Law  

‘Lagos settlement week delays wheel of justice’

Adeyinka Olumide-Fusika

Adeyinka Patrick Olumide-Fusika (SAN) is the founder of Citipoint Chambers. He was born April 10, 1966 and earned his LL.B degree (with Honours) from the University of Ife in 1987. He obtained his B.L from the Nigeria Law School in 1988 and was subsequently called to the Nigerian Bar in November 1988. Olumide-Fusika also holds a postgraduate Degree in Philosophy from the University of Lagos.He is an astute advocate who has written articles and delivered lectures on different legal topics.He is a co-author of the book ‘A Cry For Justice’ (which documented and forensically analysed the evidential proceedings before the Presidential Commission of Inquiry into the July 10, 1999 murder of 5 students of the Obafemi Awolowo University, Ile-Ife).He is a member of the Nigerian Bar Association (NBA), Chairman, Professional Ethics & Disciplinary Committee, NBA, Ikeja Branch between 2008 and 2010; Member, Building Committee, FRA Williams Bar Centre, NBA Ikeja Branch (2009-2014); chairman, Electoral Committee, NBA Ikeja Branch (2010) and chairman, Gani Fawehinmi Memorial Annual Lecture; Organising Committee, NBA, Ikeja Branch between 2015 and 2016.

A Lagos-based lawyer, Mr. Adeyinka Olumide-Fusika (SAN) bares his mind in this interview with YETUNDE AYOBAMI OJO on various challenges that impede the quick dispensation of justice among other current issues.

Do you think the deposit of judgment sum with court registrars would mitigate the practice of obligors deliberately refusing to pay?
That is already a condition. Once judgment is given, the compliance with it becomes immediate. If it is money judgement, you have to pay it. If you are appealing, you must get good ground to show why you should not pay it before the decision of the appeal court. But usually, money judgments are kept with an independent person. If it is enforced, of course the person will not have the incentive to delay proceedings by refusing to pay. But in reality, what exist is different. A judgement is given against you, you file notice of appeal and bring motion for stay of execution of the judgment. If it is filed at the high court, the court will take proceedings on it. It is either you are granted stay of execution, permitted to keep the money on certain terms, ordered to pay it into a designated account pending the outcome of your appeal or it is refused. Those are the most likely occurrences at the trial court. Then most litigants and their lawyers take the same application again to court of appeal, once it is not an order that says, stay execution unconditionally. Once it is granted conditionally, the court would order the obligor to pay into interest yielding account. The Court of Appeal in recent years don’t take such applications anymore.

Will the Supreme Court hear it?
By mere filling it, you have obtained stay. That is what we are confronted with. I think we need to address it. When judgment sum is given, may be there should be rules that will simply state that anybody applying for stay, automatically should deposit the money. The party should accompany its application with a cheque drawn in the name of the court where the application is being made. But don’t get me wrong, there are meritorious occasions, where a person deserve stay of execution. It is the court that will look at it and determine whether to grant or not. And you cannot in effect grant it by refusing the application. As long as the application exists in the court record, the other side cannot enforce the order. The proper thing is to accompany the application of stay of execution with your draft. By so doing, you are demonstrating that it is not as if you do not have the money, but you have reason for seeking stay. Then court will see whether those reasons are acceptable or not. If not, the application would be refused. But lawyers abuse this knowing that once they file the application at the court of appeal, it will not be heard at the lower court, so the lawyer succeeds in getting what he applied for by default.

Federal High Court is set to establish Alternative Dispute Resolution center like Lagos High Court. Do you think this will aid quick dispensation of justice?
I challenge you to go and find out how effective that of Lagos has been before you talk about copying them. Whatever Lagos does, others think they must do. Let me tell you for instance, Lagos ADR is a scam. May be I am too hash by calling it a scam, but with due respect, I don’t consider it effective. It is rather a money making venture. I will give you an example. My client entered into an agreement and I don’t know who drafted the agreement. Ideally, where there is a disagreement between the parties, they are supposed to be a mediation, after which an agreement would be reached. It is when the mediation failed that you will start arbitration. I sent my people to the multi-door courthouse for mediation and they said their terms for doing that is 10 per cent. That is, my client should deposit 10 per cent of the total claim that runs into billions. What is the meaning of that? Don’t forget that it was not that the money has been awarded to me. When I leave that level, Arbitrators will charge their own fee base on the scale. It has not been awarded but I should pay 10 percent, so how much would be left? What is the assurance that I will even win? So, as far as I am concerned, it is a waste of time and serves as a money making venture for Lagos state. If they want mediation in the first instance, why did they sue? And in any case, Civil Procedure Rules in Lagos State contains pretrial, where judges can perform those functions of Case Management Conference (CMC). What is the function of mediation again? Lagos State has settlement week, which delays the wheel of justice. It is expensive and involuntary. I don’t know why anybody want to copy it. When Nigerians hear about new developments abroad, they try to copy. I am not against copying what is good, but in copying, copy well. Do we do it the way they do it over there? Those are the problems that need to be address at ADR. The first element of it is voluntariness. Once you take that element away it becomes useless and can no longer be effective.

How do you think those can be made more effective?
We should look at the way the judicial system will be effective. You don’t make it effective by outsourcing your responsibilities to others who are not even judicial officers. And the process is so expensive like I told you. That is not to say I condemn it in totality. We copied and copy blindly. We don’t look at our own environment and adapt whatever we copy from their environment.

Lawyers in Lagos are lamenting about the new court rules, saying they were not carried along during the process of the amendment of the rules, which increased filing fees by over 1000 percent. What is your position on this?
It goes back to what I earlier said. What is the responsibility of a state when you commercialised access to justice? There would always be conflict in any given society. Resolving those conflicts would either be in a civilised manner or some other ways. If you block access to justice in such a way that people see it as too expensive, it creates more problems for the people. No where in the world is conflict resolution mechanism seen as revenue generating venture, except in Nigeria. When you block that access to peaceful resolution of conflicts, people will resolve their conflicts by using cutlasses or by way of violence. That is because the state has driven them away from civilised way of resolving conflict. Even if the review committee consulted NBA, could NBA have agreed to the increment? The government should realise its responsibilities. In other places, if you take a claim to court and say you are claiming N100 billion, they don’t need to bill you until judgment is delivered and payment enforced. After the recovery is made, the state can now say ‘we are entitled to 20 or 30 percent of the judgment fee’. How can somebody sue for N100 billion and you charge him, lets say, N100 million? Supposing the court in its wisdom award only N100 million at the end of the day, it means that what you have collected is equal to the fees collected by the states. Where is that done? But people feel when they are in a position of power under the guise of reform or whatever, they can do anything they like without giving thought to their action. Despite all these payments, judges still write in longhand. Court clerks are not well paid. If you want to serve a process, you have to pay unofficially to serve. The only place such did not happen is at the Industrial court. If proceedings take place today and you want to get record of proceedings, you will make arrangement for it. What are they using all the money for? The people doing the work are not well paid. They are just taken us for granted. The court premises are dirty.

What do you have to say about the E-filling and the fast-track process?
All those are noble ideas, but where are they taking place? I am not against reform but before you copy, you must study its effectiveness. I don’t believe in introducing new rules every time. Every chief judge we have in Lagos introduces his own rule and all that, yet we are still at the same level. Sometimes it is not the rules that matters but how effective they are. If you introduce reform, you must assess it after some time to check how effective it is. Case Management Conference (CMC) is supposed to be a centre that determines what cases should go for trial and prepare them for such so they can move fast. But my own experience of CMC shows that nothing goes on there.

Do you think there is a need for the appointment of more judges?
I cannot comment on that until I do a study to know how many judges we have and the number of cases filed every year. What is the workload of a judge, how effective is that judge on the bench and all that. Why do we need more judges? You have to tell me how many we have now and what they do? I won’t say we need more or not. A proper study should be done.

Lots of people are clamouring for electoral reforming due to some of the inadequacies of the 2019 elections. What is your take on this?
have been asked this question severally. Are we the only country in the world that is practising democracy? We went into the 1999 elections with an Electoral Act. We went into 2013 with a different one. We went into 2007 with a different one, 2011 and 2015, the same. Is it the law that is bad all the time and not us? We should ask ourselves. I don’t know the inadequacies as far as am concerned. Until Nigerians put people who are honest, brave and ready to dare whoever while doing their work, we will not get it right. As long as you do man knows man, the law cannot be blamed. We will keep amending laws each time election is coming. For the last election we had, there were amendments even though it was not signed by the president. If he signs it and we use it for the next election, we will still come to amend it for the next one. Is Nigeria the only country practising democracy? How many electoral laws did the Americans have because their democracy is over 200 years. We are our own problems. We need to imbibe the tenet of democracy, understand that the people are supreme. Let them cast their vote and let it be counted. Let their will be supreme. Those in government must develop that mind set.

Why is it that activism at the bar is no more? Are they afraid of government of the day?
If the doyen of activism, Gani Fawehinmi were alive today, I am sure this system would have killed him completely. The level of intolerance in the system is encouraged by the judiciary. Somebody sued on Lagos State Rules, they said he lost and then slammed him with N5 million fine. There is another case of a fellow who criticised either government institution or government official, they charge him to court and sentence him to 14 years imprisonment. A person like Tai Solarin would have fought it. When they said N2.8 billion was missing and set up a panel, he went there as a social critic. If it is now, maybe, he would have been sentenced to life imprisonment. The level of intolerance today is worse than when we had the military and we claim to be practising democracy. A newspaper house or broadcasting outfit you don’t agree with, you close the place down. We have the experience of Premium Times, Daily Trust and now AIT. I think we need braver elements to confront them. Some judges don’t even understand their roles in the society. Some of us could have been expelled as student activists.  I could have been expelled because of activism. If it were to be under this government, I could not have graduated from University of Ife. Judges of those days knew that every society needs activists. They don’t turn themselves to tools in the hands of those in power to suppress public opinion. Even on the occasions when people were expelled from the University, they go to court and get justice. I cannot remember any that was not redressed, unless it related to cultism and things like that. Judges in those days will stand up for them. A lot of things Gani did, which the courts invariably stood by him when the state tried to oppress him. This kind of society needs people like Gani. We need to be braver than Gani in the current atmosphere of intolerance. They see everybody that criticises government, that raises public issue as an enemy. Many of the critics may not have their facts, but don’t go to public office if you don’t want to be criticised. Criticisms can be genuine, ingenuine, malicious. If you want to avoid it, stay in you house and don’t go into public office. That is why they called it ‘public office’. If the place is hot for you, don’t venture into it. Don’t use  the power of the state to attack people.

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