Using a criminal justice system to recover loan is wrong’

Using the criminal justice system to resolve civil disputes is very common in Nigeria. ​Dr. Babatunde Ajibade (SAN),​ in this interview, maintains that such action is wrong, even when it seems like the easy way out. He also spoke with Assistant Editor, Law & Foreign Affairs, ​JOSEPH ONYEKWERE​ about the hate-speech bill, rule of law and role of the Bar, at the sidelines of the 2019 business luncheon of the SPA Ajibade & Co., which bordered on the subject matter.

How deep do you see the anomaly of people seeking to resolve civil disputes through the law enforcement agencies?
The anomaly is extremely deep. If you listened to the exchanges at the SPA Ajibade business luncheon, it bears out just how deep it is. For me, as I stated on various occasions, we develop our themes for our luncheons after internal robust discussions.

Typically, the topics would come from our practical experiences. We have had practical experiences where even my own colleagues have pushed for us to resolve client matters in a particular way and I have been resisting on the basis that it is not a criminal matter but a civil matter. They will say it would be more efficient, quicker and in the interest of the client. There are those who feel that it is the right thing to do but claim that the court system is not efficient and doesn’t work. And I am of the view that if the system is not working, we should fix it. When there is a problem with the police, rather than fixing it, we go and set up the Economic and Financial Crimes Commission (EFCC).

When there is a problem in EFCC we go and set up ICPC. If there is a problem in our civil justice system, we need to address and fix that problem rather than going to the police, where the police will now be our judge and jury. Those are very fundamental. It is something that has given me practical challenges and I was clear in my mind as to what the right thing is. That is what led us to say, let us open it up. It was in our practical meeting which holds every Friday that this argument came up and I said, this thing is not just good to end up as an internal debate, let us make it the subject of discussion in our next business luncheon because there was divergent opinion even among us.

But there seem to be divergent views about whom to blame for the anomaly. Lawyers want to absolve themselves. Judges are also doing so, together with security agencies. Each party is blaming the other. How do we address it holistically?
To be honest, the fault is not that of the law enforcement agencies. As the former commissioner of police, Mr. Fatai Owoseni said, there is no policeman who will come and arrest somebody, saying the fellow owes bank money and didn’t pay. It is the bank that will tell its lawyer that if he goes to court, the alleged debtor would obtain an injunction and for the next five years, we will be in court and we won’t get our money. They would ask, is there any other way? And the lawyer will respond by saying that he knows AIG, the DIG or EFCC chairman. He will assure that by the time they arrest the debtor and keep him for five days, he will quickly pay the money.

As far as I am concerned, the problem is with the lawyers, who bow to that kind of pressure and the weak civil justice system that gives the people the impression that it doesn’t work. Of a truth, if you have cases in court that are lasting eight, nine or ten years on a simple contract debt, it is not good enough. How can somebody go and borrow money from the bank and there is security for the loan; without any justification whatsoever, you just go to court to obtain an injunction to tie the hands of the bank, so they cannot executive against the security? Even as I speak, I have cases in which I am representing bank debtors. That is where the judges need to be discerning. That is not to say that there are no cases where the bank debtors have legitimate grouses against the banks because the banks themselves are not angels. They will come and tell you that someone owes them N3billion.

By the time you unpack the whole account, you will found out that N2billion out of the N3billion alleged debt is frivolous and fictitious charges. But we cannot throw away the baby with the birth water. That is why the judges need to be discerning and make use of the powers they have. For instance, if a debtor comes to say, he does not owe N3billion, that what he owes is N1billion, the court can say, okay go and pay the N1billion and then come for us to litigate on the disputed N2billion. That is one of the ways in which an efficient judicial system would deal with some of these issues. If the courts are not proactive and the judges keep complaining that they are overworked and underpaid, the problem will remain. So, the problem is not really with security agencies because they don’t get involved voluntarily.

For them, it is just an opportunity to make money. And we as lawyers are shooting ourselves at the feet because why should a client pay you when he sees the police as doing the job? When you say you want to charge a fee, he will ask; what did you do? Is it because you wrote a petition to the police? He will conclude that it is the police that solved his problem! We need to fix the problem and it is a hydro-headed one. We also need to ensure that the judges that are appointed are a bit stronger.

With greatest respect to them, a lot of our judges think they are on the bench for a holiday. It is hard work. Being a judge requires a lot of hard work. It is even harder than being a lawyer because as a lawyer, you can pick and choose which one you want to handle, but as a judge, everything is dumped on you. And you have to deal with them. Some of them complain about this. We know that they are not being paid adequately to even justify the amount of work that is required of them and we know that there are not enough of them.

In Lagos, people are filing thousands of cases on weekly basis. How do you expect them to cope with the load? It is not possible! Meanwhile, we have our senators and house of representative members collecting millions every month. They take housing allowance, clothing allowance, new car allowance, etc. It is not right! It seems that the system just doesn’t want the justice system to work. And for me, the only way to address it is for us to come out as a united profession – judges, lawyers, and the corporate bar.

The sections we have in the bar association, whether the SPIDEL, SBL or the NBA as a whole, are good to enable people to gravitate towards the area they have the interest, but they should not be allowed to create unnecessary divisions amongst us. We are all lawyers. Even judges were lawyers before they join the bench. Nobody is called to the bench; rather you are called to the bar and you will not stop being a lawyer because you went to the bench.

My view is that the problem can only be fixed when we air it properly; when as a professional body, we fight for a stronger judiciary and when we as lawyers change our orientation so that we do the right thing and take right matters to the right places. That is only when we can get relief. Naturally, the bankers are also under pressure from their board. The board is not interested in how you do it, all they want is that you have a non-performing loan of N5billion and it must be returned. That is the kind of pressure that makes them make the argument I consider untenable.

If you say that there is an element of criminality in a lot of loans, the criminality leads to prosecution and prosecution leads to a jail term. That doesn’t get you your money! Using a criminal justice system to recover loans is wrong. You can only use the criminal justice system to prosecute someone and have him jailed. But why is it that when people are taken to EFCC or the police, the moment they pay the money, the case ends? If you say the case was fraud, is that the penalty for fraud? The penalty for fraud in criminal code is not payment of money, but a jail term. We are mixing things up. If the remedy you want is to recover your money, it is a civil matter for which you go to court. If the remedy you seek is punishment for a person who has wronged you, then you go to the police and the police would prosecute and jail the fellow.

How do you distinguish cases where some debts have elements of a crime?
As far as I am concerned, it is very clear. It is just a matter of convenience for those who do that. They are working from the answer to the question. We want to recover our clients’ money and we know that the right thing is to sue. But we know that the courts are inefficient, meaning that the matter can be there for the next three years. So, the next thing that comes to mind is to use the police. But that does not justify you going to the police because the police will go, arrest, lock up and seize properties. Landlord and tenant matter is a civil matter. How do you get the police involved in that? By doing that, you deliberately use the police to achieve a civil objective. That is the problem! We know that the same set of facts can give rise to both criminal and civil cases, but we must not use criminal procedures to achieve civil objectives.

How do we fix the aspect of the enforcement of court orders when judgment debtors are not willing to pay? Do we canvass the creation of an enforcement arm for the courts?
That is not a problem if people understand how the system supposed to work. The police as a law enforcement agency has an obligation to enforce every legitimate court order. The problem we have in Nigeria is that the executive, which is the arm that controls the police in itself has made it clear that it is not obliged to obey court order, especially orders it doesn’t like. The police are the ones to be used to enforce the orders of the courts.

For example, somebody owes you money and you obtained a judgment as well as a writ of FIFA to go and take his assets and sell to liquidate the debt, it is the police that would help you. Actually a writ of Fifa is an order to the police and other law enforcement agencies to assist in the enforcement of court order. Making use of the police in this manner is correct because it is the proper use of police in the civil process. The difference is when you do not go to the court, but instead use the police as the judge and jury to determine a case and enforce the judgment, which is what happens when people go to the EFCC directly. So the police are obliged to enforce orders of the court and when they do that, it means that a civil process has gone through; and it has delivered a result that requires police to step in. For example, the process has established that Mr. X owes Mr. Y and Mr. Y is entitled to enforce that judgment. So the police can be enlisted to assist in the enforcement of that decision at this point.

How do we get to resolve cases where banks are not cooperating with judgment creditors by disclosing the total amount in the credit of the debtor in their coffers?
This raises an even more fundamental question. It raises the question of the capability and capacity of members of our profession. I’m saying this advisedly although I am not naming names. If you send your problem to 10 lawyers, there is the likelihood that you would get 10 opinions and 10 different preferred solutions to it. And it is not each of the solutions that would be satisfying. So, if a bank or someone says a fellow is owing to him money and such debt has been determined by a court, and the banker to the debtor is not cooperating, it is because the lawyer does not know the proper thing to do. This is because a bank has a duty of confidentiality to its customers. If someone should go to my bank now and say I’m owing him money, that the bank should tell him how much I have in my account and the bank tells them, I will sue that bank and clean them out. That is a breach of the banker-customer relationship. If you have a judgment in your favour, what you ought to do is to go to court and get a garnishee order. Garnishee proceeding is legitimate and places a legal obligation on the bank. Once you have a money judgment in your favour, the garnishee is one of the best ways to get your money out. You enlist the services of the court and it would make a garnishee order nissi, which would be served on every bank, where you suspect that your debtor owns the account. And the bank will be under obligation to disclose how much of the debtor’s money is with it. It would be asked to come to court to show cause why the money should not be handed over to the judgment creditor.

Commercial lawyers, who know how the process works, commonly use garnishee. And the banks know that they must comply because if they refuse when they have money in their customer account and lie about it, they are making themselves liable. It is a contempt of court. It is a straightforward thing. But if your lawyer doesn’t know and then says to you, “I heard he has money in one bank, so let us write to the bank and ask them.” They won’t honour your letter and you will start to complain that the bank is not cooperating with you. The bank cannot cooperate with you because you haven’t gone through the proper process. The bank actually cooperating with you means it is setting itself up for a big problem because she owes a duty to her customers not to disclose the details of their account except subject to a legitimate court order.

In trying to fix this problem, you have suggested the need for an efficient and effective court system as well as having upright lawyers. What is the role of the rule of law in the whole process, because even if we get the others right, we still have issues that border on disobedient to court orders?
The rule of law underpins everything we do in the legal profession. As former Lagos Attorney General, Mr. Supo Shasore (SAN) said, rule of law is the bedrock to all we have been saying. It is like talking about symptoms and not addressing the cause. So all these things we are complaining about are as a result of failure to adhere to the rule of law. It is because there is no sufficient adherence to the rule of law that we are having the challenges we are seeing today. If you go to the police to say that someone owes you money; that the alleged debtor said he was going to do B with the money and diverted it to C, the police should make it clear to you that its powers are limited to what the law prescribed.

If you are alleging fraud, all they can do is to investigate and prosecute according to the law. That is the rule of law! They are bound to what the law provides. They would not say, how much is the money and how much percentage are you giving us? I have it in good authority that law enforcement agencies negotiate percentage. Let’s say the money is N1billon, they would say, “we will recover the money and our own will be N100millon”. Is that the rule of law? When did the police become a debt recovery agency? If you want to prosecute someone for fraud, the law says that fraud is a crime and the penalty for it is a jail term. So, it is the failure of the rule of law that would enable a law enforcement agency, when approached to say, “this is business. We will collect the N1billon for you and you will give us N100 million.” And they would sign an agreement over it. This happens because we are in a lawless state, where the rule of law is failing. That’s is why I said that the rule of law underpins everything. Therefore, the rule of law plays a significant role.

The truth of the matter is that if we lawyers don’t go to the police in the first place, they cannot even get involved. We are the ones to protect the rule of law, change our orientation and stop giving law enforcement agencies the opportunity to degrade our profession. It is the same rule of law that ought to compel the police if they are properly oriented to do what is right.

Even if somebody comes to them to say someone owes him N2billion and I want you to lock him up, they should be able to tell the complainant that if he wants his money, he should go to the high court. If you allege that a crime has been committed, please give us the facts that established that a crime has been committed and we would prosecute and follow it to logical conclusion, but that will not amount to the recovery of your money. If you want to recover your money, please go to the court. Everybody knows where his own jurisdiction lies, it is just the failure of rule of law that makes all of us start mixing things together and we now conclude that we are confused. Nobody is confused! People are just taking advantage of the fact that the rule of law is failing. The policeman knows that his job is not debt recovery. And the lawyer knows the job of the police is prosecution and conviction and that if he really wants to recover the money, the proper place to go is the civil court. But everybody is taking advantage of the fact that the rule of law is failing to do whatever he or she like and that is what is killing our country. And that is what the executive is taking advantage of; that is why they are not obeying court orders and that is why they are not funding the judiciary properly. They also enjoy the fact that a degraded judiciary that cannot stand firm allows them to do whatever they like. Look at the number of court orders that are not being obeyed in Nigeria today, even by the executive. So how do we now tell a creditor not to go to the police for debt, when they are seeing the example that the government is setting? The problems are fundamental and deep-seated and we just have to keep talking about them.

Personally, I believe these are the issues we need to take seriously in NBA as a professional body. I think we spend too much time addressing things that should not be our core concern. Our core concern should be our constituency, which is the justice sector by making sure that it works more efficiently. The judges cannot speak for themselves; we are the ones that can make the case for them. We are the ones that need to identify where the gaps are in the system. I am an optimist! I think that slowly, we would get there.

Would you subscribe to the idea of having civil disputes resolved through communal efforts such as quasi courts and traditional institutions because lawyers usually don’t get involved in those?
I don’t have any problem with that at all. I used to have a friend, who is late now, Amazu Asuzu. We did PhD together in London. He was a very brilliant man. His PhD was on arbitration. His thesis then was basically arguing that arbitration, which the Western world has now packaged and brought to us actually originated in Africa in the context of what you are saying. Arbitration in its simplest form is a situation where two or more people are in dispute and they agree that someone whom they all trust and respect should settle the dispute and that whatever the fellow decides, they will accept and be bound by it. So, a communal settlement is basically arbitration. I don’t think it will negatively affect lawyers’ income. Those things we traditionally rely on as the bread and butter of lawyers are shrinking. Recovering debts or incorporating companies is shrinking.

A lot is being taken over by technology, while others are being taken over by other professionals. You now found out that accountants are doing the works that lawyers used to do. Chartered secretaries, who need not be lawyers, are incorporating companies. So, we need to start thinking proactively about generating new areas of business for lawyers. There are so many areas that are untapped. But if we see that dispute resolution is shrinking because there are more resolutions through communal efforts, we should be looking at other areas of business. Some lawyers even complain that ADR is eating into the litigation industry, those things are inevitable. We can’t stop them. Rather than trying to protect our turf, we should be looking at how to expand our turf and other things that lawyers can do. And there are so many things lawyers can do.

Law is such a versatile profession. We are doing ourselves a disservice by not having a united bar. It is only by eliminating all the divisions that we would be able to explore all the potentials for lawyers. If you are a lawyer and you qualify today, or you are in practice and find out that your practice is dwindling, you should find out what other things a lawyer can do. You can become a chartered secretary, a corporate governance expert, a teacher, a trainer and so on. Law is one of the most versatile professions in the world. You can even be a police officer, because if we have more lawyers as police officers, who are well trained on rule of law, maybe they would be in a better position to advise complainants accordingly. There is no reason why every police station in the country should not have a duty solicitor. That is what happens in other developed parts of the world so that if somebody comes to complain, the police have a lawyer they can consult for a preliminary view. That is the job for lawyers.

For us to run a proper civilised democracy, we need lawyers. So there is enough work for lawyers to do outside our traditional jobs. If we are able to convince the government that every police station in this country must have a lawyer, is that not work for us? We cannot all be in commercial law firms. There are too many lawyers in Lagos and we are all chasing after the same client whether in Lagos, Port Harcourt or Abuja, but what of the hinterlands? What of the other small towns? There are not enough lawyers in those places. We need to create enough opportunities for those lawyers. If we don’t develop our hinterlands, the cities won’t be able to cope soonest. Lagos is going to breakdown soon, with the influx of people coming in on a daily basis and even the physical space will not just be there anymore. As professionals, we need to start thinking creatively about these things.

In the light of the issues in discussion, what is your reaction to the bill proposing the death penalty for hate-speech?
I think we are regressing very quickly into a police state. If that bill has been passed under a military regime, I don’t think anybody would be surprised. Why we are all surprised is how a civilian government can propose such a bill that says that somebody should be killed because of something they say; not a jail term or even an admonition! For me, it beggars believe! It shows that the executive is wrong-headed and that they don’t know what they are doing. But why do we have checks and balances? How can lawmakers who are civilians agree that it is okay to kill someone because of what he says? I don’t understand it!

The lawmakers have the constitutional right to make laws. Can someone challenge such enactment in court and succeed?
Of course! It is not their activities that would be challenged. It is the law itself that would be challenged because, at the end of the day, the power of the legislature is not absolute. The court is the final arbiter. That boils down to the issue we discussed rule of law. That is why lawyers are so important. It is lawyers that can take that bill to the court to say that it is unconstitutional. We have good examples of courts nullifying such laws.

Recently, Justice Jose just struck down the recent amendment to the AMCON Act. The Act was amended this 2019, saying that no court can grant an injunction to restrain AMCON. And Justice Jose declared that that amendment was unconstitutional a few weeks ago. She said it is void. AMCON can go on appeal, but for now, that is the law. How could AMCON have such powers? If the body on the basis that somebody is owing, which could be in error goes after such fellow, nobody can restrain them.

We have a case where AMCON went after properties that have been sold to third parties and threw people out. And those are properties that people paid good money for, years ago. Now, they are all in court. This voided provision in the amendment, if it was not successfully challenged, was to the effect that those people would not have restrained them. It is illegal as far as I am concerned.

One of the cases that I handled as a lawyer was the one between Fasakin Foods Nigeria Limited versus Shosanya. It was reported in 2006. I convinced the Supreme Court that section 22(3) of the federal high court Act was unconstitutional and the court agreed with me. That provision states that when a state high court finds out that it does not have jurisdiction; that jurisdiction resides in the federal high court, it should transfer it to the federal high court. The position of the constitution is clear that the civil procedure and practice at the state high court is a matter for the state houses of assembly. The basis of my challenge was that the federal high court Act is a federal piece of legislation. There is no how a federal legislature can pass a law conferring powers in the state high courts. It is the state houses of assembly that have power to pass that law. So the legislature can pass whatever law they like, but where the rule of law reigns, the final say is with the judiciary and us lawyers, because we are the ones that would argue whether that legislation meets the constitutional requirement or not. And once we are able to successfully prove that it does not meet the requirement of the constitution, it is dead.

So, this hate speech law, God willing, I have no doubt in my mind that we have sufficient human rights lawyers that would rise to the occasion and insist that it is not right. You cannot execute anybody because of what he says in 2019, when other countries are abolishing the death penalty for even violent crimes. People are moving forward and we are going backward! This makes me worry deeply about this country!