Congestion in courts is killing advocacy, says Atake
Eyimofe Atake (SAN), a doctoral degree holder in law with specialization in ligation, arbitration, maritime, admiralty, international trade, oil and gas laws, turned 60 years two weeks ago. In this interview with THE GUARDIAN, he spoke on his career journey, challenges in the Nigeria’s judicial system, his late father, Justice Franklin Atake, the Niger Delta and sundry issues.
The feeling at sixty
I feel like a young man. I am in good health because most of the things I did as a young man, I still do them now – I still do strenuous exercise. I am still fit like a fiddle. I thank God because sixty years sounds old, but I still feel like a young man of many years ago.
Targets accomplished before clocking sixty
Yes, there were targets I set for myself when I started practicing 29 years ago. My ambition was to become a Senior Advocate of Nigeria (SAN) before 50, because in those days only old people were appointed SANs. Surprisingly, what I wanted to achieve I had accomplished at the age of 41. What is left for me now is to grow from strength to strength.
Everyone in life looks for fulfilment. For me, I have achieved that 20 years ago. Personally, I do not look at what others are doing but set targets for myself and keep to my lane. I do not compete with people, but when I achieve my purpose I feel fulfilled.
Landmark cases that aided appointment as SAN earlier than the targeted age
They were quite many and most are in the field of Shipping Law. There was one provision of the law that was tested for the first time in the Supreme Court and the case was held in my favour. During the military era, there were constitutional issues and I recall we had to put them to test at the Supreme Court. The Chief Justice of Nigeria (CJN) with six other Justices sat on the case. Then, it was very rare for a young lawyer of late thirties to have constitutional case in a Nigerian Court. The case concerned a judicial officer who ceased to be. The question included: whether he could appear in his own case; and whether the constitution bared him from appearing for himself in Court? These raised constitutional issues. I argued that the judicial officer who ceased to be, was not appearing as a barrister or a solicitor, earning fees. Therefore, being a judicial officer did not bare him from appearing for himself and also his right has to be protected. At the end, in a unanimous decision, the case was decided in my favour. In another instance, with my background in International Law, I moved a Court in Nigeria to New York to hear a proceeding. In International Law and under the Vienna Convention, the Nigerian Embassy in New York is treated as Nigeria’s territory. Hence, there is nothing wrong to move the High Court in Nigeria to New York to hear a proceeding since the witnesses involved have evidences that were vital and crucial to the case in question. This is possible if the witness is sick or terminally ill and incapable of coming to testify before the Court in Nigeria. Judges of the Court saw reasons with me and a decision was taken. Eventually, the case was decided in my favour. There was another case at the Supreme Court where an action had been discontinued at the Lower Court, which did not prevent the Court from hearing the consequential order, especially when a party to the action or plaintiff had discontinued the case to the detriment of the defendant. In a lead judgment by Justice Igoh, the Supreme Court agreed with me that the case that was discontinued could become a consequential order in proceeding, even though the action had been discontinued, especially if the plaintiff’s action is done with the sole purpose of scoring a goal to the detriment of the defendant.
High point of professional career
For a practicing lawyer, attaining the level of SAN is the peak. Most especially, during my time, out of 12 appointed among the applicants, none was a youth. During the launch of my book, The Contempt of Court in the Face of Law, Justice Bello, the immediate past CJN before Justice Mohammed Uwais, was the Chairman of the occasion. Justice Bello commended me for a successful outing and from then on, he took a special liking for me. When I was conferred, he attended, took pictures with me, and confessed that I was one of the people that made him attend the ceremony. I was so flattered standing by his side as he said I looked like “a child wearing a bottom wig”. The next day after the conferment, I woke up to Newspaper front-page headline, which reads: “Omotola, Atake and ten others appointed SAN”. I was on my way to the bathroom when my phone started ringing. From that morning, till 7pm, I was glued to the telephone receiving congratulatory messages. Eventually, I ended up not having the bath! That day, within 30 minutes of the news, my house was full with cars and I entertained guests till late in the night. Out of excitement, I could not sleep all night. Thereafter, young lawyers were inspired by my bold step. During Justice Uwais, many applied and were conferred. Another high point was when I got my Doctorate Degree from Cambridge University, but it did not have the same professional satisfaction I got from the conferment.
Major challenge in the nation’s legal profession
The challenges are many. Majorly, the courts are too congested. In my days as a junior counsel in the Chamber of Late Chief G. O. Ajayi, (SAN), the dispensation of justice was very high, particularly at the Federal High Court. Even, by the time I set up my own chamber as a commercial litigator, specializing mainly in shipping, oil and gas, the Federal High Court (which has the jurisdiction) was never congested. The adjudication of justice was quick. Today, congestion in the Courts leaves judges completely overwhelmed. At the Court of Appeal, the story is the same; ditto, Supreme Court. This is really sad as congestion in courts is killing advocacy.
In recent time, the profession itself has gone down for diverse reasons, especially frivolous cases and quality of appointment of Judges. Sometimes, some judges do not read thoroughly through the brief of argument in Court and at the end, they deliver poor judgement. Quite unfortunately, too many flippant actions by lawyers create unnecessary congestion. Lawyers file frivolous cases as delay tactics. In Nigeria, not many litigants go to court for justice. Ordinarily, going to court must be the last option when all avenues for dispute resolution have been exhausted. Nowadays, people go to court to delay or prevent the aggrieved party from getting justice since they know that court action will take several years.
Therefore, if they lose at the High Court, they move to Appeal, then the Supreme Court! The machinery of the Court is being abused as a place for treacherous actions.
Lawyers’ misconducts and the role of NBA
The NBA does not have control over everything every lawyer do. Standard of ethics has dropped in the profession and that is why most lawyers use delay tactics to deprive others of justice. Nevertheless, if the rules of the court allow awards of substantial cost to sanction glib applications as is done in the United Kingdom or other countries, it would help. In the UK, the judge will look at a case at the preliminary stage and award cost against the plaintiff if the case lacks merit. At times, people have to mortgage their houses to pay. If we have that type of system in the country, it will make people think hard before going to Court. Here, somebody goes to a court and alleged that he has been defamed. Next, he is claiming N5billon. The court needs to award a substantial amount of money against such person for bringing ill-advised action knowing full well that he was not defamed and cannot prove it. Subsequently, people will think twice before going to court because of the consequences. However, on the flipside, the argument is that such policy will prevent less privileged people from attaining justice. More so, we do not have a good legal aid system in the country and ordinary citizens will be shut out of justice.
Late Justice Franklin Atake’s fight for resource control and the 13 percent derivation
My late father was a Judge of the High Court in the Midwestern Region in 1967 and later became a Senator of the Federal Republic of Nigeria. He was the first person to raise the issue of derivation. In fact, he was the ‘father of derivation’ according to record. Truly, my father started the 13 per cent derivation that has gone into Nigerian Constitution but how often is he remembered? Who knows of this? Nobody talks about it. Instead, we have some people acting as if they are the architects or influencers. Also, my father wrote several articles on revenue allocations; I still have some of them. Sadly, this is a country that does not care about history. Today, people do not care about integrity except money – everything is about money. Before now, places and streets are named after people for historical reasons. Nowadays, reverse is the case. People get streets named after them because of their wealth. In other climes, streets’ names are not just changed like that. I was a student in the UK in early 70s. Up till date, the streets still retain their names. Over there, people are not concerned about money, but integrity. Sincerely, I have not taken interest in derivation issue, rather I prefer to impact knowledge writing articles in a couple of national dailies.