OPINION: AKPATA'S PILATIC VERDICT: IS THIS BRAVERY OR BRAVADO?

 

 By Ishaya Babagana

No neutral observer would have imagined the tenor of Pilate’s verdict when, the other day, he was confronted with the decision of releasing a prisoner in commemoration of the feast. Pilate’s seat of government was of course in Jerusalem. A city where the enigmatic Christ had just healed a man who was born blind, another man who was crippled for 38 years, and yet another woman with an 18 year-old infirmity. No one would have thought that the assembly would opt for the release of the murderer and insurrectionist known as Barabbas, against the one who had brought smiles to the faces of families and people both within and outside the city of Jerusalem. Fast-forward to about two thousand years later, in New Delhi, a city about 4000 kilometers from Jerusalem, Mahatma Gandhi, the leader of India’s non-violent independence movement against British rule and an advocated for the civil rights of Indians was also murdered in cold blood. His murder was never by any of the British men against whom Ghandi had led protests and revolutions, but by one of the Indians for whom Ghandi lived his entire life. The list is indeed endless, and this explains why like the witnesses to Pilate’s verdict, one may not be surprised at the recent developments within the legal circus.

Just about yesterday, lawyers were greeted with the Petition against Mrs. Adekunbi Ogunde (of the infamous email), a partner in the law firm of Wole Olanipekun & Co. The petition after outlining all of Ogunde’s delinquencies, did not only seek the prosecution of the respondent to the petition, but also urged the committee to consider whether the partners of the firm of Wole Olanipekun & Co., are not liable to be disciplined by the body. By the partners, they were simply referring to Chief Wole Olanipekun and Bode Olanipekun. The first thing that jumps at someone like me, were the several ironies with which the petition was gorgeously adorned. The applicant was described as “The Incorporated Trustees of the Nigerian Bar Association”. This irony will only make meaning to those who know or remember that it was Chief Olanipekun who facilitated the registration of the Nigerian Bar Association with the Corporate Affairs Commission, as a body of Incorporated Trustees, perhaps as a remedy to the outfall of the Supreme Court’s decision in Fawehinmi v. NBA. While Olanipekun did not become President of the NBA until 2002, Fawehinmi v. NBA had been handed down since 1989; so, several presidents of the NBA had come and gone before him. Therefore, it took a remarkable quantum of incisiveness to consider it imperative to fill the void created by the lack of juristic personality for a body as the NBA, and Olanipekun made it happen. It is therefore, an irony of sort, that in the same name (“The Incorporated Trustees of the Nigerian Bar Association”) they now urge the LPDC to see to the disciplining of Wole Olanipekun. I must quickly state here that I have not elevated Wole Olanipekun above the law, but as you will see in the latter part of this piece when I address the impropriety of NBA’s entreaty, there is more to it that meets the eyes.

Another irony is the fact that the originating application that accompanied the petition had the NBA stamp of the signatory, Mr. John Aikpokpo-Martins. Today, lawyers take pride in affixing their stamps and seals to legal processes and documents in uniquely marking out their documents from those of touts or non-lawyers. In fact, successive NBA presidents have built their campaigns and policies round the idea of the NBA stamp and seal, with diverse commendable modifications. But then, only a few would remember that this innovation was the brainchild of Wole Olanipekun and his team, while he held sway as the NBA president.

At the dinner hosted to mark the commencement of the NBA Section on Business Law on July 23, 2022, the incumbent NBA President like a lot of other speakers basked glowingly in their membership of NBA SBL with enviable admiration. Of a truth, the NBA SBL has contributed immensely to the NBA profile with its finesse and robust programs. However, only a few would remember that this was one of the innovations of Olanipekun’s tenure, which paraded an array of quintessential legal minds like Mrs. Funke Adekoya SAN, Dele Adesina, SAN, Ikeazor Akaraiwe (now, SAN) and Festus Okoye, amongst others. I vividly recall that the creation of the Section on Business Law and the Section on Legal Practice stood conspicuously in the list of Olanipekun’s campaign promises for election as the NBA President. Eventually, Mr. George Etomi and Mallam Yusuf Ali, SAN were appointed as the pioneer chairmen of the respective sections and the sections have turned out to become a success story today. Is it not an irony that on the same day that Akpata reveled in his membership of the NBA SBL, a petition was filed against a third party, wherein the LPDC is eccentrically urged to discipline Mr. Olanipekun? 

Even after completing his tenure as NBA President, he continued in his service to the NBA in ways which sober onlookers could not, but notice. Some of us are yet to forget the many hues that engulfed the legal space when the Federal Government led by Dr. Goodluck Ebele Jonathan enacted the Money Laundering (Prohibition) Act, 2011. Lawyers were concerned that the provisions of sections 5 and 25 of the Act which required them to also obtain licences from the Special Control Unit Against Money Laundering (SCUML) before opening bank accounts as well as to be making certain disclosures which are in contravention of the attorney-client confidentiality. It was this same Olanipekun that the then President of the Bar, Okey Wali, SAN approached to lead a team of senior lawyers who ran to the Federal High Court to challenge the provisions. Olanipekun, leading Mrs. Funke Adekoya, SAN and Babajide Ogundipe, who all worked pro bono were able to get the Federal High Court to set aside those offending provisions of the Money Laundering Act and today all lawyers within the country are beneficiaries. The judgment of the Federal High Court was appealed to the Court of Appeal, and it was the same Olanipekun who pro bono, represented the NBA at the Court of Appeal where the decision of the Federal High Court was affirmed. Records indicate that the decision of the Court of Appeal has been appealed to the Supreme Court and it is again, the same Olanipekun who has filed a respondent’s brief on behalf of the NBA. While I am unable to confirm if the Supreme Court’s brief is also pro bono, it is only fair that when lawyers take benefit of these judgments, they ought to note that they did not fall from heaven like manners.  Thoughtfully, this ‘patriotic’ act did not go without the commendation of the then President of the NBA, Augustine Alegeh, SAN, who described the judgment as “a landmark judgment that provides relief to all lawyers.”

I had in passing, referenced a petition wherein, the Registered Trustees of the NBA is the applicant, against Mrs. Adekunbi Ogunde, a partner in the law firm of Wole Olanipekun & Co. The fact that the NBA has suddenly woken up to its disciplinary responsibilities would have excited some of us. However, for so many reasons, the excitement only lasted until the last paragraph of the petition. At first, the body of the petition had chronologically highlighted the genealogy of the petition. In fact, it had reproduced in extenso, Mrs. Ogunde’s email, which is the subject of controversy and of course, misconduct. Fair enough, the petition also mentioned the fact that the author of the email (the Respondent) took responsibility for the email, admitted the allegation and sought to “exculpate her law firm.” However, the same person is praying the LPDC to consider whether the partners of the firm, that is Wole Olanipekun and Bode Olanipekun (and other partners in the firm which I do not know) are not liable to be disciplined. The reason for this goose chase, according to the petition, is that the respondent, Mrs. Ogunde has the ostensible authority to act as partner. This kind of position, supposedly coming from persons perceived as senior lawyers, leaves more to be desired in terms of aptitude,  know-how and capacity. It leaves more questions than answers. If you are convinced that the other partners are also culpable, why then did you need the direction of the LPDC as to whether they should be disciplined? Did you seek the same direction from the LPDC before bringing the petition against the current respondent? According to the author, the basis for seeking this directive is that the lady in question had ostensible authority to act as partner. Interestingly, one would have expected that people who occupy the highest offices in the NBA would know better that one of the exceptions to the vicarious liability of a partnership is in relation to acts done without the authority of the firm and acts which are not apparently for carrying on the business of the partnership in the usual way. Having, therefore, admitted that their respondent, Ogunde had already admitted to her wrongdoing, by stating categorically that she never had the instruction of anyone to so do, it then smacks of malafide for Akpata and his crew to urge the LPDC to consider whether the partners also ought to be disciplined. Meanwhile, can there even be vicarious criminal or quasi-criminal liability?  The foregoing contentions are more so, in light of the recent decision of the National Industrial Court of Nigeria in Suit No. NICN /PHC/120/2021 between Mr. Wilson Udo Essien v. Unitech Drilling Company Ltd, where the court in an entirely different matter on June 15, 2022, held that the Rules of Professional Conduct for Legal Practitioners in Nigeria (RPC) 2007, regulate individual lawyer’s conduct and not that of the law firm. This position is a restatement of several directions of the LPDC over the years, which Akpata and his men ought to have known better.

In any event, anyone who thinks that their slips as indicated above are innocent ones, committed in good faith, would have had a rethink, seeing Olumide Akpata’s follow up letter, which for reasons best known to them, they chose to give a very wide media circulation. The said letter lays bare, the primary intendment of the petition, being the desire to get at the ‘big fish’. Otherwise, how would you explain a call for Olanipekun’s “stepping aside” as BOB Chairman, when in fact, the LPDC is meant to be an independent committee and appeals go directly to the Supreme Court? Is Olumide Akpata truly telling the whole world that his intendment of including the very nocuous clause in the closing paragraph of the supposed petition was to lay a foundation for the mischief?  Is the Akpata laying a precedent that for the sin of every partner in a law firm, the heads of all other partners must roll, even when the partner does not deny sole responsibility? Can Akpata in his heart of hearts, devoid of shenanigans and grandstanding, truly come out to say that for the misconduct of any or all of the other 13 partners in his law office, he would submit himself to the Golgotha? It is still very fresh in our minds how Mr. Emmanuel Ukala, the immediate past chairman of the LPDC and some other members of the LPDC whose name I cannot immediately recall, resigned in protest, citing attempts at unlawfully meddling into the affairs of the LPDC by the BOB? Like Akpata’s letter, Mr. Ukala’s letter was also made public and he was not equivocal about Olanipekun’s stance about the independence of the LPDC from the BOB and the impropriety of an intervention. So, what has changed now? Have quickly forgotten that the election that ushered in Akpata as NBA president was conducted at a period when the then President, Paul Usoro, SAN was undergoing a criminal trial at the Federal High Court? It is rather a coincidence that it is this same Olanipekun that led the team of lawyers in defence of Mr. Usoro, who was later discharged and acquitted by the court. So, if we are all to dance to Akpata’s shuffle groove, then Usoro ought to have resigned while the trial lasted, thus convicting himself ahead of the court’s acquittal. Suggesting a ‘stepping aside’ to Olanipekun by someone who acts as the face of the complainant implies that even in the absence of a petition against Olanipekun, Akpata already considers him guilty of the charges currently lying somewhere in Akpata’s mind. If Akpata lacks faith and confidence in the LPDC, he should be bold enough to say so, as his current approach suggests that he considers all the members of the LPDC, as men who lack the requisite independent mindedness to discharge their functions. These issues deserve thorough interrogation as we all cannot be railroaded by Akpata’s bravado.