Matter Arising from Ogunba’s Suspension as SAN

The clean bill of health given to Kunle Ogunba by the Nigerian Bar Association is an invitation to the Legal Practitioners’ Privileges Committee to restore his rank of Senior Advocate of Nigeria, writes Davidson Iriekpen

Again, the Nigerian Bar Association (NBA) under the leadership of Mr. A. B, Mahmoud (SAN) last week, cleared a Lagos lawyer, Mr. Kunle Ogunba, of the alleged professional misconduct levelled against him by Honeywell Group Limited.

> In a letter dated February 20, 2018, which was signed by the General Secretary of the NBA, Mr. Isiaka Abiola Olagunju, the association said it had dismissed the petition by Honeywell for lack of prima facie case of professional misconduct against the lawyer.

Recall that the Legal Practitioners’ Privileges Committee (LPPC) had recently stripped Ogunba of his Senior Advocate of Nigeria rank on the basis of a petition written by Honeywell Group alleging that he filed multiple suits against the group of companies and thereby abused court process. The LPPC had in a statement signed by its Secretary and Registrar of the Supreme Court, Hadizatu Mustapha, said the withdrawal of Ogunba’s rank and privileges was based on a petition by Honeywell Group.

“The misconduct alleged consists of the institution of multiplicity of proceedings before different judges of the Federal High Court on the same subject with the deliberate aim of abusing the process of court and derailing the course of justice. After a thorough investigation of the petition by the sub-committee set up by the LPPC, it was decided that the petition is meritorious. Consequently, the LPPC at its 129th plenary meeting had withdrawn the rank of Senior Advocate of Nigeria from Ogunba and other privileges attached to the rank forthwith,” LPPC explained.

> Before the action by the LPDC, the NBA under the leadership of Mr. Austine Alegeh (SAN) had cleared Ogunba of any wrongdoing in the petition against him. The body in a letter dated August 5, 2016 and signed by its then General Secretary Mazi Afam Osigwe, and addressed to Honeywell, said after carefully reading the firm’s petition, it found that it did not disclose any alleged infraction of the Rules of Professional Conduct 2007 by Ogunba. It said it was satisfied that the suits the lawyer filed did not amount to an abuse of court process as the companies were separate entities and that the cases were not in respect of the same facts nor did they seek the same reliefs.

The NBA listed the cases, including Ecobank vs Honeywell Flour Mills Plc, Ecobank vs Siloam Global Services Limited, Ecobank vs Anchorage Leisures, Ecobank vs Honeywell Group Ltd, among others.

“We regret to inform you that a careful reading of the petition failed to disclose any alleged infraction of the Rules of Professional Conduct 2007 in respect of which Ogunba could be called upon to offer an explanation. It is a principle of law that companies are separate legal entities capable of suing and being sued.

“Placing this principle side by side your allegation of abuse of court process, we are satisfied the cases referred to as well as the court processes attached by your good-selves failed to show the existence of a case involving same parties in respect of same facts and seeking same reliefs,” NBA said.

The associations listed the suits as Ecobank Nigeria Limited vs Anchorage Leisures Ltd & 2 Ors v (FHC/L/CS/1219/2015); Ecobank Plc vs Honeywell Flour Mills Plc (FHC/L/CP/1569/2015), Mr. Oba Otudeko vs Ecobank Nigeria Limited (FHC/L/BK/19/2015), Ecobank Nigeria Limited vs Siloam Global Services Ltd (FHC/L/CP/1572/2015), Ecobank Nigeria Limited vs Anchorage Leisures Ltd (FHC/L/CP/ 1570/2015), Ecobank Nigeria Limited vs Honeywell Group Ltd (FHC/L/CP/1571/2015) and Ecobank Nigeria Limited vs Honeywell Flour Mills Plc (FHC/L/CP/ 1689/2015).

“It is difficult to concede to the allegation that the suits amount to abuse of court process upon which a disciplinary proceeding should commence,” NBA said.

According to the association, the suits by Otudeko and Anchorage Leisures seek a declaration that they are no longer indebted to Ecobank and that the bank should be restrained from publishing their names as bad debtors. It said it found that Ecobank’s actions against Honeywell Flour Mills and Honeywell Group were petitions filed consecutively for winding-up proceedings against them, but were later discontinued to correct anomalies in them. It added that the Ecobank’s suits against Siloam Global Services and Anchorage Leisures involve petitions for winding-up “against the two different companies.”

NBA said: “The fact the companies may have common ownership or directors does not make them the same entity or preclude the presentation of petitions against them if counsel believes grounds exist for doing so. A careful examination of the court processes filed by parties at the various suits indicates differences in either parties or reliefs sought, which defeats your (Honeywell’s) allegation of abuse of court process.”

NBA said a Court of Appeal judgment which Honeywell attached to the petition “did not make any pronouncement against the respondent (Ogunba) on the issue of abuse of court process,” According to it, the appellate court did not indict Ogunba, therefore, the judgment would “not be used as a basis for coming to the conclusion that grounds exist for commencing disciplinary hearing against the respondent.

“The respondent’s actions are in our respectful view in line with the duty of a counsel to do everything which in the exercise of his discretion he thinks best for the general interest of his client, which cannot be fettered by subjecting him to disciplinary proceedings. The respondent owed his client a duty to take all lawful steps to directly and or indirectly represent his client and or get the best in the circumstance for his client in reliance on the best of his professional ability.

“We are of the informed view that the actions and or decisions taken by the respondent were not only authorised by his instruction but were made in the course of an attempt at arriving at an amicable settlement in the matter. The respondent’s actions in the course of representing his client are instilled by his duty to get the best for his client and do not impugn the integrity of the legal profession.

“We are, therefore, of the considered belief that the allegations contained in the petition under reference do not contain facts indicating any infraction of the Rules of Professional Conduct. In the light of the foregoing, we will be unable to further Inquire into the matter by forwarding the petition to the LPDC. The petition is hereby dismissed as it lacks merit,” NBA said.

In his own defence, Ogunba had claimed that the suits were against the individual companies and did not amount to an abuse. Besides, he said Honeywell’s suit was “a bid to perpetually tie the hands” of his client. He further told the LPPC that his client’s decision to file several actions against individual companies within Honeywell Group was supported by judicial authorities.

> The lawyer also told the LPPC that the suits did not have the same parties and therefore did not amount to an abuse as alleged. “The suits have to be separate because winding up petition is ad-hominem to each individual company and can thus not be lumped together by a collective action,” Ogunba added.

Why observers are wondering why the LPDC took the decision against Ogunba when the NBA had cleared him of any wrongdoing, the latest clearance by the NBA has again shown that the legal disciplinary body was bias in its decision to strip the insolvency lawyer of his SAN rank. To them, even though many have argued that the LPDC is not bound by the decision of the NBA and that the fact that Ogunba was cleared by NBA does not mean the LPDC should accept the clearance, it was simply bizarre that the same petition could produce different judgments when the facts and evidence are the same.

> Many legal pundits have submitted that the fact the NBA would clear the lawyer of any wrongdoing and get sanctioned by the LPDC showed that the legal disciplinary body was put under pressure to arrive at the decision. They also believed that the LPDC committee did not carefully examine the respondent’s reply, otherwise, the outcome naturally should have been the same. The pundits concluded that the latest clearance by the NBA may have shown that the committee the LPDC appointed to investigate the petition did not do a thorough job.

 Their submission is that the cases that Ogunba was said to have filed were all in order. They stated that the fact that Honeywell is a group of companies and owned by one man (Otudeko) does not mean that Ogunba needed to file one suit.

Others believe that this is the first time that the NBA would clear a lawyer of misconduct allegations and the LPDC would still go ahead to sanction the person. They are equally surprised why the LPDC would use abuse of due process to cure another abuse of court process?

 To further vindicate Ogunba, when one of the cases came up for hearing in court recently, Honeywell Group Chairman Dr Oba Otudeko, admitted to Justice Mohammed Idris of the Federal High Court in Lagos that his companies owed Ecobank Nigeria Limited individually, but that the debt had been repaid. In his witness statement on oath filed before the judge, the business mogul said the firms jointly negotiated with the bank on the repayment terms.

 Justice Idris had, at the instance of Ecobank’s lawyer Mr. Divine Agbua, subpoenaed Otudeko to testify in an alleged N5.5billion debt suit between three of his companies and the bank. The companies – Anchorage Leisures Ltd, Siloam Global Ltd and Honeywell Flour Mills Plc – are praying the court to hold that they are not indebted to Ecobank.
In his witness statement on Oath, Otudeko admitted that his companies owed the bank separately. He maintained that his companies had paid N3.5billion as of December 12, 2013 as the full and final payment for the N5.5billion debt as agreed by the parties in a July 22, 2013 meeting.

 He said: “The plaintiffs were individual customers of the defendant (Ecobank) and had personal outstanding exposures to the defendant. In view of the fact that Honeywell Group Limited is the parent company of the plaintiffs, the plaintiffs under the auspices of the Honeywell Group, led by me, opened up negotiations to settle the then outstanding indebtedness of the plaintiffs to the defendant.”
With the foregoing, analysts have called on the LPDC to redeem itself by carefully examining the petition and restoring Ogunba’s SAN title in the interest of justice.

Quote
It is difficult to concede to the allegation that the suits amount to abuse of court process upon which a disciplinary proceeding should commence

NBA President, A.B. Mahmoud

Tobi Soniyi. Deputy Editor/Group Politics Editor. THISDAY. 35 Creeks Road, Apapa, Lagos