REPOSITIONING THE LEGAL PROFESSION IN NIGERIA PAPER DELIVERED AT THE J M ADESIYUN MEMORIAL PUBLIC LECTUREBY DR BOLANLE OLAWALE BABALAKIN. LLM. PH.D CANTAB.  PRO CHANCELLOR, UNIVERSITY OF LAGOS

THE ADESIYUN FAMILY

Invitation to deliver the public lecture by Chief Bayo Ojo,SAN, was really not a request but an instruction. The Babalakins and the Adesiyun’s have come a very long way.

The great branch of the Nigerian Bar Association situate in Ilorin. A country of very eminent judges and also prominent lawyers.  A very dedicated Bar.

Amongst the great Judges from the Ilorin Bar are:

  • Honourable JusticeSalihuModibbo Alfa Belgore – Former Chief Justice of the Federation;
  • Mr Justice SaiduKawu – Retired Justice of the Supreme Court and father of the current Chief Judge of Kwara State ;
  • Honourable Justice Mustapha Akanbi, former President of the Court of Appeal and past Chairman of the Independent Corrupt Practices Commission (ICPC);
  • Honourable Justiceformer President of the Court of Appeal;
  • His Royal Highness the Emir of Ilorin, Alhaji Ibrahim Sulu Gambari, a retired Justice of the Court of Appeal;
  • Honourable Justice M. D. Belgore – the longest serving Chief Judge of the Federal High Court;
  • Honourable Justice SuleimanKawu the current Chief Judge of Kwara State;
  • Honourable Justice A. S. Oyinloye, an alumnus of Babalakin& Co and a current Judge of the Kwara State High Court

The Ilorin Bar is also blessed with very eminent lawyers including:

  • AlhajiAliyu Salman, SAN the Doyen of the Ilorin Bar
  • Chief WoleOlanipekun, SAN former NBA President
  • Chief BayoOjo, SAN former NBA President & former Attorney General of the Federation
  • AsiwajuAdegboyegaAwomolo, SAN
  • Mallam Yusuf Ali, SAN;
  • Mr R. A. Lawal-Rabana, SAN

 

MY MOTIVATION

I believe it is fitting for me to set the tone for my paper by drawing on the words of the convocation speaker at Georgetown University’s recent lecture in 2015, William Garad Godwin who said:

“Learning about what the world needs, its unfinished work, its new challenges, its dangers and shortcomings ….. has given me tremendous heartbreak yet unbreakable joy. If nothing in this world makes your heart ache and sets your mind and souls on fire to respond in some meaningful way, then you have missed the wise words, the gift of Georgetown.”

 

For me, the role of the legal profession in Nigeria has caused me severe heartache. It has regularly put my soul on fire and I am hopeful that with all our effort, we can place this profession back on the right path to enable it to fulfill the purpose of law which is to guide the development of the nation in a manner consistent with the due process of Law. Because of developments around us, while this topic qualifies for a comprehensive research and discussion, because of the limited time that we have it is simply not possible to do proper justice to the topic at this forum. All one can, therefore, aspire to achieve here is to highlight some of the serious issues. If at the end of the day, we are able to provoke and stir thought within members of the profession about the direction of our profession and how to return it to the right path and place of pride we would have achieved our modest objectives.

I must confess here that I am a relatively young member of the bar. Compared to the most of the legends I earlier paid tribute to, I was called only 35 years ago. However in my short period as a lawyer, I have seen the legal profession at its outstanding heights. I have observed the beautiful tradition of the Bar which emphasized respect for intellect and integrity. Judges were revered and lawyers were respected. Both groups played their roles most professionally. But I have also very painfully seen very troubling signs in the profession.

I will begin by postulating a theory that I don’t think anyone can seriously contest: the legal profession can only function properly in a society where there is enthronement of the Rule of Law. The role of the legal profession I submit should be the promotion of the Rule of Law. Once it deviates from this goal, it will continue to lose its efficacy and may ultimately lead to its extinction.

 

THE PROFESSION I WAS BORN INTO

I would like to celebrate those who pioneered the judiciaries of Eastern, Northern and Western Nigeria. The three judiciaries were placed on a commendable footing through the effort of the members of the legal profession. I will highlight my point by using the Western Nigeria Judiciary as a case study. The law profession I knew growing up was very organized. Cases went on, on the dates they were scheduled for. There were hardly any adjournments then. Objections were raised and resolved immediately. There was no adjournment to consider any interlocutory issues. Judges were so knowledgeable and so versatile that lawyers knew that they could not play any delay tactics. Criminal cases were disposed of within a month of commencing the trial. The Assizes, which was the Special Criminal Court held for a specific period and load of cases were disposed of during the period.

 

An investigation was very thorough and the office of the Director of Public Protection was very active and versatile and would hardly proffer charges against an accused person without proper consideration of the merits of the case and the probability of securing a conviction. This was the profession that I was born into. I was so fascinated by the Court that once I had the opportunity of obtaining information about how it was created, I seized it with both hands. In 1964, the salary of a High Court Judge in Western Nigeria was £3,400:00 (three thousand four hundred pounds) per annum. The salary of the governor of the CBN was £2,700 (two thousand seven hundred pounds) per annum with the sort of comparatively high remuneration and reverence for judicial officers, it was very easy to attract the best minds to the Bench. But let me state that even by the standard of that era   it was not that easy to achieve. When this salary was proposed, the then Head of Service of Western Nigeria, the most respected Simeon Adebo opposed it. He could not fathom how a member of the public service could earn more money than the Head of Service. It was a regularly debated issue between his office and that of the Attorney General, Chief Rotimi Williams, with the Premier Chief Obafemi Awolowo acting as arbiter. After a very prolonged debate a compromise was achieved. A JUDICIAL DEPARTMENT was to be created which was not part of the civil service. This enabled the Government of Western Nigeria to treat a judge in a deservedly better way. The Ministry of Justice was also a very formidable institution.

WHAT HAPPENED? WHEN DID THE DECLINE START?

  1. The Military Interregnum

The Military intervention in the governance of Nigeria was an unmitigated disaster in the development of the Nigerian legal system  and the Legal profession. Initially, the judiciary stood its ground against the Military’s  onslaught and targeted erosion of its powers. The celebrated case of Lakanmi and Kikelomo v. AG Western State (Nigerian Supreme Court Case 1969 – 1970 6 N SCC. 143.) was the hallmark of judicial courage. The Courts had the confidence to hold that the Military Government could not exercise judicial powers. The Court held that the Forfeiture of Assets etc. Validation Decree violated the principles of separation of powers provided for under  the 1963 Constitution. The Decree was an exercise of judicial power by the Executive and Legislative branches of government. By promulgating the Decree, the Federal Military Government was passing a Legislative judgment. Such an exercise of judicial power was ultra vires the Federal Military Government under the 1963 Constitution. The Court courageously declared the Military Law invalid being inconsistent with the constitution. The Military Government invalidated this decision by enacting the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970.

 

“any decision, whether made before or after the commencement of this Decree, by any court of law in the exercise or purported exercise of any powers under the Constitution or any enactment or law of the Federation or of any State which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are not inconsistent with the provisions of a Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever as from the date of the making thereof.”

 

The sin of this law is not the promulgation of this Decree, but the support it received from some members of the legal profession. My great teacher in constitutional law, Professor Abiola Ojo made the criticism of this correct and appropriate decision of the Supreme Court the highlight of his constitutional law class. The topic was 30% of our curriculum. Theories of the efficacy of the usurpation of constitutional authority enunciated by Kelsen pervaded the legal community. The promulgation of the Decree was a sad watershed in the constitutional evolution of Nigeria. If the legal profession had stood with the appropriate decision of the Supreme Court, the Military rule in Nigeria would have been short lived and I believed Nigeria would have been better for it. On a personal level my soul was sufficiently troubled by these developments that as a law student I came to learn about that when the opportunity came for me to study at the highest research level my PhD research focus was without any hesitation on the Nigerian Supreme Court and these Constitutional Developments.

With the raw show of power by government after the promulgate of the Supremacy and Enforcement of Powers Decree, there was no end to the draconian use of decrees and edicts. One example that continues to shock me till date is the case of JH Bassey v Federal Government of Nigeria. Chief Bassey’s properties were confiscated by the government. We challenged the confiscation in Court. While the case was still  pending in court, and while I was busy blowing grammar in court on behalf of my then boss who had kindly allowed me to continue working on the case, the Federal Government promulgated The Assets (Title Vesting and Validation) (Mr. J. H. Bassey) Decree 1992. S3 (1) which provided that:

 

“1. – (1) Notwithstanding the provisions of the Land Use Act, the title to the assets clearly described in the Schedule to this Decree, is by virtue of this Decree and without further assurance vested in the Federal Military Government.

(2) The title to the assets so vested by subsection of this section is hereby validated.

  1. The title of any claimant, real or purported, to the said assets referred to in section 1 of this Decree is hereby extinguished.

  2. – (1) No civil proceedings shall lie or be instituted in any court for or on account of, or in respect of any title vested in the Federal Military Government or validated by or under this Decree, or in respect of any act, matter or thing done or purported to be done by the Federal Military Government with regard to the assets which is the subject matter of this Decree or any act, matter or thing whatsoever done or purported to be done under or pursuant to this Decree by the Federal Military Government.

(2) If any such proceedings referred to in subsection (1) of this section are instituted at any time before or after the commencement of this Decree, the proceedings shall abate, be discharged and made void and of no effect, and any right, interest or privilege, accruing, obtained, granted or purported to have accrued, have obtained or granted thereby is hereby extinguished.

(3) Accordingly, any judgment or order of any court or tribunal delivered at any time on, before or after the commencement of this Decree shall by virtue of this Decree be made null and void and of no effect whatsoever.

(4) For the purpose of this section, the question whether any provision of Chapter IV of the Constitution has been, is being or would be contravened by anything done, being done or proposed to be done in pursuance of the assets described in the Schedule to this Decree or in pursuance of this Decree shall not be inquired into in any court of law or tribunal, and accordingly, no provision of the Constitution shall apply in respect of any such question.”

 

This was a rape on the Rule of Law.

 

  1. The Retirement of Judges

The greatest set back to the legal profession was the retirement of judges in 1975. This retirement was done without any proper process. The allegations against these judges were largely rumors and there was never an opportunity for them to defend themselves.

Amongst those that were retired were:

  • George Baptist Ayoola Coker. A doctor of laws from since 1955. His thesis had been published. He was a gifted scholar. If you have any doubt, please read Vaswani Trading Co. v Savalakh& Co. (1972) 12 SC 77; and Balogun v Balogun (1969) 1 All NLR 349.

 

  • Sigismund Olanrewaju Lambo. He was the first Chief Judge of the Federal High Court. After his retirement I had the opportunity of meeting him at the foyer of the Squire Law Library. He informed me that he commenced a doctorate program after the premature exit from the Bench. He also stopped for personal reasons. I want you to imagine the quality of intellect that enabled him to get an admission into Cambridge University for a Doctorate Degree having had a substantial break from intellectual work since 1955.

 

  • BA, LLB, BCL, BSC Econs, Dip.Edu. He had acquired all these degrees in 1952 at the very young age of 24. He was a phenomenal Scholar who dominated the law reports till 1967 when he was appointed a Judge of Western State in 1967. He was the publisher of the first privately owned law report in Nigeria, The Nigerian Monthly Law Reports. Olufemi Ayoola,  his brother Yinka Ayoola and Bola Babalakin were my inspiration for studying Law. Olufemi Ayoola had a small plaque in front of his house with all these degrees. I read the plaque almost every day each time I passed his house. He was also probably one of the wealthiest men in Ibadan when he was actively in law practise. He littered the whole town with beautifully built properties. At a very young age, he represented Obafemi Awolowo at the Supreme Court during the treasonably felony case in 1963. Ayoola was 35 years old then!

 

  • Micheal Odesanya BA, MA Cantab.

 

  • Adewale Thompson, moderator of Legal Sciences at Trinity College, Dublin

 

  • TaslimOlawale Elias LLB, LLM, Ph.D. London.

 

Elias Taslim Olawale was the first African to be awarded a Ph.D. in Law by the University of London in 1949. He was Governor of the School of African and Oriental Studies in 1957. Probably Nigeria’s most celebrated legal scholar. He wrote extensively on Land Law and Customary Law and defined learning in these areas. In later years, he was more active in the authorship of International Law books. His book Elias, The Modern Law of Treatise is the definitive work in this area of the Law. He was Professor of Law at the University of Lagos and simultaneously the Attorney General of the Federation. Despite combining these two tasking positions, none suffered. He performed superlatively in both capacities. I have a confession to make that even my friend Dr. Gbolohan Elias, BCL, D.Phil (Oxford), fellow of Magdalen College Oxford does not know. Back then, each time I was feeling sleepy in the Law library in my student days in Cambridge , all I had to do to wake up and have very clear  eyes and full concentration was to read the biography of Taslim Olawale Elias that was readily available in the library.

 

The retirement of these great men in 1975 created a furore in the legal profession. Sadly a lot of uninformed people celebrated their exit without appreciating the implication of exiting the best brains in the profession without any semblance of due process. The career of judges was determined by men who were at best educatively challenged. It was acutely hurtful that lawyers did not foresee the effect of these actions. It is an action that ushered in the decline of the legal profession. It scared every outstanding lawyer who had hitherto aspired to a judicial appointment. For the avoidance of doubt, a legal system that cannot structure itself in a manner that only very gifted lawyers aspire to judicial appointment cannot provide justice according to law. The legal profession of such a country will not deliver justice to the populace. The retirement saga in 1975 of judicial officers made it clear to me at a very early age that phenomenal scholarship in the midst of abundant mediocrity is a mortal sin.

THE YAHAYA JINADU SAGA

I cannot end a discussion of the golden era of the Nigerian Legal System without mentioning the position taken by the Hon. Mr. Justice YahayaAbiodunJinadu in 1984. Mr. Justice Jinadu had issued an order against the Permanent Secretary of the Ministry of Internal Affairs. The representative of the Attorney General, Mr. Moshood Adio, later the Hon. Justice Moshood Adio of the Ministry of Justice had refused to comply with the order. After repeated warnings, Justice Jinadu thought it was appropriate to discipline Adio. He requested that Adio should go into the box without his wig and gown. The authorities felt that Justice Jinadu had overstepped his bounds and as punishment for his behavior, he had to apologize to the Judicial Authorities in the presence of the staff of the Ministry of Justice. Jinadu could not hark this. In his view, it was not only an attempt to humiliate him but actually a design to denigrate the judiciary that he so loved. He chose to retire. In my tribute to him on his 90th birthday, this is what I wrote:

“In 1984, you chose to retire most prematurely from the esteemed position of the Judge of the High Court of Lagos State rather than allowing the institution to be humiliated. You quit your job and faced a very uncertain future because of your genuine belief that the integrity of the Judiciary should not be compromised.

 

Your letter of resignation read as follows:

“I believe the Judiciary has an important role to play in this Country as it is the last hope of the common man. The Judiciary has to be firm and courageous and must not employ any form of double standards.”

“I cannot be a part of this humiliation and disgrace of the Judiciary and as no condition is permanent, I have done the only honorable thing to do for a reasonable, upright and disciplined judge to do.”

“I have already given notice of my retirement of service. I cannot condone any attempt to destroy the judicial system in this country using me as a scapegoat. May Allah guide us right.”

-September 1984

Today at the ripe age of 90, you can confidently look back and say: Did I not warn you all? Your detractors have now seen the effect of not standing up for the Truth and Justice. May Allah, whom you have demonstrably served, continue to guide you aright.

I am very proud to be related to you.”

 

I repeat that his actions were appropriate and consistent with his high level of integrity. I submit that the profession betrayed one of his own by not rising up in unison to condemn this humiliation of a confident and principled member of the profession. Was Justice Jinadu not right? Have we not seen since then how the legal profession has been consistently battered by those in authority? If we had stood collectively to ensure that justice was done, the state of the legal profession would have been different that it is today.

 

  1. The General Subjugation of Judges

 

Comparison of the Judiciary in the United States and the Judiciary in England

To appreciate the point being made, please consider the Curriculum Vitae of all judges of the highest courts in the two countries.The current members of the Supreme Court of England are:

 

  • The Right Hon the BaronessHaleof Richmond – the President of the Supreme Court – (Cambridge University)
  • LordMance(University College, Oxford)
  • LordKerr(Queens University, Belfast)
  • Lord Wilson (University College, Oxford)
  • Lord Sumption (Magdalen College, Oxford),
  • Lord Reed (Oxford University)
  • Lord Cornwath (Trinity College, Cambridge),
  • Lord Hughes (Oxford University)
  • Lord Hodge (Corpus Christi College, Cambridge)
  • Lady Black (Durham University)
  • Lord Llyod-Jones (Downing College, Cambridge)

 

The current Justices of the United States Supreme Court are:

  • John Roberts (Harvard Law School)
  • Anthony Kennedy (Stanford University)
  • Clarence Thomas (Yale University)
  • Ruth Bader Ginsburg (Columbia University)
  • Stephen Breyer (Harvard Law School)
  • Samuel Alito (Yale Law School)
  • Sonia Sotomayor (Yale Law School)
  • Elena Kagan (Harvard Law School) and
  • Neil Gorsuch (Harvard Law School)

 

 

HOW TO REPOSITION THE LEGAL PROFESSION IN NIGERIA

To reposition our Profession, we cannot afford a blame game. A blame game will lead us nowhere. We simply have a draw a line and start again.

 

 

Legal Education

The Legal Profession must be restructured from the start.

  1. The curriculum in the universities must place the capacity to think on the highest pedestal.
  2. The law school must become more practical than theoretical. Tutorials must be tutorials

The Nigerian Bar

  1. The bar must become more efficient.
  2. The amount of time wasted at the bar makes the legal profession very unattractive to young men and women who have a lot of options.

The Court System

  1. Cases must go on the dates and time they are slated to go on. (Discuss the Resort Case)

 

  1. Courts must adjudicate on matters on the dates they are slated to go on.

 

  1. Courts must not sit at the convenience of counsel. Counsel must make himself available on the dates chosen by the courts.

 

  1. Counsel cannot agree to adjourn cases without substantial financial consequences. (Discuss the LoneStar Case UK)

 

  1. A pleasant fall out from this is that law firms must become larger. The time of lawyers will become more valuable.

 

  1. It is not fair to the younger lawyers that they spend a whole day in the court and there matters are not heard because a couple of Senior Advocates had matters in court on the same day.

Qualification for appointment as SAN

  1. The criteria for appointing Senior Advocates in Nigeria must be reappraised.

 

  1. The current criteria have congested the courts. Many cases are filed today not because of the seriousness of the issues between the parties but because lawyers require a certain number of cases to qualify to apply for the rank of Senior Advocate of Nigeria.

 

The Judiciary

  1. There is need to immediately enhance the status of the Judiciary and reposition it to where it was before 1975.
  2. Remuneration of judges must be enhanced. The idea of a judge not having enough resources to live comfortably anywhere in the country is simply unacceptable.
  3. Appointment of judges must be on merit. I do not subscribe to the opinion that the need to comply with Federal Character in the appointment of judges is the reason for the weak appointments made to the bench. I have had the privilege to working in all parts of Nigeria. Every part of Nigeria has very exceptional men and women who are deserving of judicial appointments.
  4. The judiciary must disallow frivolous adjournments. To achieve this, Judges must have sufficient knowledge to decide interlocutory applications on the spot i.e. bench ruling and proceed with the matters.
  5. The judiciary must jealously guard its jurisdiction (Discuss the evolution of the judiciary using the case of Madbury v Madison).
  6. Explain the provisions of Section 4(8) of the 1999 Constitution which is probably the only Constitution to confer the jurisdiction to review legislative and executive powers to the judiciary.
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