NBA President’s Letter: A Genuine Ethical Concern Or Personal Vendetta By Muritala Oladimeji Abdul-Rasheed, SAN and Mutalubi Adebayo Ojo, SAN.
We read with shock, amazement, and deep concern for the legal profession the letter of the NBA President, Y.C. Maikyau, OON, SAN, dated December 4, 2022, and unwieldy titled “A CALL TO SALVAGE THE IMAGE, REPUTATION AND INTEGRITY OF THE BODY OF BENCHERS AND LEGAL PROFESSION AND FOR THE CALL TO BAR CEREMONY SCHEDULED FOR 6 AND 7 DECEMBER 2022 TO BE PRESIDED OVER BY HON. JUSTICE MARY PETER ODILI JSC, RTD, VICE CHAIRMAN, BODY OF BENCHERS,
The letter was directly sent to the Chairman of the Body of Benchers, Chief Wole Olanipekun, CFR, SAN, and copied to the Chief Justice of Nigeria, Hon. Justice Oluwakayode Ariwoola GCON, all Life Benchers as well as all Benchers. The letter was also leaked to the press before service was effected on the addressee.
In the said letter, the NBA President revisited with sadistic relish the apparently settled matter regarding an email written by an erstwhile partner in Chief Wole Olanipekun law firm, Ms Adekunmbi Ogunde, which had attracted public odium and was already looked into and decided upon by the Legal practitioners’ Disciplinary Committee.
The lawyer at the centre of the storm, Ms Adekumbi Ogunde, had come out openly to admit that the letter she wrote, which unduly solicited patronage from a foreign multinational was a zealous, unilateral and thoughtless action of her own accord without the authorization of the chamber she worked for.
Ms. Adekumbi resigned her appointment and tendered an apology for embarrassing her employer and even went to the extent of recusing herself from practice for an unspecified number of years.
The LPDC had set up a Committee to look into the matter, especially in relation to the culpability or otherwise of the other Partners in the chamber and the Committee after due evaluation of the petition written by Martins Aikpoko, Esq on the instructions of Olumide Akpata decided that there was no prima facie case against Chief Olanipekun and the other partners in the chamber, the matter being solely a case of an unauthorized lawyer acting on her own volition.
Viewed against the above background, the NBA’s President’s letter resuscitating this matter and referencing social media comments that fit into his jaundiced opinion asking Chief Olanipekun to recuse himself from presiding at the Call to Bar ceremony of the new wigs slated for December 6th and 7th 2022 in Abuja is a gross misnomer, to say the least, and constitutes a confirmation of destructive politicking and perfidious infighting within the NBA.
The latest development in the saga is a classic example of how the malcontent decision by a few disgruntled elements, disguised under a single potentate, can lead to the invidious resuscitation of a settled case. Honestly speaking, no matter the angle With which we view this matter, there could only be the ineluctable conclusion that Chief Wole Olanipekun, SAN, is being maliciously persecuted for a concocted misdeed.
Chief Olanipekun is above 70 years, he has acquired for himself the singular honour of one of the most respected legal luminaries in Nigeria, nay Africa, through dint of hard work, dedication, and ethical integrity, resulting in enviable professional accomplishments. He has never attracted to his person any odious, unpalatable, or reprehensible reputation capable of calling his hard-earned integrity into question.
With every sense of responsibility, we hereby invite every fair-minded person to follow through our position as stated below to see if Chief Wole Olanipekun, SAN, is culpable in the instant matter. We are presenting this position from the panoramic views of law and ethics to ascertain the degree, if any, of Chief Olanipekun’s culpability in the matter.
From the facts now available in the public domain, a lawyer working in Chief Olanipekin firm, Ms Ogunde, wrote a letter via email to a multinational, Saipem, representing the firm as a leading and influential chamber that called the shots in Nigerian legal parlance and could influence outcomes in favour of clients by virtue of the Principal partner of the firm, chief Olanipekun’s giant status at the bar, coupled with his position as the Chairman of the Body of Bencher, (a body of legal practitioners of the highest distinction in Nigeria).
In the letter, the writer also, most unethically, offered the service of the firm to partner with current firm being engaged by the multinational on the strength of the aforesaid grounds.
The pertinent question here is “Is this letter unethical in accordance with the norms of the legal profession? Without mincing words, the answer is “YES”.
The follow-up question to the above, of course, is, “Is Chief Wole Olanipekun, SAN vicariously culpable for this unethical soliciting as a consequence of which he must be duly sanctioned?
The answer to this, on the basis of law, ethics, convention, and commonsense is a much more nuanced affair.
To view the matter appropriately, objectively and without bias, it is apposite to consider this second question under the following legal and quasi legal headings, viz, (1), the notion of prima facie prove of an indictment, (2) the concept of autre fois acquit (3) the scope of principal’s liability for agent’s action, (4) the dynamics of vicarious liability in common law jurisprudence, and lastly. (5) the concept of ethics. We may now briefly examine the case under these headings seriatim.
(1) The notion of prima facie prove of an indictment
Expectedly, when this matter became publicized, the Legal Practitioners Disciplinary Committee (LPDC), in due response to its statutory responsibility, promptly set up a Committee to ascertain if there is a prima facie case against Chief Olanipekun and Partners that ought to require, among other things, his stepping down from the chairmanship of the Body of Benchers. The Committee duly sat, examined the facts and the evidence in all details and entirety, and came to a conclusion that THERE WAS NO PRIMA FACIE CASE AGAINST CHIEF OLANIPEKUN and his PARTNERS.
The integrity of the Committee was never impeached on any ground, the NBA never formally questioned and or appealed the decision of the Committee, rather it accepted it by silence. As lawyers, we know the prima facie proof phenomenon is a principle developed to ensure that all frivolous, unfounded allegations and trumped-up charges are not allowed to engage the judicial machinery as this may lead to undue waste of time and displacement as worthy cases will be competing with frivolous ones for judicial attention.
Thus, all unfounded, ill-conceived, and baseless allegations are meant to be caught in the web of prima facie scrutiny. This was exactly what happened in this case when the Committee refused to proceed against Chief Olanipekun and Partners on the grounds of a misdeed by a member of his reputed firm. More so when the said member had already confessed to her misdeed and contritely exonerated her principal and the firm from any involvement in her needless, action.
Under the law, when a matter is said to lack substance prima facie, that invariably is the end of it. The matter is never meant to be resuscitated under whatever guise, except new facts are presented, thus the present attempt by the NBA President who suddenly woke up from his deep slumber to resuscitate this matter seems incredibly aberrant of establish legal principles on prima facie proof phenomenon. If the NBA President has any personal grudges against Chief Olanipekun, we believe using the Presidency of the Bar to settle scores is an ill wind that will not blow the Legal profession any good.
(2) The concept of autre fois acquit
This point is a natural corollary to the point raised above. One of the fundamental principles in criminal jurisprudence is the right of the person accused to raise the plea of either autre fois acquit or autre fois convict. Under this, the person accused claims that the present proceedings against him should cease on the grounds that they have already been tried and acquitted (or convicted) in respect of the same facts or conduct. We contend here that the present allegation against Chief Olanipekun on the basis of facts already reviewed, evaluated, and definitively pronounced on by the Sub-Committee set up by the LPDC is absolutely unwarranted. From the looks of things, it appears that the NBA President would probably have been happy if the said Committee had found that there was prima facie case against Chief Olanipekun and Partners. But because facts are sacred and not amenable to anyone’s whimsical discretion Maikyau and his group of detractors were utterly disappointed. In a nutshell, it is very difficult to comprehend the genuine basis of the NBA’s President’s resuscitation of this matter in the light of what had transpired till date.
(3) The scope of principal’s liability for agent’s action
Looking at this matter in another legal perspective. We may ask the question, “Shouldn’t Chief Wole Olanipekun SAN, be culpable if we construe the writer of the letter as his agent?” Under the law of agency, which is civil in nature an Agent of a disclosed Principal may subject his principal to vicarious Liability. However, this construction is delineated by a number of factors viz; If the principal expressly consents to the act of his agent and stated the scope of the latter’s authority, then the person is deemed to be an agent and assumed to possess the warranted authority. The principal can also be deemed to have invested an agent with authority through his action, even if not specifically expressed. Any action done by the agent beyond the scope of the authority expressly or impliedly given to him or she is ultra vires and not binding on the principal save if the principal subsequently ratifies the action. The pertinent question now in the instant case is, “Can the writer of the email be deemed to be an agent of Chief Olanipekun as to warrant the latter’s culpability?”
The honest answer is a resounding “No”, a person does not automatically possess the right to represent the office he or she works for unless expressly or implied given that authority to the knowledge of external party the person deals with. This means that the letter written by Ms. Ogunde can by no means be said to be representative of the true intents, position, and stance of Wole Olanipekun SAN & Co, moreso when Ms Ogunde herself has come out to declare she acted on her own volition.
(4) The dynamics of vicarious liability in common law jurisprudence
It is a trite principle in criminal jurisprudence that every person is liable for his crime and nobody ought to be punished for crime committed by another person. The person who wrote the offending letter in this case is not a spirit, but rather a human being in flesh and blood. She has come out with a contrite heart that she committed the unethical behaviour on her own accord without prompting from any of the Partners in her Chamber. The Lady is a lawyer directly under the jurisdiction of the NBA and its LPDC which has the power to discipline her. Why for God’s sake should we insist that an innocent legal guru who has contributed to the development of legal profession be sacrificed along with the seemingly erring lady?
(5) The concept of ethics.
One of the high points in the NBA’s President’s letter is the innumerable references to ethics, which purportedly grounded his insistence that Chief Olanipekun must be subjected to another round of probe. But ethics is about doing justice to everyone; ethics would not allow anyone to be unduly punished on accounts of misdeed of others even if they are blood-related, not to talk of merel Partners working in the same office! It is unfortunate that a lot of people unashamedly mouth the mantra “ethics” even when they are engaging in design to bring other people down. Those who are genuinely concerned about ethics would never allow an innocent person to be unduly disgraced under the disguise of due process and contrived ethical concerns.
The present letter by the NBA President, unfortunately, smacks of negative and invidious attempts to whip up unnecessary emotions in castigating a respected legal personage in the person of Chief Olanipekun. We have shown from the above submissions that the allegations cannot stand in the face of all aspects of pertinent laws and ethical considerations on the matter. Mr. Maikyau is advised to concentrate on programs that will take the NBA to greater heights rather than engaging in divisive, ill-motivated, and disruptive agenda that will not only sabotage him but also capable of throwing the bar, over which he presides, into turmoils.
Mr Maikyau, in his letter, went to town on how to save the bar from scandal and how to condition the minds of the younger ones at the bar to the norms and ethos of the profession. Well said, but there is no more accurate and safer way to lead young lawyers into the norms of the profession than by abiding by the established legal principles. The young lawyers need to be convinced about what they had learnt in their law faculties regarding the sanctity of legal principles as evinced in autre fois acquit/convict. They need to see in practice that once a person has been acquitted, discharged, and/or convicted of any offence there should be no more subsequent proceedings on the matter except where new facts emerge.
The young lawyers need to be convinced that the aphorism of “No vicarious liability” in criminal law is real and not only exists on the pages of their textbooks. They must also know, among other things, that ethics and justice go hand in hand and that nobody ought to be scandalized and mischievously brought down on the bases of what other persons do without their consent. If the NBA President’s view on this matter is entrenched, then nobody who has built and nurtured a reputation anchored on hard work and enviable accomplishments will ever feel safe for the fear of being unfairly undermined by a Juda in the system.
It should also not go unnoticed by every fair-minded person the timing of this letter. The letter was dated December 4th, asking Chief Olanipekun to recuse himself from presiding at the Call to Bar Ceremony commencing on December 6th, just 48 hours before the ceremony. That in itself is a confirmation of malicious intent!
In the final analysis, we wish to advise the NBA President to focus on the job he was elected to do and stop pandering to the dictate of his godfather. Three Months after assuming office, Maikyau is still wandering in the sea of doubts unable to chart a direction for his Presidency. He enjoys the visibility which NBA Presidency confers on his person but lacks the capacity to start implementing his agenda. He seeks second-level approval from his Predecessor for every step he has taken so far and has shown that he is a Puppet in NBA house. The NBA President should desist from swimming in the murky water of bar politics in his own interest.