‘There is need to create state appellate courts’ 

A Lagos-based legal practitioner, Ade Adedeji (SAN), in this interview with YETUNDE AYOBAMI OJO speaks about the Federal Government’s anti-corruption fight and the need to create state appellate courts among other topical issues.

How do you describe the Federal Government’s anti-corruption war?
I think the Federal Government policy on corruption should be applauded for so many reasons. We have reached the stage in this country where corruption has become so endemic that it is indeed an understatement to state that unless something is done about it, we cannot go anywhere. As a nation working hard to move to the next level of industrialization and to grow the economy generally, we surely must address the issue of corruption.

But lawyers often raise concerns about the manner the anti-graft war is being fought, especially the constitutionality of some of the actions of government?
We must address corruption in such a way that everybody is carried along. It must be done in such a way that the government that is leading the campaign must be at the forefront of carrying the whole nation along and essentially making the point that unless we all come together and fight this cancer, we cannot survive either in the short
run or in the long run. In doing that, however, one thing seems very clear to me: the government must do it constitutionally. It must do it in accordance with the law. We cannot fight corruption when we continue to disobey orders of court, we cannot fight corruption when the rule of law is grossly abused and we can’t fight corruption when indeed the people that are leading the fight are corrupt.

How do you mean?
Those leading the fight could be said to be corrupt when they grossly disobey orders of court. For instance, when they abuse the rule of law, in my view, it is in itself corruption. When things are not done in accordance with the law or the laid down rules, it can only amount to corruption. So, if you are going to lead the campaign, you must be seen as clean in every area, particularly those areas I mentioned.

How would you assess the body of lawyers’ reaction to instances where the rule of law have been trampled on by the government, do you think lawyers have reacted as they should?
It is most unfortunate that lawyers who used to lead the campaign on corruption have failed in our responsibility to actually lead the campaign against the excesses of government in those areas. A point of reference is, of course, the situation in Pakistan a few years ago. The lawyers’ association successfully resisted every abuse of the government to water down the powers and independence of the Judiciary in Pakistan and, of course, they are benefiting from that today. What do we have in Nigeria? We have in Nigeria presently, body of lawyers that has failed in its responsibility to protect the Judiciary, to protect the interest of the Constitution, the fundamental principle of separation of power and the rule of law. I had expected that lawyers would have stood up and play a vital role with respect to all that we witnessed in this country last few years. I believe that lawyers failed to perform that pivotal role to steer the course and to actually put the executive arm of government where it belongs at the time in history when they were actually required to do so.

Recently, Vice President Yemi Osinbajo offered to suspend his immunity and head to court following an allegation that he is involved in a $90billion campaign fund scandal. Some lawyers have said that the immunity is constitutionally imposed on him, so he cannot waive it. A few others said he could. What is your position on this?
Prof. Yemi Osinbajo has shown clearly to those of us who are watching from outside, the quality and integrity of a person in office that we all look forward to in this country. I am most impressed by the statement alone. It has proven beyond reasonable doubt that this is a man of integrity, that he is a man that could be trusted when all chips are down. We use him as a model of people that should be voted into office in this country. The reason for that is simple. It is very rare and unusual for us to have somebody of his status coming out to say he was ready and prepared to suspend his immunity if need be to be investigated. By merely saying that, he is also telling us that he doesn’t have anything hidden or shady about his conduct and performance in office as the vice president. Now, on the question of whether or not he can do that, I think there is a couple of Supreme Court decisions on whether or not he could waive the constitutional immunity and the verdict is to the effect that the president or the vice president, the governor or his deputy could waive or elect to suspend such immunity. I believe that he must have looked at all the ramifications before he came to that conclusion.

But I also believe that his adversaries, who for political reasons are making those allegations, would get the message that no matter how hard they try, they may be fighting a failed battle. That is my view on that issue. Prof. Osinbajo is a man of integrity and I believe when all chips are down, everybody will see that clearly and all the people drawing knives now will have themselves to blame.

Trial delay is a major problem in Nigerian judicial system. Cases often take years before being concluded. How do you think this can be addressed?
Cases are delayed in our courts for a lot of reasons, some of which are lawful. For instance, parties to an action must be served and in some cases, personally. Where the court is unable to serve a party personally, the rules of court require that a formal application shall be brought to request for an order of court for substituted service like pasting on last known address, etc. All these efforts take time and the issue relating to service is fundamental. It is a serious issue of procedure that things must be done properly and in accordance with the rules. Having said that, there is no doubt that there are so many instances of delay in proceedings that are unlawful and distasteful. Lagos Judicial Division, for instance, is the third jurisdiction in Africa with highest volume of actions instituted as at 2016 after Cairo and Johannesburg. It has a lot of cases that I believe are frivolous and therefore should not have even been there. I believe efforts at mediation and arbitration are beginning to address these issues. Of importance, however, is the abuse by litigants and counsel. It is therefore my argument that incessant or frequent review of our rules may really not work if we do not change our attitude and I think it is about time we considered awarding huge penalties against parties and counsel who deliberately involve in sharp practices to stall proceedings.

What is your take on the idea of establishing regional courts of appeal and supreme courts, the way it is done in some federalist societies, for instance America?
First, let me explain that this suggestion can only be appreciated within the context of the principle of federalism. We must first of all admit that we are confused and uncertain of what system of government we want or wish to run. If under the constitution, we claim to run a federalist system, then our judicial system is definitely unacceptable. Since it seems now politically incorrect to say that this view is a slice of the call for restructuring, I will simply say that the view simply echoes what a federalist society should be. It is only in Nigeria that the Supreme Court of a nation is open for business every day of the week and as we witnessed two months ago, all of the eminent justices, 17 in number, were ordered to forget their annual vacation to attend to among other things, frivolous appeals that ordinarily should not attract their attention.

Just 38 lawyers were sworn in as Senior Advocates of Nigeria (SANs) last month. Some lawyers feel that this number, as is usually the case, is too small considering the large number of applicants. They have suggested that all qualified applicants, irrespective of region or state of origin should be conferred with the title. In other words, there should be no quota system. Do you agree?
The rank of Senior Advocate of Nigeria is meant for lawyers who have distinguished themselves in advocacy and have excelled or contributed to the development of law and practice. I can confirm to you that our nation is blessed with lawyers in various fields, who have contributed to the growth and development of law and practice and deserving of recognition. I believe for instance, that there are solicitors, who deserve recognition, same for administrators and legislators. But these categories are not advocates statutorily qualified for such awards. Just maybe a different award should be created to recognise them for their excellence. With respect to advocates, I believe there are so many more advocates who daily prove their mettle in courtrooms, but are unknown due to their areas of practice. I believe we need to constantly reform our laws and rules to recognise otherwise brilliant lawyers in this category. I have some colleagues/contemporaries and many of us know them due to their industry and brilliance but unfortunately, may not be recognised because the rules provided to prequalify them do not allow them to come forward. If the nets are cast wide, I believe an elevation of 40 lawyers to the Inner Bar may even be more acceptable.

Former Chief Justice of Nigeria, Justice Walter Onnoghen proposed appointing senior lawyers straight to the Supreme Court? What is your view on this? Will it help to enrich the Bench if experienced lawyers are appointed directly to the Court of Appeal or apex court?
I will argue that an injection of eminent members of the Inner Bar will always add value to the quality of our decisions and that diversity is a good thing. I have listened to contrary arguments and I am inclined to support the view that career in the judiciary should not be jettisoned to achieve this objective. In the circumstance, I think we should encourage senior lawyers even before attaining silk and others from the academics to consider entering at the Court of Appeal level. I think the problem we currently have is that a Senior Advocate of Nigeria, having reached the pinnacle of his career is being considered an intruder in a judicial career that he never prepared for. We need to address these issues.

Following the exit of Justice Onnoghen, it has been suggested that the Code of Conduct Tribunal (CCT) is, unlike other courts, not really subject to the National Judicial Council’s authority. Some lawyers even consider it as a tool of the presidency. What is your view?
The Code of Conduct Tribunal, for all intents and purpose is an inferior court. Apart from lawyers, even the judicial officers in the course of proceedings, regarded themselves as something close to an appendage of the president. It is my view that considering the huge functions and responsibilities of that tribunal and in order to enhance its status, there is urgent need to appoint highly qualified and senior judicial officers to sit on the tribunal.

Many people have blamed much of the country’s problems on its supposedly faulty structure and constitution. They feel that the constitution should be amended to permit devolution of powers and resources from the federal to the states and local governments. Where do you stand on this debate?
Your question appears to touch on the need for restructuring or otherwise. My response is obvious if you consider my earlier response to the need to create state appellate courts. Nigeria, without a doubt, cannot continue to operate a unitary system under a constitution that is premised on a federal structure. It is a contradiction and it is bound to fail. In some instances, we do not need even to amend the constitution to achieve this purpose. Certain sections of the constitution should be challenged in court first and foremost. My view is supported by the Supreme Court decision in Lagos State Vs Federal Republic of Nigeria, where Lagos State actually challenged the Federal Government on certain clear provisions of the constitution giving them powers to create local government and won.

QUOTE
It is only in Nigeria that the Supreme Court of a nation is open for business every day of the week and as we witnessed two months ago, all
of the eminent justices, 17 in number, were ordered to forget their annual vacation to attend to among other things, frivolous appeals that ordinarily should not attract their attention

QUOTE
Those leading the fight could be said to be corrupt when they grossly disobey orders of court. For instance, when they abuse the rule of law, in my view, it is in itself corruption. When things are not done in accordance with the law or the laid down rules, it can only amount to corruption