‘We must restructure this country and go back to parliamentary system of government’
The Nigeria Bar Association (NBA) recently nominated some senior lawyers for appointment into the Supreme Court bench. Among the nominees were Olisa Agbakoba and Anthony Idigbe, both Senior Advocates of Nigeria. But before their nomination, the tradition has always been that judges progress, some from the High Court up to the Supreme Court. The decision to appoint members of the Bar into the appellate courts followed consistent clamour by some stakeholders that such practice should be given a trial under a civilian administration. Quintessential lawyer, Chief Afe Babalola (SAN), in this interview with Joseph Onyekwere and Godwin Dunia, expresses his view on the issue. He also spoke on other topical legal matters.
What do you think about the bid to appoint apex court judges from the Bar?
Well in a long history of the judicial system in this country dating back to the 60’s, there were two occasions where a practicing lawyer was nominated in that high post. Personally, I do not see anything wrong with appointing a practicing lawyer into the Supreme Court of this country; there is nothing wrong with it at all. The practice in England is that only Queen’s counsel that are appointed as even judges, it is in this country that members of the lower bench like magistrates and so on become judges. The reason why a practicing lawyer is a better judge is that a seasoned practicing lawyer has seen it all, he knows the clients, he has interacted with the clients, he knows the court, he has interacted with the court and so at the end of the day he makes a better judge than someone who left law school and went straight to become a junior magistrate and rises from that position, is appointed a judge, then to the court of appeal and then to the Supreme Court. There is no time he has ever met or interacted with clients or practiced as a litigation lawyer. It is the experience and worth of the submission of a lawyer that makes a judge to write beautiful judgment. Therefore, if you appoint those who are good as legal practitioners as judges, they eventually turn out to be better judges. I have always advocated, let me say straight away, in my writings and articles, I have always advocated that we should do what is being done in England whereby Queen’s counsel are made judges, so if this time now you want to appoint somebody as chief judge or Supreme Court judge there is nothing wrong with it as far as I am concerned.
But there are fears that these lawyers having been in litigation for a very long time and gotten to the position of senior advocate, they have had a lot of clients and associates whose influences may also influence their decisions at the apex court. What do you think about these, is it something that is dismisssible?
In practice, when the judge is either connected with or he knows somebody who has a case before him, he excuses himself. Am sure these lawyers are not people who have had all Nigerians as their clients. As you actually said, they must have some clients. I have many numbers of clients but I can be a judge because those who are my clients before I become a judge, of course, I would excuse myself from their cases, it is as simple as that. Even those who are there as judges today, some of them have excuse themselves majorly because of the fact that the person coming to them is known to them. That can be no ground for dismissing the appointment of these people as judges.
The appointment of chief justice of Nigeria in recent past has always been seamless, but recently we have a situation where there are lots of intrigues surrounding the appointment of the chief justice of Nigeria, what do you think about this development?
Well, all those who became Supreme Court judges were arguably the most seniors of the judges. In Supreme Court, it has become what we can call a convention, but all the same, it must be recommended to the President who will now send the name to the Senate. Honestly, I do not know why the President did not send the name to the Senate as had been done in the past. It was Lord Denning who said “even the devil does not know the mind of another person”. I can’t hold brief for him, maybe, he had reasons, so it is for him to tell the world why contrary to what has happened all along, he decided to withhold the name of this present Chief Justice of Nigeria. The issue really to me is a subjective one not an objective one, what is subjective is for you alone; he alone knows, I don’t know.
But now what do you think is the implication of such delays and attitude to justice administration from the third arm of the government?
Subject to what I have said, it is what he knows which I don’t know; it is not in the best interest of execution of justice in this country to withhold the name of the next person. Like I said, it used to be automatic, but he also has that rare and peculiar task of deciding whether to send it or not. The criteria you must follow in appointing him are all known, where there is a need to depart from tradition, he can tell us.
The houses of some judges and justices of the Supreme Court were recently raided by the Department of Security Services (DSS) on allegations of corruption. After that, arguments came up among lawyers in terms of the propriety of such actions, with some insisting that it is only the NJC that has the right to discipline judges. Now those judges are facing trial and still sitting judges, though suspended, what is your view about this?
I wrote a voluminous article on the role of DSS and I came to the conclusion that, it is not within their jurisdiction to arrest judges or arrest anybody. The law is very clear on it and therefore to me, the arrest of judges at midnight when they are not murderers, nor was it alleged that they want to run away from the country is to me most improper. I have said that and I won’t change my view about it. I have traced the history of how the DSS came to be. I still have to be convinced that it is their duty to go and arrest at all, even during daytime not to talk of at midnight. It was wrong. At the same time, it is also wrong for any judge to be corrupt, to receive money, or give money, even if they heard of such news they should have passed it on to the appropriate quarters to deal with it. I still stand by my position, I will have to be convinced to the contrary that it will be right for the DSS to go and wake up a judge at 12 midnight for the purpose of arrest, apart from the fact that they need to get a court order to be served on him, this can be done during the day. So that’s my position on the matter.
What about the trial of these alleged corrupt judges while they are still sitting judges, none of them has been sacked, is it appropriate?
I do not think you should sack them merely because they were alleged to have stolen. Under our own constitution and in accordance with the rules of Nigerian justice, they ought to be heard. There is a saying that it is better to allow 900 guilty people to go free than to convict an innocent person. In the 60’s, there was a case of a young man who was alleged to have committed murder very close to Lancaster, the man protested his innocence throughout, they found him guilty, he was convicted and killed. Two years later, a man came out and said the man found guilty was innocent, that he was the one who committed the offence, and then it was difficult thereafter to breathe life into the man who had been killed by law. It is only fair to listen to these people; you found money in their house who told you that the money was not even planted by the people who arrested them? I don’t know, I wasn’t there. I have seen cases which I handled where the police were found to have planted Indian-hemp in the house of the person. In the sixty’s during the first republic, we had cases where politicians will plant Indian-hemp and other things in your house to be arrested thereafter. I don’t know the defence of these two judges, I am only telling you what I have seen in my over 50 something years of active practice. They are entitled to be heard before being convicted. Do you want them to be convicted on mere allegations and therefore remove them? All they can do is to suspend them pending trial.
In every profession there are always issues of morality and ethics, in legal practice is there any sealing as to how much fee a lawyer should charge his client? Recently there is an issue of a lawyer whose account was frozen by EFCC which he said was money paid to him by his client and people are asking why his client will pay him such humongous amount of money just for going to say unfreeze the account of my client.
Well both for solicitors and litigation lawyers, there is sealing for what a lawyer can charge in some particular cases, like conveyancing and some other things. They are stated there in the rules and regulations of legal practice on what you can charge in things like conveyancing and so on. But there is no rule as to what a lawyer can charge in respect of cases he handles in court or advice he gives to his clients. All these will depend upon many circumstances which may include the intricacy of the case, the communication of the case and the number of times he appears in court and in case of advice the issues that the client will want you to give advice on.If, for example it involves travelling, or contacting some other agencies, collecting materials from different sources, when all these are put together then you put down what is known as bill. When you send a bill to your client, these are the things that I have done and therefore this is my fee. A fee is an agreement between the client and the lawyer. When they agree on the fee, it is not for outsiders to say if it is high or too low. Let me give you an example, I was the lawyer for Mobil. Mobil was sued in respect of some billions of naira. The directors from Mobil came from Netherlands, Scotland, and America and they invited me to Lagos to ask what my fee will be in respect of the case. When I looked at the fact of the case, I knew that it was a complex one to do a lot of research and hard work. I charged them two million dollars, we negotiated and they said I will hear from them. I went back to Ibadan and I never heard a word from them again. Two years later, the same people came back from Europe. They invited me again. They asked, last time you said your fee was two million dollars? I said yes. They said when you left, one of us said there was a lawyer in Lagos who could handle it for only 50 million dollars, so they gave the case to him, he said they had lost the case. Do you want to take the case in the court of appeal for us? I said yes, why not. I stood on my fees, they paid me my two million dollars and I worked for them and they won. So it depends on how you could handle your own case.
If you find yourself to be a charge and bail lawyer and you charge them N5000. But if you come to me, I know my value and the amount of work I put into any case I handle. In my office, we have a cooperative system of handling cases. All the lawyers sit together and we handle it as one. So behind everybody that goes to court there are many unseen lawyers behind him, as against one room lawyer, so if he charges five thousand naira, goodluck to him, but in my case we charge a lot. I delivered a paper at the annual convention of the Bar in Enugu in 2002, where I berated the senior advocates for charging low fees and not distributing enough money for their lawyers, who leave them. No lawyer comes to my office and wants to leave because we pay them well. Do not reduce the level of senior advocacy to ordinary lawyers, charge good fees but render good service. When you render good service you get good service. You go to a place where you pay for Kingsway quality goods, when you go to Dugbe in Ibadan, of course, you pay less. So it depends upon how you rate yourself. In respect of the one you are talking about, because I remember it’s a case of N75 million charged by somebody else. Honestly, I do not know the number of cases he handled for them, but then to me alone, N75 million is no fee for me handling a case for anybody. And when they go to Afe Babalola chamber, they say we are going to Kingsway chambers we are proud of it. There was this lawyer in America who defended O.J Simpson. The federal government invited him to come and give them advice he charged millions of dollars. He probably charged them only 50 million dollars. So, it depends on how you hold yourself. A good competent, efficient lawyer charges good fee. It is an agreement between the parties and you have the right out of so many billions of lawyers now to select the one you like. You decide to select a very expensive one, goodluck to you but if you decide to employ the cheapest one goodluck to you. You get your result according to what you select.
Now, let’s come to the Nigerian Bar Association. At their last election for National officer, there were controversies even though the immediate past administration introduced electronic voting but then there is this agitation about whether NBA should jettison this zoning formula thing and allow the best and brightest to run for office instead of saying let it move from north to west to east, so what is your view on this?
Those who introduced zoning into the election of the presidency of the Bar did so following the present constitution of this country. I have always believed and I still believe that the Nigerian constitution itself must be changed. I started writing in the vanguard last Wednesday the title was “moulding Nigeria into a nation” that Nigeria consists of numberless tribes, ethnic groups and so on and that I see myself as an Ekiti man before being a Nigerian. The Ibibio’s, Yoruba’s, Hausa’s, Igbo’s, see themselves as belonging to their own tribes before being Nigerians. But until we can mould Nigeria into a nation, we cannot and will not be able to elect a true representative to become leaders in every section, whether senator, Governor or President. It is unfortunate that a profession like the Bar would have to zone elective position like the presidency to one section which again directly or indirectly reemphasizes the fact that we are not a nation. I do not believe in zoning, it is not helping the country, it doesn’t unify the country. It’s not helping us to move the country and I urge you to continue to read my article in the vanguard, moulding Nigeria into a nation. I expect the Bar to be one of those who will help us to mould the country into a nation. Every lawyer belonging to the bar, whether a Nigerian or not, whoever is qualified by virtue of what he has contributed to the bar can become the president of the bar.
Do you support the restructuring of this country?
If you ask the question 100 times the answer is: I believe that we must restructure this country and go back to parliamentary system of government, which our forefathers gave to us after several meetings in Lancaster in London, we should go back to it. That was a period of the time when, the economy was strong, when the naira was stronger than pounds and dollars when each serving autonomous regions were working so had to improve its own region and other regions were competing or emulating other regions and things were moving fast, development was fast and so on and so forth. I had the privilege of working as federal government lawyer for several years under former President Obasanjo, the only disagreement between us as much as I love him is the question of presidential government, which I said I don’t believe in and I still don’t believe in it. Honestly, it has become unnecessarily expensive. We spend too much money on the administration of the country where it can be much less. In those days, members of houses earned allowances and served for only 180 days and the country was better for it. Today look at the percentage of money being spent on so called lawmakers, when this money would have gone to people for development.
How can we move from this, because the people benefitting from this present arrangement are not ready to let go?
Very good observation. At the last constitutional conference, it was recommended that the members of the House should earn only sitting allowances. That area has never been addressed, and it will never be addressed by the present senate or house of representatives because I can’t see them enacting a law that will take away their earnings; their so called oversight functions or constituencies allowances amounting to several millions and billions, as the case may be. They will never touch it. That is why I am seriously advocating a Sovereign national conference, where the decisions of our people would be referred to referendum. That would become the solution for this country. I am sure, if you do that today, there won’t be any such of these cases. There are Nigerians who are comfortable enough and can serve this country without earning a kobo. Was I not in the university of Lagos, where I did not earn a kobo? I still brought my clients like Julius Berger and co. to come and develop the place for them.
There are better people in Nigeria who can do what I have done. We are not having the right type of representatives; one will have to go through a god-father who will select you as one.
We need to have a sovereign national conference. Some lawmakers are quarrelling that because they are existing, there is nothing like sovereign. How do we eventually get out of this situation, is there any hope that there will be a way out?
I have delivered more than a 1000 lectures about this. This country reminds me of this saying “advice is a useless exercise, why? The wise man does not need advice and the foolish man refuses to take it. The answer is there already. There is poverty in the country now. Only a few weeks ago, I gave out money to 1,000 Nigerians, N5,000 each. 300 people N20,000, 118 of them N50,000, 20 people N100,000. If you saw how Nigerians praised God for only N5,000, then you will know that there is hunger in this country. A woman said “now I can start my business with N5,000”. She would probably go and buy plantain or maize to cook. When a man is poor, he becomes hungry, when he becomes hungry, he becomes angry, and when he becomes angry life doesn’t mean anything to him. The revolution of the ordinary people is worse than that of the Army. Go and read the fall of great empires all over the ages, most of them fell because of hunger of people. I do not pray for the revolution of the ordinary people, we are calling on those on top to please let us have a sovereign national conference, that will be the long-time solution to recession, poverty and all the grievances we have in the country today.I never knew there was going to be anything called kidnapping, may be in the dictionaries.
What is your view about Law faculties’ of universities taking Bar examinations without assembling in a particular place called the law school as is done in other jurisdictions like the US, because with private universities springing up, the population growing, will the law school have the capacity and facilities to accommodate all the law students that will graduate from faculties? Is it not time for law faculties graduating these students to give them the bar examinations that will be set by the council of legal education to take so that those who pass are called to the bar, what do you think about this idea?
We adopted the English system. In England, we have four Inns of Court. I graduated from Lincolns Inn. Now, the English bar allows a person to graduate from the university and take the bar examination through colleges and then proceed to take the examination and the call to bar. I have always advocated and I still believe that I am right that we do not need the law schools at Lagos, Abuja, Enugu, Kano, and Yola. What we need to do is to select those law colleges like ABUAD, which is recognised by the NUC as the best in Africa to prepare students for the bar examinations like 10-20 and that will help students when they pass to go to those universities who run the bar exams to be supervised by the Council of Legal Education. I want you to go to the law college. You will see the type of facilities we have there, which are not available even in the law school. That is why we are christened as the best university in West Africa. So select those areas, monitor them, give them the syllabus for the bar exam, then they take the examination and then for the ethics they can now come and assemble for the bar itself. They no longer take examinations, they only go for the swearing-in, because they are already qualified. It will save expenses and it will also be easier to monitor and it will be easier for the CLE to go round those colleges, so that is where I agree with you that there is need for modification.
Going by your pedigree, experience and competence in the area of arbitration, what is the future of arbitration in Nigeria?
Well, I thank God that I am still the President of the Institute of Arbitration of Nigeria. I think you should allow me to state emphatically that arbitration is an important means of resolving disputes between a woman and a man without too much of law. When you have a court matter, you cite all sorts of cases but the result you get is justice according to law, not justice according to fact, which is very different. The courts deal with justice according to law. A good example is a young man living at ojaagbo in Ibadan. He asked his wife who just had a baby to follow him to the farm at Bodija then. When they got to the farm, the woman had a basket, the man was uprooting the cassava roots while the woman was picking them, meanwhile the woman put the baby on a wrapper on the floor, the man went and chopped off the head of the wife and left with the cutlass to the police station where he told them that he had just killed his wife. They followed him to the place, they saw the corpse, a pair of his own shoes and the cutlass, and they took everything away to the police station. The man made a confessional statement, his name was Emmanuel Laigaye, and the family came and secured my services for him for trial. On trial, I asked the prosecutor a few questions which include: near that farm there is a foot path leading to another village, he answered yes. You know people go up and down using that road? He said yes, good, I said you succeeded in retrieving the cutlass? Yes! Did you send it to the forensic lab in Lagos for test he said no. You also found a pair of shoes there, did you also send it to the forensic lab, he said no. My lord, I said; that was the end of the case. The judge was furious, he said look at you now, a clear case you have spoilt this case. The man had to be acquitted because you have allowed too many loopholes, because you did not investigate if the shoe is his or not, neither did you investigate if it was the cutlass he used and you did not also check if that road at that time was used by any other person. The man was acquitted. That is justice according to law but not according to facts. On the contrary, we in arbitration, we ask each party to bring his own member of the panel, they will choose one, we will also choose one, and then both of them will choose a neutral person who will be the chairman, making three people to sit on the case and we outlaw any technicalities. We take the facts only. Is it possible that the two members who belong to different parties would now begin to take money in other to give judgment against one? Our own set up is such that it is not easy for anybody to corrupt the other, that is why I advocated it for election petition. All these things whereby judges are probed for all sorts of things that are happening won’t be happening if we allow arbitration to be adopted for political cases, most of our judges will be free from all these sorts of allegations because I know how far politicians can go. But this way it will be difficult for politicians now to bribe their opponents. So at the end of the day, arbitration will be the answer to our problems.
Is your institute advocating awareness on this?
I have said it severally, at the annual conference but yet again we say it repeatedly but nobody listens to us. So myself I don’t even want to grant interviews anymore. Another problem we have is that most people don’t read newspapers. The newspapers that sell the most are those pictorial ones, where they attend different parties and so on. One problem in the universities is how to make students cultivate the habit of reading again, the reading culture is gone, which is a major problem.