NBA and the Rules of Professional Conduct for Legal Practitioners – The Kunle Ogunba Question

NBA as a Self-Regulatory Institution

One of the clearly defined aims and objectives of the Nigerian Bar Association (NBA), as enshrined in its constitution, is: “Maintenance of the highest standard of professional conduct, etiquette and discipline.” Legal Practitioners are described as priests in the temple of justice; a status which behooves them to conduct themselves with all sense of decorum, professionalism and respect for the sanctity of the judicial system, while discharging their professional duties. It is therefore no surprise, that the NBA as a professional body of Lawyers, also acts as a self- regulatory institution in the Nigerian legal system. Within this purview, the NBA maintains discipline among Lawyers, and can reprimand erring Lawyers whenever the need arises.

The Elevation of Advocates

In the United Kingdom, elevation to the Recently, the LPPC stripped Mr. Kunle Ogunba of the rank of Senior Advocate of Nigeria. In the official statement released by the LPPC, another Lawyer, Oluwatoyin Bashorun, was barred from applying for the SAN rank for 3 years. The LPPC reached its decisions after finding separate petitions written against both Lawyers meritorious.

In the petition against Kunle Ogunba, a Lagos-based company, Honeywell Group, had accused him of professional misconduct, claiming he was unscrupulous in his “institution of multiplicity of proceedings before different judges of the Federal High Court on the same subject-matter, with the deliberate aim of abusing the process of Court and derailing the course of Justice.” The company in its petition noted that it had already filed a suit at the same Federal High Court (FHC), asking the court to determine the status of the alleged indebtedness. The company was of the view that, instead of allowing the suit it filed to be determined, Mr. Ogunba, in a bid to frustrate the process, filed the multiple suits. The filing of the suits and the timing of the forum shopping acts of Mr. Ogunba, were perceived as behaviours unbecoming of a member of the rank of Queen's Counsel (QC) in English legal system is a most significant practice. The ‘QC’ rank is not only a quality mark recognised internationally, but also a way to encourage the advocates to maintain high ethical standards in their practice of the law.

It is a fact that, the Nigerian Legal System mirrors the United Kingdom’s Legal System almost completely. This similarity extends to the issue of the elevation of Barristers to a higher rank, which is referred to in Nigeria as Senior Advocate of Nigeria (SAN). Here, all the privileges and expectations that applies to the QC in United Kingdom, also applies to the SAN in Nigeria.

Specifically, the rank of SAN is a privilege (and not a right) conferred by the Legal Practitioners Privileges Committee (LPPC), on legal Practitioners who have distinguished themselves and have been found deserving of the preferment. It is a call to higher service and a testament to the industry, brilliance, commitment, exemplary professionalism, and no less important, ethical reputation of those who have been found worthy of the elevation.

The Kunle Ogunba Conundrum

Bar, not to talk of a Senior Advocate, who is charged with upholding the highest standards of practice.

Following the decision of the LPPC to withdraw the SAN rank from Mr. Ogunba, it was alleged in the media that he (Ogunba) had earlier been cleared of misconduct allegations by the NBA. But a review of the sequence of events on the matter indeed raise questions as to: (1) Whether a decision was indeed reached by the NBA. (2) What is the process of dealing with petitions by the NBA? (3) Is it possible for the NBA to issue a ruling on a petition and not send same to the Petitioner? As Honeywell claims it is yet to receive a copy of the alleged ruling. (4) Can hearing continue after a ruling has been issued?

In fact, the chronology of events surrounding proceedings at the NBA, suggests that it is illogical that a decision would have been delivered by the NBA on the date alleged, as there was correspondence following the alleged date which indicated that the review by the NBA was still ongoing.

Sequence of Events

Apparently, Honeywell had submitted its petition dated 7th April, 2016 to the NBA on the 8th of April, 2016. On the 7th of September, NBA forwarded the petition to Mr. Ogunba. Mr. Ogunba responded to the petition on the 27th September. On the 26th of October, 2016, Honeywell received a letter from the NBA forwarding Mr. Ogunba’s response to Honeywell’s petition. Honeywell via a letter dated 23rd November, 2016 issued a rejoinder to the response. Having received no further update from the NBA regarding the petition, Honeywell sent a letter to the NBA dated 20th November, 2017 requesting for an update on the status of the petition.

A subsequent letter, dated 17th January 2018, was also written to the NBA, wherein Honeywell stated as follows: “We note that although a ruling dated 5th August, 2016 was allegedly issued, the NBA in September 2016 forwarded the petition (containing the infractions from which Mr. Ogunba claimed he had been exonerated) to Mr. Ogunba, requesting that he provide a response to the allegations therein. Mr. Ogunba submitted a response to the petition which was dated 27th September, 2016. In the said response, there was no mention of any ruling by the NBA and we wonder why Mr. Ogunba issued a response to the petition almost two months after a ruling had been issued purportedly dismissing the same petition”.

Honeywell also questioned the “grave discrepancy” between Mr. Ogunba’s claims of exoneration, and the subsequent correspondence from the NBA, and stated that, if indeed, there was a ruling by the NBA dismissing Honeywell’s petition, then it is implausible that the same NBA would have subsequently forwarded the petition to Mr. Ogunba for his response, and thereafter forwarded his (Ogunba’s) response to Honeywell for its reply.

Conclusion A lot is expected of the NBA in maintaining a high level of professional conduct among Lawyers. The objective of the NBA to maintain the highest standard of professional conduct, etiquette and discipline, remains pivotal to the sanctity of the judicial system and the future of the legal profession.

This is why the alleged discrepancies and conflicting reports in the media, on the exoneration or otherwise of Mr. Kunle Ogunba, is both shocking and disturbing. It is a disservice to the respected constitution of this noble body, and it inspires no confidence in the ability of the Executive Committee of the Association to deliver on the aims and objectives of this esteemed institution.

The questions raised above are indeed pertinent and require answers and clarification from the NBA and it is this observer’s belief, that the NBA will clear itself of the fuss presently surrounding its handling of this matter.

“In the petition against Kunle Ogunba, a Lagos-based company, Honeywell Group, had accused him of professional misconduct, claiming he was unscrupulous in his “institution of multiplicity of proceedings before different judges of the Federal High Court on the same subjectmatter, with the deliberate aim of abusing the process of Court and derailing the course of Justice” ”

It is only apposite to conclude with the statement made in R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) - "Not only must Justice be done; it must also be seen to be done”.

“IN THE PETITION AGAINST KUNLE OGUNBA, A LAGOS-BASED COMPANY, HONEYWELL GROUP, HAD ACCUSED HIM OF PROFESSIONAL MISCONDUCT, CLAIMING HE WAS UNSCRUPULOUS IN HIS “INSTITUTION OF MULTIPLICITY OF PROCEEDINGS BEFORE DIFFERENT JUDGES OF THE FEDERAL HIGH COURT ON THE SAME SUBJECT-MATTER, WITH THE DELIBERATE AIM OF ABUSING THE PROCESS OF COURT AND DERAILING THE COURSE OF JUSTICE””