By

Jonathan Agbo

While surfing the internet and reading through messages on different WhatsApp platforms on the evening of the 3rd May, 2022, I saw a post in one of the groups created to galvanize support for an aspirant to an NBA office. The heading immediately caught my attention: the report by city lawyer magazine, an online news outlet was headed: PETITIONER ASKS ECNBA TO BAR MAIKYAU FROM NBA ELECTION (http://citylawyermag.com/2022/05/03/petitioner-asks-ecnba-to-bar-maikyau-from-nba-election/). Naturally, I was curious to find out the grounds of the petition and read through the news item. It turned out that the petitioner, one Kayode Bello, alleged, as stated in the report, that Mr. Y.C. Maikyau SAN, had a pending case against him before the LPPC.

The report also had documents attached namely: a hearing notice dated 16th May, 2019, a petition received by the office of the Chief Registrar, Supreme Court on the 25th November, 2018 and another letter to the same office received on the 16th April, 2018 both written by the petitioner himself. The summary of the allegations against Y.C. Maikyau SAN was that he represented the Council of Legal Education who was the respondent in a suit brought against it by Kayode Bello, the petitioner in the current case. He alleged that the Federal High Court, presided by Hon. Justice Quadri, had recommended amicable settlement of the suit. The essence of his complaint to the LPPC was that Mr. Y.C. Maikyau SAN scuttled the settlement process by refusing to let a proposed meeting hold. He further alleged that he was prevented from writing his bar final examinations. On the strength of the above complaints, he argued that Mr. Y,.C Maikyau SAN had abused his position as a Senior Advocate of Nigeria and ought to have his rank withdrawn.

The petition to the ECNBA claimed that on the strength of the petition against Mr. YC Maikyau SAN by the petitioner, he should be disqualified from running for any office in the forthcoming NBA elections. To know more about the petitioner, I did a little investigation and found that Kayode Bello was indeed expelled from the Nigerian Law school on grounds of gross misconduct. The statement released by the Nigerian Law School and which was widely circulated alleged amongst others, that Kayode Bello had been rusticated from the University of Ibadan in the 2008/2009 academic season but was later reinstated to complete his studies. Upon reinstatement, he was said to have got himself involved in another act of misconduct which led the university’s board to recommend him for further disciplinary action. The statement further alleged that Kayode bello applied to the Nigerian Law School in 2012 and his application was referred to the Council which recommended that he be allowed only to apply in 2016/2017 session. He was granted admission that year and got involved in an altercation with a female student over seat at the Bwari campus of the Nigerian Law School. Attempts, the report said, to resolve the matter failed as Kayode Bello was said to have kept an unruly disposition which led to the Students Representative council issuing a disclaimer against him. He was referred to the disciplinary committee which decided to expel him. The report also noted that while on externship, he insulted his supervisor who wrote the Nigerian Law School containing umbrage against the said Kayode Bello. He went to court to challenge his expulsion and the law firm of Y.C. Maikyau SAN and Co was briefed to defend the Council. His grouse against Mr. Y.C. Maikyau SAN was essentially that the learned silk allegedly frustrated amicable settlement.

First, while it is easy to understand the petitioner’s frustration and his petitions before the LPPC, the fact remains that any legal practitioner who is involved in any matter before the court understands that where a counsel on record, fails to participate in settlement process recommended by the court and which is not the product of an arbitration clause, (assuming the allegation in the petition is true), the normal process is to report the situation back to court as a preliminary step and the judge, who is the master of every case before it, knows what to do in every given case. I noted that the petition, both before the LPPC and the current one before the ECNBA written by Kayode Bello did not contain any allegation/information that those steps were taken. More important, allegations that a counsel has refused to participate in ADR processes will not without more, automatically amount to professional misconduct unless there is more than meets the eye in the case.

Second and more fundamental and without necessarily holding brief for the Learned silk in this piece, it is necessary to interrogate what the law says with regards to petitions against persons who indicate interest to contest any NBA office at the National Level. As far as NBA elections go, the Constitution governs the conduct of elections into National offices. The NBA constitution 2021 in part IX states the ground upon which an aspirant to an NBA national office can stand disqualified as follows:

The candidate is not a Nigerian citizen; Is a member of any political party in Nigeria Has been adjudged bankrupt or has made an arrangement or compromise with his creditors Is adjudged mentally unfit to take the position by a competent medical authority Has been convicted of a crime by a court of competent jurisdiction or has been found guilty of misconduct or professional impropriety by the Legal Practitioners Disciplinary Committee. In a manner of circumscribing the powers of the ECNBA with regards to disqualification of candidates, paragraph (f) of clause IX clearly provides the powers of the ECNBA to disqualify any aspirant is limited to any of the five grounds listed in (a- e) above. It follows that unless any complaint is fixed within the ambit of the above grounds, no aspirant can be disqualified from contesting any position in the NBA.

It is my view that the Kayode Bello’s petition to the ECNBA cannot be conveniently situated within any of the grounds listed in the constitution. His complaint against Mr. Y.C. Maikyau SAN is that he is unworthy of the rank of SAN as he has allegedly abused that rank by allegedly frustrating a settlement process in his case. He pleads that the rank be withdrawn. For all intent and purpose, the Legal Practitioners’ Privilege Committee is not the same as the Legal Practitioners’ Disciplinary Committee and they do not share the same powers or functions. Again, the Constitution is clear that it is only when a person has been found guilty of an infraction that he stands disqualified and not on the basis of an allegation that is yet to be determined. This meaning is the clear and unmistakable language of the NBA constitution. The law is clear that where the words of a statute (which the NBA constitution has become in the context of this piece) are clear and unambiguous, they should be given their ordinary meaning. See ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588(SC). What is more, in recent history, a past president of the NBA was not only allowed to contest for the office even though there were allegations of financial impropriety against him at the material time, he won the election and successfully served out his term. The charges against him were also dismissed by the court

As things stand and as far as it is known, Mr. Y.C Maikyau SAN has not been convicted of any crime or found guilty of any infraction of the rules of professional conduct as to stand disqualified from contesting the forthcoming NBA election. It is also necessary to observe that Mr. Maikyau SAN’s side of the story has not been heard. Mine is therefore an exposition of what the law on the petitioner’s allegations are and the role the ECNBA plays in the scheme of things.

Jonathan Agbo writes from Ibadan.