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NASS cannot provide a constitution to take us to the promised Land through amendments, says Olanipekun

By Joseph Onyekwere
18 November 2021   |   2:58 am
Chief Wole Olanipekun (SAN) a former state attorney general and ex-president of the Nigerian Bar Association (NBA), is considered one of the most successful advocates in the country

Chief Olanipekun

Chief Wole Olanipekun (SAN) a former state attorney general and ex-president of the Nigerian Bar Association (NBA), is considered one of the most successful advocates in the country. In this interview with select journalists, the legal luminary, who clocks 70 today, speaks on topical national issues. JOSEPH ONYEKWERE was there .

What is your opinion on the conflicting orders issued by courts of coordinate jurisdiction in political matters, which provoked the ire of both the Chief Justice of Nigeria (CJN) and some lawyers? The allegations are that some senior lawyers help to perpetuate this anomaly. What do you think needs to be done to ensure sanity in the system?

The CJN was spot on when he intervened. We were running into turbulent waters in our jurisprudence and in the annals of the legal profession in Nigeria. It was so scary, embarrassing and scandalous. I am not defending any group of lawyers, junior, senior or intermediate, but it is unconscionable for any lawyer to do it. I would least expect any judge was sworn in, who took the oath of allegiance to the Constitution and the institution of justice to countenance processes, which ordinarily should not have come before him. It is becoming the norm for lawyers, not just the senior ones, to be shopping for judges in respect of matters they want to file, knowing full well that a matter falls within the Lagos State High Court jurisdiction or the sovereignty of Lagos State within the federation. There is what is called the sovereignty of one state in relation to the other.

In jurisprudence and legal practice, Lagos State Jurisdiction is sovereign to that of Oyo. That is why you have rules of court, talking of judicial division. That judicial division is within that state and not without the state. It is not in political matters alone, because I have experienced it. It is just that political matters are very sensitive. They do it everywhere – in commercial matters, in respect of the execution of judgment, going to familiar judges here and there. It is really scandalous. There is an old case of Nwoko V The state. Nwoko was that beautiful writer and publisher in the old Anambra State. He was charged with sedition. He was also based in Onitsha. The trial began in Onitsha, and suddenly, they moved the matter to Enugu. Enugu was the capital of the old Anambra State.

The court of appeal while dealing with the matter, castigated the judge, saying that every judge who wants to assume jurisdiction over any matter must go through the processes and get himself convinced whether the matter falls within his jurisdiction. Onitsha was in old Anambra State and is still in Anambra and Enugu was its capital, yet the court of appeal castigated that judge for assuming jurisdiction on a matter, which ordinarily, should have been heard within Onitsha Judicial Division. How much worse now, where we have a situation where a court in Jigawa will assume jurisdictions in matters arising from Anambra? It is negative. It paints the judiciary red. It is mind-boggling! I was involved in one recently and I couldn’t believe my ears. That a judge would assume jurisdiction in respect of primary election arising from APGA in Anambra State in Jigawa State. They will not even go to Dutse, which is the capital of the state; they would go to remote areas to obtain the order.

The Supreme Court has said that the judges and lawyers involved should be disciplined. So, we should not just stop as saying it is the senior lawyers. What about the judges? It is wrongly assumed that the Federal High Court has jurisdiction that covers the entire country. Federal High Court jurisdiction is located within the judicial division of the state where that Federal High Court is located.

You are saying that the assumption that the Federal High Court is one division is erroneous?
Yes, it is an error. A contract that is consummated in Lagos, you go to Bayelsa to litigate it, does it make sense? The parties are in Lagos, the business is in Lagos and you say that the Federal High Court is one division and go to Bayelsa to litigate it. Does it make sense at all?

If that be the case, why has this practice lingered up to this point?
Some of us in the practice of law have not learnt our lessons and are not fair to the profession and altruistic in our dealings. Even if we are not, the law is expected to be in the bosom of judges; the adjectival and procedural. Before you assume jurisdiction, read all the processes very well. Ask yourself the question – should this matter have come before me? Why are they bringing this matter to me? There is also what is called forum convenience in law. Forum convenience is determined by where the parties reside and where the cause of action arises. These things didn’t just start today. The Supreme Court has always been talking. In the case of Dalhatu V Turaki, the apex court queried why they brought a case from Jigawa to the Federal Capital Territory (FCT) High Court. The Supreme Court lamented, warned and used hard words against the judex that assumed jurisdiction over the matter. Some of these things are done ex-parte. Ex-parte injunctions are becoming albatross and Achilles heels of a sort over us in the legal profession. The late justice Babatunde Belgore, Chief judge of the Federal High Court, constituted a team and I was there. We considered it and come up with this novel idea that universally, the life of an ex-parte application shall be very short. In Britain where we borrowed our common law, it is not more than 14 days. So, taking a cue from that, we came to a resolution that we should retain ex-parte applications, except in exceptional cases, where judges can give extended time. That has always been the law, and even in those exceptional cases, whoever is affected shall come to court asking that the ex-parte order be set aside and if within 14 days that application is not taken, that ex-parte application automatically abates. To me as a lawyer and someone who was called to Bar since 1976, all these things are frightening and threaten the existence of our profession. The CJN must be commended but his intervention, most humbly, is not enough.

So, what is your suggestion?
My suggestion is that those who are involved should be disciplined. If a judge should sit in Jigawa, making an order in such a sensitive matter in Anambra State, I think that judge should be disciplined. Very soon, I hope we will not be going to Ghana to obtain ex-parte orders against Nigeria and Nigerians and against issues that have subject matters here.

Last year, ICPC gave a figure of N9.4 billion as bribe money that exchanged hands between lawyers and judges between 2018 to 2020. We saw DSS raid houses of some judges but there was no conviction. Is it due to the absence of corruption in that space, considering the recent raid on the home of Justice Mary Odili?

If the executive and legislature are not leaving up to expectation, the judiciary must maintain its sanity. The judiciary is the bulwark of our democracy, independence and sovereignty. So much power resides in the Judiciary. It is the judges that curb excesses and societal maladies. They are the umpire and an umpire must be independent-minded. We were not taught in Law School how to bribe judges. What we were taught is that you get the judex to your side through diligence, preparation and hard work. Woe betides any lawyer who engages in corruption and him who while discussing his fees with a client adds any percentage to be given to a judge. I have been involved, so I cannot speak for them. To the recent raid of Odili’s House, I am worried and also scared, because till now we don’t know who did it. And I also ask myself a question: can they do it to a governor or Senate president or speaker of the House of Representatives? No matter who you are, a fair hearing is so important. Up till now, nobody has owed up in respect of the siege on Justice Odili’s house. We should not address corruption by facing the camera but realistically with empirical evidence. They should charge lawyers and judges who have erred, as nobody is above the law. If you could manipulate the law to remove a CJN, use that same law to prosecute any judge who has been caught in bribery, corruption or scandalising the judiciary.

What is your thought on the agitations happening in the South-East and South-West with the demand for Biafra and Yoruba nations? What’s the best approach to resolving these agitations?
We should be honest with ourselves in this country. We have left what we ought to do and are doing what we ought not to do. Nigeria is manageable if we want to. We were proud of Nigeria then because she was operating true federalism. We grew up in a region where we believed that the sky was not the limit and was spoon-fed to understand that we were not inferior to anybody. We were raised in a region where the Federal Government did not come to interrupt its progress. The Federal Government then was not domineering because there was a constitution and if you look at the concurrent and legislative lists of those days, all the items in the list enabled Awolowo to do what he did. In the concurrent list of those days, there are arms and ammunition. We are not talking of military hardware, but arms and ammunition to enable any region to defend its citizenry and its territory unlike now. We have Amotekun and the governors cannot procure any military hardware for them. The list also had bankruptcy, insolvency and census. The Western region was capable of conducting census. What do we have in Nigeria today? All powers have been appropriated and expropriated by the Federal government. How did we get to this sorry state? There is no federalism that is run this way. What do we do? We have to return to true federalism. We usually talk about America. The U.S. Constitution was not put in place by politicians but by statesmen. When you look at the 10th amendment of their constitution, it provides that the powers not delegated to the United States by the Constitution nor prohibited by writ to the states are reserved to the States respectively or to the people. Federalism means that some states have been in existence before the centre and decide to come together shedding some of their powers to the centre, retaining residual powers to themselves and yielding powers in respect to currency, military, internal affairs and part of aviation, but today Federal Government is everywhere. Nigeria is the only country that I know that says that there is only one police force. When you look at the 1963 Constitution, regions, provinces and native authorities were permitted to have their own local formations. It says, “nothing in this Constitution shall prohibit the legislature of a region for making provision for the maintenance by any native or local government authority to establish for a province under the whole province or any part of a province of a police force for employment within that province.” Our people in power are not ready to listen to superior arguments. The National Assembly says it wants to amend the Constitution. When you want to amend a Constitution, what is the source of the Constitution you want to amend? Who were the authors? We know the authors of the U.S Constitution, even that of Afghanistan and so on. What does the preamble to our Constitution say? It says “we the people of Nigeria, having…” where did we gather? The preamble of a Constitution is so important because it gives the narrative and background on the reason we are together. That is what it is all about. The preamble is so consoling, so exciting and revives. Preamble tells stories and rekindles hope. It is also honest to itself. Go and look at the preamble to the present Constitution of Egypt. It talked about coups, countercoups and revolutions. The preamble to Albania’s Constitution says, “we the people of Albania, proud and aware of our history with responsibility for the future with faith in God and other universal values…” and it then spoke of centuries-old aspirations of the Albanian people for national identity and unity. That was how they came about their current Constitution, which was put in place on October 21, 1998. When you look at the Constitution of Argentina, the same thing. It says “we the representative of the Argentine nation gathered in the general constituent assembly.” Where did we gather? When you look at the Constitution of Brazil, it says “we the representative of the Brazilian people assembled in the national constituent assembly to institute a democratic state, for the purpose of ensuring the exercise of social and individual rights, liberty and security under the protection of God.” Look at all those preambles, why are we running away from the truth? Why is our own preamble telling a lie against itself? Who authored it?
We can’t get anything done through this National Assembly because they honestly can’t provide a constitution that would take us to the Promised Land. Whoever is the president of Nigeria under this constitution is the most powerful in the world in terms of personal raw power.

The National Assembly has argued, including some lawyers, that the constitution did not make provisions for the convocation of a national conference or to come up with an autochthonous Constitution, that it only made provision for amendment?
In law, when you amend, you can substitute. They don’t allow us to educate them. Nigeria needs an autochthonous constitution. Autochthony refers to the fact that a constitution is legally speaking, homegrown. This is what Nigeria needs, taking cognisance of the vagaries of our society so we can harmonise all our differences. Let’s face it because it is the bitter truth. My father was not born a Nigerian. Nigeria was born in 1914 and my father was born before 1914. Lugard constricted my father to be a Nigerian. The Yoruba nation had existed, ditto to Igbo, Hausa-Fulani, Tivs and others. Nigeria is not the father of the South West or any region at all. So, for Nigeria to assume a central role for all these regions, it has to be humble and calm. Everything in the nation has been unitarised, including tourism. So, that is the gospel we are preaching. Let us make an autochthonous Constitution that will make the citizens owe allegiance to Nigeria. Let’s not also deceive ourselves, when we were young, our allegiance to the country was contagious. Is it the same today? And people don’t want to face the truth. What is wrong with having this autochthonous Constitution? Are we not in this country when in 1960/61, the Supreme Court, per Ademola CJN, held that the Constitution represents a truly Federal Constitution in which all residual powers are vested in the regions? Why can’t we go back there? Can the Supreme Court of today say in true jurisprudential conscience that this Constitution represents truly a federal Constitution where all the residual powers are vested in the states? Even in my profession, everything about law and judiciary has been unitarised.

Do you think we need to reform the process of judicial appointments starting from magistrates. There was a time when a Chief Judge of Nigeria started a process where some senior lawyers were interviewed and slated for elevation to the Supreme Court and Court of Appeal. Will you say we should go back to that system?
Judiciary is so central to the success of any nation. Those who would judge us should be those who know more than us. We all agree in the legal profession that we have to look into the mode of appointment of judges of all cadres including magistrates. I belong to the school of thought that believes that the appointment to the bench should not be limited or restricted to people who are already on the bench. It is never done anywhere. I stand to be corrected. That is part of the problems we have in Nigeria. The judiciary should not be like any other. We are special and it is a special profession. In Britain for example, before you can be made a judge of a high court, you must have become a Queens Counsel. It is the condition precedent and the basic requirement. So, it not by accident you read about Lord Denning’s decisions and his books. It was after he took the silk that he became a judge. The constitution is clear on the requirements to become a judge of the high Court, justice of the Court of Appeal and that of the Supreme Court. For high court, it is 10 years post-call experience. When you talk about post-call, it means in active practice of law in my opinion. I might be wrong and selfish, but the fellow must be in active practice of law. For court of appeal, it is 15 years. The Constitution does not say “as an already sitting judge of a high Court.” But what do we have today? We don’t pick people from the Bar to the Court of Appeal and the Supreme Court. We won’t consider them today. The Constitution says “a person shall not be qualified to hold the office of chief justice of Nigeria or a justice of the Supreme Court unless he is qualified to practice as a legal practitioner in Nigeria and has been qualified for a period not less than 15 years.” But how do we interpret this clear provision of the Constitution? Legal practitioners are ostracised. They are not permitted to come to Court of Appeal, not to talk of the Supreme Court. To me, the apex court should be a potpourri of those who have been on the bench, whether high court or court of appeal and the Bar and the academics. It should be the melting pot and confluence of all of them so that the combination of these experiences will make them come out with profound and robust judgments and considerations of issues. I’m not saying those who are there are not doing well, but we can do better if we allow practising lawyers to come into the higher bench. And I still stand to be corrected, which country in the world does it the way we do? Not Britain, U.S and even Ghana! In fact, a justice of the Supreme Court of Ghana, who was the president of the Ghana Bar Association long after I left office as president of the NBA is now the number three in the Supreme Court bench of Ghana today. In Ghana, they are appointed in ratio between sitting judges, the Bar and the academia.

That is how it is everywhere. It is only in Nigeria that I know practising lawyers don’t get to the higher bench. And it wasn’t so at the beginning. Justices Elias, Nnamani, Ajegbo, Coker, Oputa and a good number of them were practising before their appointment into the higher bench. Who will tell me that Nnamani didn’t know what he was doing as a lawyer? Despite that he is dead, he is one of the best Nigeria has ever produced in Bench. The discrimination is not even against legal practitioners alone, there are good and brilliant judges at the High Court, who in the good old days, they will search for them and elevate them, but that can’t happen now. The Constitution doesn’t say you must be promoted, but that you must be appointed. But what we have today is promotion. Former CJN Musdapher instituted a panel. I was there. Some past presidents of the Bar were there. We came out with a blueprint. We came out with very beautiful ideas. But none has been implemented. When I was on the NJC, we persuaded ourselves that the time has come for legal practitioners, who merited being made senior advocates come straight to the Supreme Court, provided they could provide and submit all the qualifications to submit to become senior advocates. Some people buried it. They never allowed it. Oputa served as a Chief Judge in Imo State before he was appointed to the higher bench. Will they allow any brilliant chief judge of a state to be so appointed today? Kayode Eso was the Chief judge of Oyo state before he went to the Supreme Court. And so were Kawu and Craig for Kwara and Ogun states respectively. We change things without justification and nobody wants to listen. I want to commend the effort of the present CJN and at the same time plead that we should consider these salient issues begging for attention in our profession.

Do you have any regrets as you celebrate 70 years of existence?
I don’t. I thank God for my career. I have seen the legal profession as a ministry and have devoted my adult life to it and God has been kind to me. But for every sincere parent above 65 years in today’s Nigeria, there is a regret. It is not enough for you to be successful but you must think in terms of successors and when you get to a certain stage in life you realise that successors are not your immediate family but the generations following you constitute your successors. We didn’t encounter any difficulties climbing the ladder. When we left university opportunities were waiting for us but that’s not the same now. As a young lawyer, I had a vehicle because it wasn’t difficult to buy. The government and environment were conducive. I started practice in Ilorin and nobody discriminated against me. The regret is not because of my personal failure or that God has not been benevolent to me, but because of the way Nigeria is and I don’t want to be part of the deceit to say that all is well. Some Nigerians have asked me, including Attahiru Jega to join politics to bring positive changes we crave for. Honestly, I would have loved to join politics to demonstrate what I am saying but regrettable I can’t because I won’t last there.