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.
