NBA: Between difficult places

Ogunsakin Mustapha
17 Min Read
Good times...Chief Wole Olanipekun SAN(r), Yakubu Maikyau SAN

By Ikhelowa Joseph

As an onlooker and stakeholder (even though tangential) in the seeming battle of elephants going on in the Legal Profession, I feel compelled to offer my voice in respect of the letter from the NBA President to the Chairman of the Body of Benchers said to have been delivered on Monday 5th December 2022 in respect of which, the NBA President expected the Body of Benchers to take a decision at its meeting of 5th December 2022. The sheer quantum of the letter (10 pages) puts one on notice that one or some of the following is/are possible:

i. The voluminous expanse of time at the disposal of the NBA President;
ii. Difficulty in making valid points, clearly and directly thus manifesting in verbosity; it even wrongly references the recently conferred National Honour on Chief Olanipekun (coincidentally the same day the NBA President was also conferred with National Honour) as CON instead of CFR signifying something about attention to details; and
iii. Possibility that the NBA President was so beclouded with sentiments that he forgot the wisdom in the Shakespearean proverb that “brevity is the soul of wit”.

Any of the above conclusions might be correct in the circumstance because the letter seems to be written from a place of outright frustration. This frustration is understandable because, the NBA President is aware that, at the request of the NBA, the Legal Practitioners Disciplinary Committee already exonerated Chief Wole Olanipekun, SAN. He expressly acknowledged this much in his inaugural speech as NBA President on 26th August 2022 where at page 13 -14, he stated thus:

“President, Mr. Olumide Akpata wrote a letter to Chief Wole Olanipekun, OFR, SAN, being the Chairman, Body of Benchers requesting him to recuse himself as the Chairman of that august body, on the premise that the petition against Adekunbi Ogunde had requested the LPDC to “consider whether the partners of Wole Olanipekun & Co are liable to be disciplined by this august body, seeing that the Respondent has the authority to act as a Partner and indeed acted for and on behalf of the said firm.”
Apparently in response to the request by the NBA, the Body of Benchers had exonerated the Partners of the Law Firm of Wole Olanipekun & Co from complicity in the alleged misconduct…… the Body of Benchers conveyed its decision on this issue “with regards to the Applicant’s prayer to also consider whether the Partners of the Firm of Wole Olanipekun & Co., are not liable to be disciplined, I hold the humble view that since there is no evidence to show that the Respondent indeed acted with the knowledge and consent of the Principal Partners especially with the Partner’s express and constant denial of the content of exhibit 1 to the effect that the Respondent acted without the authority of the Principal Partners of the Firm, I cannot situate that angle of the Applicant’s prayer to both the Act and the Rules. Accordingly, I see no merit in recommending further investigation against the Partners of Wole Olanipekun & Co., I so hold”.

The NBA President is no doubt aware of the above categorical finding at the request and instance of the NBA. The same findings as lawyers say, even if considered wrong, remain binding until set aside. Its extant nature attracted a copious reference in the NBA President’s first official outing as the President of the Bar. Yet, without appealing the decision, since August 2022, he is now asking the Body of Benchers to ignore the decision and take punitive action against Olanipekun. Of course, the NBA cannot appeal the decision because it is between a rock and a hard place or between various impossible places for so many reasons, two of which are:

Good times…Chief Wole Olanipekun SAN(r),
Yakubu Maikyau SAN

i. By virtue of section 12(7) of the Legal Practitioners Act, appeals from the decisions of the LPDC – interlocutory, final, or otherwise go directly to the Supreme Court. If the NBA appeals the decision of the LPDC to the Supreme Court, it will demonstrate the truth that it is the Supreme Court and not the Body of Benchers that exercises jurisdiction over the LPDC and thus invalidate the NBA’s false claim that the LPDC is under the direct supervision of the Body of Benchers and its Chairman. The NBA must thus save face, not to do the right thing so as not to expose its earlier misrepresentation.
ii. Adekunbi Ogunde is the sole Respondent before the LPDC. Therefore, an appeal against the LPDC direction will have Ogunde as the sole Respondent. Thus, if the NBA appeals, it will present an awkward situation where NBA will, in an appeal where Ogunde is the sole Respondent, be contesting the decision of the LPDC as it relates to Olanipekun. The NBA will of course not want to expose itself in such a ridiculous light before the Supreme Court and it only relates back to the petition by the NBA since, it was the NBA (whose mantra is promoting the Rule of Law) that requested a decision about Olanipekun in a petition where Olanipekun is not a Respondent. With all respect to the NBA, it is now caught in the web of its own schemes where the decision of the LPDC applies as estoppel per rem judicata and, being a decision in rem without it being set aside, it remains extant. As a decision in rem, it is a bar against any further petition against Olanipekun to the LDPC without the said decision being set aside.

With above state of affairs, the NBA is clearly between a rock and a hard place and, it is with respect inappropriate that without appealing a decision given at its instance, it is calling for alternative action. In paragraph 11 of the NBA President’s letter of 4th December 2022, he clearly stated thus:

“I am aware that the Law Firm of Wole Olanipekun & Co. has been excused from any liability regarding the email in issue, and I am not and will not question the correctness or otherwise of that decision”.

If the NBA President has accepted the correctness of the decision, what then does it want the Body of Benchers to do? Reverse the decision or jettison the decision outrightly?Under what jurisdiction or law does the NBA President want the Body of Benchers to act in the light of the unchallenged LPDC decision? This is why in all the 10 pages of the NBA President’s letter, he has not identified a single law which permits the Body of Benchers to act or grant the request he has made. The NBA President must be aware of the Practice Direction dated 25th day of November 2019 issued by the Chief Justice of Nigeria titled: “EXERCISE OF JURISDICTION OVER LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE -LPDC.” In the said Practice Direction addressed to all trial court Judges, the CJN sternly cautioned them from exercising/assuming supervisory jurisdiction over the LPDC since same is exclusively reserved for the Supreme Court and the direction concluded thus:

“I also wish to draw your attention to the revised code of conduct for Judicial Officers and to say that the National Judicial Council will henceforth, address seriously all issues related to unauthorized interventions with the proceedings before the Legal Practitioners Disciplinary Committee.”

Apart from the fact that there is an LPDC direction which the NBA President has categorically stated that he will not challenge, there is also a pending petition against Adekunbi Ogunde as author of the vexed email by the NBA. The said petition is still pending and without making a defence for Adekunbi Ogunde, is it proper that, after submitting the petition to the LPDC, the NBA President continues to make representations to various bodies and including to all serving Justices of the Supreme Court at the opening of the Supreme Court’s Legal Year on the 28th November 2022. If such action was taken by ordinary litigants openly requesting for intervention in ongoing court proceedings or about unappealed decisions, would the NBA not object? I am quick to note the irony in the NBA’s castigation of a serving Minster for casting aspersion on Court proceedings and wonder what the difference is with NBA President’s recent actions. A similar irony was when the immediate past NBA President was condemning the Judiciary for appointing a Court of Appeal Justice who did not know the meaning of Lis Pendens and the same NBA President went ahead to violate the doctrine in the Joyce Oduah scenario. At least, the Judiciary demonstrated to the NBA President that it understood the doctrine of Lis Pendens and applied it appropriately by reversing the NBA President’s action.

What should an NBA be doing in the circumstance where it has decided not to question the LPDC decision exonerating Olanipekun and in the light of a pending and ongoing petition at the LPDC against Adekunbi Ogunde? It should simply let the process run its course without any attempt to interfere. This is more so that information in the market overt has it that the decision exonerating Olanipekun was reached and signed by an LPDC member who is not only a member of the Nigerian Bar Association but has been a member of the LPDC before Olanipekun assumed office as the Chairman of the Body of Benchers, in the same way the serving Chairman of the LPDC has been so appointed before Olanipekun assumed office. I am aware of at least one law event outside the shores of this country where the Ogunde saga has been used as a discussion template for law firms to learn about the dangers inherent in lateral hires. News also has it that one of the leaders of Olanipekun’s Law Firm has been invited to one of those foreign fora to speak about dangers to avoid when making lateral hires because clearly, even the most sycophantic fans of the Olanipekuns will not question the fact that bringing in Adekunbi Ogunde into the Law Firm was an employment error. Or how else will one explain an employee who has spent less than 6 months in a forty-two-year-old institution causing incalculable damage and writing about cases which she never participated in and have been long concluded before she joined the firm in January 2022.

My point is that, there are so many learning opportunities and all the parties involved should toe the path of good faith and legality. If NBA has accepted the verdict of LPDCas correct, so be it; the matter ends there as it relates to Olanipekun; and if it changes its mind about accepting the verdict, it should appeal the verdict, but recall my earlier narrative of being between the rock and a hard place. It should also let its petition before the LPDC run its natural course without any external influence in the true tradition of promoting the rule of law. Another dimension of economic warfare has even been added to the mix with an entity making a hilarious call that Olanipekun should not represent its adversary in Court. In that case, the entity should furnish its approved list of lawyers that its adversary should pick from, since it is scared of a case with Olanipekun on the other side.

In concluding, I am not convinced that the NBA is taking all of these steps in the interest of the young lawyers and let none of them be fooled. The decision makers in the NBA are partners from big firms, and I am sure that after the Ogunde saga, all these big firms including Olanipekun’s firm would have re-worked their processes, communication lines and appointments to leadership. Surely, from the reactions that have trailed this saga, it will be more difficult for young lawyers to assume partnership in any of these firms. Finally, it is also wisdom for the NBA President not to further demystify himself. Absenting himself from the Call to Bar Ceremony was an act of self-demystification if not self-immolation. The Call to Bar Ceremony went on without him, showing that he had no role to play in the Ceremony in the first place. If it was the Body of Benchers that abstained from the Ceremonies, the New Wigs would not have been Called to the Bar. Yet, the NBA will take ashare from the Practicing Fees of the New Wigs it decided to absent itself from the happiest day of their professional calling thus far. In a later face-saving move, the NBA President has now released a statement congratulating the New Wigs and ironically informing them that even though he abstained from their Call, they are automatically and compulsorily members of the Nigerian Bar Association. This probably was in reaction to the congratulatory message of the Law Society of Nigeria to the New Wigs.

Though I have much more to say, so I don’t end up writing 10 pages, I will stop at this point but re-state that the NBA in the entire scenario is between a rock and a hard place and it only has itself to blame after orchestrating the circumstances that placed it in this unenviable situation.

Ikhelowa Joseph writes from Lagos.


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