The Nation Newspaper

Category: Law

  • ‘Limit appeals to Supreme Court to reduce congestion’

    ‘Limit appeals to Supreme Court to reduce congestion’

    Fabian Ajogwu (SAN) is a professor of Corporate Governance at the Lagos Business School. A fellow of the Nigerian Institute of Chartered Arbitrators, he is also the author of many law books, including Corporate Governance in Nigeria: Law and Practice. In this interview with ADEBISI ONANUGA, Ajogwu speaks on the slow dispensation of justice, arbitration, the standard of law practice, and sundry issues.

    What areas of law reforms would you want the Buhari administration to focus on?

    I think that our law reforms should go towards simplifying ease of doing business. I say it because it has  soci-economic value to our people. When you simplify the ease of doing business, instead of spending three to four months getting an approval, you shrink it, like Luanda has done, to two to three days. You mirror it, like the US regulation called Reduction of Paper Work Act. You reduce the red tape and bureaucracy. The benefits of this kind of law reform is that it would make Nigeria more competitive than it is today. If Nigeria’s competitiveness is increased, chances are that we would get Foreign Direct Investments (FDIs) into the country. It is really the FDIs that create employment.

    Government do not create direct employment because it is a final pot of civil servants they can employ as to be able to pay their wages. Otherwise a large chunk of your budget expenditure would go on recurring expenditure. But when you carry out law reforms that create competitiveness, you have capital flows, FDIs. They then create jobs and when you create jobs, you increase tax revenue to government by way of personal income tax, the companies that are now in would pay 30 per cent of their profit to government. This for me is the first and perhaps one of the most important, not the most important, but one of the most important areas of law reform that we should like to see the government doing.

    What other areas need reform?

    The next area of law reform should be in the administration of justice to speed things up. The third would be in the area of citizens right and issues of human rights. No society that is not free and empowered and protected, progresses, especially those inalienable rights. We do need to improve on them. I think there are some gaps between the Administration of Criminal Justice Act and the Constitution in the area of human rights and those gaps need to be bridged or be in deference to the constitution, which is the ground norm, superior law. These are not exhaustive, there are other areas. But for me, if you address these ones, there will be huge impact.

    How can justice administration be expedited?

     I agree that the wheel of justice is very slow. The reason is not far-fetched. Number one is that we are a largely procedure-driven jurisdiction. That needs to change. We need to become more substantive in our approach to quest for justice.

    So, how do we achieve this?

    First, we need to streamline all of those rules that create technicalities and delays over substance. Beyond talks, we need to look at how it’s been done in other justice systems like in England. They have simplified some of these things. We can borrow from this because we are largely common law-driven jurisdiction. The second thing is to restrict the number of things that goes up there on appeal. Not everything needs to get to the Supreme court.  The Supreme Court, in my opinion, should remain a policy court as it is in a number of advanced jurisdictions and decide major issues of substance, major issues of the interpretation of the Constitution that holds the country together. As it is today, you can appeal up to the level of the Supreme Court a simple case of breach of contract of N10 or N20 million or less and then we get those courts congested. I advocate  that we reduce the number of things that have to get to the appellate court.

    Third, we can decongest our court system, particularly at the Court of Appeal where the sheer number of cases overwhelms the number of justices there. If we put a ratio of one case to a panel of three – because we can’t say one case to one justice of the Court of Appeal since a justice doesn’t sit alone – you would find that, even if they stop taking new cases, they probably won’t finish them in five years.

    So, the system already is structured to be restrictive rather than empowering. My specific suggestions in this area is to adopt a procedure for clearing out non-contentious issues.

    How do you mean?

    When I emphasise non-contentious, it means both parties are agreed and justices of the court can just sign those orders. That way, I tell you that about 60 to 70 per cent of improper appeals for which they are set up to hear and doing the same at the Supreme Court, we would have massively decongest the court. Fourth, employ technology to do our recordings, case management and our filing system so that our court rooms do not become wharehouses for packing of records of proceedings and processes that overwhelm them. I think that in today’s era document management, we can have all of these papers in electronic form with easy access and search by their lordships and that can help with space management, time management, case management and so on.

    Fifth, I would also recommend that in seeking to decongest the court, we employ some measure of outsourcing of the non-essential duties and put less burden on the court system and have parties pay for those services. For instance, in the UK, it was not the court system that is responsible for bringing an accused person before the court. It is outsourced to private security companies. Some other person can help with documents and case management, filing and sorting out things that needs to be done that day under the registrar’s control and they provide their services and parties pay for them.

    There is no need to robe and get to court and the matter can’t go on because some party was not served the hearing notice. Somebody should be responsible for making sure that all those things are in place even before the matter is listed for hearing. We don’t need to re-invent the wheels. We just need to go and see how the wheels is working there, adapt it to our terrain and have them work and if possible improve on them. If we do these things, our justice administration would be better.

    Can arbitration help in decongestiing the courts?

    I think that system has gained so much prominence all over the world as it is in Nigeria. However, the challenge we have in Nigeria is that no one disputes that arbitration is time saving, cost saving in terms of the time value of money. What is the problem is that Nigeria has gained notoriety for easily setting aside arbitral awards, for easily tampering with the sanctity of contract by parties to resolve their issue through arbitration.

    I believe that the attitude of the court should be to empower rather than restrict arbitration and this can be done by reducing the tolerance for setting aside arbitral’s award and limiting them to grounds only specified in the Arbitration and Conciliation Act.

    Arbitration is well established in Lagos courts, such as the court-connected Lagos Multidoor Courthouse. Will you advise other states to embrace it?

    Certainly. Abuja also has the multidoor courthouse. I am aware that Anambra state and Enugu are also looking at it. They are having almost something similar. Yes, it is good to have regional arbitration hubs to try to deal with commercial disputes particularly. Every state government awards construction contract for roads and other infrastructure development. These contracts sometimes go wrong. Issues of payment, completion and timeliness are things to be referred to arbitration.

    I believe that a lot of it can be done in those regions, and can be done in ways that are not expensive for the disputants. And if we do more of those, you will find that, first of all, we build local capacity with a panel of neutrals and competences. Secondly is that you reinforce the confidence of the users of arbitration that it works and that it has its advantages intact. Yes, I would strongly recommend that other states should support the alternative court rules, as it were, in terms of resolving disputes.

    What is your institute doing to promote arbitration in Nigeria?

    My institute, the Nigerian Institute of Chartered Arbitrators, has over time invested heavily in the Nigerian Institute of Chartered Arbitrators, has over time invested heavily in training practitioners here. We organise courses for judges to understand the rudiments of arbitration and what should be the role of courts in supporting arbitration. We’ve done this over time and we got our membership list which runs in thousands of very eminent and distinguished professionals, lawyers, accountants, architects, retired judges.  training practitioners here. We organise courses for judges to understand the rudiments of arbitration and what should be the role of courts in supporting arbitration. We’ve done this over time and we got our membership list which runs in thousands of very eminent and distinguished professionals, lawyers, accountants, architects, retired judges. What we have seen is that there is an increase in the quality of arbitration practice. Now we don’t have any excuse to go out of this country to find a panel to resolve disputes running into hundreds of millions of dollars. We have the local competences and that is largely because emphasis was being placed on developing local competence and domesticating arbitration as much as possible.

    Some have said that specialisation would do the legal profession some good. Do you think this is practicable in Nigeria?

    In the beginning, you have to be a jack of all trade. That is why as a general practitioner, you need to understand all the areas of law in the beginning. I do not subscribe to a fresher out of Law School specialising in one field because it restricts his knowledge in the practice of law. So, in the early years, the first three years in the minimum, a lawyer should be a general legal practitioner.

    Then over the years, depending on where he has largely practised, has got better experience, has gotten better extra training, continued education in that field, conferences he has attended, articles he has written in that field, cases he has conducted, be it election petition cases, admiralty cases he has done and a lot of related cases he has done, he can then gravitate towards that area as his area of specialisation. He becomes a specialist by reasons of skill he has built there, the competences he has built there, the experience in the field and the knowledge he has acquired. I think that is the way to go. Later in your life’s journey as a lawyer, you should be known for some area of practice instead of for everything. So, I do encourage and believe there should be areas of specialisation but only as a matter of progression into your career and not at the very beginning.

    What do you make of allegations of corruption rocking the judiciary?

    I certainly do not endorse the issue of corruption amongst member of the bench. But it is important to state that in every form of accusation, what gives confidence to the person accused, as well as the person accusing and finally, the audience watching and there is the general public watching, is that a procedure is followed which is guaranteed to ensure justice. So, I do believe in the due processes of law and what it means is that when you mentioned that judge ‘A’ is corrupt, my mind would immediately alter your statement to mean that judge ‘A’ is alleged to be corrupt and would want to see that we follow the system laid down in our laws particularly the constitution for dealing with this kind of accusation, because it is a grave accusation.

    The accused judge should not be hidden, he should go through the process set out by the constitution by investigating him to find out if those accusations are real or not.

    Secondly, there should be fair hearing. The person accused should have an opportunity to be heard. So, hearing out of a judge, or an accused person should be paramount in the procedure for determining guilt. Of course, the last part of natural justice is that the accuser should never be the judge. So, there should be a neutral process of hearing both sides out. There are a lot of good judges, very hard working, disciplined judges within our system. Unfortunately, for the errors of a few, you hear statements like the judiciary is corrupt.

    I think that it must be a discouraging statement to the ones that are hardworking and brought upon by those who have abused their judicial oath and have gone off the course of justice. I think that we should be consistent with the fight against corruption but carried out in ways that engender more confidence by the people. The fight against corruption is not a time-based fight. It is a fight in perpetuity.

    Would you support jail term compared to what NJC used to do when it would merely suspend or retire judges accused of corruption or ask them to go on compulsory retirement?

    That is if found guilty. There is a process for dealing with a judge by virtue of the fact that he is a judge. There is a process for dealing with the citizen by virtue of the fact that the person is a citizen accused of a crime. They are not mutually exclusive but then, there are procedures to be followed. Once there has been compliance with these set out procedures and there is a trial and conviction, then the law should follow its course. All that we have been saying is that we should respect those processes of the law and not jump or bypass them because the minute you jump one or two of them or you bypass them, you create some absurdities or some anomalies.

    Some have criticised the award of senior advocate rank for no longer being based on merit. What do you think?

    Like all systems, the rank doesn’t boast of perfection, only that which is created by the almighty God speaks to perfection. The rules have been revised over the years, each time getting better. The criteria is known. It is in the Legal Practitioners Committee Rules and Guidelines for conferment of SAN, made pursuant to the Legal Practitioners Act. They set out clearly the criteria of what you must have, what you must attain, how you should apply, what you need to supply when you apply, what the next steps are, how the people are sieved from round one to round three and how the successful ones, their names are put out to the whole country.

    It is my view that a SAN is a craftsman of his profession and should provide leadership to his profession, encourage the younger ones, set high standard over and above the standards for legal practitioners, become a point of aspiration for the entire profession.

    What would you have loved to be if you had not read law?

    I had wanted to study nuclear physics. That is probably what I would have done today because I have an interest in the logical pattern of nature, the constancy of the things you see. But all of that is gone now, I am a lawyer and I am happy to be one.

    So, what motivated you to study law? Was it because your father is a lawyer?

    Two things essentially. Dominant one being parental guidance. My father is a lawyer and a SAN, and he did guide me to study law, arguing that I will do well in it and because he wanted somebody to mind his law chamber, which I guess is a normal and natural feeling that a father should have.

    The landing point is that there is a big difference in interfering and insisting on what your children should study on the one hand and shaping their choices to meet their potential that you can see. For me, that is a learning point. I wasn’t forced to read law. I was simply guided to do so.

    Can you recall what your first day in court was like?

    My first day in court was quite an interesting one. I didn’t have a very difficult time. I just went to move a simple motion and the judge was a little understanding knowing I was new. But then, with benefit of preparation, I was prepared for that day, though a little nervous, but knowing that I had to speak out loud. Although I was confident, I was a little on the edge, but in the end, not being a very contentious motion, it was a successful first day.

    How did you deal with opposing lawyers in the early days?

    The job of the opposing lawyer is not to make life easier for you or to make things easier for you. In fact if he can make things more difficult within the rules, he would do it. The counsel on the other side was neither aggressive nor overtly nice but simply did his job and it didn’t matter to me because, as far as I was concerned, my philosophy of advocacy is to address the court and not the other side. And so, when you do that, you tend to reduce the acrimonies and the distractions or deviations from the fine traditions of the bar in advocacy. I always believe that a good lawyer should prepare for his case, understand all the facts, arguments, understand the main reliefs his client is seeking and objectives of that litigation and marshal out his points in such a way that he attains relief and justice for his client and not to be so concerned about who the other side is or what they are up to.

    Would you agree that the standard of law practice has gone down?

    I am mindful of a truism that bad news is louder than good news. So, the point is that we’ve been able to produce substantially, many good lawyers over the years from the period of 1970 till date. These lawyers have excelled in many fields, in advocacy, in academia, in solicitors work, in in-house counsel, legal departments in big and small companies. No one actually takes stock of all of those good works that those lawyers do but quick records is taken of those who fall short of the requirements of the profession or who runs foul of the rules and ethics of the profession.

    Overall, I would say the profession has come a long way, become stronger and better. Yes, we have difficulties in the profession, we have issues of quality of training that some lawyers received, not all, we have growing population in number of lawyers that are being trained in Nigerian Law School campuses relative to what we had in 1963 with one campus. We have many more private universities. So, clearly, there are more lawyers with the same problem of inadequate funding and allocation of resources to education. You will find that the quality of lawyers or education will suffer. The United Nations says we must allocate 25 per cent, and that is the minimum, of our budget to education. This rather means that once we go below this number, about 11 or 12 per cent, you somehow finance it with poorer quality or substandard output. So what could augment for that poor training would be actual training when you get to practice.

    So, how do you achieve that in your firm?          

    Here in our firm, for instance, we don’t take it for granted that the lawyer who is coming in has everything it takes to practice law. So, we create in-house training, external training, modular training and on-the-job hands-on experience to augment for the training that hasn’t happened in school. Trade and commerce get more sophisticated every day and the curriculum is lagging behind the rapid changes in trade and commerce. That gap also could explain why you have the supposition that some of our lawyers are not as good as they can be. But in the end, it is a challenge of the profession to retrain and to practice law within the rules and traditions of the bar as to remain that noble profession that we all aspired to and did join.

    We need to be self-correcting and self-regulating. And the power of self-regulation is that we need to correct erring members within the profession so as to instill the trust the larger society has for lawyers.

    The second thing is that we need to overhaul the curriculum and the training of lawyers to bridge the gap between the advances that have happened in litigation and in commercial practice. That way, we would be nearer to where our counterparts are in all the jurisdictions.

    If you look back, can you say it has been rosy for you all the way?

    One has had ups, downs, difficulties along the journey but like the famous song goes, we have many reasons to count our blessings and name them one by one and in doing so, you would see what God has done for us. I would count that to God’s grace, having a father who is supportive by itself would not take you to the promised land. You need God’s grace, you also need to do your best, work hard, and try to walk the path to get there.

    How much of an influence is your dad?

    There are also many who misunderstand why somebody becomes a judge because his father was a judge or becomes a  SAN because his father was a SAN. I tell you solemnly that a hunter’s child has a very high likelihood of becoming a very good hunter. The reason is because he had an early privilege of going hunting with his father, understanding how he tip-toed the bush, watching him aim gently and looking at how he carried out his profession with finesse, experience and knowledge. That already put this child at a head start from his colleagues.

    I grew up serving judges at law dinners. I grew up in the early days at secondary school seeing very well dressed people who spoke very fluent and uncommon English; they walked with their heads high up, and they gave you a feeling that they were actually the lords of the society. They probably walked taller than the military administrators at that time and so, it was not difficult for you as a child to see why you should walk with your head tall and high. It was not difficult for you to see why you should walk within the framework of the law, not difficult for you to see why you should not be held to be involved in anything shady and that is not straightforward.

    In so doing, you gradually started imbibing traditions of this particular profession and you started aspiring to be that way. You probably got mentoring talks and chats with these parents of yours who are already a member of the profession. You grew up seeing law books all over and wondering whether humans or spirits read these books. It is not only that you have your father supporting you but also because you have other mentors that you called fathers supporting you.

    Aare Afe Babalola’s unusual prayer for me, his children and so many others is: “May you be bigger than I am”. It is a very tall order and one that leaves you pondering how you would achieve this.

  • Panel to review NBA’s, others’ rules in practice

    Panel to review NBA’s, others’ rules in practice

    The Nigerian Bar Association (NBA) has set up a committee to review the regulatory objectives and   architecture of the legal profession.

    The committee headed by Chief Anthony Idigbe (SAN) is also to advise NBA on the suitability of the current structure  to meet the requirements for a robust, responsive and independent modern legal profession.

    Inaugurating the committee, NBA President Abubakar Balarabe Mahmoud (SAN) said it was in consonance with one of the programmes of his executive.

    Mahmoud said: ‘’The Nigerian Bar Association has repeatedly expressed concerns in the falling standard of legal education and legal practice . This is a disturbing phenomenon that must be addressed urgently and adequately’’.

    He stated that the committee has the following terms of reference:

    “To review the current regulatory objectives and the regulatory architecture of the legal profession and advise on its suitability to meet the current requirements for a robust, responsive and independent modern legal profession in Nigeria;

    “To determine on whether the NBA should retain both its regulatory and representative functions in the legal profession and if so, what necessary measures should be put in place to strengthen these roles and ensure that neither is compromised.

    “In particular, to review the role of the Body of Benchers, the General Council of  the Bar, the Council for Legal Education, the Supreme Court of Nigeria and the Nigerian Bar Association in the regulation of the legal profession and determine if the roles being played by these institutions and organs are appropriate to meet the needs of a robust and modern and independent legal profession in Nigeria;

    “To determine for instance, given the current composition of the Body of Benchers, if its role should not be formal and ceremonial limited to formal call to bar and formal disbarment of members of the legal profession, whilst ceding the more rigorous duty of regulation to the more appropriate organs either of the NBA or the General Council of the Bar or any desirable agency.

    “To obtain the proposed bills for review of the Legal Practitioners Act pending at the National Assembly and review same in the light of the recommendations arising from the work of the committee envisaged in these terms of reference

    “To review the current standards for admission into the Nigerian Bar and recommend changes.  In particular determine whether the current threshold of 40% as pass mark for bar examinations at the Nigerian Law School is realistic and determine how such thresholds compare with entry requirements into the legal professions across Africa and the rest of the world and make appropriate recommendations.

    “To examine the current size of the legal profession, its exponential growth in recent years relative to the needs of the Nigerian economy, the desirability of candidates seeking admission to the law faculties in Nigeria to possess a degree in another discipline as a condition for admission.

    “To review the ethical requirements for admission into the legal profession and determine the adequacy of such requirements and how best to maintain high ethical and professional standards in the legal profession.

    “To determine if aside from admission to the bar, there should be a separate requirement for licensing law offices and advise how best to regulate and monitor such licensing. To advise on the need to introduce a system of pupilage into the legal profession and advise on the duration and how best to administer such a system of pupilage.

    “To make any appropriate recommendations the Task Force deems necessary or to achieve the objective of strengthening the legal profession in Nigeria’’.

    The panel’s secretary is Dr. Aminu Gamawa.

    Members are: Prof Konyinsola Ajayi (SAN), Mrs FunkeAdekoya (SAN), Prof. Auwalu Yadudu, Mrs Bisi Shoyebo (SAN) , Arthur Obi Okafor (SAN),   Prof Ernest Ojukwu (SAN), Mr Olanrewaju Onadeko (SAN), Dr. Mike Adeleke, Prof  Ikpeze Ogugua, Prof Dakas C.J Dakas (SAN), Prof Augustine Agom, Paul Usoro (SAN), Prof Taiwo Osipitan (SAN), Yakubu Maikyau (SAN),  Prof.  Osita Ogbu Prof. U.U Chuckwuema-Eze, Mr. Rotimi Odusola, Mrs.  Patricia Igwebuike,  Prof. M. L. Ahmadu, Mrs. Sade Aladeniyi and Mr. Eric Otojahi the Assistant Secretary.

  • Activists decry harassment of journalists

    Activists decry harassment of journalists

    A human rights group, the Access to Justice (A2Justice) has condemned the arrest and harassment of Premium Times publisher Dapo Olorunyomi and its judiciary correspondent, Evelyn Okakwu by the police.

    The two have since been released, while no charges have been filed against them.

    In a statement by its Executive Director Joseph Otteh, A2Justice described the arrest as “a throwback to the dark days of military autocracy when press freedoms were constant victims and casualties of military repression and dictatorship.”

    The group said more than eighteen years after the transition to civil rule, Nigeria should be done with the repression of free speech.

    “Unfortunately, police and military authorities still act with intentional disregard for democratic freedoms and civil liberties. The right of expression and the operation of a medium of communication and dissemination of information is a guaranteed constitutional right.

    “The harassment of persons who exercise these freedoms is a direct assault on the Constitution of this County, and substantially undermines a strong pillar of democratic government.

    “The Nigeria police should not use, or lend its powers to be used, to intimidate those engaged in providing critical information to the Nigerian people; neither should it obstruct the free communication of information or exchange of ideas in a democratic country.

    “The media has a uniquely significant role in keeping those who exercise power accountable for their actions or omissions. That role must be supported and defended and the channel of communication through which information reaches the people must be kept clear, and unobstructed.

    “Access to Justice welcomes the release of those arrested, but demands that the Buhari government ends this gratuitous interference with the freedom of the Press,” A2Justice said.

    Also, an activist-lawyer, Ebun-Olu Adegboruwa, said the arrest of journalists by the Muhammadu Buhari administration seem to suggest a total breakdown of democratic tolerance.

    “The point that I’ve struggled to make all these many months of the Buhari regime, is that all actions of government should follow due process and the rule of law and that there should be no discrimination in the application of law.

    “It is in the light of the foregoing that I strongly condemn the crackdown on the media, by the APC led administration. It started with bloggers and has now moved steadily to social media practitioners and it will eventually get to the traditional main stream media.

    “It will not spare the political ‘allies, the preferred civil society groups, the loyal activists and even the prayerful faith based entities.

    “However, we must not tolerate this clampdown on the media and the opposition, because anytime a government gets this desperate to silence the critical voices of the media, then there is hidden agenda.

    “The media has the constitutional responsibility, imposed on it by section 22 of the Constitution, to hold government accountable to the people,” Adegboruwa said.

  • Overview of the National Industrial Court rules

    Lagos lawyer Mr Ahmed Adetola-Kazeem, in this article, explains how the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 revokes the National Industrial Court Rules, 2007 and Practice Direction, 2012.

    The National Industrial Court of Nigeria (Civil Procedure) Rules,  2017 (“New Rules”) which was made on  December 6, 2016, but came into effect on January 5, 2017 is a remarkable improvement of the National Industrial Court (Civil Procedure) Rules of 2007. The New Rules revoke the National Industrial Court Rules, 2007 and Practice Direction, 2012.

    There is the need for the President of the Court to clarify the correct citation and commencement date of the rules before it is fully circulated. Order 1 Rule 2 provides that “these Rules may be cited as the National Industrial Court of Nigeria (Civil Procedure) Rules, 2016 and shall come into effect on January 5, 2017. However, the short title of the rules as boldly written on the copy obtained from the court is National Industrial Court of Nigeria (Civil Procedure) Rules 2017. Likewise, the commencement date indicated before the Orders is 3th (sic) Day of January 2017.

    Whilst the 2007 rules contained twenty-nine Orders, the New Rules provides for sixty-seven Orders. The difference in the Orders contained in the two rules is an indication of the improvement in the latter over the former.

    The New Rules is a reflection of the expanded jurisdiction of the court as provided for by the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010. The New Rules is very detailed on a number of issues, some of which will be discussed shortly. Under the old rules there were a lot of gaps which left the court with no option than to rely on the provisions of Order of that rules, which provides that –

    “Where no provision is made in these Rules as to practice and procedure or where the provisions are inadequate, the Court may adopt such procedures as will in its view do substantial justice to the parties.”

    Order 15 of the 2007 rules gave wide room to judges to adopt different procedures in many circumstances where the rules do not make provisions, thereby making the procedures of the court unpredictable and confusing in many circumstances. Though Order 58 Rule 24 of the New Rules is similar to Order 15 of the 2007 rules, resort to it will be very minimal in view of the robustness of the new rules.

    Some of the significant innovations in the New Rules are electronic filing of processes and  documents (Order 6A); entitlement of deceased employee (Order 10 and 11); Pre-Trial Conference (Order 12);Claims of Sexual Harassment and Discrimination in the workplace (Order 14); procedure in action for breach of international protocol, convention and treaties and proof of existence of international best practice (Order 14 A); enforcement of arbitral award (Order 17 rule 3); reference of disputes to ADR Center (Order 24); fast track matters (Order 25);prohibition of legal practitioners from granting press interview on a matter pending before the Court either within the precincts of the Courts or environs  (Order 58 rule 27); appointment of Public Trustee in deserving cases where there is intra-union or intra-organizational dispute before the court (Order 59 )etc.

    One of the features of the New Rules is its human face. Order 10 Rule 1 of the New Rules provides that

    “filing of any process related to or connected with outstanding salary, gratuity, pension, benefits, or any other entitlement of deceased employee in any of the Registries of the Court shall attract twenty-five (25%) percent only of the stipulated filing fees”.

    Order 11 rule 10 provides that

    “Any process related to or connected with outstanding salary, benefits, allowances, gratuity, pension or any other entitlement of a deceased person filed in any of the Registries of the Court, shall be placed on fast-track”.

    Order 25 rule 1 provides for other matters that qualify to be placed on fast track. Such matters include, cases concerning or relating to a strike,  lock-outs  or any other form of industrial action that threatens the peace, stability and economy of the country or any part thereof;  a declaration of trade dispute by essential services providers; a trade dispute directly referred to the court by the Minister of Labour and Productivity; any matter relating to entitlements of a deceased employee; and any other matter the President of the Court  may direct to be placed on fast-track.

    Order 14 Rule 1 lays down the procedures for Claims of sexual harassment whilst Order 14 Rule 2 lays down the procedure for Claims of workplace discrimination.

    Order 14A provides that

    “Where an action involves a breach of or non-compliance with an international protocol, a convention or treaty on labour, employment and industrial relations , the Claimant shall in the complaint and witness statement on oath, include the name date and nomenclature of the protocol, convention or treaty; and proof of ratification of such protocol, convention or treaty by Nigeria.”

    It went further to provide that

    “In any claim relating to or connected with any matter, the party relying on the International Best Practice, shall plead and prove the existence of the same in line with the provisions relating to proof of custom in the extant Evidence Act.”

    Before now the procedures to be adopted in these matters were unclear.

    Order 17 Rule 3(3) of the rules now provides for the enforcement of Arbitral awards thus- “An award made by an arbitrat or may by leave of the Court, be enforced in the same manner as a judgment or order of Court”. This in my view is a good development for commercial entities and their employees who have arbitration clauses in their contracts and a development that will encourage parties and practitioners to adopt arbitration as a means of dispute resolution in labour and employment matters.

    Order 24 provides for Alternative Dispute Resolution by way of Mediation and Conciliation at the Court-annexed ADR centre. Where parties are able to resolve their matter by mediation or conciliation, the terms of settlement will be adopted as the Judgment of the Court. However, if parties are unable to settle, the Court may set the matter down for hearing and determination on its merits.

    One of the most interesting provisions of the New Rules is the provision of Order 58 rule 27 which provides that:

    “No legal practitioner shall be allowed to grant any press interview, make comments or give any opinion or argument that may touch on a matter which is sub-judice before the Court either within the precincts of the Court, its appurtenances or environs.”

    This provision was made to stem the tide of unethical practices of lawyers making statement to the press about matters which are pending before the court.  This provision is a reinforcement of the provision of Rule 33 of the Rules of Professional Conduct 2007 which provides that  “A lawyer or law firm engaged in or associated with the prosecution or defence of a criminal matter or associated with a civil action shall not, while litigation is anticipated or pending in the matter, make or participate in making any extra-judicial statement that is calculated to prejudice or interfere with, or is reasonably capable of prejudicing or interfering with, the fair trial of the matter or the judgment or sentence thereon.”

  • Redefining crime

    Redefining crime

    Executive Director, Prison Fellowship Nigeria and Coordinator, Lagos State Restorative Justice Steering Committee, Benson Ngozi Iwuagwu, in this article, examines various approaches to tackling crime.

    The definition of crime will depend on what prism of justice you are looking at, Retributive Criminal Justice System as we presently have or Restorative Justice System. Whilst both aim for justice in response to crime, they define crime differently, have different outcomes and resonate differently with those involved in and affected by crime.

    Crime has a very terse definition in our “traditional criminal jurisprudence” as “What the law prescribes as crime”; it could be a commission or omission. A very ambivalent definition, which in no small measure, mirrors the seeming vacuity of the concept of state in criminal jurisprudence, since after the social contact. An opaque  and shifty compass for justice. Yet, crime so vaguely defined, has tremendous aftermath of its commission; whether in response of the state to the criminal or, devastation on the one who took the “hit” or yet, the ripple disquiet on the community and its enterprises.

    A key response to crime, its devastation and ripple effect should be justice, but justice for who? The traditional definition of crime does not give any indication of who suffers the crime and should get justice. There is a void, which attempt has been made to fill with the ‘myth of state’. Who is the state? A philosophical myth or creation, a common name for the subscribers to the social contract. In the absence of the state we would be back to the Hobbesian state of “anomie” where life is nasty, brutish and short. Certainly, no one wants that. But is the state so empowered to take away the voice of its subscribers, particularly when they have taken the hit of crime? I do not think so. Rather, we need a redefinition of “crime” to put in proper perspective who should get Justice in the aftermath of crime. Retributive Justice says the state but, Restorative Justice says those who suffered hurt or harm.

    It is apposite here, in determining who should get justice, to recall the dictum of Chukwudifu Oputa JSC(as he then was, now of blessed memory) in Godwin Josiah v The State (1985) INWLR (Part II), where he said “Justice is not a one way traffic. It is not for the appellant alone. Justice is not even a two way traffic. It is really three way traffic. Justice for the appellant, accused for the heinous crime of murder, justice for the victim, the murdered man, the ‘deceased’, whose blood is crying to heaven for vengeance and finally justice, for the society whose social norms and values have been desecrated and broken by the criminal act complained of.”

    Clearly, we see there are three parties affected by crime and its aftermath – offender who committed the crime, victim who took the hit and the society that is scandalized and destabilized by the crime committed.

    Crime must be redefined as a true compass for justice. Our extant definition of crime has very shifty limits, which in pursuit of, no one seems to get justice, rather we have a conundrum of discontent and disquiet, not just among practitioners in the criminal justice system – judges, prosecutors and lawyers but very critically among the generality of the society, particularly the victims.

    Howard Zehr in “The Little Book of Restorative Justice”, Good Books, Intercourse, PA17534, has argued that “Many feel that the western process of Justice deepens societal wounds and conflicts rather than contributing to healing or peace.” Zehr’s position is fortified by a common saying amongst us here that, “you do not go to court and comeback to remain friends.”

    We must redefine crime as a compass for justice, reflecting those who must be held in the contemplation of  justice in response to crime. This no doubt, will, in the words of Professor Ayodele Atsenuwa, amount to “shaking the foundations of  traditional jurisprudence of the criminal justice system”. It would be worthwhile to shake the foundations, if only to get healing and proper closure for victims of crime, including the offender, who most times is a victim of socio-economic and political dysfunction.

    In the context of justice being a three way traffic, a proper definition of crime, should, with due respect, give the signal of where it impacts and not just a vague philosophising. We cannot be content to have crime defined so vaguely, leaving much room for doubts, manipulations and denials. Crime is not, properly so speaking “a violation of law and the state”. Howard Zehr has argued, rightly so, that crime is more appropriately “a violation of people and relationships which creates an obligation for the offender to make good the harms caused by his crime”.

    Under the traditional criminal justice definition, response to crime, usually would ask, “what laws have been broken and what is the just deserts (penalty)”.While under there storative justice people and relationships violation definition, the question would be “who has been hurt, who has the obligation to remedy the hurt”?.

    A lot turns on the proper definition of crime; it dictates the parties, processes and ultimately its outcomes, which then reveals whether justice and its end have been served.

    Zehr has argued that “the western legal system or criminal justice system approach to justice has some important strengths. Yet there is also a growing acknowledgement of this system’s  limits and failures. Victims, offenders and community members, often feel that justice does not adequately meet their needs. Justice Professionals – Judges, Lawyers, Prosecutors… prison staff – frequently express a source of frustration as well”. This possibly explains why are nowned Criminologist and Professor of law, Professor A. A. Adeyemi in one of his studies found  that, about 70 per cent of criminal cases are settled outside the formal criminal justice system. Further explaining the very low prison to population ratio in Nigeria compared to other jurisdictions. When the offender and victim come together with the support of a “facilitator” or “go between” in  the community, justice is often better met and served.

    At a recent justice workshop, it was acknowledged that local chiefs, Baale’s settle all manner of cases, including homicide cases, where the offender and victim come together and agree on how best justice is served, in the interest and satisfaction of all who are involved and affected by the crime committed.

    We must, with due respects, faced with the challenges of prison congestion, inhuman custodial conditions, briming court dockets frustrating and long wait for trial coupled with   palpable frustrations and the seeming helplessness of our extant justice system, redefine crime; to properly set the compass for  justice that will lead to its true ends – responsibility and reformation of the offender, validation and healing for the victim and restoration of social equilibrium, peace and harmony in the society. We need a system of justice whose processes are collaborative and inclusive and its outcomes, restorative.

  • Court orders SFU to free activist

    A Tinubu Chief Magistrates’ Court in Lagos has ordered the Police Special Fraud Unit (SFU), Lagos to release an activist, Audullahi Saheed Mosadoluwa, alias ‘Mr-Ibile’.

    Chief Magistrate Kikelomo Ayeye made the order following the SFU’s failure to conclude its investigation of a petition and file a charge against Mr-Ibile since December 28.

    Mr-Ibile, founder of the Ibile Peaceful Revolution Network, was first arrested last December 17.

    During his arraignment on a temporary charge on December 28, the police applied for a remand order and, granting the request, Chief Magistrate Ayeye remanded him in prison custody for 21 days.

    During hearing on January 18, Chief Magistrate Ayeye held that Mr-Ibile’s right to freedom was paramount and that this did not stop the police from carrying on its investigation.

    The court admitted him to bail and adjourned till January 18.

  • Complexity of facts, technicalities of law: Dilemma of leadership

    Lagos State University (LASU) Vice-Chancellor Prof. Lanre Fagbohun presented this paper at a birthday lecture organised by former students of former Nigerian Institute of Advanced Legal Studies (NIALS) Director-General Prof. Epiphany Azinge (SAN) in Abuja.

    It is not my goal to engage in the broader jurisprudential debates of what will or will not qualify as legal technicalities.  The screaming headlines of The Nation Newspaper, “Technicalities threaten justice at tribunals”, is however insightful on the matter at hand. The paper catalogued all the decisions that were delivered at the Election Tribunal, but later set-aside at the Appeal Court.  If these cases were not time bound, the injustice occasioned by them would have endured.

    I now come to the meaning of “Leadership” of which one cannot assert a universal definition.  A view that has been expressed is that Leadership is the process of influencing leaders and followers to achieve organizational objectives through change.  At the individual level, it has been defined as a pattern of behaviour or personal quality exerted by an individual or group over a larger body to direct its efforts towards the achievement of desired goals.  To underscore the importance of leadership as a determining factor in the achievement of good governance, the African Leadership Council has identified a number of standards that a leader must seek to uphold.  Among these are:  (i)   delivery of the security of the state and the person;  (ii)   promotion of rule of law, good education, health services and a framework conducive to economic growth; (iii)   encourage-ment of public participation, and the management of dissent and disagreement; (iv)    upholding of human rights and civil liberties; (v)   promotion of policies that eradicate poverty and improve the well-being of the citizens; (vi)   ensuring a strong code of ethics; (vii) refusing to use public office for personal gain; and (viii)  opposing corruption.

    It is of course easy to assert that where leadership is visionary, transformational and rooted in tolerance, integrity, respect for law and participatory, it would deliver on the above identified standards.  This, however, is on the assumption that there is a representative democracy where the legislature truly represents the people.  In that context, the wishes and desires of the people will not differ substantially from that of their representative.

    It is also on the assumption that the leader is in position to push the frontiers of his agenda without too many frustrating obstacles.  If we are to be honest with ourselves, the experience that we have had so far in Nigeria shows that we do not have a self-correcting democracy. It is also not one where the leader can with ease get beyond already entrenched interests.

    One of the fathers of satire in Nigeria, Bashorun J. K. Randle, in his review of a book titled ”No Monkey Business” eloquently captured the reality of the Nigerian situation thus:

    Our politicians are humans with insight but it can be recalled that a recommendation was made by a famous psychiatrist that Nigerian politicians should be evaluated for the presence of absence of insight. Is the author addressing our politicians in view of recent track records? and possibly recommending “no monkey business” such as padding of budgets under investigation in the House of Representatives.  The salaries that they pay themselves are a screaming testimony that they lack insight with reference to relativity to the salary scales in the country

     

    He continued:

    … Governments, be they military or civilian, continue to fail Nigerians. Nothing has changed and nothing seems to appear to change.  It may be correct to conclude that things are getting worse… The acronym “www” stands for “world wide web” but in Nigeria it stands for “wealth without work” … in the same country you have an acronym “wwp” that stands for “work with poverty” or “work without payment” and “wwr” that stands for “work without rewards”.  Yet, in the same country there is a revelation which alleged payment of 1.4million dollars (N553million) to a former President of a developed country for two visits/speeches to Nigeria.

    In a very scathing way, the editorial of the Punch Newspaper of 14th November, 2016 noted as follows: “Instead of leading the war on corruption, the National Assembly had always been at the centre of it”.

     We may momentarily laugh or sigh about the above depending on our respective moods, but, they are glaring evidence of institutional collapse which I dare say will be difficult under the present arrangement to put right.  Do not ask me why because we all know the answers.  The complexity of facts working in tandem with the technicalities of law comes to the fore to frustrate the leader. Again, your guess is as good as mine as to why for instance none of the former governors who were identified by the Economic and Financial Crimes Commission (EFCC) during the tenure of Mallam Nuhu Ribadu was ever brought to book.  The story is different in a number of other jurisdictions.  This much was noted by the legendry Wole Olanipekun in his paper titled, The Law as an Endangered Specie, a memorial lecture presented in 2013 in honour of Dr. Akinola Aguda.  The situation of Nigeria is such that we must now admit of those specters that will not go away of their own accord no matter the leader or the style of leadership. To these I will now turn.

     

    Delimiting Specters That Won’t Go Away

    A point of considerable importance that I must make clear is that my reference to specters that will not go away should not be viewed as a reference to the day to day routine challenges that would always confront every system.  For instance, it is to be expected that different decision-makers will always reach different conclusions on how administrative guidance, guidelines and laws should apply to facts before them.  The reason for this may have to do with the depth of knowledge and competence of the decision-maker, his ideological perspective, and the degree to which the decision-maker is susceptible to outside influence.  The outside influence may be those whose interest the decision-maker desires to protect for reasons of favors they have done for him in times past which he wants to reciprocate; the assistance/support he might want to get from them in the future; or generally to avoid their wrath.

    Every political landscape will always be confronted with this.  The specter that will not go away and with which I am concerned in this paper is; why are our public institutions which are supposed to serve as checks and balances on public officers and leaders who act in error or abuse their offices wittingly or unwittingly are not able to live up to expectation? Public institutions should be in a position to ward off the pressure on leaders and imbue effectiveness, responsiveness, discipline, accountability and transparency in public policy making, public administration (public agencies and public officials) and governance.

    Regrettably, what we have all come to realize is that our public institutions are not working as they ought to. Simply put, our public institutions across all sectors have been hijacked by selfish interests.  Under this kind of situation, it will take only a dictator or a radical departure from current governance approach to mandate a change.  Let me quickly hasten to note for emphasis that I am not under any guise asking Nigeria to do away with democracy or that any leader should be empowered to be a dictator.

    Far from it.  Afterall, we have had many military administrations in this great country, and in different ways they failed us.  I am also not talking about the imprecise and vague statements sometimes made by some commentators on restructuring. Whether it is federalism or any other type of government, we need a mechanism that will compel Nigerians to change our reasoning, values and norms, and begin to make sound choices that can positively impact on our great nation.  For those who are curious about Nigerians, they should start with the book “Nigeria Their Nigeria” by Dan Agbese.  He had this succinct summary:

     

     

     

     

  • Ex-lawmaker to govt: tackle kidnapping

    A former House of Representatives member, Apesin Bola Gbabijo, has urged security agencies to do more to reduce kidnapping.

    He called for a new approach in the fight against the menace.

    Gbabijo drew Lagos State Governor Akinwumi Ambode’s attention to increasing cases of kidnapping in Ibeju-Lekki, especially over land disputes.

    The former lawmaker also urged the police to probe the alleged threat to life, assault and disturbance of peaceful enjoyment of property belonging to the Lasusi family of Oniyanrin village.

    In a December 23 petition to the Assistant Inspector-General (AIG) of Police in charge of Zone 2, Gbabijo, through his lawyer, said the family owns “all that property lying, being and situate at Oniyanrin Village of Ibeju-Lekki Local Government Area of Lagos state having inherited same from time immemorial from their father.”

    He said family was shocked when, December 19, hoodlums and thugs who were armed with dangerous weapons stormed the land and battered members of client’s family.

    “Our clients’ surprise and dismay was further heightened when the aforementioned individuals in company of a group of armed thugs wielding guns and machetes kidnapped two members of our clients’ family. Some of the members of the family kidnapped included one Mr. Wale Tijani.

    “Having made a report at the Akodo Police Station, Area J Division of the Nigeria Police Force without any response thereto, our clients are now desirous of having these individuals prosecuted so as to deter them from further trespass, breach of the peace, vexatious lawlessness as well as restore peace and tranquility in the area,” the petitioner wrote.

    The family also petitioned the Lagos State Police Commissioner over an alleged assault which led to the bodily harm, malicious damage, robbery and murder of Wale Tijani and Saliu Kayode.

  • Supreme Court to hear N23.7b NOSPETCO investors’ case

    The Supreme Court will on April 3 hear an appeal by a group of investors seeking to recover their N23.7billion allegedly trapped in the Central Bank of Nigeria (CBN).

    The investors constituted themselves into NOSPETCO Investors Forum in order to recover the cash.

    Fourteen of the 14,296 registered NOSPETCO investors, in representative capacity, began the action at the Investment and Security Tribunal (IST) in 2011.

    The plaintiffs are: Prince Emmanuel Olorunnimbe, Comrade Badejo Rowland, Mrs Victoria George, Ishatayo Akanni, George Ushie, John Igho, Joshua Kanwai, Wada Patrick, Alhaji Abubakar Buba, Yakubu Lawal, Col. Gil Sese, Hajiya Bilikisu Rawayau, Olorunfemi Biodun and Adedeji Lawrence.

    The Securities and Exchange Commission (SEC) and CBN are the defendants.

    The plaintiffs are among those who invested in NOSPETCO Oil & Gas Ltd, which was accused of being a wonder bank.

    The plaintiffs said each slot in the investment scheme was N450,000, with a promise of N40,000 monthly on each slot.

    The investors said they were told the money would be used in importation, sale and distribution of petroleum products and cooking gas.

    But in 2007, SEC stopped the operation for being illegal, froze the company’s accounts and deposited the investors’ money with the CBN in trust for the thousands of investors.

    NOSPETCO Oil and Gas filed a suit challenging SEC’s action, but the suit was dismissed.

    The investors jointly filed a suit against NOSPETCO Oil Gas, SEC and CBN seeking the release of money to them.

    NOSPETCO challenged the tribunal’s jurisdiction, but it ruled in the investors’ favour.

    Dissatisfied, NOSPETCO appealed to the Court of Appeal.  The appellate court held that it is the Federal High Court and not the tribunal that has jurisdiction to entertain the suit because of SEC and CBN as parties in the suit.

    Through their lawyer, Debo Adeleke, the investors headed for the Federal High Court, Lagos, instead of appealing against the judgment of the Court of Appeal.

    NOSPETCO filed a notice of appeal at the Supreme Court against the Court of Appeal judgment that did not favour it.

    The investors also want to cross appeal against part of the judgment which held that it is the Federal High Court and not the tribunal that has jurisdiction to entertain the case.

    They are now praying the apex court for extension of time to cross appeal against part of its judgment as contained in their motion on Notice.

    It was learnt that activist-lawyer Femi Falana (SAN), along with Adeleke, will represent the investors at the Supreme Court.

  • Justice accuses lawyers of sabotaging anti-graft war

    A Justice of the Court of Appeal in Gambia, Prof. Jacob Dada, has accused the Bar and the Bench of sabotaging  the war against corruption.

    Dada spoke in Lagos during the 13th Chief Gani Fawehinmi Annual Lecture and Symposium titled, “ Nigeria Anti-Corruption War: Whither The Legal Profession and The Judiciary?”.

    Speaking on the raid of the homes of some judges by the Department of State Security (DSS) last year, he said: “not a few members have demonstrated fidelity in the war against corruption, some have sabotaged the corruption fight’’.

    The jurist described members of the legal profession in that category as “the fifth columnist in the battle against corruption” stressing “they have frustrated the expeditious prosecution of corruption cases against high profile individuals,”.

    Nigeria, he said, has enough weapons at her disposal to combat and degrade corruption.

    “We must appreciate and realise that without battles, there will be no victories,” he said.

    Professor of law and  lecturer at the Obafemi Awolowo University, Ile-Ife , Omotoye Olorode, described privatisation of national assets as the greatest form of corruption.

    “Privatisation which is the looting of public property is the ultimate corruption. There is a political corruption of the Nigerian public by the ruling class,  it is not surprising to see the charade displayed by political parties in the judiciary.

    “Privatisation is the ultimate looting programme, one of the diseases of the populace is the forced amnesia imposed on the populace which makes them forget all that has happened to them,”he lamented.

    Activist and former President of the Performing Musicians Association of Nigeria (PMAN), Mr Charles Oputa,  expressed regret that corruption has become the way of life of Nigerians.

    “Corruption has not just become our way of life in Nigeria but has become our legal tender.

    Oputa regretted that the “Nigerian people are being looted by all sides, religious leaders are not helping the people, they  are continuously hypnotising my people with miracles , signs and wonders.”

    Oputa disclosed that he is currently involved in an activism project created to tackle corruption and injustice.

    Titled “our mumu don do”, Oputa explained that the street project is a project through which he believes the judiciary can be cleansed by a movement led by the masses.

    “Lawyers have become contractors, judges have opened mega – banks in their homes at their villages, justice in Nigeria comes at a price,” he said.

    Noting that not all members of the bar and bench are corrupt, he said “Not all members of the judiciary and legal profession are bad, but current events have ridiculed the legacy left behind by my father and other legal icons.

    “The docility of the Nigerian populace has to be addressed with the emancipation of their minds because the humanity of Fawehinmi no longer exists in the country,” he said.

    Chairman of the occasion, Pa Tunji Gomez, in his address urged lawyers to avoid corrupt practices.

    “Lawyers are in every facet of this country, the positions of lawyers are very important, we must have a code of conduct that abhors corruption,” he said.

    Gomez, a lawyer who once represented Chief Obafemi Awolowo during his 56 years of legal practice, noted that corruption has infiltrated every aspect of Nigerian society.

    “We are a society of corruption, the judges, lawyers, police and military are corrupt. Curing a society of corruption starts with the people, we the people must stage this fight,” Gomez said.