NBA’s need for circumspection with Olanipekun

By Toye Olagoke

A letter from the Nigerian Bar Association (NBA) asking legal luminary, Chief Wole Olanipekun (SAN) to step aside as the Chairman of the Body of Benchers (BOB) to enable the Legal Practitioners Disciplinary Committee (LPDC) to determine a petition against a partner in his firm, Ms Adekunbi Ogunde, surfaced in the media at the weekend.

NBA President Olumide Akpata, who signed the letter, explained that recusing himself as Chair of the BOB would enable the LPDC, a Standing Committee of the BOB, to carry out its investigation without undue influence.

One has been following this matter and was surprised by this latest turn of events, especially since Olanipekun, a fine legal mind, had earlier tendered an unreserved apology for an infraction he didn’t commit and which led to the whole issue. It would appear there is more to the letter than meets the eye and that the NBA wants to ridicule one of its past leaders.

A brief recap of the saga is necessary. Ogunde, a partner in Olanipekun’s firm, had prospected SAIPEM Contracting Nigeria Ltd, standing trial on allegations of $130 million fraud at the Rivers High Court brought by the Rivers State Government against Saipem SPA, Saipem Nigeria, and others.

The problem was that SAIPEM is a client of Henry Ajumogobia, another Senior Advocate of Nigeria (SAN). Ogunde’s action was unprofessional and has been condemned. When Olanipekun became aware of the issue, he penned a heartfelt apology. He thoroughly abased himself, a move most senior lawyers of his calibre won’t countenance.

In a letter dated June 24, Olanipekun apologised to Ajumogobia and explained that he did not authorise the attempt to hijack his client.

It read in part: “First, let it be known without any equivocation that the said letter was written without the instruction, authority, mandate, approval or consent of Wole Olanipekun & Co.; it was also not brought to our attention by the writer.

“Second, it has never been the practice of our law firm to solicit for cases or clientele, and we shall never indulge ourselves in this disturbing practice and trend.

“In effect, the writer of the letter under reference was on her own, and we wholly dissociate ourselves from the letter and its contents: while internal measures would immediately be taken to address and redress this unfortunate situation.

“The writer never discussed her intention to write the letter or showed it to any person or counsel in the office, either before or after sending it to Mr. Caio. Put in other words, the letter is hereby retracted unequivocally: even though it was unauthorised and done without our permission, authority or consent.

“We unreservedly apologise to the highly respected H. Odein Ajumogobia, SAN, OFR, and the entire law firm of Ajumogobia & Okeke for the embarrassment which the letter might have caused them; but let it be known that the letter has also caused us a lot of embarrassment as well.”

Considering how he had humbled himself previously and being a firm believer in equity and fairness, which the NBA itself can attest to, one finds the Association’s endgame befuddling. Is it out to humiliate Olanipekun, one of its leading lights and committed reformer, by mouthing justice, fairness and posterity?  

If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck. One thinks the NBA is up to some mischief and is only hiding under Ogunde’s infraction to dish opprobrium on its past leader and, by extension, his firm.

Some of Olanipekun’s achievements as NBA President include the innovative introduction of stamps and seals to legal processes and documents, uniquely marking them out from those of touts or non-lawyers.

He was also instrumental in forming the NBA Section on Business Law (SBL) and Section on Legal Practice. Chief Olanipekun took on the NBA’s battle against the enactment of the Money Laundering (Prohibition) Act, 2011, whose sections 5 and 25 required lawyers to also obtain licences from the Special Control Unit Against Money Laundering (SCUML) before opening bank accounts and be making certain disclosures which are in contravention of the attorney-client confidentiality.

Working pro bono, Olanipekun, alongside Mrs. Funke Adekoya, SAN and Babajide Ogundipe, got the Federal High Court to set aside the offending provisions of the Money Laundering Act. The judgment of the Federal High Court was appealed to the Court of Appeal. 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.

One is not saying an infraction should go unpunished, but in this case, the cerebral lawyer is not the culprit. Apart from an earlier letter to the LPDC asking that Olanipekun and his son, Bode, the other firm partner, be punished alongside Ogunde, Akpata’s weekend letter leaked to the media further teases a plan to humiliate the Ekiti State-born lawyer. Ogunde had owned up and even cleared the other partners of being in the know of her letter. Why then insist on punishing the other partners and asking Olanipekun to step down as Chair of the BOB? This call is particularly curious as the LPDC is an independent committee, and appeals go directly to the Supreme Court.

Besides, an analysis of the LPDC Rules 2020 shows that some of the prescribed steps have not been followed in this material case. Rule 5 states as follows: (1) An Application made in accordance with rule 4 shall initially be considered by a member of the Committee (“the initial committee member”) on the directive of the Chairman for consideration for the question of whether there is a case to answer in respect of the allegations made in the Originating Application.

(2.) If the initial committee member considers that there is a case to answer in respect of any or all the allegations made and is not of the opinion that the question is one of doubt or difficulty then the initial committee member must certify that there is a case to answer.

(3.) If the initial committee member is minded not to certify that there is a case to answer in respect of all or some of the allegations made or is of the opinion that the question is one of doubt or difficulty, the question must be considered by a panel of three members of the Disciplinary Committee. The initial committee member may be a member of the panel. If the panel considers that there is a case to answer in respect of the allegations made, then it must certify that there is a case to answer in respect of those allegations.

(4) If the panel decides that there is no case to answer in respect of any of the allegations made, it may refuse or dismiss the Originating Application, or part of it, without requiring the respondent to answer the allegations and without hearing the applicant must be provided with written reasons explaining the decision.

(5) If a panel or committee member certifies that a case to answer is established in respect of all or any of the allegations made, the Secretary must serve a copy of each of the documents referred to in rule (4),(5) or (6), as the case may be on each respondent.

Again, under Section 12(7) of the Legal Practitioners Act, appeals in respect of decisions of the LPDC can only be entertained by the Supreme Court of Nigeria and not by any court or body, not even the Body of Benchers. The BOB has no role to play in the disciplinary process of the LPDC. It has no statutory jurisdiction to approve, verify or vary.

Curiously, Ms Ogunde who is the respondent to the petition has not yet been served with it because the stage of service is yet to arise. Yet, the weekend’s letter asked the BOB chairman who has nothing to do with the LPDC process, to resign.

One thinks the NBA needs circumspection in dealing with this issue, so it doesn’t appear like a witch hunt against the ex-NBA President. Asking him to step aside now hints at proclaiming him guilty even when he is not. Olanipekun has a solid moral compass and is a firm believer in justice, fairness and equity. He would recuse himself as Chair of the BOB if need be, without anyone telling him to do so. The NBA and Mr Akpata need to be careful with their approach lest they rubbish the legal luminary or appear to have a vendetta against him.

Olagoke, a public affairs analyst wrote from Lagos