Former Lagos State Chief Judge (CJ) Justice Ayotunde Phillips chairs the Independent Electoral Commission (LASIEC). She also chairs the Diocese of Lagos West (Anglican Communion) Mediation Commission. Besides, she is a member of the Adjudicatory Chamber of FIFA Ethics Committee. In this interview with JOSEPH JIBUEZE, she speaks on how judges can resist pressure, how to tackle corruption in the judiciary, judges’ appointment, how to reduce delays and her role in FIFA.
What is your assessment of ADR usage in Nigeria generally?
It’s very popular. I’m surprised. First of all, I have to thank God that before I retired, I developed an interest in Alternative Dispute Resolution (ADR). It was as if I knew I would use it to augment my pension. I got all the judges to do the Chartered Institute of Arbitration examination. I did the membership. I’m trying to gather my thoughts now to see whether I can still study and get the fellowship. But with the membership that I have, I’ve managed to get quite a number of appointments as sole arbitrator, chairman or member of a panel. It is very popular. But I must say it is not as fast as I expected it to be. But it’s popular, and the Arbitration and Conciliation Act has given it teeth. Now that courts are aware of what arbitration is all about, they are now giving force to it. Even lawyers who did not appear before me a judge recommend me as an arbitrator. That is why I’m still quite busy even in retirement. I just have to thank God; I’m a very lucky woman. I was thinking the other day: When am I going to sit down and not go anywhere for one week? The doctors will say: ‘don’t sit down and not do anything, because that’s when dementia and all those horrible things take root’.
Is arbitration becoming popular because of court delays? How can court processes be speeded up?
I think our judges still have to be very firm. They’re not firm enough. And when you award costs – they said cost should not be punitive, but cost follows an event. If you don’t come to court because of some flimsy excuse, for which you could have come to court and taken due leave, then you should be penalised for it. Sometimes lawyers should be made to pay those costs, not the litigants, because it’s not the litigant’s fault. Some litigants come to court and they’re sitting there waiting for their lawyers. The lawyer would have taken cases here, there and yonder. Someone will suffer for that. Even up till now, I still carry my diary. Your diary is part of your repertoire. You should carry it at all times. Even now in retirement, before I give you a date for anything, I look into my diary. Before I gave you this date, I looked into my diary. You must schedule your activities.
Some judges sit at 9am prompt, but how about those who habitually sit late?
The lawyers just have to keep on complaining about those judges. And something has to be done about it. Sitting time for the court is 9am. Even if you’re going to sit at 10am, let them know. Lawyers will be there for 10 o’clock. And when you sit at 10, you don’t have to rise until you take every single case on your docket for that day. If lawyers know you sit at 10am, they’ll be there. But you can’t be sitting at 12noon, 1pm. You sit for one hour and you rise, go away for two hours and come back. You don’t do that. It’s a very good job, a very respectful job, a very high-powered job, but to whom much is given, much is expected. You’re there to serve the public, and every single file on your desk involves somebody’s life, something that is very important to that person, be it land, house, money, health, husband and wife – you’re talking about people’s lives. So, they’re not going to take it easy with you if it messes up.
What about judges’ appointment process?
The appointment process of judges has to be looked into very carefully. The proper people should be appointed to the Bench. I keep saying it. It should not be based on ‘I know your father, I know your mother’. No. Are you competent? Do you have the moral capability? Do you have the reputation? Do you have the intellect? As a lawyer, what are your antecedents? Not to just bring anybody from anywhere because he or she is somebody’s daughter or somebody’s son. They should stop doing that.
Should vacancies on the Bench be advertised?
It has never been done in Nigeria. In my father’s days, it was an appointment process. And judges were very important in that process. If not all of them, then the first five or 10, because they have watched the lawyer in court. Nobody should be brought there that they do not know. You would have appeared in my court. We’ll watch your comportment, your punctuality, your professionalism – you see so many things from a lawyer. You’re sitting there as a judge and you’re just watching. Someone is rude to him and you see how he responds. You see someone who shows respect to the court, and level-headedness. Even the way he dresses, not people who come to court with rumpled bibs as if they brought them from under the pillow. So, when they put such a name down, you will say yes, I know this person, a very good lawyer, good comportment. Yes, he’s somebody who can sit with us. They call it the hallowed halls of justice. When you go there, you tiptoe. My father was a judge so we had opportunity to go to court. One day Justice Jinadu was coming, I looked left and right, and I was heavily pregnant. I didn’t know where to run to. I squeezed myself to the wall so he could pass. And my father was a judge. He laughed and tapped me and said: ‘Ayo, go on, go on.’ You can’t walk on the same hallway with the judge, not now that they will almost push you down the stairs if you’re not careful. So, the appointment process is very important. I believe strongly that there are many people on the Bench who should not be there. And that’s why we’re having these issues we’re having now. It’s sad, but they’re dealing with it. Thank God I’m gone. I’m free (laughter).
How did you cope with pressure from litigants to favour them in your judgments?
I’ll tell judges to avoid politicians like a plague. They’re the only ones that can get you into trouble. Other litigants won’t, unless you make the mistake of dealing with them one on one, which is an unforgiveable offence. Don’t deal with the litigants. The only time you should see litigants is when they appear before you in court. Politicians will always find a way to get to you. I work with politicians now (as LASIEC chair) and it was quite a culture shock. I spent all my career avoiding politicians; now some of them even call me mummy; there’s nothing I can do about it. I find that they’re very nice people, but that’s on my own level now. They can’t ask me for anything. They would never come to me now to ask me for anything. It seems my reputation has saved me from any ridiculous requests. They trust me. They’ll say: ‘We know mama. She’s fair’. They’ve given me benefit of the doubt, so I get on very well with them. But when I was a judge, they would try to see me; I would refuse to see them. They would send my close relatives and close friends to me. I would not argue. I would say: ‘Is that what he wants? Okay. Noted.’ When I write my judgment, it’d be the opposite of what they wanted. So, all the things they promised to give me, they won’t give me anymore. I wouldn’t take anything from them. I would say: ‘Let us finish the case; I don’t want it to appear as if you’re buying my judgment’, just to appear as if I’m playing ball. When I’ve given judgment against you, will you call me? You won’t. You have to play politics with them.
How do you mean?
If you get too loud or too aggressive with them, or you make noise in open court about someone being sent to you, and you issue warnings about not taking bribes, you’ll look foolish. No need. You have the last say. Your pen is very powerful. It’s what you write and sign that is the last say. Just write your judgment. And when the person who tries to buy your judgment sees that he has lost woefully, and even pay N10million cost on top, he’ll say: ‘Don’t mind that foolish woman.’ They will say: ‘There is nothing I didn’t offer her’. ‘She doesn’t take bribes o’. They will say it. ‘Don’t try it o. The woman will be laughing with you, but she will not take bribes’. They will boost your reputation when you do the right thing.
Did you face pressures from governors, especially when the state is being sued?
They don’t do it. Sometimes a governor might tell the Attorney-General, who will seek an appointment with the Chief Judge. In my tenure, I had it once or twice. I’d tell the Attorney-General: ‘Thank you very much’. But I won’t say a word to the judge handling the case. The Attorney-General will go back to the Governor and say he has told the Chief Judge; she’ll look into it. But I won’t say a word. I shouldn’t expose my judges to that kind of thing. Even up till now, people do come to me to go and meet this judge or that judge. I don’t do it. Leave them. Let them do their work. If your case is good, you’ll win. If your case is bad, you’ll lose. And if your case is good and you lose, you still have the Court of Appeal. It’s very wrong for me to interfere in a matter that is not before me. I only heard your side; I’ve not heard the other side. Judges respect me a lot, I know. But because I benefit from that kind of relationship with them, I should not use it to put them in a difficult position. The judge may be saying to him or herself: ‘This matter is not as she thinks o. How do I explain to Justice Phillips that the person who met her is lying, bla bla bla.’ They would not want to upset me, yet they are expected to do justice. Why should I put myself in the mix?
Is it a Nigerian thing?
People still believe they need to talk to judges. They don’t trust that the judge will read your story and reach the correct decision. Some people insist that they want to see the judge. ‘I want to tell my story to the judge one on one.’ It’s so wrong. That’s what is called ex-parte discussions. Once a matter goes to court, anything you say to the judge must be in the presence of the other party. But when you talk to the judge alone, it’s so wrong.
Do you think judges are well paid to resist financial temptations?
In Lagos State, the welfare package is good. It could still be better, because I believe judges should earn between N2millon and N5million a month. This house I’m living in now…that’s why when they abuse Asiwaju Ahmed Bola Tinubu, they don’t know what he has done for Lagos State. Where I am staying now was my staff quarters. Luckily for us, former President Obasanjo decided to monetise staff quarters. Asiwaju said: ‘Give the judges their staff quarters’. Not all of us were in staff quarters then. We were very few before, but now we’re many. We, the older ones that were in staff quarters, that’s how we inherited them. When I became the Chief Judge, I could rebuild it to my taste as my retirement home. I have him to thank. The judge that lived in the quarters before me moved to his own house in Ibadan. He didn’t have this. He had been elevated to the Court of Appeal before Tinubu came in Lagos State – I can only talk authoritatively about Lagos, they have done very well to take care of us. Every four years you get a brand new car. They even promised to give retired judges cars.
How about other states?
Other states, I’m not sure of what their judges get. But in Lagos State, it’s very good. You get a good salary; you get a good allowance, which is almost the equivalent of your salary. But I still believe they could do much more. Already, from the figures I got before I retired, corruption was at its minimum in Lagos among the judges. I’m not saying that it was non-existent, because if you’re corrupt, you’re corrupt. Even if you’re paid N5million per month, it won’t be enough. But then it will be easy to fish out such a person and throw the book at them and dismiss him or her. With that kind of money, you’ll be more than comfortable.
How do what Nigerian judges earn compared with their counterparts abroad?
English judges not only earn good money, they’re credit-worthy. They can buy houses anywhere in England and live comfortably. And you don’t see them living among the people. They live in the countryside, because it’s a job where you give up a lot. You can’t move around with just anybody. Someone reported to me that they saw a judge at a party eating cow leg or something like that with hands. I would like to know who the judge is so I can have a word with him or her. That goes to appointing the right people as judges.
You tried to encourage use of technology in court processes. Did the judges buy into it?
They did. Not all of us are gifted. Some of them just could not handle it. I organised one-on-one lessons for some of them, to help them know how to use the email and that kind of thing. I think it has taken root. Recently, I saw on television that the probate division has been computerised and set up. That is something I put in the pipeline and I’m glad they saw it to fruition. So, I’m very happy with what is going on.
Why do some judges still write in longhand?
The recording equipment is still there. It was in place and I was using it. Only that the recordings are so long. Even when a lawyer coughs it’s recorded. Irrelevant materials are captured. So, you see that some of us are still taking notes, and it’s those notes that you will use to write your judgment. The recording could be like this…(signals with her hands to indicate a pile of documents). Who will go through all of that? I used to take my own notes even though proceedings were being recorded. Where there is a blank in my note, I can refer to the recording to see what I missed out. In Lagos State, nobody has an excuse not to use recording equipment. All the recording equipment is in place. But they need to be serviced from time to time. We started it. In Lagos State, we lead and others follow. We’re the most vibrant of all the Judiciaries in the country.
Any memorable experience as a judge?
I remember funny instances when lawyers told obvious lies openly in court. Sometimes I show them from my records that they lied and they’d say: ‘As the court pleases.’ It was only while I was still a lawyer that someone called me an idiot and a goat. I cried that day. He said it in open court: ‘This idiot from the government that doesn’t know anything, empty-headed goat.’ And the judge was backing him that day. Then I was as a director in the Ministry of Justice. I was really upset. I met the judge on the Bench. I didn’t say a word. He’s still alive. But I was very, very upset. As a judge I didn’t have any embarrassing moments as such. I enjoyed my 20-year-tenure on the Bench. And I had a good rapport with the lawyers.
Can you tell us about your work with FIFA?
I was elected during Congress for four-year tenure. In FIFA, we have some independent chambers. We have an Ethics Committee, which consists of the investigatory chamber and the adjudicatory chamber. The investigatory chamber investigates petitions written against FIFA officials, such as Presidents of confederations, football players, referees or anybody related with football. When the chamber finds anything untoward, in terms of corruption, receiving money to fix matches, TV rights issues which involve a lot of money – when the chamber finds that something is wrong, and a prima facie case is established, they pass it to us. I’m in the adjudicatory chamber, which consists of a chairman, who is a retired judge (former President of the European Court), and the rest. He and I are the only former judges there. The rest are lawyers; there is one footballer. We sit over the cases. They email the files to us. First of all they ask which one of us is available between this date and that date. Once you confirm your availability, they assign you to a case. I’ve done several of such cases, about nine of ten. Usually, we go to Zurich for the hearing. Sometimes they ask for a hearing, so we sit as a court. The person will come and explain himself with his lawyers. Then we’ll decide whether to let him go or to ban him. Invariably the case is very well investigated. We’ve banned so many of them. I belong to the adjudicatory chamber, and my tenure will end in 2021.
How did you get involved with FIFA?
I don’t know o. I sat down jeje o. And I got a call from a minister who said they wanted to put my name up for FIFA. I said FIFA? I didn’t know anything about football. They said they wanted a female retired judge, and they wanted her to come from Africa. FIFA President Giovanni Infantino wants a good spread of members of the committees from all over the world. The previous adjudicatory chamber had been in place for so long. Being a new President, he wanted to make changes. He took our names to the Congress, and they voted for it. That’s how I got there. It’s a four-year renewable tenure.
What has been the experience working with Infantino?
Beautiful. I only saw him once when he inaugurated the committees. I’ve not seen him since then. But I found that my experience in Nigeria has put me in good stead to handle these matters. It’s not different. In fact, the chairman and I being former judges, we enjoy working with each other. He starts a sentence and I help him to finish it. Or I start a sentence and he finishes it. We have a very good rapport. And I’ve got to meet people from all over the world. Our Deputy President had to drop out recently after being accused of corruption in Malaysia. That was quite a shock to all of us. But it’s been very nice. I’ve been Zurich countless times, and FIFA pays.
Looking back, are there things you would have done differently as Chief Judge?
I didn’t have much time as a Chief Judge. I wish I had more time. There are so many other things I would have liked to do. I would have liked to start the Family Court building and stuff like that. But God apportions time for everything. And you go when the ovation is loudest. I think all I did, I would have done them all over again. I did it to the best of my ability. I tried to make the place better, and I think I left it better than I met it. Those coming after me should leave it better than they met it.
The Diocese of Lagos West (Anglican Communion) set up a Mediation Commission, which you chair. Can you tell us about it?
The commission was set up by the Synod. The church realised there were some disagreements between parishioners in particular, which they thought could be settled amicably. The Anglican Communion abhors the fact of its members going to court, which is more or less like washing our dirty linen in public – personal matters like neighbourly quarrels, simple loans that one has refused to pay, and even husband and wife matters. You know there has been a high incidence of divorces across the board. So, in order to avoid the embarrassment of having its members washing their dirty linen in public, the members of the Diocese said: ‘Let’s set up a mediation commission’. Arbitration is now very popular and is much faster than going to court. Mediation is even the fastest of the lot. So, they set up a mediation commission to intercede in such matters. That way, we avoid members going to court or going to the newspapers or arguing publicly and then bringing disrepute to the Anglican Communion. In the Anglican Communion, we always do things by force of law. We have a constitution, which the Synod can amend to give the Commission the force of the Communion. It was discussed at the Synod, accepted, and it was resolved that the commission be set up. I was appointed as the chairman by the Bishop, and we have several other members cutting across the various archdeaconries of the church from various disciplines as the governing board. We have our office at the multi-purpose building attached to the Ascension Church at Opebi.
Is it strictly for members?
We do allow member against non-member if the non-member gives his or her consent. We cannot force a non-member of the communion to participate. If they refuse to participate, there is nothing we can do about it having tried our best. But if they participate, all well and good; we’ll settle it.
How binding are the commission’s decisions?
Usually, mediation and arbitration are binding. But it doesn’t really preclude them from going to court. We would make them sign a memorandum of understanding (MoU) to the effect that they accept the decision and that is where the matter would end. If they want to contest it, they would have to go to court and let the court give a ruling as to whether they are bound by that. At the end of mediation, parties sign a MoU, and there’s where the matter should end really. Some people could be difficult and may want to go further; we have no control over that. Someone who is not satisfied will probably not sign the MoU.
Is there an appeal to a higher authority within the Communion?
We don’t have any appeals committee. But parties might go to the Bishop to complain some more. The Bishop is the Head of our Diocese. He might say: ‘Do this or that for them’. But I doubt whether he’ll interfere much. That being said, there is no other body apart from this mediation commission.
Do courts endorse the decisions reached by the commission?
Arbitrations are initiated by the contract between parties. It states that any dispute will be decided under the Arbitration and Conciliation Act. The clause in the contract is sacrosanct. So, the court has no jurisdiction to interfere; disputes must go to arbitration. At the end of the arbitration, the arbitrator makes his or her award. The award is usually challenged in court. One party may need the court’s backing to enforce it. The other party will oppose and say they should set aside the award. A court can only set aside an award where is there is arbitrator’s misconduct, lack of jurisdiction or any fraud. If you can’t prove any of those, the award stands. That’s what we have with regards to arbitration. I remember when I was still in office, the Citizens Mediation Centre in the Ministry of Justice uses an MoU. They do something similar to what we’re doing now – landlord and tenant issues, simple contracts, family disputes. They make them sign MoU, and we ratify that in the court. But that’s a special arrangement between the court and the Ministry of Justice. The DLW Mediation Commission does not have that rapport with the court yet. Maybe that will come later; we don’t have it in place now. That’s why I said anybody who is not content will do one of two things: either you don’t sign the MoU or you challenge it.
Are disputants allowed to appear before the commission with their lawyers?
Not really. I’m sorry to say this, because I’m a lawyer myself. It might complicate matters a bit. It could be a case of someone borrowing N50,000 a year ago and promising to return it in a month, and a year later it has not been returned. And you need your money. If you bring in a lawyer, you will pay him; he’s not going to do it for free. He’s going to start bringing all sorts of applications. We want to appeal to the conscience of the person who has borrowed money to return it. If you can’t return it at once, then pay it back in instalments. And lawyers are not too malleable when it comes to amicable settlement of disputes. They’ll rather go the whole hog. So, it’s even cheaper for them at the end of the day to just come to the Mediation commission; we’ll get qualified mediators from among the church. It’s only when we can’t find from among the church that we’ll go outside. We have about four cases pending.
Are there fees paid?
No. The diocese is to fund the commission. But from the calibre of persons that comprise the governing board, we have been able to set ourselves up. The diocese gave us a fraction of what we asked for. We decided to do it ourselves. Someone volunteered a fan, somebody bought a printer, somebody bought the personal computer, and somebody bought the air conditioner. Ascension really tried. They furnished an office for us. So, it’s for us to get the intercom, wi-fi – we’ve done all that ourselves.
How are complaints brought before the commission?
Individuals can come, but churches can refer. Reverends can refer. If a revered has tried to settle a matter and he is so busy, he can refer it to us. We have an email address (dlwmc18@gmail. com). Maybe we can breathe fresh air into the matter and see what we can do.
Are there timelines for deciding cases?
We haven’t really decided on timelines. We’ll have a meeting soon, and it’s part of what we’ll discuss. We need to consider whether timelines are necessary, because we need to be very patient in mediation matters. Sometimes a party may say: ‘Let me go and think about it and come back’. If you rush them too much, they might get angry. So, it’s all baby steps for now.
Where do you see the Commission in the next five years?
I see it as a Body to be reckoned with, that would have made its mark in resolving matters amicably. I look forward to total eradication of any minor dispute that can bring disaffection amongst members or bring the Diocese into disrepute. I see it being in place so people won’t have to run to the reverends and bishops for complaints. We expect reverends to refer matters to the commission. My worry is husband and wife matters. If we can get the parties before any of them files for divorce, we can do something about it. Once a party files for divorce, that’s the end of it, the marriage is gone unless a miracle happens. I’ll recommend it to other Diocese.