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 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 instanceand 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 a n 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 g ifts 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 themix 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 fa vor” 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 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 N250,000.00and, in the absence of any contrary indication, would not believe or think that the motivation 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 PrePH/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 contextof 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 Jud ges? In making out hiscase, 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 bMTN case where Agbadu-Fishim J allegedly recused himself at the instance of the defendant’scounsel 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 PostPH/ 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 thePH/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.
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 inabeyance 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 fulsomelyaddressed the Rule 34 campaign, do I expect Odinkalu to apologize to me and rest the i ssue?
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.
Paul Usoro, SAN FCIArb
19 December 2017