'180 Days Limit for Election Petition Inadequate'
Chief Wole Olanipekun SAN
The legal profession in Nigeria is now estimated to consist of approximately 120,000 practitioners and it is still growing. However some are of the view that it is over-regulated with so many statutes and institutions. When the Central Bank of Nigeria came up with yet another regulation last year mandating every lawyer and law firm in Nigeria to declare financial transactions in excess of N2m, the Nigerian Bar Association saw it as a threat to the profession and promptly went to court to challenge the Special Control Unit Against Money Laundering (SCUML). Chief Wole Olanipekun SAN led a team of senior lawyers who litigated the case on behalf of the NBA at the Federal Court and judgment was last week delivered in favour of the NBA. May Agbamuche-Mbu, Jude Igbanoi and Tobi Soniyi sought the views of the former NBA President on this and many other professional issues, including his thoughts on the state of Nigeria's election petition laws.
Nigeria is again set for another round of general elections in a few months' time. Almost every election in this country has always ended up in election tribunals and some elections from 2011 are still in various courts. How can we avoid this scenario in 2015?
The only way you can avoid lingering and festering election petition litigations is for us to truly and genuinely embrace and key into democratic principles, orientations, ideas and ideals. To this extent, Nigerian politicians have to come to terms with the very essence of democracy, which according to Abraham Lincoln is "government of the people, by the people and for the people". Democracy anywhere in the world, where it is truly practised is not a means to acquisition of overnight wealth or emergence of fire-brigade millionaires or billionaires, who hide under the guise of politics to amass wealth, at the expense of their respective constituencies in particular and Nigeria in general. Because politicians perceive the Nigerian type of democracy as a means to an end, they would do anything to get to power, including rigging elections, snatching ballot boxes, employment of killer squads, assassination, maiming, kidnapping etc. It is as a result of all these that election petitions litter our courts and tribunals and have now become the albatross of the Nigerian Judiciary.
I want to reiterate what I have often said that Nigeria is the most litigious country in the world when it comes to election related cases. Once we de-emphasise the monetary appurtenances associated with elective and appointed offices, right from the local government, through to the state level and up to the federal tier and devote our fidelity to the true meaning and actual goal of democracy, which ordinarily is service to the people and humanity, then we will continue to have fewer election petitions. The positive end product of this desired scenario is that our politics will then become politics of ideas, ideals, focus, mission, orientation, ideology, policy, belief, conviction and persuasion. When we berth at this pristine anchorage, then people will no longer perceive politics as a dirty game, and more well meaning Nigerians will join the train. India is the largest democratic country in the world, but it does not have a fraction of Nigeria's election petitions. Our common law, including laws relating to election petitions took its root and foundation from the British Common Law. Britain does not experience any protracted election petition cases after election, including the election of parliamentarians which leads to the emergence of the Prime Minister. The mid-term elections in America has just come and gone, with the Republicans taking over Congress from the Democrats. To my knowledge, no single election petition has been filed to challenge any of the winners, while the losers have graciously accepted their defeat.
In your opinion and from your experience as one of the leading election litigation lawyers would you say the issue of 180 days solved the problem of delays in the system so far?
As a result of the disgusting experience whereby election petitions took up to four years before being finally resolved, leading to the dislocation of the political equilibrium in the country, the 1999 Constitution was amended to limit and delineate the periods within which election cases should be filed, tried and concluded, including the appeal proceedings. The nagging problem about Nigerian politics in particular and Nigeria in general is that, in an attempt to solve one problem, we often create, either advertently or inadvertently, other multi-faceted problems. It has now dawned on us that for any petitioner challenging a governorship or presidential election return, the period of 180 days limitation is manifestly inadequate. I do not see the magical wand any candidate challenging a Presidential election return can wave to successfully do so within 180 days. I have presented several papers and lectures whereat I have suggested that the provision of Section 285(6) of the Constitution which provides that "an Election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition" be amended to give sufficient latitude to the Petitioner, from 180 to 220 days. An unfortunate aspect of the judicial interpretation given to Section 285(6) is that a petitioner, whose interlocutory appeal has been allowed by the Supreme Court with an order of hearing the petition de novo given, is now precluded from prosecuting his petition on merits because of the time limit. I think this is unfair and unjust. Sadly enough, these suggestions which are meant to redress some very apparent and manifest injustice have not been considered, either by the National Assembly or the just concluded National Conference. In any event, it has now come to light that the said National Conference was another jamboree.
Recently, the APC made its presidential aspirants sign a bond not to decamp to any other political party. Is this action against the aspirants' right to freely associate? What are your views on the cross-carpeting of politicians from one party to another?
To me, political parties should be structured along clear-cut ideologies and orientations. Whatever one sows is what he reaps, as one cannot plant maize seedlings and harvest millets. In parenthesis, it is people of like minds, ideas, focus, goals, vision, mission and foresightedness that normally converge or should normally converge to form a political party. While not necessarily comparing our democracy with the advanced democracies of the world, we can learn a lesson or two from the way and manner their political parties were founded, organised, structured, nourished and tendered over the years. Whatever might be the degree of internal disagreement within the Labour or Conservative Party or even the Liberal Democrats in Britain, you would not see any party member, even at the ordinary basement level, cross-carpeting from Labour to Conservatives or to Liberal Democrats and vice versa. Ditto for the Democrats and Republicans in America. I do not see the necessity for making the presidential candidates of the APC to sign any bond not to decamp to any other political party should they lose the party's primary election, because, ordinarily, each of them should have subscribed to the ideals and manifesto of the APC.
In your opinion and from your experience as one of the leading election litigation lawyers would you say the issue of 180 days solved the problem of delays in the system so far?
As a result of the disgusting experience whereby election petitions took up to four years before being finally resolved, leading to the dislocation of the political equilibrium in the country, the 1999 Constitution was amended to limit and delineate the periods within which election cases should be filed, tried and concluded, including the appeal proceedings. The nagging problem about Nigerian politics in particular and Nigeria in general is that, in an attempt to solve one problem, we often create, either advertently or inadvertently, other multi-faceted problems. It has now dawned on us that for any petitioner challenging a governorship or presidential election return, the period of 180 days limitation is manifestly inadequate. I do not see the magical wand any candidate challenging a Presidential election return can wave to successfully do so within 180 days. I have presented several papers and lectures whereat I have suggested that the provision of Section 285(6) of the Constitution which provides that "an Election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition" be amended to give sufficient latitude to the Petitioner, from 180 to 220 days. An unfortunate aspect of the judicial interpretation given to Section 285(6) is that a petitioner, whose interlocutory appeal has been allowed by the Supreme Court with an order of hearing the petition de novo given, is now precluded from prosecuting his petition on merits because of the time limit. I think this is unfair and unjust. Sadly enough, these suggestions which are meant to redress some very apparent and manifest injustice have not been considered, either by the National Assembly or the just concluded National Conference. In any event, it has now come to light that the said National Conference was another jamboree.
Recently, the APC made its presidential aspirants sign a bond not to decamp to any other political party. Is this action against the aspirants' right to freely associate? What are your views on the cross-carpeting of politicians from one party to another?
To me, political parties should be structured along clear-cut ideologies and orientations. Whatever one sows is what he reaps, as one cannot plant maize seedlings and harvest millets. In parenthesis, it is people of like minds, ideas, focus, goals, vision, mission and foresightedness that normally converge or should normally converge to form a political party. While not necessarily comparing our democracy with the advanced democracies of the world, we can learn a lesson or two from the way and manner their political parties were founded, organised, structured, nourished and tendered over the years. Whatever might be the degree of internal disagreement within the Labour or Conservative Party or even the Liberal Democrats in Britain, you would not see any party member, even at the ordinary basement level, cross-carpeting from Labour to Conservatives or to Liberal Democrats and vice versa. Ditto for the Democrats and Republicans in America. I do not see the necessity for making the presidential candidates of the APC to sign any bond not to decamp to any other political party should they lose the party's primary election, because, ordinarily, each of them should have subscribed to the ideals and manifesto of the APC.
In any event, it would appear to me that the APC was smart in making its candidates subscribe to the bond. They have learnt from the Nigerian peculiar situation. I would not say that making the candidates sign a bond is against their right to freedom of association, because it has not been suggested that any one of them was forced to sign it. My frank view on the political zigzag movements, otherwise trivially described as cross-carpeting among our politicians is that it heats up the polity unnecessarily, it creates bad blood and brings about bitterness, it engenders political instability, it confuses the electorate in the sense that an average voter might not essentially appreciate the difference between party 'A' and 'B', since it is so easy and seamless for one to move from party 'A' to 'B' and 'B' to 'A', and such a movement will attract celebrations to the highest of heavens, while the hitherto renegade of party 'A' automatically becomes angelic and heroic when he elopes with party 'B'. It also shows that there is no politics of conviction in Nigeria. All the political parties without any exception are guilty of this political misdemeanour. As a person, I am not so much tickled by it. Iron sharpens iron, and by extension birds of the same feather flock together. But when birds of unequal or different feathers attempt to flock together, there might be casualties in the air. This is what we are witnessing in Nigeria today. It is so easy for any politician to divorce his political party and marry another one instantaneously. At the same time, it is only a Nigerian peculiarity that a politician can belong to two political parties, carrying the card of one as a member, but internally working against it to the advantage of another political party. Divorce decrees nisi and absolute appear to be in the pockets of a good chunk of Nigerian politicians. Once primary elections are conducted and some of them lose in an inter-primary contest, they jump boat the following day and become flag bearers of other political parties. What this portrays is the self-centeredness of this breed of politicians, they appear to me to be in politics for self enhancement and not for the advancement of our democracy. But I must not be understood as condemning fusion of two or more political parties, as such fusion to my mind is not undemocratic. Hence, the merger of the defunct ACN, CPC etc. to form APC is not the same thing as cross-carpeting.
NUPENG has embarked on a nationwide strike citing reasons such as unfair labour practices, the non-passage of the PIB and the non-implementation of the Nigeria Oil and Gas Industry Content Development (NOGICD) Act. Only a few months ago there was a strike by JUSUN. How can government improve its relationship with various unions to avoid strikes in the future considering their disruptive effect on economic activities in the country?
The Nigerian economy is virtually being crippled by the myriads of industrial actions being embarked on by different unions nationwide, including University and tertiary institutions, Judiciary Staff, Oil and Gas Sector Unions, Medical and Allied workers unions etc. It is lamentable that since 2008 we have been going back and forth, and unconscionably playing ping pong with the PIB. The Bill is perhaps the most positively revolutionary and nationally beneficial legislative instrument in contemporary times, as it would have provided a statutory arsenal to challenge, confront and combat the corruption, sleaze, highhandedness of Multi National Oil Companies, venality, waste, and extortion, bedevilling and befuddling the petroleum sector. It is not in doubt, that for Nigeria, 'Christmas' is over. The cascading waterfall of income from the oil sector, which we have enjoyed over the years, is reducing to drizzles, with our bonny light currently valued at about $62 per barrel, and experts forecasting a further drop to $50. Imagine if we had passed the PIB promptly, thereby curbing the waste and maximising the benefits from the industry, how economically viable we would be as a nation, instead of the straits we are presently? Well, perhaps it is not too late to take up the gauntlet, and I believe no other body is better suited for this crusade than NUPENG and PENGASSAN. The non-passage of the PIB, to my mind, is a disservice to the nation by the National Assembly. The Nigerian Oil and Gas Industry Content Development Act is meant to liberate and liberalise the running and management of that key sector of the economy. Further, the core import qua essence of the Act is to give qualified Nigerians the opportunity to participate in the running of the oil and gas industry, instead of uncannily importing foreigners to man sectors in the industry which our citizens can competently and proficiently operate and manage. I do not think this is too much to ask for and one does not need to prostrate to and cajole the government before the implementation of the Act. To avoid constant industrial actions, our various leaders in government should see themselves as servants of the people and not overlords who perceive Nigeria as their fiefdom. An average Nigerian today is angst-ridden, touchy, impatient, intolerant, thirsty, hungry, hopeless, jobless, helpless and despondent, because of the economic situation in the country.
NUPENG has embarked on a nationwide strike citing reasons such as unfair labour practices, the non-passage of the PIB and the non-implementation of the Nigeria Oil and Gas Industry Content Development (NOGICD) Act. Only a few months ago there was a strike by JUSUN. How can government improve its relationship with various unions to avoid strikes in the future considering their disruptive effect on economic activities in the country?
The Nigerian economy is virtually being crippled by the myriads of industrial actions being embarked on by different unions nationwide, including University and tertiary institutions, Judiciary Staff, Oil and Gas Sector Unions, Medical and Allied workers unions etc. It is lamentable that since 2008 we have been going back and forth, and unconscionably playing ping pong with the PIB. The Bill is perhaps the most positively revolutionary and nationally beneficial legislative instrument in contemporary times, as it would have provided a statutory arsenal to challenge, confront and combat the corruption, sleaze, highhandedness of Multi National Oil Companies, venality, waste, and extortion, bedevilling and befuddling the petroleum sector. It is not in doubt, that for Nigeria, 'Christmas' is over. The cascading waterfall of income from the oil sector, which we have enjoyed over the years, is reducing to drizzles, with our bonny light currently valued at about $62 per barrel, and experts forecasting a further drop to $50. Imagine if we had passed the PIB promptly, thereby curbing the waste and maximising the benefits from the industry, how economically viable we would be as a nation, instead of the straits we are presently? Well, perhaps it is not too late to take up the gauntlet, and I believe no other body is better suited for this crusade than NUPENG and PENGASSAN. The non-passage of the PIB, to my mind, is a disservice to the nation by the National Assembly. The Nigerian Oil and Gas Industry Content Development Act is meant to liberate and liberalise the running and management of that key sector of the economy. Further, the core import qua essence of the Act is to give qualified Nigerians the opportunity to participate in the running of the oil and gas industry, instead of uncannily importing foreigners to man sectors in the industry which our citizens can competently and proficiently operate and manage. I do not think this is too much to ask for and one does not need to prostrate to and cajole the government before the implementation of the Act. To avoid constant industrial actions, our various leaders in government should see themselves as servants of the people and not overlords who perceive Nigeria as their fiefdom. An average Nigerian today is angst-ridden, touchy, impatient, intolerant, thirsty, hungry, hopeless, jobless, helpless and despondent, because of the economic situation in the country.
Therefore, the only way government can assuage his feelings and convince him that his life is not on a leasehold is to feel his pulse, come to his level, sympathise and empathise with him, and stop the appropriation of the commonwealth of all of us by a few at the local government, state and federal levels. I dare say that there is no better and more effective way to introduce a form of cordiality into the relationship between government at various levels and the labour/trade unions, than for those at the vanguard of government to learn how to do the needful without being arm-twisted into doing them via the unsavoury agency of strikes. Did the government need ASUU to go on strike before attending to the dire needs of universities? Did it require JUSUN to embark on work-stoppage before guaranteeing the fiscal independence of the Judiciary? Was an industrial action needed to enact a statutory instrument which will have re-defined our ailing petroleum sector? I think not. While I do not exactly applaud the constancy, incessancy and frequency of work stoppages in this country, it regrettably seems to be the only language the government at various tiers understand, and indubitably our growth and prosperity as a nation have borne the brunt of it.
You have spent a lot of time, energy and personal resources towards education in Nigeria and at some stage you were the Chancellor and Chairman, Governing Council of the University of Ibadan. Nigerian universities have continued to occupy low positions in the global educational rating. What would you say is responsible for this and how can the trend be reversed?
My experience at the University of Ibadan opened my eyes to a lot of areas begging for attention in our educational institutions. Our various governments' budgetary allocations for education are abysmally low and poor. Not up to 9% of the Federal Government's budgetary allocation is given to education. In 2013 for example, only Four Hundred and Twenty Six Billion Naira (N426, 000,000,000) which was about 8.7% of the total budget was earmarked for education. This falls far below the U.N. benchmark of 26%. In the good old days, Universities retained some of their best brains, first as graduate assistants, before sending them out for post-graduate studies. On completion of their courses, they would return to their various universities as lecturers. Today, this noble idea has been liquidated. Research, which is the primary focus of any University is thinning out. There is also no capacity building, while quality control appears to be out of control. Several private Universities are springing up without any law being put in place for the formation of a synergy between the private and public Universities. There is a symbiotic relationship between education and national development, but unfortunately again, our various leaders who are beneficiaries of sound education, even acquired in Nigeria are now being miserly when it comes to the disbursement of quality money and funds to education. The only way the poor trend of the low ranking of our Universities can be reversed is by us attempting to meet the U.N. minimal standard of 26% of our budgetary allocations, both at state and federal levels to education.
You were in the National Judicial Council for many years, how do you feel that for over a year the Council has been unable to resolve the judicial crisis in Rivers State which has brought justice delivery in the state to a complete standstill?
Without the National Judicial Council in place in the Nigeria of today, I dare say that the Nigerian Judiciary would have been practically emasculated, either from within or without. It is the NJC that protects the Judiciary from assaults from other arms of government, as well as powers and principalities. It is also the NJC that rescues the Judiciary from self-destruction, by curbing and halting the excesses of some of the members of the Bench. It has been argued and it is still being debated that the NJC is not apposite in a federal set-up like Nigeria. At inception of the NJC in 1999, I shared some ideas with this school of thought. Howbeit, without the NJC in place, the Judiciary, particularly at the State level would have become the errand boy of its respective Governors. Without any equivocation, I can submit that the judiciary at the federal level is freer than that at any state level.
You have spent a lot of time, energy and personal resources towards education in Nigeria and at some stage you were the Chancellor and Chairman, Governing Council of the University of Ibadan. Nigerian universities have continued to occupy low positions in the global educational rating. What would you say is responsible for this and how can the trend be reversed?
My experience at the University of Ibadan opened my eyes to a lot of areas begging for attention in our educational institutions. Our various governments' budgetary allocations for education are abysmally low and poor. Not up to 9% of the Federal Government's budgetary allocation is given to education. In 2013 for example, only Four Hundred and Twenty Six Billion Naira (N426, 000,000,000) which was about 8.7% of the total budget was earmarked for education. This falls far below the U.N. benchmark of 26%. In the good old days, Universities retained some of their best brains, first as graduate assistants, before sending them out for post-graduate studies. On completion of their courses, they would return to their various universities as lecturers. Today, this noble idea has been liquidated. Research, which is the primary focus of any University is thinning out. There is also no capacity building, while quality control appears to be out of control. Several private Universities are springing up without any law being put in place for the formation of a synergy between the private and public Universities. There is a symbiotic relationship between education and national development, but unfortunately again, our various leaders who are beneficiaries of sound education, even acquired in Nigeria are now being miserly when it comes to the disbursement of quality money and funds to education. The only way the poor trend of the low ranking of our Universities can be reversed is by us attempting to meet the U.N. minimal standard of 26% of our budgetary allocations, both at state and federal levels to education.
You were in the National Judicial Council for many years, how do you feel that for over a year the Council has been unable to resolve the judicial crisis in Rivers State which has brought justice delivery in the state to a complete standstill?
Without the National Judicial Council in place in the Nigeria of today, I dare say that the Nigerian Judiciary would have been practically emasculated, either from within or without. It is the NJC that protects the Judiciary from assaults from other arms of government, as well as powers and principalities. It is also the NJC that rescues the Judiciary from self-destruction, by curbing and halting the excesses of some of the members of the Bench. It has been argued and it is still being debated that the NJC is not apposite in a federal set-up like Nigeria. At inception of the NJC in 1999, I shared some ideas with this school of thought. Howbeit, without the NJC in place, the Judiciary, particularly at the State level would have become the errand boy of its respective Governors. Without any equivocation, I can submit that the judiciary at the federal level is freer than that at any state level.
The Rivers State ugly development was avoidable right from the start. Whether we like it or not, or despite its many minuses and inadequacies, the 1999 Constitution is still the grundnorm of Nigeria. Appointment of a Chief Judge of a state under Section 271 of the Constitution is made by an institutional triangle, consisting of the Governor, the NJC and the House of Assembly. None of them can work in isolation of the other. In fact, the House of Assembly is the last bus-stop in the sense that once the NJC makes recommendation of Mr. 'A' or 'B' for appointment as Chief Judge to the Governor, the Governor has no alternative or choice than to forward such a name to the House of Assembly for confirmation or rejection. Once the House of Assembly confirms or rejects the name , that is the end of the matter, either on the part of the NJC or the Governor himself. Section 271(1) of the Constitution uses the phrase 'Subject to confirmation of the appointment by the House of Assembly of the State'. In other words, whatever the Governor and the NJC do is subject to the final confirmation or otherwise by the House of Assembly. By way of analogy, can someone become a Minister in Nigeria, when the President merely nominates him without confirmation by the Senate? Let us also pose a rhetorical question, that is, was the name recommended to the Rivers State Governor by the NJC ever forwarded to the Rivers State House of Assembly? And if so, when did the House sit to deliberate on it? With respect to some of the Chief Judges, they are being hypocritical in the sense that when they have problems with their Governors and they are to be sent packing through 'arrangee' removal processes by their Houses of Assembly, they run to the NJC for salvation. But when some of them want to become Chief Judges by all means, they posit that NJC is irrelevant.
I am one of those advocating that in line with relevant constitutional provisions and imperatives, any lawyer or Judge who meets the constitutional requirements can be appointed a Justice of the Supreme Court. But the matter does not end there. Can a lawyer who meets those constitutional requirements and who thinks that he is more brilliant than all of us combined together get appointed as a Justice of the Supreme Court by by-passing the NJC? I think not. Those who have been crucifying the NJC are doing so from an uninformed position because they have not taken the pains to ask for the very simple truth of the matter. I have read the expositions of the respected Chief Judge of Enugu State, the Honourable Justice I. A. Umezulike on the matter. Coincidentally, both the Honourable Justice I. A. Umezulike and the Enugu State Government qua Governor faced this type of problem about 10 years ago, when the Governor/Government of Enugu State forwarded two names to the NJC out of which the NJC was expected to recommend one for the position of Chief Judge. In order of seniority, the two names were the Honourable Justice Raphael Agbo (now of the Court of Appeal) and Honourable Justice I. A. Umezulike. In its wisdom, the NJC recommended Honourable Justice Agbo as the Chief Judge and sent a letter to the Governor of Enugu State to that effect, but with a caveat, that is, that the recommendation was subject to confirmation by the House of Assembly. The then Governor of Enugu State, Dr. Chimaroke Nnamani on the advice of his Attorney-General quickly forwarded the CJN's letter to the House of Assembly, praying for their confirmation or otherwise as enjoined by Section 271(1) of the Constitution. The House of Assembly sat, deliberated on the CJN's letter conveying the NJC's recommendation, refused to confirm the recommendation and informed the Governor accordingly.
The Governor in turn forwarded the House of Assembly's resolution to the NJC, pleading that since the House of Assembly failed to confirm the recommendation of Honourable Justice Agbo, the NJC should consider the second nominee which was Honourable Justice I. A. Umezulike. The NJC subsequently met, deliberated on the resolution of the House of Assembly and concluded that in view of the resolution, and the letter of the Governor, Honourable Justice I. A. Umezulike should be recommended for appointment as the Chief Judge. The decision of the NJC was again forwarded to the Governor by the then CJN, and on receipt of it, the Governor again forwarded it to the House of Assembly, which invariably confirmed the appointment. In view of the peculiar position of Honourable Justice Agbo, the NJC there and then recommended him for appointment as a Justice of the Court of Appeal. With further respect to Honourable Justice I. A. Umezulike, he left out these core areas in his well-publicised treatise on the subject, more particularly so that he was personally involved. The question that begs for answer is that did the CJN indicate in her letter forwarding the name of the candidate recommended by NJC to His Excellency, the Governor of Rivers State that the NJC recommendation is subject to approval of the Rivers State House of Assembly? If yes, was that recommendation ever passed to the House of Assembly for confirmation or otherwise as provided by the Constitution? Was there any need to go to court at all if the NJC recommendation had not been forwarded to the House of Assembly or had any cause of action crystalised at all? I do not want to say more on this other than to reiterate the point that ab initio, this ugly situation was avoidable.
What is your view about the provision that lawyer-members in the NJC should be excluded from the Council's meetings when matters pertaining to the discipline of judges are being deliberated on?
We have a constitutional absurdity in Paragraph 20 of Schedule 3 to the Constitution which excludes NJC lawyer-members from participating in matters pertaining to discipline of Judges. In the first place, that provision is discriminatory. Secondly, the provision is also unreasonable in the sense that while non-lawyers or laymen on the NJC participate in matters and issues relating to the discipline of Judges, lawyers who know the Judges in and out, who appear before them or who practised with them while they were at the Bar, and who also know the ingredients of the offences or allegations for which the Judges are being confronted are inaptly excluded. It is a constitutional anomaly which can be likened to a playwright who wants to stage Shakespeare's Hamlet without involving the Prince of Denmark. It is laughable.
You were a former President of the Nigerian Bar Association. How can the NBA be more responsive to the needs of its members? You are on record to have created sections in the Nigerian Bar Association during your tenure from 2002 – 2004. Today the Section on Public Interest and Development Law (SPIDEL) is virtually dead, while the Section on Legal Practice has barely 68 council members. How can NBA Sections be revived to serve the interest of Nigerian lawyers as you envisioned in 2002?
The NBA's Constitution enjoins it to form a progressive partnership with its members, as well as the public. As a former President of the NBA, I witnessed firsthand the sorry plight of some lawyers across the country. While a host of lawyers are jobless, merely roaming the corridors of different courts without any particular case to handle, some who were employed were earning just a pittance. As at 2002, some lawyers were earning as low as N7, 000 and N10, 000 per month. The situation can be likened to what economists describe as disguised unemployment. This prompted the NEC over which I presided to fix minimum wages for lawyers, depending on where they were, as we delineated the country into three different zones, comprising Lagos, Abuja and Port-Harcourt in Zone A, Ibadan, Enugu, Kaduna, Jos and Ilorin in Zone B and the other state capitals in the third zone.
What is your view about the provision that lawyer-members in the NJC should be excluded from the Council's meetings when matters pertaining to the discipline of judges are being deliberated on?
We have a constitutional absurdity in Paragraph 20 of Schedule 3 to the Constitution which excludes NJC lawyer-members from participating in matters pertaining to discipline of Judges. In the first place, that provision is discriminatory. Secondly, the provision is also unreasonable in the sense that while non-lawyers or laymen on the NJC participate in matters and issues relating to the discipline of Judges, lawyers who know the Judges in and out, who appear before them or who practised with them while they were at the Bar, and who also know the ingredients of the offences or allegations for which the Judges are being confronted are inaptly excluded. It is a constitutional anomaly which can be likened to a playwright who wants to stage Shakespeare's Hamlet without involving the Prince of Denmark. It is laughable.
You were a former President of the Nigerian Bar Association. How can the NBA be more responsive to the needs of its members? You are on record to have created sections in the Nigerian Bar Association during your tenure from 2002 – 2004. Today the Section on Public Interest and Development Law (SPIDEL) is virtually dead, while the Section on Legal Practice has barely 68 council members. How can NBA Sections be revived to serve the interest of Nigerian lawyers as you envisioned in 2002?
The NBA's Constitution enjoins it to form a progressive partnership with its members, as well as the public. As a former President of the NBA, I witnessed firsthand the sorry plight of some lawyers across the country. While a host of lawyers are jobless, merely roaming the corridors of different courts without any particular case to handle, some who were employed were earning just a pittance. As at 2002, some lawyers were earning as low as N7, 000 and N10, 000 per month. The situation can be likened to what economists describe as disguised unemployment. This prompted the NEC over which I presided to fix minimum wages for lawyers, depending on where they were, as we delineated the country into three different zones, comprising Lagos, Abuja and Port-Harcourt in Zone A, Ibadan, Enugu, Kaduna, Jos and Ilorin in Zone B and the other state capitals in the third zone.
It was resolved that in none of the zones should any lawyer be paid less than N50,000 a month. We tried to supervise the implementation, although I must confess that there was no full or 100% compliance. The Sections on Legal Practice and Business Law were also created during my tenure in order to expand more avenues and channels for lawyers, both old and young to navigate and earn income. Over a decade now the two Sections have been created, Nigerian lawyers are ad idem on the fact that they have been of tremendous advantages and benefits to the generality of lawyers.
I must admit that my successors-in-office have kept faith with the ideals behind the creation of the two Sections, in addition to the creation of additional Sections, including the Section on Public Interest and Development Law (SPIDEL). I must confess that I do not know what is happening to the latter Section, but I can say for sure that the Sections on Legal Practice and Business Law are doing pretty well. The best way to improve the Sections in order to serve the best interest of Nigerian lawyers as envisioned, is to allow them operate freely under their respective Bye-laws, with minimal interference by the parent body. The Bye-laws of the Sections were approved by NBA NEC. The officers of the Sections, who are also members of NEC, attend NEC meetings, and report their activities to NEC from time to time. There is no limit to the number of Sections that can evolve within the NBA, just as we have in the IBA. The more useful and beneficial Sections we have, the better for the lawyers. It is not the sole responsibility of the NBA to cater for the needs of Nigerian lawyers. Senior lawyers are enjoined to assist the NBA in attending to these needs within the limits of their respective incomes. Junior lawyers must also do away with the belief that their Rome must be built in a day. They must cultivate the culture of crawling before attempting to walk.
You are lead counsel in the suit instituted by the NBA against the Central Bank of Nigeria over the regulation that lawyers and law firms must make a declaration of financial transactions over N2m. what is the state of that suit? There are those who think that the case filed by the NBA to challenge the directive by the EFCC for all lawyers to submit details of transactions with their clients to the Commission was a ploy to shield lawyers from being submissive in the fight against corruption. Can you clarify what the case is all about?
It is true that I am the lead counsel to the NBA in the suit instituted against the Central Bank of Nigeria over the regulation of Nigerian lawyers and law firms by not only the Central Bank, but also the EFCC and the Minister of Commerce (now Minister of Trade and Investment). The legal profession in Nigeria as it is now is almost over-regulated by statutes and different institutions, including the Legal Practitioners Disciplinary Committee, the Body of Benchers, the NBA itself, the courts and statutes. What the NBA is challenging in the suit is not for the personal benefit or protection of lawyers per se, but also in defence of the laws of the land. Lawyers in Canada challenged such a law as we now have in Nigeria. The action does not have anything to do with the ordinary functions of the EFCC relating to a lawyer as a Nigerian citizen, if he has committed any crime cognisable under our laws. It is not fair to say that by filing the action, Nigerian lawyers are scuttling any efforts being made by the Government to exorcise corruption from our body polity.
You are lead counsel in the suit instituted by the NBA against the Central Bank of Nigeria over the regulation that lawyers and law firms must make a declaration of financial transactions over N2m. what is the state of that suit? There are those who think that the case filed by the NBA to challenge the directive by the EFCC for all lawyers to submit details of transactions with their clients to the Commission was a ploy to shield lawyers from being submissive in the fight against corruption. Can you clarify what the case is all about?
It is true that I am the lead counsel to the NBA in the suit instituted against the Central Bank of Nigeria over the regulation of Nigerian lawyers and law firms by not only the Central Bank, but also the EFCC and the Minister of Commerce (now Minister of Trade and Investment). The legal profession in Nigeria as it is now is almost over-regulated by statutes and different institutions, including the Legal Practitioners Disciplinary Committee, the Body of Benchers, the NBA itself, the courts and statutes. What the NBA is challenging in the suit is not for the personal benefit or protection of lawyers per se, but also in defence of the laws of the land. Lawyers in Canada challenged such a law as we now have in Nigeria. The action does not have anything to do with the ordinary functions of the EFCC relating to a lawyer as a Nigerian citizen, if he has committed any crime cognisable under our laws. It is not fair to say that by filing the action, Nigerian lawyers are scuttling any efforts being made by the Government to exorcise corruption from our body polity.
The action was instituted by the Registered Trustees of the NBA to challenge the Anti-Money Laundering Regime being implemented under the Money Laundering Act. The implementation encroached on the lawyer/client relationship, which is statutorily protected by the Constitution, Evidence Act, Rules of Professional Conduct in the Legal Profession etc. Under Section 5 of the MLA, designated Non-Financial Institutions (DNFIs) were created, to include lawyers, who are expected to quickly inform the Minister of Commerce of any transaction between the lawyer and his client which involves a sum of over N2 million, failure of which a criminal liability of a sum of N250,000 per day would be paid, in addition to a term of imprisonment. Apart from the absurdity in the legislation, the law and its implementation infringed the duty of privacy and confidentiality which every lawyer owes his client.
This duty is the bedrock of the lawyer/client relationship, and indeed, the legal practice itself. It is not for the personal consumption of the lawyer, but that of the client. It is universally recognised. It has also been held in several cases that that duty serves the public interest. In purporting to implement the Anti-Money Laundering Regime, bank accounts of several lawyers all over the country have been interfered with, while a good number of them have received threats of prosecution and closure of their chambers. It was as a result of this state of siege that the then NBA President, Okey Wali, SAN instructed that we should file the action. Judgment has been delivered by one of the best judicial minds we have in Nigeria, Honourable Justice G. Kolawole of the Federal High Court Abuja and the position of the NBA has been vindicated. The offending sections of the MLA in so far as they include and affect lawyers, and their implementation also include lawyers have been struck down. This was exactly what the courts in Canada did in a similar situation. Among the leading Nigerian lawyers who joined me in the matter on behalf of the NBA are Funke Adekoya, SAN, Mike Ozekhome, SAN, Babajide Ogundipe, Esq. and Sule Usman Esq., the former NBA Legal Adviser. I appreciate them a great deal.
Amongst so many awards you have received, including the Officer of the Federal Republic, the University of Ibadan recently awarded you a honourary Doctorate degree in Law. What is the significance of that degree?
The award is significant to me in several respects, including but not limited to the fact that it came from the premier University in Nigeria. It was in recognition of what the University perceived to be my humble contributions to her growth, as well as to humanity in general. The award was not purchased or canvassed for. The calibre of people who received similar awards at the same time and on the same podium with me Professor Wole Soyinka, Professor Olufemi Ogunlesi, Professor Tekena Tamuno and Dr. Mike Adenuga, lends credence to the integrity of the award. I am not using the honourary degree to apply for any job, neither am I addressing myself with the prefix 'Dr.' However, I feel honoured that my humble contributions to our national growth in some areas are being appreciated by a University of international repute. The Punch newspaper editorial of 1st December, 2014 titled "UI's example in restoring value to honourary degree" bears eloquent testimony to the quality of the award as well as the awardees. I cherish and covet it.
Amongst so many awards you have received, including the Officer of the Federal Republic, the University of Ibadan recently awarded you a honourary Doctorate degree in Law. What is the significance of that degree?
The award is significant to me in several respects, including but not limited to the fact that it came from the premier University in Nigeria. It was in recognition of what the University perceived to be my humble contributions to her growth, as well as to humanity in general. The award was not purchased or canvassed for. The calibre of people who received similar awards at the same time and on the same podium with me Professor Wole Soyinka, Professor Olufemi Ogunlesi, Professor Tekena Tamuno and Dr. Mike Adenuga, lends credence to the integrity of the award. I am not using the honourary degree to apply for any job, neither am I addressing myself with the prefix 'Dr.' However, I feel honoured that my humble contributions to our national growth in some areas are being appreciated by a University of international repute. The Punch newspaper editorial of 1st December, 2014 titled "UI's example in restoring value to honourary degree" bears eloquent testimony to the quality of the award as well as the awardees. I cherish and covet it.
Recently, the Chief Justice of Nigeria, Justice Mahmud Mohammed said lawyers aided and abetted corruption in the judiciary. Do you share this view and why? It appears that the legal profession is not doing enough to sanction lawyers who misconduct themselves. This often makes members of the public cast aspersions on lawyers generally. What do you think lawyers should be doing to change this perception? The issue of delay in administration of justice appears to be intractable. What are the radical steps you think should be introduced to reduce this delay to an acceptable level?
That the Chief Justice of Nigeria was quoted as saying that lawyers aid and abet corruption in the Judiciary underscores the point that the Honourable CJN admits that there is corruption in the Judiciary. I would not know whether the Honourable CJN has been rightly quoted or not. But let me quickly say that having been in legal practice for the past 38 years and a Senior Advocate of Nigeria since 1991, a majority of Nigerian Judges are good and not corrupt. But the issue does not end there since the Chief Justice, who is the head of the entire judiciary, has tacitly but honestly admitted that there is corruption in the judiciary although styling lawyers as its aiders and abetters. It is not fair to put all Nigerian lawyers in one compartment or basket and conclude that they aid and abet corruption in the judiciary, just as it is most unfair to write off the Nigerian Judiciary as being corrupt, on the ground that some or a few Judges are said to be corrupt or have been sanctioned for corruption, I think the word 'some' ought to have been employed to qualify the word 'lawyers'. I will be offending my conscience if I say that some of our colleagues, and a few of them for that matter, are not guilty of the CJN's accusation.
That the Chief Justice of Nigeria was quoted as saying that lawyers aid and abet corruption in the Judiciary underscores the point that the Honourable CJN admits that there is corruption in the Judiciary. I would not know whether the Honourable CJN has been rightly quoted or not. But let me quickly say that having been in legal practice for the past 38 years and a Senior Advocate of Nigeria since 1991, a majority of Nigerian Judges are good and not corrupt. But the issue does not end there since the Chief Justice, who is the head of the entire judiciary, has tacitly but honestly admitted that there is corruption in the judiciary although styling lawyers as its aiders and abetters. It is not fair to put all Nigerian lawyers in one compartment or basket and conclude that they aid and abet corruption in the judiciary, just as it is most unfair to write off the Nigerian Judiciary as being corrupt, on the ground that some or a few Judges are said to be corrupt or have been sanctioned for corruption, I think the word 'some' ought to have been employed to qualify the word 'lawyers'. I will be offending my conscience if I say that some of our colleagues, and a few of them for that matter, are not guilty of the CJN's accusation.
But then, the Judges who have been co-opted to the cabal of corruption by the lawyers and litigants who entice them should be brought to book and dealt with by the strong arms of the law. When I joined the profession in 1976, it was very strange to see any lawyer who would have the gut or audacity to walk to any Judge and sell the idea of compromising justice to him. The Judiciary should not tolerate or hobnob with any known corrupt member. This is where the NJC again comes into play and Nigerians of all shades and opinions must support the Commission in its bid to rid the Nigerian Judiciary of all elements of corruption. Lawyers who aid and abet corruption in the judiciary commit grave professional misconduct and their names should be struck off the roll of legal practitioners. I suggest that as it happened in Great Britain about 1620 when a Committee of Inquiry was set up to investigate allegations of corruption made against a tiny fraction of members of the Judiciary, including the Lord Chancellor, such a committee is urgently needed in Nigeria today, so that sundry allegations against Lawyers and Judges can be properly investigated. According to Lord Denning, after the Inquiry, sentences were passed on Judges found guilty, including the Lord Chancellor who stated that "I am guilty of corruption, and do renounce all defences, and put myself upon the grace of your Lordships", "it is like the Judges will fly from anything that is in the likeness of corruption as from a serpent." That was how the Judiciary in the United Kingdom got rid of its few bad eggs and since then, corruption has taken its flight from the sacred institution of justice. About delay in the administration of justice, I must also confess that it is a result of indiscipline, akin to professional misconduct. But let me quickly add that the Nigerian factor contributes largely to it because of jurisdictional issues. It is rather unfortunate that after over 100 years of Nigeria's existence as a nation, the jurisdictions of our different courts are still dicey and not properly delineated. Hence, the first issue that any trial High Court is faced with today is the jurisdictional one.
The federal courts appear to have greedily taken over not less than 80% of the jurisdiction relating to causes that come before our High Courts, leaving the State High Courts to grapple with what I will describe as agrarian issues relating to land, chieftaincy, landlords and tenants. This is sad and unacceptable. But it is the stark reality facing us. The simple solution is that we have to go back, retrace our steps and adopt the various jurisdictions allotted or donated to the different courts in Nigeria in the 1979 Constitution. The present absurdity, which we have refused to redress was brought about by General Sani Abacha, who, for personal reasons, principally aimed at entrenching his autocratic rule in Nigeria conferred overwhelmingly excessive jurisdiction on the Federal High Court through the promulgation of Decree 107 of 1993.
It has been suggested that retired judges be allowed to hear election petitions so as to allow the regular courts to continue with the hearing of regular cases. Do you subscribe to this view?
We have tried several means of constituting impartial umpires to adjudicate on election petitions, including bringing in retired Judges. Let us quickly remind ourselves that not all retired Judges are saints. Events during the election petition trials under Abacha Administration brought this to the fore. Retired Judges were called in to man Election Petition Tribunals with some senior lawyers. Allegations of corruption were flying around like the present Ebola epidemic. The Panels and Tribunals were later disbanded. We again went back to the use of regular courts. I have said it before that we should face the root of our problems rather than scratching the problems at the surface. Once we align ourselves, our politics and orientation with what democracy genuinely entails, rather than the crude acquisition of wealth, and allow our elections to meet minimal international standards, devoid of killing, maiming, lies, wanton destruction of lives and properties, sporadic shootings during election day, ballot box snatching etc., we will then enact a democracy which is based on free and fair election, respect for the sanctity of the ballot box and the decision of the electorate. At this stage, there would be few election cases and our regular courts will be unburdened and continue to hear their regular cases.
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