used to support the Body of Benchers position.
However it is sad that the Bar and Bench in Nigeria is seems to obsessed with the veils of its irrelevant tradition like the wearing of wig and gown when there are grave challenges facing the Law profession which needs urgent attention. It is important to note that this inherited tradition is also gradually phasing out in Britain. It was reported this year that Britain’s lawyers and judges are to break with centuries-old tradition and cease wearing white horse-hair wigs in non-criminal cases.

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Sacred Nature of Statutory Employments in Nigeria

James Ode Abah @ Bonafide Legal

Sacred Nature of Statutory Employments in Nigeria

 

By James Ode Abah Esq.

 

Employment contracts in Nigeria at best can be categorized into that of Master and Servant and employments which are statutory in nature in the sense that same is regulated by law.  In real sense statutory employments enjoy statutory flavor. In which case, the terms of employment of staff or employees is governed by the statute creating that organization.

However where the employment relationship is not governed by statute such employment is regarded as that of Master and servant.  The popular slogan that a court cannot impose or foist a willing employee on an unwilling employer is rooted in a Master and Servant employment.

This article is aimed at looking at the sacred nature of statutory employments in Nigeria which places same on higher unique status above that of a master and servant employment.

The position of…

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Sacred Nature of Statutory Employments in Nigeria — James Ode Abah @ Bonafide Legal

Sacred Nature of Statutory Employments in Nigeria By James Ode Abah Esq. Employment contracts in Nigeria at best can be categorized into that of Master and Servant and employments which are statutory in nature in the sense that same is regulated by law. In real sense statutory employments enjoy statutory flavor. In which […]

via Sacred Nature of Statutory Employments in Nigeria — James Ode Abah @ Bonafide Legal

Sacred Nature of Statutory Employments in Nigeria

Sacred Nature of Statutory Employments in Nigeria

 

By James Ode Abah Esq.

 

Employment contracts in Nigeria at best can be categorized into that of Master and Servant and employments which are statutory in nature in the sense that same is regulated by law.  In real sense statutory employments enjoy statutory flavor. In which case, the terms of employment of staff or employees is governed by the statute creating that organization.

 

However where the employment relationship is not governed by statute such employment is regarded as that of Master and servant.  The popular slogan that a court cannot impose or foist a willing employee on an unwilling employer is rooted in a Master and Servant employment.

 

This article is aimed at looking at the sacred nature of statutory employments in Nigeria which places same on higher unique status above that of a master and servant employment.

 

The position of the Law on Statutory Employment

 

As stated earlier, the law is well settled that two vital ingredients that, must co-exist before a contract of employment may be said to import statutory flavor include the following:

  1. The employer must be a body set up by statute and
  2. The stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned, especially in matters of discipline.

 

Thus, there is an employment with statutory flavour when the appointment and termination of the employment is governed by statutory provisions.

 

It is accepted that where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour. See the case of IDONIBOYE OBU v. N.N.PC (2003) 2 NWLR (PT 805) 589, IMOLOAME v. W.A.E.C (`1992/ 9 NWLR (PT 265) 303. See also the case of P.H.C.N v. OFFEOLO (2013) 4 NWLR PT 1344 AT 380 PP PG 417 PARAS B-F

 

It is also important to note that statutory employments enjoy the dictates of fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria when it comes to the employer carrying out disciplinary proceedings against an employee.

 

In the case of EZENWA v. K.S.H.S.M.B (2011) 9 NWLR PT 1251   AT 89 PP PG 126 -127 PARAS H-C T,   the Court held that Section 36(1) of the Constitution of the Federal Republic of Nigeria, (1999) which enshrines the principles of fair hearing is not observed when an employee whose appointment is regulated by law appears before a committee as a witness without the slightest knowledge that he would later become the villain or accused subject to dismissal. The employee must know that he is appearing as an accused not just a witness. He should be given the opportunity to cross-examine the witnesses, testify and call witnesses of his choice. This is particularly so when an employee’s source of livelihood and reputation is at stake. Evidence should not be received in the absence of the person to be affected by the proceedings of a committee in charge of inquiry.  See also the case of TUKUR v. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517; AIYETAN V NIFOR (1987) 3 NWLR (PT 59) 48; GARBA V UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT.18) 550.

 

The Importance Of Fair Hearing In Statutory Employments

 

The law is well settled on the importance of fair hearing in an employer-employee relationship. It is trite law that the importance of fair hearing cannot be scuttled away within the administration of justice. The Court’s insistence on the right of fair hearing is surely not a matter of mere formality nor is it merely for the purpose of meeting procedural requirements. The courts have always insisted on fair hearing because it is the surest safeguard against injustice. In the relationship between employer and employee, there must be an allegation of a particular misconduct or wrong doing which is disputed and it is for the purpose of ascertaining the truth or otherwise of the alleged misconduct that the courts insists on fair hearing.  See the case of F.M.C IDO- EKITI v. ALABI (2012) 2 NWLR PT 1285 AT 411 PP PG 443 PARAS E-F,447 PARAS C-E Where the court held that where the provisions of a statute govern the conditions of the employment of an employee, the court regards the employee as having secured a special legal status other than the ordinary master and servant relationship with his employer. In that case, the employer is bound to comply with these conditions when it comes to termination of appointment of the employee, otherwise the act of termination would be declared wrongful, null and void.

 

The court also held at pg 460 paras B-D (supra) that where an employee establishes that his employment has statutory flavour and the court finds that his removal is ultra vires, such employee should be restored to his position. In other words, where the court holds that the termination of employment is ultra vires, null and void, it automatically places the status of an employee to where he was as if nothing happened.  The Court also held at where an employee has his employment under the statute of Public Service Rules, he cannot be dismissed at will and where his termination is found by the court to be unlawful, the only order the court can make is for reinstatement. See PG 461 PARAS D-E.

 

Furthermore, the law is well settled where a panel set up by the employer has concluded its inquiry and made up its mind that any point had been prima facie made out which point to the fault of any employee, the employer must inform such an employee of the points in the case against him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as basis for dispensing with his services.   See the case of OLAMIDE v. ZEST INTERNATIONAL HOTEL (2012) 26 N.L.L.R AT273 PP PG 229 PARAS A-C. See also the case of ALHAJI ABDULLAHI BABA v. NCATC(1991) 5NWLR (PT 192)388 AT 418

 

On the issue of retirement of statutory employees

 

On the issue of retirement of a statutory employee before his retirement age, the law is well settled that to force a public servant into retirement that is before he gets to his retirement age, is an unusual action against him in his career.

This was reiterated in the case of P.H.C.N PLC v. OFFOELO (2013) 4 NWLR PT 1344 AT 380 PP PG 409 PARAS B-D

Conclusion

On The Special Status Of Statutory Employments

 

In conclusion, the law is also well settled beyond controversy that when an office or employment has a statutory flavor in the sense that its conditions of service are provided for and protected by statute or regulations there under, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. See the Supreme Court Case of BAMGBOYE v. UNIVERSITY OF ILORIN (1999) NWLR PT 622 AT 290 PP PG 320 PARAS D-F,346  PARAS E-G; SHITTEY –BEY V FEDERAL PUBLIC SERVICE COMMISSION(1981) 1 SC 40 AT 56, OLANIYAN v. UNIVERSITY OF LAGOS (N0.2) (1985) 2 NWLR (PT 9) 599 AT 612-613, 622-623; EPEROKUN v. UNIVERSITY OF LAGOS(1986) 4 NWLR (PT 34) 162  AT 201; OLATUNBOSUN v. N.I.S.E.R COUNCIL (1988) 3 NWLR (PT.80.) 25 AT 41 PP 320 PARAS D-F, 346 PARAS E-G.

 

In BAMGBOYE v. UNIVERSITY OF ILLORIN (SUPRA), Uwaifo J.S.C, stated thus:

 

It is now well established principle of law that when an office or employment has statutory flavor in the sense that its conditions of service are provided for and protected by statute or regulations made thereunder, any person holding that office or in that employment enjoys special status over and above ordinary master and servant relationship. In the matter of discipline of such a person holding that office, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened, any decision affecting the right or reputation or tenure of office of that person may be declared null and void in an appropriate proceeding.

 

Consequently, an employment service with a statutory flavour is to adhere strictly to the procedure laid down in the statute or the regulation made thereunder.  Per Mbaba JCA in the case of KWARA STATE POLYTECNIC ILLORIN v. SHITTU (2013) 17 W.R.N AT 78 PP PG 109 LINES 30-45 stated that  employees who are members of the public service should have their tenure jealously guarded and all rules , regulation and procedural  provisions pertaining to them, meticulously followed. There position therefore, is not that of mere master and servant relationship. It is a position recognized as having statutory flavour. To remove a public Servant in flagrant contravention of the rules governing him, whether under contract or under provisions of statute or regulations is to act capriciously and destabilize the security of tenure of the public servant, frustrate his hopes and aspirations and thereby act in a manner inimical to order, good government and well being of the society .