The rift between Prof. Chidi Odinkalu and Paul Usoro SAN seems
to has taken a new turn following the write up by Prof. Odinkalu
tittled ”The Nigerian Bar Association: Leadership, values
and the future”. In a direct response of rebuttal to the write
up which was concluded to be a direct attack on Paul Usoro, the
learned silk replied, giving explanations on what warranted the
giving of the so-called gift to Agbadu-Fishim J.
Revealing step by step how and why the gift was given and giving
reasons why the supposed indictment by the professor remains
baseless, the learned silk concluded that Prof. Odinkalu is simply
doing everything within his power to stop him from running for the
NBA presidency. He concluded by saying that it is his hope that the
learned professor turns a new leaf come 2018.
In his recent article with the above title, Chidi Odinkalu, in
continuation of his campaign against me founded ostensibly on the
cash gifts that I gave to Honourable Justice James Agbadu-Fishim of
the National Industrial Court (“NIC”), accuses me of professional
misconduct, in the terms of the Rules of Professional Conduct for
Legal Practitioners, 2007 (“RPC”). His earlier allegations of
bribery against me, having been effectively debunked by the factual
rebuttal that was issued by my colleagues in Paul Usoro & Co
(“PUC”), Odinkalu now purports to anchor his campaign against me on
Rule 34 of the RPC which stipulates that “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 favor from a Judge” and claims
that my gifts to Agbadu-Fishim J offend these Rules.
Odinkalu’s assertions are not borne out by the facts and are
wholly incorrect. In addressing Rule 34, it is important to make
the point that impressions are not, cannot and ought not to be
created in vacuo; they are and always must be rooted in
facts if they are not to qualify as mere gossip and street talk. It
is also apropos that the relevant and surrounding facts be
considered holistically and not selectively if the correct,
credible and objective impression – as different from predetermined
and jaundiced conclusions – must be created. Selective and
prejudiced presentation of facts, which seems to be Odinkalu’s
trademark, distorts and showcases an incorrect impression – which
obviously is his objective – whereas a consideration of the facts,
as a whole, bears out the contrary impression and establishes the
non-infringement of the RPC Rule 34. For a proper appreciation of
my contentions, I would, in this write-up, classify my gifts to
Agbadu-Fishim into two buckets – Pre- and Post PH/150 Gifts – and
consider each of these in the context of Rule 34 of the RPC
together with the surrounding facts thereof.
Pre-PH/150 Gifts
Pre-PH/150 Gifts refers to the N250,000.00 which I gave to
Agbadu-Fishim J in August 2014, about 5 months before PUC
was instructed to represent Access Bank (“the Bank”) in
Suit No. NICN/PH/150 [“PH/150”], the only matter that PUC has ever
handled before His Lordship. In forming an impression on this gift,
in the context of Rule 34, a number of relevant and surrounding
facts, some of which are under-listed, need to and must be taken
into consideration by the objective third party.
First, I have never appeared as Counsel
before Agbadu -Fishim J in any matter, in all my years of legal
practice. It was not until December 2014 – about 5 months after my
N250,000.00 gift to His Lordship – that PUC was instructed in
PH/150. Given these facts and in the context of Rule 34, what
“special personal consideration or favor” could I possibly have
gained from His Lordship pursuant to that gift? In what
circumstance can any reasonable person form the impression, given
those facts, that I gave the gift to the Judge in order to gain any
“special personal consideration or favor from” the Judge? None.
Second, I have consistently stated
that my friendship with Agbadu-Fishim J predates his appointment to
the Bench and also that my gifts to His Lordship were at His
Lordship’s instance and based on our relationship. The N250,000.00
August 2014 gift was my contribution to His Lordship’s travel
expenses for the Court’s annual vacation based on His Lordship’s
request. What is so outrageous about a N250,000.00 gift to an old
friend, albeit a Judge, more so, given the fact that I
have never handled any matter before the Judge and PH/150 was not
even in contemplation at that time? How could such a gift, in those
circumstances, create an impression that it was “calculated to
gain” or even “has the appearance of gaining special personal
consideration or favor from” Agbadu-Fishim J? “Special personal
consideration or favor” in regard to what matter or issue? No such
impression, can be created in the mind of any reasonable and
objective person.
Third, the pattern of my professional
practice before the NIC ought to be considered by any reasonable
third party while forming an impression of my N250,000.00 gift, or
indeed, all my gifts to Agbadu-Fishim J vis-a-vis RPC Rule
34. I have consistently asserted that I do not generally practice
before the NIC and that the PUC matters that are before the NIC are
all handled by my colleagues in PUC without my personal involvement
or supervision. Odinkalu acknowledges this assertion but points out
that “the firm has a very active portfolio of cases in the National
Industrial Court” and that “at the time of these payments, it had
about 36 cases before the court”. As an aside, it speaks to
Odinkalu’s penchant for distortion and dissembling that he refers
to my gifts to Agbadu-Fishim J as
“payments”. One pays for goods or
services as different from gifts which are charitable in nature.
When Odinkalu characterizes my gifts to Agbadu-Fishim as
“payments”, he fails to state what service or favor I got from His
Lordship in return. Of course, he knows that I got no favor from
His Lordship but it serves his purpose of misleading the unwary to
mischaracterize the gifts as “payments”.
There are however two other ancillary
issues that I need to address relating to the PUC NIC
case portfolio as presented by Odinkalu in his article.
First, this is yet another illustrative
instance of selective or elliptical supply of information by
Odinkalu aimed at distorting facts and fudging the truth. The
document from which Odinkalu lifted his information on the PUC NIC
matters – my letter of 31 October 2016 to the EFCC together with
the attached Narrative thereto – clearly stated that PUC had 32
(not 36) pending matters before the NIC as at the date thereof and
drew the following conclusion therefrom, amongst others:
“. . . out of the 32 pending NIC matters in the Firm, Access
Bank is the defendant in 25 (and represented by PUC) and only 1 is
before Agbadu-Fishim J. There are some other NIC Judges who have up
to 5 or 6 of these matters before them – see attached List of NIC
matters handled by PUC, both concluded and pending. As earlier
stated, Mr. Usoro does not know any of these other Judges or have
any relationship with them”.
If those gifts were intended or “calculated to gain” me any
“special personal consideration or favor” in the context of PUC’s
“very active portfolio of cases in the National Industrial
Court”
– using the words of Odinkalu – would it not make eminent sense
for me to dispense them across the board to all the NIC Judges
handling the Firm’s matters or, at the minimum, make those gifts to
and target those Judges with “5 or 6 of these matters before them”?
Why would I give gifts to the NIC Judge who adjudicates over only 1
(one) PUC matter instead of targeting those Judges with “5 or 6 of
these matters” if my intention, in the context of Rule 34, was to
“gain special personal consideration or favor” from the Judges? And
yet, as I mentioned in that letter, I do not even know those other
Judges personally nor have any relationship with them. These facts
should bear on the mind of any objective third party who desires to
form an impression of my gifts to Agbadu-Fishim in the context of
Rule 34 of the RPC. These facts go to show that my gifts to
Agbadu-Fishim J could not possibly have been “calculated to gain”
me any “special personal consideration or favor”. Why did Odinkalu
suppress these facts in his article even though he was aware of
them, save for mischief?
The second ancillary issue I must
address on this point is the obvious misconception by Odinkalu that
32 (or even, 36, using Odinkalu’s wrong figure) pending NIC matters
constitute “a very active portfolio of cases” for PUC which,
presumably, would command my personal attention and supervision. As
at 03 November 2016 (about the time that my afore-referenced letter
to the EFCC was written), PUC had 137 live appeals before the
Supreme Court and various Divisions of the Court of Appeal as well
as 173 pending matters before various High Courts. When these
numbers are considered, an objective third party would comprehend
that I do not and need not have visibility in regard to PUC’s NIC
matters more so when the Firm has more than 35 qualified,
knowledgeable, skilled and active advocates practicing under its
umbrella. It would also be clear to such observer that my personal
relationship with Agbadu-Fishim J has absolutely nothing to do with
the PUC practice and my gifts to His Lordship do not howsoever gain
me or the Firm any “special personal consideration or favor” in the
context of Rule 34 of the RPC.
When the totality of these facts on my
personal professional practice before the
NIC – recall that RPC Rule 34 talks about “special
personal consideration or favor” – are
thrown into the mix and contemplated by any objective third party,
why should such an objective person form the impression that my
N250,000.00 gift to Agbadu-Fishim J in August 2014 or even the
aggregate of the 3 gifts, were “calculated to gain” me any “special
personal consideration or favor” in the context of Rule 34? As it
relates specifically to the N250,000.00 Pre-PH/150 Gift, how could
any objective third party form the impression that I had infringed
Rule 34 of the RPC in the circumstances that I have just outlined?
What would be the basis for such impression? Where and what are the
facts in support of such an impression or perception? There is no
basis for and there are no facts in support of such
misperception.
Post-PH/150 Gifts
Post-PH/150 Gifts refer to the N100,000.00 and N200,000.00 gifts
that I gave to Agbadu-Fishim J respectively in December 2014 and
March 2015 during the pendency of PH/150. In forming an impression
of these gifts, in the context of Rule 34 of the RPC, the unbiased
and reasonable third party, in my view, would be guided by all the
preceding facts relating to the Pre-PH/150 Gift, and I therefore
adopt these wholly for a consideration of these Post-PH/150 Gifts.
There are at least 4 (four) additional facts which should gird the
impression of any credible third party in regard to these
Post-PH/150 Gifts vis-à-vis RPC Rule 34.
First, since this review was undertaken
in the last Quarter of 2016 (when the EFCC commenced its
investigation of Agbadu-Fishim J), almost 2 years after the
instructions to PUC on PH/150, I should expect any such reviewer to
be interested in looking at the Records of the Court in that matter
to determine whether, in the context of Rule 34 of the RPC, I
actually gained, directly or indirectly (by association, for
example), any “special personal consideration or favor from the
Judge” in the conduct of that Suit.
As at Q4 2016 when I wrote my letters to the EFCC, PH/150 had
not progressed beyond being a part-heard matter and indeed was
scheduled to commence de novo consequent upon
Agbadu-Fishim J’s transfer from Enugu Division of the NIC. At no
time had Agbadu-Fishim J made any Ruling or Order in PH/150 other
than routine adjournments. Absolutely nothing was done in the
conduct of that matter by Agbadu-Fishim J that suggested, even
remotely, the favoring of one party over the other and nobody, not
even the opposing Counsel, has made any such suggestion. Even as I
write, the Suit is yet to commence de novo. In what
circumstance then would the objective third party form the
impression howsoever that my Post -PH/150 Gifts to Agbadu-Fishim J
gained or were “calculated to gain” me “special personal
consideration or favor from the Judge” in the context of RPC Rule
34? And, by the way, the status of PH/150 was very well known to
Odinkalu as at when he wrote his article. How come he failed to
disclose these facts in his article? Obviously because they do not
support or bear out his campaign against me. This is yet another
instance of deliberate suppression of facts that do not support his
campaign against me. That neither shows fidelity to scholarship nor
the fidelity required of lawyers, practicing or not.
Second, in forming an impression of
the Post-PH/150 Gifts vis-à-vis RPC Rule 34, the
independent third party would note that a pattern of unconditional
and no-strings-attached gifting by me to Agbadu-Fishim J had been
established by my Pre-PH/150 Gift of N250,000.00 and, in the
absence of any contrary indication, would not believe or think that
the motivations for the Post-PH/150 Gifts were any different from
that of the preceding Gift. The Post-PH/150 Gifts were motivated by
the same unconditional kindness that motivated the Pre-PH/150 Gift;
they were not linked howsoever to PH/150 and the electronic
communication to me from Agbadu-Fishim J which Odinkalu has read
and alluded to in his article bear this out. That also explains why
nothing in the Records of Proceedings of PH/150 suggests, even
remotely, the favoring of one party over the other in the conduct
of that matter by Agbadu-Fishim J. Much earlier, I had posited that
impressions, in the context of Rule 34 of the RPC or at all, must
always be rooted in facts, holistically considered and not based on
selective dissembled facts. The point I make is that, in
contemplating my Post-PH/150 Gifts vis-à-vis RPC Rule 34,
the disinterested reader and third party needs to consider the
relevant facts holistically including but not limited to the
pattern that was established by my unconditional
no-strings-attached Pre-PH/150 Gift and make a judgment, based on
all these facts whether that pattern was consistent all through or
had changed. I am convinced that such a dispassionate third party
would conclude, all the facts and circumstances considered, that
the pattern remained the same and unchanged.
Third and as a corollary to the
preceding facts, I would expect the disinterested third party, in
forming his impression of the Post-PH/150 Gifts vis-à-vis
RPC 34, to consider the modest sums involved – N300,000.00 gifted
in two tranches of N100,000.00 and N200,000.00 over a period of 4
months, between December 2014 and March 2015. Now that Odinkalu
claims to have internationalized this issue, one expects that he
has been sufficiently honest and upfront to tell his presumed
audience that the aggregate figure he is dissembling about (i.e.
the Post-PH/150 Gifts) is a little over US$500.00. Is that the
amount that Odinkalu believes would, in the context of RPC Rule 34
“gain” me “special personal consideration or favor” from
Agbadu-Fishim J in the conduct of PH/150? Is that how low Odinkalu
thinks of our Judges? In making out his case, Odinkalu has
referenced the alleged donation of N10m by Prince Arthur Eze to the
former Chief Judge of Enugu State during the pendency of a matter
involving Prince Eze before the former Chief Judge. Seriously, does
N300,000.00 gifted in two tranches stand in the same league with
N10m? In considering these matters, shouldn’t the dispassionate
third party look at the quantum of the gifts and/or donations, not
to mention other surrounding facts? Prince Eze, according to
Odinkalu was a litigant before the former Chief Judge. Was I a
litigant before Agbadu-Fishim J? Am I a litigant in any matter
before the NIC? Did I make the Post-PH/150
Gifts to the Judge on behalf of any litigant? Does Odinkalu have
any facts so suggesting? On what basis then does he place me on the
same pedestal with Prince Eze? No basis whatsoever.
Fourth, Odinkalu ought to know that
Rule 34 creates a personal liability and responsibility for
lawyers; it does not create any vicarious liability or
responsibility through association. As Odinkalu himself
acknowledges, I have consistently stated that I did not handle
PH/150 and had no visibility of the matter prior to the EFCC
enquiry in Q4 of 2016. I did not appear as Counsel in that matter
and none of the Counsel who appeared announced their respective
appearances as holding my brief. The other set of complementary
facts is that my gifts to Agbadu-Fishim J were entirely personal in
nature and I did not share information thereon with my colleagues
in PUC. Prior to the EFCC enquiry, there was no basis for our
discussing my personal relationship with Agbadu-Fishim J apart from
the fact that I do not generally broadcast my kindness to people.
There was therefore no way that my colleagues in PUC could have
known of my gifts to Agbadu-Fishim J, whether pre- or post-PH/150,
just as I had no knowledge of PH/150 prior to the EFCC enquiries,
and therefore, no personal liability or responsibility could have
attached to them or me, now or at all, in the context of Rule 34 of
the RPC. Framed differently, my personal and private Post-PH/150
Gifts to Agbadu-Fishim J, at a time that I had no knowledge of
PH/150, could not and cannot be misconstrued by an independent and
unbiased observer as being calculated to “gain” me or my
colleagues, directly or indirectly, any “special personal
consideration or favor from the Judge” in the conduct of PH/150 or
otherwise.
Again, Odinkalu disingenuously compares apples with oranges when
he refers to the purported MTN case where Agbadu-Fishim J allegedly
recused himself at the instance of the defendant’s counsel because
His Lordship had requested for financial assistance from the
counsel during the pendency of the matter and consequent upon His
Lordship’s bereavement. Odinkalu should publish the full facts on
the MTN matter and inform us, for example, whether there was any
personal relationship between the Judex and Counsel prior to the
MTN matter – similar to the relationship that I have had with
Agbadu-Fishim J before his judicial appointment. Was there any
instance of an unconditional no-strings-attached gift made by the
MTN Counsel to the Judex, similar to my Pre-PH/150 Gift to
Agbadu-Fishim J? If there were no such identical circumstances, on
what basis does Odinkalu compare the MTN case with my Pre- and
Post-PH/150 Gifts to Agbadu-Fishim J? In the MTN case, Odinkalu
refers to the MTN Counsel as the “defendant’s counsel”. Did I at
any time appear before Agbadu-Fishim J as Counsel in the PH/150
matter? These are different scenarios and, Odinkalu must know that
precedents are determined and are binding only when the facts of
the two matters are similar and on all fours with each other.
Conclusion
In concluding, I wish to draw attention to three residual
issues. First, Odinkalu has not hidden
his ambition of seeing me out of the NBA Presidential race in 2018,
by hook or crook, and it is this ambition that informs his campaign
against me. I can, albeit with some struggle, understand his
position and motivation thereon seeing as he has his favored
candidate(s) and believes that a smear campaign against me enhances
the chances of those candidate(s). What I cannot understand are his
gratuitous advice that I “put” my “ambitions to lead the Bar in
abeyance while” I “either” clear my name or await “the outcome of
the prosecution of James Agbadu-Fishim”. To Odinkalu’s knowledge, I
am not under any trial and the issue of my clearing my name does
not arise howsoever. More importantly, why does Odinkalu believe
that the NBA voters are not sufficiently savvy and knowledgeable to
make their informed judgments based on the full facts of this
matter as contained in this write-up (as different from the
dissembled and distorted untruths in Odinkalu’s published
write-ups)? Why is Odinkalu so unkind to the NBA voters? Why does
he have such dim view of and scant regard for their intellect?
My second concluding comment relates to Odinkalu’s consistent
penchant for stoking dissension and strife between young and senior
lawyers. That tension which Odinkalu stokes is not in anyone’s
interest, Odinkalu inclusive, no matter his own age at the Bar. I
stand for and believe in an inclusive and united Bar which has
standing room for the young and the old and encourages mutual
respect and knowledge-sharing for all. I know plenty of seniors who
are playing their mentoring roles creditably and who are unfairly
maligned and disparaged by Odinkalu’s generalizations and
predilection for fiddling with facts and the truth. This is not
healthy. I am hoping that, in the New Year, Odinkalu will turn a
new leaf and join me in building an inclusive and united Bar. By
the way, Odinkalu’s trademark lack of fidelity with truth and facts
not to mention his consistent habit of tampering with facts and
figures (ranging from such seemingly minor details like changing 32
to 36 in the aggregate of PUC’s NIC matters to such grave
allegations and misinformation as my purported criminal trial)
neither does credit to him as a lawyer nor constitute an example
worthy of emulation by young lawyers.
Finally, given his ambition of seeing me out of the NBA
Presidential race in 2018, I have watched with some amusement
Odinkalu’s shifting campaign against me on this issue of
Agbadu-Fishim J. He started out by boldly publishing that I had
bribed His Lordship and had admitted to this criminal conduct and
was standing trial therefor. That lie was exposed, notably by the
PUC Rebuttal which, amongst others, educated Odinkalu on the
constituents of “bribery” according to our statute books.
Thereafter, Odinkalu struggled to find a new, albeit, weak
and failed crutch in Rule 34 of the RPC. Now that I have in this
write-up fulsomely addressed the Rule 34 campaign, do I expect
Odinkalu to apologize to me and rest the issue? Not in the least.
If his track record is anything to go by, I fully expect him to
recycle his distorted facts and untruths, come up with further
jaded arguments and continue to pursue his futile goal of running
me out of the NBA Presidential race. Do I need to worry about these
expected reprocessed attacks? No. Discerning readers, lawyers and
non-lawyers alike, have seen through Odinkalu’s campaign of calumny
and all that remains to be said is that a million Odinkalus cannot
change God’s Will.
By Paul Usoro, SAN FCIArb
The rift between Prof. Chidi Odinkalu and Paul Usoro SAN seems
to has taken a new turn following the write up by Prof. Odinkalu
tittled ”The Nigerian Bar Association: Leadership, values
and the future”. In a direct response of rebuttal to the write
up which was concluded to be a direct attack on Paul Usoro, the
learned silk replied, giving explanations on what warranted the
giving of the so-called gift to Agbadu-Fishim J.
Revealing step by step how and why the gift was given and giving
reasons why the supposed indictment by the professor remains
baseless, the learned silk concluded that Prof. Odinkalu is simply
doing everything within his power to stop him from running for the
NBA presidency. He concluded by saying that it is his hope that the
learned professor turns a new leaf come 2018.
In his recent article with the above title, Chidi Odinkalu, in
continuation of his campaign against me founded ostensibly on the
cash gifts that I gave to Honourable Justice James Agbadu-Fishim of
the National Industrial Court (“NIC”), accuses me of professional
misconduct, in the terms of the Rules of Professional Conduct for
Legal Practitioners, 2007 (“RPC”). His earlier allegations of
bribery against me, having been effectively debunked by the factual
rebuttal that was issued by my colleagues in Paul Usoro & Co
(“PUC”), Odinkalu now purports to anchor his campaign against me on
Rule 34 of the RPC which stipulates that “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 favor from a Judge” and claims
that my gifts to Agbadu-Fishim J offend these Rules.
Odinkalu’s assertions are not borne out by the facts and are
wholly incorrect. In addressing Rule 34, it is important to make
the point that impressions are not, cannot and ought not to be
created in vacuo; they are and always must be rooted in
facts if they are not to qualify as mere gossip and street talk. It
is also apropos that the relevant and surrounding facts be
considered holistically and not selectively if the correct,
credible and objective impression – as different from predetermined
and jaundiced conclusions – must be created. Selective and
prejudiced presentation of facts, which seems to be Odinkalu’s
trademark, distorts and showcases an incorrect impression – which
obviously is his objective – whereas a consideration of the facts,
as a whole, bears out the contrary impression and establishes the
non-infringement of the RPC Rule 34. For a proper appreciation of
my contentions, I would, in this write-up, classify my gifts to
Agbadu-Fishim into two buckets – Pre- and Post PH/150 Gifts – and
consider each of these in the context of Rule 34 of the RPC
together with the surrounding facts thereof.
Pre-PH/150 Gifts
Pre-PH/150 Gifts refers to the N250,000.00 which I gave to
Agbadu-Fishim J in August 2014, about 5 months before PUC
was instructed to represent Access Bank (“the Bank”) in
Suit No. NICN/PH/150 [“PH/150”], the only matter that PUC has ever
handled before His Lordship. In forming an impression on this gift,
in the context of Rule 34, a number of relevant and surrounding
facts, some of which are under-listed, need to and must be taken
into consideration by the objective third party.
First, I have never appeared as Counsel
before Agbadu -Fishim J in any matter, in all my years of legal
practice. It was not until December 2014 – about 5 months after my
N250,000.00 gift to His Lordship – that PUC was instructed in
PH/150. Given these facts and in the context of Rule 34, what
“special personal consideration or favor” could I possibly have
gained from His Lordship pursuant to that gift? In what
circumstance can any reasonable person form the impression, given
those facts, that I gave the gift to the Judge in order to gain any
“special personal consideration or favor from” the Judge? None.
Second, I have consistently stated
that my friendship with Agbadu-Fishim J predates his appointment to
the Bench and also that my gifts to His Lordship were at His
Lordship’s instance and based on our relationship. The N250,000.00
August 2014 gift was my contribution to His Lordship’s travel
expenses for the Court’s annual vacation based on His Lordship’s
request. What is so outrageous about a N250,000.00 gift to an old
friend, albeit a Judge, more so, given the fact that I
have never handled any matter before the Judge and PH/150 was not
even in contemplation at that time? How could such a gift, in those
circumstances, create an impression that it was “calculated to
gain” or even “has the appearance of gaining special personal
consideration or favor from” Agbadu-Fishim J? “Special personal
consideration or favor” in regard to what matter or issue? No such
impression, can be created in the mind of any reasonable and
objective person.
Third, the pattern of my professional
practice before the NIC ought to be considered by any reasonable
third party while forming an impression of my N250,000.00 gift, or
indeed, all my gifts to Agbadu-Fishim J vis-a-vis RPC Rule
34. I have consistently asserted that I do not generally practice
before the NIC and that the PUC matters that are before the NIC are
all handled by my colleagues in PUC without my personal involvement
or supervision. Odinkalu acknowledges this assertion but points out
that “the firm has a very active portfolio of cases in the National
Industrial Court” and that “at the time of these payments, it had
about 36 cases before the court”. As an aside, it speaks to
Odinkalu’s penchant for distortion and dissembling that he refers
to my gifts to Agbadu-Fishim J as
“payments”. One pays for goods or
services as different from gifts which are charitable in nature.
When Odinkalu characterizes my gifts to Agbadu-Fishim as
“payments”, he fails to state what service or favor I got from His
Lordship in return. Of course, he knows that I got no favor from
His Lordship but it serves his purpose of misleading the unwary to
mischaracterize the gifts as “payments”.
There are however two other ancillary
issues that I need to address relating to the PUC NIC
case portfolio as presented by Odinkalu in his article.
First, this is yet another illustrative
instance of selective or elliptical supply of information by
Odinkalu aimed at distorting facts and fudging the truth. The
document from which Odinkalu lifted his information on the PUC NIC
matters – my letter of 31 October 2016 to the EFCC together with
the attached Narrative thereto – clearly stated that PUC had 32
(not 36) pending matters before the NIC as at the date thereof and
drew the following conclusion therefrom, amongst others:
“. . . out of the 32 pending NIC matters in the Firm, Access
Bank is the defendant in 25 (and represented by PUC) and only 1 is
before Agbadu-Fishim J. There are some other NIC Judges who have up
to 5 or 6 of these matters before them – see attached List of NIC
matters handled by PUC, both concluded and pending. As earlier
stated, Mr. Usoro does not know any of these other Judges or have
any relationship with them”.
If those gifts were intended or “calculated to gain” me any
“special personal consideration or favor” in the context of PUC’s
“very active portfolio of cases in the National Industrial
Court”
– using the words of Odinkalu – would it not make eminent sense
for me to dispense them across the board to all the NIC Judges
handling the Firm’s matters or, at the minimum, make those gifts to
and target those Judges with “5 or 6 of these matters before them”?
Why would I give gifts to the NIC Judge who adjudicates over only 1
(one) PUC matter instead of targeting those Judges with “5 or 6 of
these matters” if my intention, in the context of Rule 34, was to
“gain special personal consideration or favor” from the Judges? And
yet, as I mentioned in that letter, I do not even know those other
Judges personally nor have any relationship with them. These facts
should bear on the mind of any objective third party who desires to
form an impression of my gifts to Agbadu-Fishim in the context of
Rule 34 of the RPC. These facts go to show that my gifts to
Agbadu-Fishim J could not possibly have been “calculated to gain”
me any “special personal consideration or favor”. Why did Odinkalu
suppress these facts in his article even though he was aware of
them, save for mischief?
The second ancillary issue I must
address on this point is the obvious misconception by Odinkalu that
32 (or even, 36, using Odinkalu’s wrong figure) pending NIC matters
constitute “a very active portfolio of cases” for PUC which,
presumably, would command my personal attention and supervision. As
at 03 November 2016 (about the time that my afore-referenced letter
to the EFCC was written), PUC had 137 live appeals before the
Supreme Court and various Divisions of the Court of Appeal as well
as 173 pending matters before various High Courts. When these
numbers are considered, an objective third party would comprehend
that I do not and need not have visibility in regard to PUC’s NIC
matters more so when the Firm has more than 35 qualified,
knowledgeable, skilled and active advocates practicing under its
umbrella. It would also be clear to such observer that my personal
relationship with Agbadu-Fishim J has absolutely nothing to do with
the PUC practice and my gifts to His Lordship do not howsoever gain
me or the Firm any “special personal consideration or favor” in the
context of Rule 34 of the RPC.
When the totality of these facts on my
personal professional practice before the
NIC – recall that RPC Rule 34 talks about “special
personal consideration or favor” – are
thrown into the mix and contemplated by any objective third party,
why should such an objective person form the impression that my
N250,000.00 gift to Agbadu-Fishim J in August 2014 or even the
aggregate of the 3 gifts, were “calculated to gain” me any “special
personal consideration or favor” in the context of Rule 34? As it
relates specifically to the N250,000.00 Pre-PH/150 Gift, how could
any objective third party form the impression that I had infringed
Rule 34 of the RPC in the circumstances that I have just outlined?
What would be the basis for such impression? Where and what are the
facts in support of such an impression or perception? There is no
basis for and there are no facts in support of such
misperception.
Post-PH/150 Gifts
Post-PH/150 Gifts refer to the N100,000.00 and N200,000.00 gifts
that I gave to Agbadu-Fishim J respectively in December 2014 and
March 2015 during the pendency of PH/150. In forming an impression
of these gifts, in the context of Rule 34 of the RPC, the unbiased
and reasonable third party, in my view, would be guided by all the
preceding facts relating to the Pre-PH/150 Gift, and I therefore
adopt these wholly for a consideration of these Post-PH/150 Gifts.
There are at least 4 (four) additional facts which should gird the
impression of any credible third party in regard to these
Post-PH/150 Gifts vis-à-vis RPC Rule 34.
First, since this review was undertaken
in the last Quarter of 2016 (when the EFCC commenced its
investigation of Agbadu-Fishim J), almost 2 years after the
instructions to PUC on PH/150, I should expect any such reviewer to
be interested in looking at the Records of the Court in that matter
to determine whether, in the context of Rule 34 of the RPC, I
actually gained, directly or indirectly (by association, for
example), any “special personal consideration or favor from the
Judge” in the conduct of that Suit.
As at Q4 2016 when I wrote my letters to the EFCC, PH/150 had
not progressed beyond being a part-heard matter and indeed was
scheduled to commence de novo consequent upon
Agbadu-Fishim J’s transfer from Enugu Division of the NIC. At no
time had Agbadu-Fishim J made any Ruling or Order in PH/150 other
than routine adjournments. Absolutely nothing was done in the
conduct of that matter by Agbadu-Fishim J that suggested, even
remotely, the favoring of one party over the other and nobody, not
even the opposing Counsel, has made any such suggestion. Even as I
write, the Suit is yet to commence de novo. In what
circumstance then would the objective third party form the
impression howsoever that my Post -PH/150 Gifts to Agbadu-Fishim J
gained or were “calculated to gain” me “special personal
consideration or favor from the Judge” in the context of RPC Rule
34? And, by the way, the status of PH/150 was very well known to
Odinkalu as at when he wrote his article. How come he failed to
disclose these facts in his article? Obviously because they do not
support or bear out his campaign against me. This is yet another
instance of deliberate suppression of facts that do not support his
campaign against me. That neither shows fidelity to scholarship nor
the fidelity required of lawyers, practicing or not.
Second, in forming an impression of
the Post-PH/150 Gifts vis-à-vis RPC Rule 34, the
independent third party would note that a pattern of unconditional
and no-strings-attached gifting by me to Agbadu-Fishim J had been
established by my Pre-PH/150 Gift of N250,000.00 and, in the
absence of any contrary indication, would not believe or think that
the motivations for the Post-PH/150 Gifts were any different from
that of the preceding Gift. The Post-PH/150 Gifts were motivated by
the same unconditional kindness that motivated the Pre-PH/150 Gift;
they were not linked howsoever to PH/150 and the electronic
communication to me from Agbadu-Fishim J which Odinkalu has read
and alluded to in his article bear this out. That also explains why
nothing in the Records of Proceedings of PH/150 suggests, even
remotely, the favoring of one party over the other in the conduct
of that matter by Agbadu-Fishim J. Much earlier, I had posited that
impressions, in the context of Rule 34 of the RPC or at all, must
always be rooted in facts, holistically considered and not based on
selective dissembled facts. The point I make is that, in
contemplating my Post-PH/150 Gifts vis-à-vis RPC Rule 34,
the disinterested reader and third party needs to consider the
relevant facts holistically including but not limited to the
pattern that was established by my unconditional
no-strings-attached Pre-PH/150 Gift and make a judgment, based on
all these facts whether that pattern was consistent all through or
had changed. I am convinced that such a dispassionate third party
would conclude, all the facts and circumstances considered, that
the pattern remained the same and unchanged.
Third and as a corollary to the
preceding facts, I would expect the disinterested third party, in
forming his impression of the Post-PH/150 Gifts vis-à-vis
RPC 34, to consider the modest sums involved – N300,000.00 gifted
in two tranches of N100,000.00 and N200,000.00 over a period of 4
months, between December 2014 and March 2015. Now that Odinkalu
claims to have internationalized this issue, one expects that he
has been sufficiently honest and upfront to tell his presumed
audience that the aggregate figure he is dissembling about (i.e.
the Post-PH/150 Gifts) is a little over US$500.00. Is that the
amount that Odinkalu believes would, in the context of RPC Rule 34
“gain” me “special personal consideration or favor” from
Agbadu-Fishim J in the conduct of PH/150? Is that how low Odinkalu
thinks of our Judges? In making out his case, Odinkalu has
referenced the alleged donation of N10m by Prince Arthur Eze to the
former Chief Judge of Enugu State during the pendency of a matter
involving Prince Eze before the former Chief Judge. Seriously, does
N300,000.00 gifted in two tranches stand in the same league with
N10m? In considering these matters, shouldn’t the dispassionate
third party look at the quantum of the gifts and/or donations, not
to mention other surrounding facts? Prince Eze, according to
Odinkalu was a litigant before the former Chief Judge. Was I a
litigant before Agbadu-Fishim J? Am I a litigant in any matter
before the NIC? Did I make the Post-PH/150
Gifts to the Judge on behalf of any litigant? Does Odinkalu have
any facts so suggesting? On what basis then does he place me on the
same pedestal with Prince Eze? No basis whatsoever.
Fourth, Odinkalu ought to know that
Rule 34 creates a personal liability and responsibility for
lawyers; it does not create any vicarious liability or
responsibility through association. As Odinkalu himself
acknowledges, I have consistently stated that I did not handle
PH/150 and had no visibility of the matter prior to the EFCC
enquiry in Q4 of 2016. I did not appear as Counsel in that matter
and none of the Counsel who appeared announced their respective
appearances as holding my brief. The other set of complementary
facts is that my gifts to Agbadu-Fishim J were entirely personal in
nature and I did not share information thereon with my colleagues
in PUC. Prior to the EFCC enquiry, there was no basis for our
discussing my personal relationship with Agbadu-Fishim J apart from
the fact that I do not generally broadcast my kindness to people.
There was therefore no way that my colleagues in PUC could have
known of my gifts to Agbadu-Fishim J, whether pre- or post-PH/150,
just as I had no knowledge of PH/150 prior to the EFCC enquiries,
and therefore, no personal liability or responsibility could have
attached to them or me, now or at all, in the context of Rule 34 of
the RPC. Framed differently, my personal and private Post-PH/150
Gifts to Agbadu-Fishim J, at a time that I had no knowledge of
PH/150, could not and cannot be misconstrued by an independent and
unbiased observer as being calculated to “gain” me or my
colleagues, directly or indirectly, any “special personal
consideration or favor from the Judge” in the conduct of PH/150 or
otherwise.
Again, Odinkalu disingenuously compares apples with oranges when
he refers to the purported MTN case where Agbadu-Fishim J allegedly
recused himself at the instance of the defendant’s counsel because
His Lordship had requested for financial assistance from the
counsel during the pendency of the matter and consequent upon His
Lordship’s bereavement. Odinkalu should publish the full facts on
the MTN matter and inform us, for example, whether there was any
personal relationship between the Judex and Counsel prior to the
MTN matter – similar to the relationship that I have had with
Agbadu-Fishim J before his judicial appointment. Was there any
instance of an unconditional no-strings-attached gift made by the
MTN Counsel to the Judex, similar to my Pre-PH/150 Gift to
Agbadu-Fishim J? If there were no such identical circumstances, on
what basis does Odinkalu compare the MTN case with my Pre- and
Post-PH/150 Gifts to Agbadu-Fishim J? In the MTN case, Odinkalu
refers to the MTN Counsel as the “defendant’s counsel”. Did I at
any time appear before Agbadu-Fishim J as Counsel in the PH/150
matter? These are different scenarios and, Odinkalu must know that
precedents are determined and are binding only when the facts of
the two matters are similar and on all fours with each other.
Conclusion
In concluding, I wish to draw attention to three residual
issues. First, Odinkalu has not hidden
his ambition of seeing me out of the NBA Presidential race in 2018,
by hook or crook, and it is this ambition that informs his campaign
against me. I can, albeit with some struggle, understand his
position and motivation thereon seeing as he has his favored
candidate(s) and believes that a smear campaign against me enhances
the chances of those candidate(s). What I cannot understand are his
gratuitous advice that I “put” my “ambitions to lead the Bar in
abeyance while” I “either” clear my name or await “the outcome of
the prosecution of James Agbadu-Fishim”. To Odinkalu’s knowledge, I
am not under any trial and the issue of my clearing my name does
not arise howsoever. More importantly, why does Odinkalu believe
that the NBA voters are not sufficiently savvy and knowledgeable to
make their informed judgments based on the full facts of this
matter as contained in this write-up (as different from the
dissembled and distorted untruths in Odinkalu’s published
write-ups)? Why is Odinkalu so unkind to the NBA voters? Why does
he have such dim view of and scant regard for their intellect?
My second concluding comment relates to Odinkalu’s consistent
penchant for stoking dissension and strife between young and senior
lawyers. That tension which Odinkalu stokes is not in anyone’s
interest, Odinkalu inclusive, no matter his own age at the Bar. I
stand for and believe in an inclusive and united Bar which has
standing room for the young and the old and encourages mutual
respect and knowledge-sharing for all. I know plenty of seniors who
are playing their mentoring roles creditably and who are unfairly
maligned and disparaged by Odinkalu’s generalizations and
predilection for fiddling with facts and the truth. This is not
healthy. I am hoping that, in the New Year, Odinkalu will turn a
new leaf and join me in building an inclusive and united Bar. By
the way, Odinkalu’s trademark lack of fidelity with truth and facts
not to mention his consistent habit of tampering with facts and
figures (ranging from such seemingly minor details like changing 32
to 36 in the aggregate of PUC’s NIC matters to such grave
allegations and misinformation as my purported criminal trial)
neither does credit to him as a lawyer nor constitute an example
worthy of emulation by young lawyers.
Finally, given his ambition of seeing me out of the NBA
Presidential race in 2018, I have watched with some amusement
Odinkalu’s shifting campaign against me on this issue of
Agbadu-Fishim J. He started out by boldly publishing that I had
bribed His Lordship and had admitted to this criminal conduct and
was standing trial therefor. That lie was exposed, notably by the
PUC Rebuttal which, amongst others, educated Odinkalu on the
constituents of “bribery” according to our statute books.
Thereafter, Odinkalu struggled to find a new, albeit, weak
and failed crutch in Rule 34 of the RPC. Now that I have in this
write-up fulsomely addressed the Rule 34 campaign, do I expect
Odinkalu to apologize to me and rest the issue? Not in the least.
If his track record is anything to go by, I fully expect him to
recycle his distorted facts and untruths, come up with further
jaded arguments and continue to pursue his futile goal of running
me out of the NBA Presidential race. Do I need to worry about these
expected reprocessed attacks? No. Discerning readers, lawyers and
non-lawyers alike, have seen through Odinkalu’s campaign of calumny
and all that remains to be said is that a million Odinkalus cannot
change God’s Will.
By Paul Usoro, SAN FCIArb
Read more https://www.nairalaw.com/re-the-nigerian-bar-association-leadership-values-and-the-future/