The Nigerian Bar Association, Leadership, Values and the Future, By Chidi Anselm Odinkalu
The Nigerian Bar has a clear choice on what values it desires to lead it into this dangerous future. It will not be sustainable if it makes the wrong choices.
The question of how the legal profession in Nigeria deals with the challenges of renewing its values and preparing for the challenges of a difficult future for the Bar is likely to be at the heart of the contest for a new leadership of the NBA to be elected in 2018. Despite its best efforts – or may be because of them – the present leadership of the NBA appears to have purchased for itself an early onset to the contest. There will be a season to choose from among the auditioning aspirants. That season is not yet immediately upon us. It appears presently, that there could be up to five aspirants for the position of president of the NBA. However, the issue of the standards and values that should govern choice between the aspirants who evolve into candidates in the contest has now, however, become a major subject in the campaign. Those issues bear upon the kind of Bar we wish to build and will have consequences for Nigeria’s legal profession beyond our borders. In this brief article, I will try to lay out the facts and address their implications.
The Judge Who Enjoys Gifts From Litigants
In July 2017, the Economic and Financial Crimes Commission (EFCC) arraigned James Agbadu-Fishim, a serving judge of the National Industrial Court, before the High Court of Lagos State in Ikeja, on multiple counts of unlawful enrichment. The Commission charged the judge with receiving different sums totalling N4.4 million from nine lawyers, including seven SANs over two years, from 2013 to 2015. Among the SANs named in the EFCC documents as having been involved in this enterprise were Felix Fagbohungbe, Paul Usoro, Uche Obi, Muiz Banire, Adeniyi Akintola, Gani Adetola Kazeem and Joseph Nwobike. The trial remains on going and no inferences as to the guilt or innocence of the judge or named persons are warranted at this time.
One of the named facilitators in these charges, Paul Usoro (SAN), admitted indeed giving the judge N450,000 in two instalments of N250,000 and N200,000 respectively. One payment, according to him, was to contribute to the judge’s vacation costs. The other was a contribution towards the burial costs of a member of the judge’s family, whose identity, however, Mr. Usoro cannot remember.
Mr. Usoro is the principal and name partner in the law firm of Paul Usoro and Company, which, it should be clarified, is not a limited liability company. As such, there is no question here of separate personality of the firm from its constituent partners. Even if there were, this would be a justifiable case for lifting the corporate veil. The firm has a very active portfolio of cases in the National Industrial Court. At the time of these payments, it had about 36 cases before the court. When Mr. Usoro made the first payment to the judge, his firm did not have any case before James Agbadu-Fishim. By the date of the second payment, however, the firm was acting on behalf of Access Bank PLC in a case before the judge. At no point were the lawyers on the other side informed. Mr. Usoro conscientiously points out that he did not personally act in any of these cases. The payments were acknowledged in digital messages exchanged between Mr. Usoro and the judge, who was presiding over a case being conducted by his juniors. None of these were brought to the attention of the lawyers on the other side.
An Ambition that Will Not Suffer Abeyance
I have gone on record to say in the face of these facts, the prudent thing is for Mr. Usoro to put his ambitions to lead the Bar in abeyance while he either clears his name or awaits the outcome of the prosecution of James Agbadu-Fishim. In his defence, Mr. Usoro cites Rule F(2)(i) of the Code of Conduct for Judicial Officers in the Federal Republic of Nigeria which permits a judicial office to accept “personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognised by custom.” The defence would have been laughable if it did not come from a senior lawyer. But it does and I will address it.
Three things may be said about this defence. First, it is strange at best to suggest that it is customary for lawyers of any age at the Bar to pay for or contribute to the vacation costs of judges. That is plainly not safe territory to thread. Lawyers have no business with that.
Second, it is not up to a lawyer to plead in defence of his conduct the Code of Conduct applicable to judges. The rules applicable to lawyers are found in the Rules of Professional Conduct (RPC), 2007. Rule 34 of the RPC provides: “[a] lawyer shall not do anything or conduct himself in such a way as to give the impression or allow the impression to be created, that his act or conduct is calculated to gain, or has the appearance of gaining, special personal consideration or favour from the judge.” The objective of this rule is clear – to preserve the reputation of the judicial system for fairness. When lawyers give undisclosed payments to judges, it is difficult to see beyond Rule 34.
Even then, judges know that seeking or receiving gifts from litigants or their counsel, actual or potential, comes with consequences. In a ruling delivered on May 20, 2014 in the case of Sigismund Williams v. MTN Nigeria Communications Ltd., this same judge, Agbadu-Fishim, of the National Industrial Court, recused himself from hearing a case in the following terms:
…demographic growth at the Bar is putting considerable pressure on the livelihoods of new intake, creating the impression that values are somewhat expendable in the pursuit of daily subsistence.
The defendant’s counsel in this case had informed my colleague, Hon. Justice O.A. Obaseki-Osaghae, that I had sent a text message to him asking him for money in February this year due to the fact that I was bereaved. The said text message was forwarded by my Learned Brother to me and the Presiding Judge of Lagos Division. The defendant’s counsel also said as a result of this his client MTN Nig. Comm. Ltd. has lost confidence in me and would want me to disqualify myself from handling this case. After reviewing the allegation and the need to preserve the parties’ confidence on the court, I hereby disqualify myself from further hearing of this matter. This case file is hereby returned to the Hon. President of this court for re-assignment to another Judge.
Why the same judge did not consider this wise option in the case involving the juniors and employees of one of his recent benefactors will remain a mystery.
Third, in one of his famous letters to Harold Laski, Oliver Wendell Holmes “wished that people could be persuaded to realise that judges are human beings.” This point does not need belabouring. Even if it is true that the Judicial Code of Conduct allows judges to accept gifts under certain circumstances, it does not imply or suggest that such gifts should come from lawyers or partners in firms that have pending cases before such judges. Such exchange of value from lawyer to judge breaches the general duty of lawyers to preserve the reputation of the judicial process as a system “which ensures a fair process and just outcomes.” By way of a contemporaneous illustration, the former Chief Judge of Enugu State, Innocent Umezulike, is currently being prosecuted for circumstances arising from a donation of N10 million, made at the launch of his book, ABC of Contemporary Land Law in Nigeria, by a litigant with pending litigation before him, Prince Arthur Eze, chief executive officer of Oranto Petroleum Ltd. In this case, the payment of the donation was made through Prince Arthur Eze’s company’s Fidelity Bank account.
Sadly, these facts portray a Bar that cannot govern itself or, to any extent that it can, has one set of rules for young or poor lawyers and another set for its leaders and SANs. It is doubtful that a young lawyer would have escaped disciplinary sanctions on the same facts. The issues in this case are straightforward enough. As usual in Nigeria, however, they will be personalised. But they go to the root of the kind of Bar we would like to build in Nigeria. In the past week, I have been called by two presidents of Bar Associations in two different countries in East and Southern Africa and a leading member of the Africa Sub-Committee of the Bar Council in England and Wales who heard about these facts, asking separately whether this case had gone before the Disciplinary Committee of the Bar and, if so, what the outcome was. I responded that it had not. They were incredulous. One of them suggested that I was making this up. I could only respond that I wished I was.
A Bar Led by Impunity is Not Sustainable
We must admit that sustaining or growing traditions of excellence at the Bar is not easy at this time. Many factors account for this. Some are exogenous to the Bar and others less so. Three are most relevant for our present conversation. First, Peter Drucker famously distinguished between management and leadership as the difference between doing things right and doing the right things. In both the country and at our Bar – for the most part – there is a tendency to do neither leadership nor management in this sense. The system of rewards in public and professional spaces in Nigeria is determined for the most part by perverse incentives. This is also true for the Nigerian Bar. Second, demographic growth at the Bar is putting considerable pressure on the livelihoods of new intake, creating the impression that values are somewhat expendable in the pursuit of daily subsistence. Third, the landscape of the world of work is being rapidly transformed by new technologies in a manner that is bewildering for both the young lawyer in Nigeria and the leadership that should prepare her to meet this new world.
These issues of systems, values and how we manage the changing context of the 21st century to prepare the Bar for the tasks of lawyering for the future presents multi-faceted challenges for all at the Bar. In his 2010 paper, “Morality, Integrity and Ethics in the Practice of Law in Nigeria: Myth or Reality?”, Yemi Candide-Johnson (SAN) complains about the tyranny of the “urgency of (short term pecuniary) profit” at the Nigerian Bar, laments “the collapse of judicial integrity”, and rightly concludes that: “there is, therefore, considerable agreement amongst the leaders of our profession that the reputation of our law practice is low”, an “adverse characterization [that] does immense discredit to the superlative capacity of many hidden lights in this profession.”
…in many facets of legal practice, the perception has long been in existence that those who get ahead in lawyering in Nigeria are now mostly those prepared to live in breach of Rule 34. This does not mean that all or even most in the legal profession are ethically challenged or criminally compromised.
This adverse characterisation reflects a dysfunctional value system at the Nigerian Bar. In its 2007 report, the Task Force of the Law Society of Upper Canada on the Rule of Law and the Independence of the Bar underscored the importance of values to the independence of the legal profession. According to the Task Force, “[l]awyers owe a duty to the justice system as ‘officers of the court’, which ensures a fair process and just outcomes.” When lawyers behave badly and get away with it, the value reputation of the system for “fair process and just outcomes” is eternally compromised. This is why Rule 34 of the RPC exists.
Yet, in many facets of legal practice, the perception has long been in existence that those who get ahead in lawyering in Nigeria are now mostly those prepared to live in breach of Rule 34. This does not mean that all or even most in the legal profession are ethically challenged or criminally compromised. The point is that the ethically challenged appear to have overwhelmed those who are not in the earnings, governance and visibility stakes in the profession.
The imputation that Nigeria’s legal profession is hopelessly corrupt and corruptible is widely held and more illustrations of this tendency break cover daily. In May 2015, the Legal Practitioners Disciplinary Committee disbarred Kunle Kalejaiye (SAN) reportedly for, among other things, “conduct incompatible with the status of a legal practitioner”, which included intimate communications with a judge in a case without the knowledge of the other party. In a terrible fortnight for Nigeria’s legal profession in 2016, at least two senior judges and a senior lawyer were arraigned on charges of unlawful conduct impinging on the integrity of judicial institutions and the legal profession; the legal adviser of the ruling All Progressives Congress Party (APC) had to “step aside” for being implicated in alleged unethical payments to a judge; and another senior lawyer admitted giving a judge of the National Industrial Court N450, 000, including a contribution allegedly paid towards the judge’s vacation costs. These are significant developments, symptomatic of a pattern that we must be alive to. They go to the very foundations of not just public trust in the judicial system but of sustainability of elective government in Nigeria.
With these examples from supposed leaders at the Bar, young lawyers may be forgiven for suffering a crisis of values and direction. The problem is that this crisis has real consequences because it afflicts every lawyer in the country with a damaging reputational and skill deficit. In 2010, Yemi Candide-Johnson (SAN) summed up the rewards of this severely corroded reputation of Nigeria’s legal practice and establishment quite firmly:
So, you can come first in your class at Cambridge University and return to Nigeria to be displaced, long distance, in your profession by the boys that you bested a few years before. It still happens every day. It is not because of skill and ability. Rather it is because of reputation and integrity.
Yogi Bera warned us not too long ago that “the future ain’t what it used to be.” Spanish writer, George Santayana, told us that those who cannot remember the past are condemned to repeat it. In 1993, the English space rock groups, Hawkwind released their 18th Studio Album under the title “[I]t is the business of the future to be dangerous”. The Nigerian Bar has a clear choice on what values it desires to lead it into this dangerous future. It will not be sustainable if it makes the wrong choices.
Chidi Anselm Odinkalu, is interim chair of the Section on Public Interest and Development Law (SPIDEL), at the NBA. He writes in his personal capacity.