- ’Wrongly detained persons deserve compensation’
Dr Monday Onyekachi Ubani (SAN) is the Principal Partner at Ubani & Co. A former Ikeja Branch Chairman of the Nigerian Bar Association (NBA), he was NBA Second National Vice President and later chaired the Section on Public Interest and Development Law (NBA-SPIDEL). In this interview with Deputy News Editor JOSEPH JIBUEZE and ANNE AGBI, he addresses the persistent problem of conflicting orders, secrets of successful SAN application, and why he will continue with his activism.
There have been calls for the rank of SAN to be scrapped. Do you agree?
I don’t see anything wrong with the rank of Senior Advocate of Nigeria. You can suggest improvements to the process, but not that it should be scrapped. One argument is that whoever is qualified should be given. But it is a privilege, and being a privilege, not everyone qualified should get it. So, we need to balance it. Do we give everyone qualified? But if you ask me, it is a worthy rank; the recipients are regarded as being at the peak of their careers. In leadership, in everything, you must be able to manifest excellence. That is my understanding. We need to keep on refining the process to make it better.
Should it continue to be given to academics?
There are different layers of arguments concerning academics, part of which is: how can you be an academic and an advocate? You should concentrate on lecturing. If you want to be an advocate, leave lecturing. The title is senior advocate. But this person is not an advocate. He is an academic. The peak is to be a professor. You are there as a professor. The argument is that you are coming to shortchange the advocates. The argument is professors have attained the peak of their profession, so why apply for SAN as an academic? I see some sense in it. ‘Stay on your lane.’ That’s the argument. I’m not against lecturers! If you are coming as an advocate, it’s a different thing, because there are lecturers who go to court. If you go to court and satisfy the requirement of submitting all the necessary cases you’ve handled as an advocate, who stops you? I know a professor who applied under advocacy. He is a professor, but he has been going to court.
How about calls that the rank be suspended for three years?
That was the argument of the Body of Senior Advocates of Nigeria at a particular year when they felt the standards were being lowered and they suggested to the Legal Practitioners’ Privileges Committee (LPPC) to suspend the process for at least three years in order to take a look at the process again. Someone asked me how many were shortlisted last year; I told him (87), and he said that is too many. He was so angry. He said in their own time, it was only 15. So, he wanted us to remain at 15. There are not up to a million SANs, and that includes those who have died, for a country of 200 million people. So, it seems those who have succeeded in crossing over don’t want more to join. That is human nature. Some also feel the fewer the better and the more honour.
Can you take us through your journey to law?
I was admitted to study Political Science at the University of Nigeria (UNN). I loved people like the late Gani Fawehimmi (SAN) and others. I wanted to be a lawyer. I was top of the class at UNN, and someone asked me: ‘If you are so brilliant, why are you not studying law? If you think you are very intelligent, why are you not training to be a lawyer?’ You see the arrogance of lawyers at that time. They call themselves ‘learned’. I was already entering my third year in Political Science, but I switched to law and started year one.
Now that you have become a SAN, will you temper your activism?
My activism will not die. It’s something that will continue with me until Jesus comes – speaking on behalf of the oppressed. I remember seeing Olisa Agbakoba (SAN) covered with blood once when they went for a protest at Yaba. He was beaten up, incarcerated, and hounded, along with the late Gani Fawehinmi (SAN). Then we have the Femi Falanas of this world, Mike Ozekhome. Having the privileged rank didn’t diminish their desire to always speak on behalf of the people. So, it would be wrong for me to fight against the masses who have always been there for me and then identify with the oppressors, so to speak, or the bourgeoisie. It will be clearly against my principles to go against the proletariat. So, I will always fight for the less privileged. But there has to be a balance. There is a lot of maturity that will come with my speaking. Paul said: ‘When I was young, I reasoned like a child. When I became a man, I now have to behave and reason like a man.’ I’m no longer the same, you know, Ubani of 20, 30 years ago. I’ve acquired enough experience now, maturity. I’ve also seen that there are certain difficulties in governance. That will help me in being balanced in my analysis. But we must be able to do it in a manner that shows an understanding of both sides so that we can have a country all of us can be proud of.
How can the problem of conflicting judgment be addressed?
It’s because nobody has been punished. If you punish judges and lawyers appropriately on the issue of disrespect to orders, especially in political cases, they will put a stop to it. Most of those lawyers who go to other courts to obtain an order know that another order has already been given over the matter. It’s not as if they don’t know, yet they engage in forum shopping. When it’s obtained in court A, they go to court B on the same matter that is not on appeal. It’s man-made. Lawyers and judges who do this need to be punished. Ex-parte orders should be used sparingly, and then put the other party on notice and order an accelerated hearing. Make sure that the other man is served so they can put up a defence. Don’t abuse ex-parte. See the Rivers instance. There were many ex-parte orders and judges were indulging them. Use a sledgehammer, and all this nonsense will stop. By the time judges are being sacked and disgraced out of office, they will be very careful about anything ex-parte order. Judges need to exercise discretion and they must do it judicially and judiciously. Any judicial system that does not intervene to checkmate it will enter a very big problem. We are getting to that level where it is as if ex-parte orders are being bought. And so we must stop it. We must begin to discipline those who abuse it. Ex-parte order is not something that is given just like that. It’s given sparingly and must be in well-laid-out conditions.
Are you concerned that some of your public interest cases have been dismissed for lack of locus standi?
My PhD thesis is on the concept of locus standi as an impediment to public interest litigation in Nigeria.
Anytime somebody has any public interest matter that he feels the government should be held accountable and responsible for, the court says you don’t have locus despite using your time and money to pursue a case as a citizen and taxpayer. And you’re telling me I don’t have the locus. You are looking at the messenger, not the message. There’s something that brought me to court. You don’t look at the merit of what I’m challenging – that the government has no right to do this. And instead of addressing the issue, you’re focusing on me, but what I’m complaining about, you’re not addressing it. So, I see it as an impediment to public interest litigation. I’m doing a comparative analysis of India. We were on the same level in terms of development as a third-world nation. But today, India has graduated. They have come far and they really opened up on public interest litigation. With an honorary letter, you can approach the Supreme Court of India to talk about a public wrong that has been done against the people. And the court will listen to you. And the court will make an order. Their judicial activism is second to none.
Read Also: Wolemi Esan, Ubani, 85 others sworn in as SANs
Having taken silk on your first try, what tips can you give those aspiring for the rank?
If you don’t have the basic requirements, don’t bother wasting effort. Well, some people say it’s better to try. I would rather want to ensure that I read all the guidelines and ensure that all the requirements are met, not that you are not qualified at all, but you just want to apply. Some people do it. They let it be known that they applied for it, whereas they don’t have the basic qualifications. So, understudy the guidelines, and know what the requirements are. Be virtuous. Make sure you have a name in the profession. If they publish names and you don’t have a clean record, petitions can fly from every angle. It’s better if nobody writes and says this man is a thief. It means you are impeccable. And finally, the God factor. There is nothing you can achieve in life without God being there. If God says you will, at the fullness of time, He makes all things beautiful in his own time. So, God must be behind you also in the project as well, I would say.
What has been your experience with prison decongestion?
My firm will continue with our pro-bono services. We go to Ikoyi and Kirikiri Correctional centres to look out for those deserving persons who have stayed up to five or six years without trial. There was one I secured his release after eight years without trial. When I filed the enforcement, the Ministry of Justice was saying the file was with the police. The Commissioner of Police said they had sent the file to the DPP (Directorate of Public Prosecution). They were all blaming themselves. So, I told the court that wherever the file was, the point was that this man had not been charged for more than eight years, and he had been in detention. Of course, the court ordered his release after eight solid years without trial. There was another one who spent seven years. In one case, the judge asked me to go back to the magistrate who gave the remand order; he dismissed the case. We had to re-file the case in another court, and then got the person free. It can be very frustrating. But I will continue to do the little I can. I work with Dr. Uju Agomoh of Prisoners Rehabilitation & Welfare Action (PRAWA) to advocate these reforms of long detentions without trial. People who have not faced trial are more than those who have been convicted. It is absolutely wrong. That place should not be a correctional centre in name but in substance. At the moment, it’s not correcting anything when all manner of persons are put there who should not be.
What solution would you recommend?
Maybe we need to amend our laws. If somebody is detained, and you cannot initiate a trial within a month or two months, then the person should not be there. And then damages should be paid to the person you have detained wrongly. There may be more drastic advocacy that must be done in order to ensure that our laws do not tolerate a situation where an innocent person, or even a guilty one, is not even brought before trial. Every charge must be tried. It is when you are convicted that the law says you can serve a prison term, not when you are not convicted and you are still presumed to be innocent under our constitution. We will continue doing what we have been known for in terms of helping those who are wrongly incarcerated.
