A Rejoinder Why Philanthropy Stops At Building A Court House By Chidi Odinkalu– Dear Prof, When Criticism Is No Longer Constructive

Editors Note; Written By Tosin Ayo Originally published in Abiodunborisade.com

I read with amusement the seeming diatribe by the learned Professor Chidi Odinkalu against the recent charitable donation of a court house to the Ekiti State Judiciary by Nigerian Foremost Lawyer, Philanthropist per Excellence and Chairman, Nigerian Body of Benchers, Chief Oluwole Oladapo Olanipekun, OFR, SAN and how the respected egghead thinks the charitable gesture could harm Nigeria’s judicial system.

The major thrust of the learned Professor’s query is predicated on this central question: ‘How does a Judge who sits in a court built by one man avoid the impression that he or she has a special relationship with the “owner” of the court?’ And my answer is NO, there is no private owner of the court, but the State. What Chief Olanipekun donated is the building, not the Court.

In the saner climes the learned Prof frantically wants the Nigerian legal system to drastically emulate, cases of charity like this abound. In fact, a charity tied to the Supreme Court of the United States of America, the Supreme Court Historical Society offered donors access to Justice as it reportedly raised more than $23million in the last two (2) decades, much from ‘its lawyers, corporations and special interests’. And in many instances, It is the U.S Chief Justice John G. Roberts Jnr. that does the honours of receiving the cash donations or other Judges like Justice Sonia Sotomayor or Justice Clarence Thomas presenting the squared-off hunks of marble affixed with the Supreme Court’s gilded seal. Be that as it would, despite the fact that all the recipients have given at least $5000 to a charity favoured by the Justices, yet the charity is ostensibly independent of the judicial branch of government.

This is apart from the fact that most of Havard University funds is in its endowment as generated from charity, as topping the list at about $53 billion, the University has the largest endowment among National Universities at the end of the fiscal year 2021, according to data collected by U.S. News in an annual survey. Will this automatically mean that any degree obtained by the children, wards or relatives of the donors are automatically invalid or obtained on the favours of the University’s benefactors? The answer in my opinion is in the negation.

Equally in California, the State Bar plays a significant role in helping make legal services available to those who can’t afford to hire a lawyer by providing grants to legal aid organizations across the state. These grants are made possible by the help of charitable donations and state funds earmarked to help the most disadvantaged in the society. The three main sources of funds are: The Justice Gap Fund, which collects tax-exempt donations from attorneys and the public to support free legal services to low-income Californians, “cy pres” funds, residual money from class action lawsuits, probate matters or other proceedings; the Equal Access Fund, which administers state funds allocated by the Governor and State legislature and lastly, the Interest on Lawyer Trust Accounts, (IOLTA) which is essentially the accumulation of interests on money that Lawyers hold for their clients in small amounts or for a short period of time.

I have taken my time to highlight these points, so we are clear that there is a place of and for charity in accessing justice for all.

It is also instructive to note that every good thing in life requires money, support and assistance, thus, decrying a charitable cause on the shaky ground that same might be misconstrued is not only uncharitable, smirks of ingratitude and reflects an extremist view predicated on closed mindedness and unwillingness to consider all relevant issues involved.

Let me state that I admire Professor Chidi Odinkalu a whole lot. He is an erudite mind I have a lot of respect for and I share a lot of his ideology, but I hold a greater duty to contribute to the Jurisprudence of law, justice, the appropriateness or otherwise of charity to legal persons by setting the records straight through the instrumentality of the law, facts and reality. Thus, I consider it the sacred duty of budding legal minds to address the allergies of one-sided, close-minded, unreasoned criticisms of charitable works that are capable of discouraging good men with genuine intentions like the learned Silk, Chief Wole Olanipekun, OFR, SAN from doing the needed good to man and humanity.

Moreso that the job of a critic is simple- see the coffin when you should in fact see a bouquet of flowers. In fact, a critic is worse than a pessimist who feels bad when he feels good for the fear that he would feel worse when he feels better.

I make bold to state that the statement by Lord Hewart that “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.” on 9th November, 1923 in R v. Sussex Justices, [1924] 1 KB 256 has nothing to do with the charitable act of the learned Silk as to state otherwise would be providing a problem for every solution.

The Learned Silk is already an accomplished Lawyer who has attained the very apogee of the legal profession, thus, it would be uncharitable, dim, drab, narrow-minded, extremist, unjustifiable and indeed condemnable to suggest that that he was building the edifice to be used as a court house to curry the favour of the judiciary or otherwise interfere improperly with the cause of justice- something he already achieved though a sheer dint of hardwork, honesty, God’s benevolence and consistent industry. He has only donated the building like many others- Bar center to Ikere Bar, A vicarage and a world class Worship centre to his home church, St. Peter’s Anglican Church, Ikere-Ekiti, Law Building to the Faculties of Law of the University of Ibadan, University of Lagos, Ajayi Crowther University, etc as a way of giving back. Inferring same would thus be tantamount to living in fear and apprehension for a harm yet unoccasioned.

Would it now be right to say the learned Silk donated a Bar centre to Lawyers so all the Lawyers using it can deliberately lose cases against him or his firm in court, for the Judges in equity he gave a Law Faculty building to rule in his Favour, for the Lawyers who graduate from the Universities he gave generously to, to intentionally lose cases against his Law firm? Or that the befitting worship centre donation is to manipulate God to favour only him at the expense of the other worshippers in the church? Since we all want to take extremist views at issues.

The description of the project as an act of “selfless philanthropy” by Governor Biodun Abayomi Oyebanji who invited the state’s indigenes all over the world to emulate this act of generous giving back is not misinformed or misplaced. Like Aare Bamofin of Yoruba land, Chief Afe Babalola, SAN, OFR, CON, Chief Olanipekun has been giving without expecting anything in return to people and institutions, this should not be an exception and no one is permitted to x-ray this particular giving in the unfounded light, lens and prism of impartiality, favour-currying and professional influence peddling, no matter how erudite.

As stated by the learned Professor, Chief Wole Olanipekun, SAN who built the courthouse, is a proud son of Ikere-Ekiti, where the new courthouse is located. His credentials in the universe of Nigerian philanthropy are not in dispute. He is a benefactor of leading universities in the country, including the Universities of Ibadan and Lagos, as well as the Ajayi Crowther University. For someone who gave generously to alleviate suffering during the worst months of the COVID-19 pandemic, was he also giving to those affected by the global pandemic in order to preserve his estate or for his selfish professional interest?

It is restated that for decades, Chief Olanipekun has been running a scholarship scheme to support the tuition and stipends of indigent students in various levels of education in Nigeria up to graduate studies as well as vocational studies in the Nigerian Law School, taking the cue of the learned Professor, can we say the philanthropic gesture of the learned Silk which is justifiably his way of life is being done so that Lawyers and Judges who benefit from his Scholarship largesse can pervert the cause of justice for him and his clients in the nearest future?

Since Professor Odinkalu himself reeled out Chief Olanipekun’s intimidating profile as arguably the most successful Nigerian lawyer of his generation with a successful clientele base, does it not defy logic that his open donation of a befitting building to be used as a court house in Ikere-Ekiti can be miscounted as a ploy in the optical lens of the undiscerning as a ladder to attain what he had already attained?

The fact that the learned silk carried the Judiciary’s Head along in the approval, modification and situation of the building puts paid to the insinuation that it was a clandestine greek gift. This is the marked distinction amongst an inducement, a gift and a bribe, as this was not done in secret or given for the selfish interest of any Judge, it is a well-intended gift given towards the advancement of the cause of justice. There is a critical infrastructure need in the Ekiti State Judiciary, made worse by the lean purse of the Ekiti State Government, thus, any intervention by men of means with a track record of proven integrity, industry and success in the legal profession like the learned Silk ought to be treated with gratitude and commendation, rather than with criticisms and condemnation.

It is important to correct the erroneous impression that the learned Silk donated a Courtroom, he did not and he is incapable of doing that- only the State can do that. Like Prof. Odinkalu himself admitted- ‘Courthouses go to the very essence of statehood. The state exists for the well-being of all who live within it. To protect them, it enjoys certain basic monopolies. One is a presumptive monopoly on the legitimate use of violence; the other is a monopoly of legitimate adjudication’, thus, it is both the error of jaundiced misconception and the error of hasty generalisation for the learned Professor to misconceive the donation of the building as the same as the giving or owning of a court.

Also, the argument that the credibility of the judicial function and public trust in its institutions is a high constitutional value dependent (in the words of Nigeria’s Constitution) on public perceptions of the “independence and impartiality” of the courts is untenable as nothing can indeed tamper with the independence and impartiality of the Judiciary more than an unbefiting courtroom, inconvenient adjudication seat place, unconducive environment for the dispensation of justice and lack of financial autonomy for the Judiciary.

It is on this note that I aver that what the learned Silk donated is simply a building, it takes the State’s acceptance of the building and assignment of the edifice with a Judge, Court Registrar and other Staffers to safely convert same into a courtroom. This is the monk making a hood conundrum. To state otherwise would be standing logic on its staggered head.

To assume that the house built by a private man, converted to a court room would perpetually cast aspersions on the integrity of judgments in favour of the donor is extreme criticism taken too far as there is no assuredness that the donor would even have any personal cases before that court or that the Judge who sits on such matters would consider the interest of such donor in handling the matter delivering his or her Judgment.

Arguing that all judgments of interest to the learned Silk to be handed down by Judges from the donated building to be used as a court house would be in favour of the learned Silk is just like arguing that because a particular Governor’s administration built a courthouse, all judgements given therein would favour the Governor and/or his administration. Cases abound of Governors sacked from office from the tribunals sitting in the court houses built by them or their administration. Historical experience does not favour such an assumption. Any argument to state that such donations by the State Governor was with public funds, rather than with private funds hold no water as the Nigerian public are eager to thank Politicians for simply doing the jobs they were elected to do because others in their shoes are used to not being able to differentiate the public till from their private wallets. Its all about perception.

Of a truth, most of the courts, schools and other institutions in many parts of Nigeria were built through the efforts of local settlers and the ordinary people from the community. Would this fact erode or diminish the integrity of judgments or knowledge obtained therefrom? The answer in my opinion is in the negative.

For instance, my Grandfather, Late Pa Jacob Ayo was one of those who contributed to the building of Amoye Grammar School, Ikere-Ekiti, an institution the learned Silk incidentally attended and was the Senior Prefect, including the Prefect in charge of books, not all his children led their class or even passed out from the school and would it be fair to say his children who passed out in flying colours only did so because of the biased ‘whiff of partiality’ predicated on the assistance rendered by their Father?

The Professor’s third premise why he thinks the donation is unconscionable and should be rejected, being from an active Senior Legal Practitioner because of the presumed perceptions of professional influence peddling is equally faulty as reiterated above because the donor is already accomplished. He has built an unsoilable name and brand in the legal firmament. A name proudly associated with excellence, successful streaks of winning landmark cases and matchless integrity. The question of whether it is the egg that forms the chicken or the chicken that lays the eggs would now be for trained minds to answer.

Thus, any litigant who wants to appeal against any judgment handed down by the court on the sole grounds that the judgments were against him or her beacuse of the alleged alliance of the donor with the matter at hand will have to hatch a new law that allows such frivolous linkage or remote affinity as a tenable ground for appeal and we would have to extend the ludicrousness to mean we must set aside every judgment against a litigant where the Lawyer of the won case attended the same higher institution and or Law school with the Judge for the fear of affinity and presumed compromise.

It remains to be seen which would guarantee a better access to justice- the absence of a courtroom because of the paucity of funds to provide same or a presumed bias of judgments in favour of just a Senior Lawyer and his retinue of clients amongst several thousands of Lawyers and their millions of clients from the courtroom formed from the building donated by a successful, private Legal Practitioner.

Let’s even take the argument to the ridiculous peak that all cases to be handed down by the court in matters where the donor has an interest would favour the donor, would that be enough basis to reject the donation and deprive all other justice-seekers access to justice? Is it no longer the maxim of law that it is better for ninety nine criminals to go scot free than for an innocent litigant to suffer unjustly?

Furthermore, it is uncharitable to live in the yet unattained apprehension that pure thieves, Aninis, Oyenusis and people of questionable character with loads of money to spare would emulate the learned Silk’s model of Philanthropy by building and donating magnificent edifices to be used as courtrooms in the nearest future. It is thus demeaning to assume that the learned Professor thinks the Ekiti State Judiciary or any other Judiciary will accept the donation of any such building from proven thieves, brigands, felons and untamed moneybags in the quest to fill its infrastructural deficit, the learned Professor of all people should know that this gift must have most probably been accepted because of the professional stature, core competence, legal titanship, unblemished integrity and impeccable character of the donor as most times, one cannot safely separate a gift from its donor.

To even categorise this distinguished donor or its donation in the mould of comparison with ‘every big man who has stolen money who would sooner or later adopt that same model as their own down payment for impunity’ is not only unfounded, irrelevant, misleading, but an unforgivable gaffe. Perhaps Chief Olanipekun’s only claim to holding public office was 32 years ago when he was the Old Ondo State Attorney General and Commissioner for Justice, his fortune is thus from private practice and cannot therefore be grouped alongside lootocrats who might want to build houses to be used as courthouses around the country annexed into private estates of questionable provenance, whose preoccupation will not be justice administration, but decision-making as to who gets shafted both in reality and in the public perception. By no stretch of any imagination is the comparison pardonable.

The learned Professor also stated in his treatise that it was infact impossible for this kind of project to avoid a violation of the constitutional rules of fair hearing and the Judicial Code of Conduct. He cited Rule 1(4) of the Code which precludes every Judge from “contacts that may lead people to speculate that there is a special relationship between him and someone whom the Judge may be tempted to favour in some way in the course of his judicial duties.”

It was against this background that he contended that how does a Judge who sits in a court built by one man avoid the impression that he or she has a special relationship with the “owner” of the court?

I want to address this by affirming that It is infact ludicrous to posit or ascribe ownership of the court to the donor of a building. The court is infact not the building, but the paraphernalia of statehood, the symbol of justice and the seal of adjudication as enabled by the law. It is the same misconception that makes the uncircumcised at heart assume that the church is the building, rather than the congregation.

Similarly, the law of transitivity posits that if A equals B and B equals C, then A equals C. Thus, If Chief Olanipekun has given out this building to the State and the State has handed over same to the Judiciary, it can be safely stated that the Judiciary is now the one that has handed it over to the court for the swift dispensation of justice as handed over by the State.

In the farthest of imagination according to the learned Prof’s analysis that the learned Silk now owns the court room, by virtue of donating the building housing the court, since what was given is the building, it goes to no issue as the court is not the donated building, what the learned Silk donated is still the building and not the Court.

Apart from these points, I reckon that this building was validly donated via a Deed of Gift and all the approvals sought and obtained with its donation perfected via a Deed of Gift. As Lawyers, Prof knows that it is a rule of Law that the valid deed of gift cannot be revoked and generally, the right of ownership validly passes on execution and the fulfillment of the agreed terms to the Donee, thus, the issue of ascribing the ownership of the court building to Chief Wole Olanipekun, SAN does not arise. But as the gift contract enters into benevolent contracts that alienate things and rights, there are exceptions to this rule that allow its revocation.

I hate to sound like I am teaching a Professor of Law the basic Law of Contract. A distinction must be made between two groups of cases of gift revocation, taking into account the category of persons to whom the right of revocation belongs.

It is worthy of note that there are gifts that can never be revoked; ordinary gifts, rewarding gifts, gifts made for good purposes and those made to legal persons like the instant one. Cases of deed of gift revocation are provided for in our Laws. Revocation of the deed of gift can however take place by the donor because of gross ingratitude, because of constraint or impoverishment on the part of the donor, because of subsequent births, due to the annulment of a marriage and the divorce by the interested third parties and the revocation of the gift by the indispensable heirs, apart from ingratitude, none of these grounds would apply to this instant donation.

It is trite that Parties of a Deed of gift are the donor and the donee. The donor is the entity that is obliged, without remuneration, free of charge, to transfer ownership of anything of his/her own, or any property right, to the other party, whereas the donee who is the gift recipient is the entity that takes free ownership of the designated item or certain property right, from the other party and exercises full ownership thencefrom, so learned Professor, ownership of the court building already passed from the learned Silk to the Ekiti State Judiciary- the new owner and donee, thus, the argument of bias predicated on gifting the building would no longer be tenable.

It is worthy of note too that the deed of gift is a unilaterally binding contract, a free remuneration, formal, charitable, nominated and real contract that creates obligations only on the part of the donor, in which case, the principal duty of the donor is to transfer the subject of the gift into the ownership of the donee. The donee must therefore acquire the right of ownership or the right to use the subject matter of the contract in accordance with the stipulation of the Deed. Therefore, the donor is obliged to hand over the subject of the gift to the donee and ceases to exercise the rights of ownership from the execution of the Deed.

May I also point the attention of the learned Professor to the definition of the court by the Black’s Law Dictionary as a ‘body of people’ presided over by a Judge, Judges, or Magistrate, and acting as a tribunal in civil and criminal cases, rather than as a block of building donated by a good-hearted Philantropist? Needless to say that no one can validly own the Court as wrongly posited by Prof?

It is axiomatic that Nigeria’s judicial system has deep-seated infrastructural challenges that the State and indeed the nation is incapable of addressing at this material time, thus, this intervention should be applauded and the spirit behind it lauded.

Truly, there exists a need for a court building in Ikere, this does not affect the learned Silk’s contribution or other forms of private contributions in the form of an Administration of Justice Trust Fund as practised in other climes, but the advice of the learned Professor that the court facility should be repurposed for other uses, such as a public library on the incorrect ground that it would not impinge on public perceptions of the administration of justice is not only misinformed, but only a disingenuous reflection of the half-information at the disposal of learned Prof. Odinkalu regarding the gifted edifice as the donated structure equally contains a well stocked, fully furnished library as one of the many facilities in the sprawling superstructure. I seriously advise that the learned Prof should visit this facility before rushing to the press to cast unfounded aspersions on the motive, rationale, spirit and intent of this timely addition to the bastion of justice delivery in Ekiti state. Cheers Prof.

Tosin Ayo, LL.B, BL, LL.M (Aberdeen) teaches Law at the Department of Jurisprudence and International Law, Ekiti State University, Ado-Ekiti, Nigeria.