Clubs and Associations

• Pages: 520-525

Paras. 1601,1602 Vol. 3: CLUBS AND ASSOCIATIONS 520

CLUBS AND ASSOCIATIONS

(1) CONSTITUTION OF AN ASSOCIATION

1601. Local association not to violate citizens right to freedom of associa-

tion.

“See Agbai v. Okogbue (1991) 1 N.W.L.R. (Pt. 204) 391 at 415, where the Su-

preme Court held thus: - “Much as one would welcome development project in the

community there must be caution to ensure that the fundamental rights of a citizen

are not trampled upon by popular enthusiasm. These rights have been enshrined, in a

legislation, that is, the Constitution, which enjoy superiority over local custom. Free-

dom of association and religion are enshrined in sections 24(1) and 36 of the 1963

Constitution as amended respectively which is applicable in this instance.” - Per

Okunola, J.C.A. in Anigbogu v. Uchejigbo Suit No. CA/IL/52/99; (2002) 10 N.W.L.R.

(Pt. 775) 472 at 488.

(2) LEGAL PROCEEDINGS

1602. Counsel cannot to be both counsel and witness in the same case.

“The judgement of this Court in the case Obadara v. President, Ibadan W. Dist.

Grade B Customary Court was relied upon, particularly the portion of the judgment

which runs as follows (1964) 1 All N.L.R. at 343-344): “We would here interpolate

a comment on the undesirability of counsel’s appearing in a professional capacity in a

case in which he is a material witness. The principles underlying the rule of practice

in this matter are considered by Holden, J., in Horn v. Rickard 1963 N.N.L.R. 67

and we agree with the passage in his judgment in which he states the rule as follows

– “There would be little harm in counsel swearing an affidavit setting out formal facts

required to be established to support a purely formal ex parte application where

there is no possibility of those facts being disputed, but even in such a case, there

would be little need for counsel himself to swear the affidavit as some member of his

staff could easily depose to the same facts as a matter of information and belief (due

heed being paid to section 87 and section 88 of the Evidence Ordinance). If on the

other hand, counsel finds himself in the position where he is the only person with the

knowledge necessary to swear the affidavit, and where the facts to which he is to

swear are likely to be in dispute, then he should for the purposes of that application

withdraw from the case and brief other counsel.”

We hereby affirm our views in that case, particularly the portion dealing with

counsel appearing in a professional capacity in a case in which he is a material

witness. We do not subscribe to the views expressed before us by Mr. Sofola, that

the effect of the principle in Horn v. Rickard (1963) N.N.L.R. 67 with which this

Court agreed is a total prohibition on counsel in a case swearing to an affidavit. The

judgment in the Horn case did not say so, and as a matter of fact, the affidavit sworn

to by Mr. Murray, counsel in that case, was accepted by Holden, J. when he said