THE COURT THE EYES OF THE STORM (1)

These are trying times for the courts the much acclaimed last hope of the common man. First was a most embarrassing face off between two of the nation’s most highly placed jurist, the Chief Justice of Nigeria, Justice A. Katsina-Alu CJN and the president of the Court of Appeal PCA over the elevation or otherwise of the PCA.

A dispute as to the propriety or otherwise of elevation a serving PCA to the Supreme Court soon developed a life of its own with the PCA not only rejecting the CREEK GIFT of the elevation but asserting that he was being ousted by the CJN from the Court of Appeal for the CJN’s STOOGES AND CRONIES. So certain justices of the Court of Appeal and STOOGES AND CRONIES OF THE CJN?

That is of course hardly surprising now that we know thanks to the PCA that 50 OUT OF 60 JUSTICE of the Court of Appeal cannot be TRUSTED with election cases. Particulars have not been supplied till date of this untrustworthiness? Is it that their lordships are corrupt or that they cannot be trusted to arrive at pre-determined decisions? This is a very serious allegation about the vast majority of justices of the nation’s second highest court!!!

However, most serious of all is the deposition on Oath that the CJN asked the PCA to compromise the Sokoto state gubernatorial election Tribunal. This is one allegation that must be investigated without prejudice to the present moves to make peace between the too warring jurists. Section 127 of our most maligned but still operative criminal code still makes it an offence for any one to compound a felony and we know the leading lights of our profession will not want to be party to any form of criminality. But beyond the issue of crass legalism is the integrity of our whole system of administration of justice whose continued claim to the citizen’s respect relies heavily on the truth or otherwise of this most damaging allegation against the nation’s number one judex by no less a personality than the PCA head of the nation’s second highest court. So there is no end in sight for this matter, re-conciliation or not.

TENURE ELONGATION

While the nation was still grapping with this most disturbing crisis in the nation’s judiciary yet another controversy emerged from the court again, this time in the form of a court decision which has the effect of elongating the tenure of governors whose mandate had earlier been nullified by election tribunals but who won re-run elections and as the popular view goes took a second oath of office. The Governors who specifically sought this order which Justice Adamu Bello of the Fedral High Court sitting in Abuja granted were Gov. Ibrahim Idris of Kogi, Gov. Murtala Nyako of Adamawa, Gov. Trimpreye Sylva of Bayelsa and Gov. Wammakko of Sokoto State.

It is instructive to note that all these governors are members of the nation’s ruling party, the Peoples Democratic Party, (PDP). This decision coming literally on the eve of the general elections is generating great uproar in the nation and practically every segment of society is affected by this decision and is either up in arms against the decision or is saluting the courage of the judge and praising the ruling as a victory for the rule of law. To the nation’s electoral body, the Independent National Electoral Commission (INEC) that has spent several billions of Naira to prepare for elections in about 30 or 31 states of the Federation, it is a most confusing judgement that it has vowed to appeal. To the political opponents of the said governors even within the same party, the judgement is bad to the extent that it scuttles their political ambition. For the opposition, this is yet another example of how the judiciary can be used to frustrate the course of democracy. Already there are insinuations of corruption against the judge. But as far as the PDP is concerned, a Daniel has finally come to judgment. For a long time judgement after judgment has always tended to favour the opposition now there is a decision benefiting the ruling party and the opposition is raging. Is rule of law only for the opposition? There is even some insinuations in recent times that some of the landmark decisions of the court have been influenced by considerations other those of justice and equity.

All of the above of course have no place in a strict legal discourse. Now to go back to the tenure elongation decision. In a consolidated suit brought by governors:- Ibrahim Idris of Kogi State, Muritala Nyako of Adamawa State, Liyel Imoke of Cross River State, Timpreye Sylva of Bayelsa State and Wammakko of Sokoto State, whose elections had been nullified of one point or the other by the election tribunal but had won the re-run elections in their states whereupon they took a second Oath of office had argued that the nullification of elections meant that all that transpired under their first Oaths of office was a nullity and that their terms of office started after their second Oath of office and that their 4 year term of office commenced from the second Oath of office.

They had argued that their cases fail under the situation in the Peter Obi’s case and the new amendment of Electoral Act and the constitution which had limited a governor’s tenure of 4 years to the first swearing irrespective of later nullification and re-run did not apply to them since the amendment could not apply retrospectively to their tenure having only been recently passed after they had won their re-runs and took a second Oath of Office.

In a judgement which remains shocking to a cross-section of the Nigeria society particularly lawyers. Justice Adamu Bello of the Federal High Court Abuja had been persuaded by these ingenious arguments and had granted these governors a 4 year tenure starting from their second Oath of Office, declaring the first swearing a nullity since it was nullified by the tribunal after all nothing can be built and be expected to stand. It must collapse. His lordship also held that the new Amendment did not apply to these governors as it could not apply retrospectively in accordance, with the trite presumption of law that a law could not apply retrospectively. The result of this decision is that there will be no gubernatorial elections in Sokoto, Adamawa, Cross River, Bayelsa and Kogi States.

The decision understandably has generated a lot of controversy, with INEC vowing to appeal because its election timetable has been thrown into chaos, others particularly the opposition whose political ambition has been truncated have also vowed to fight the ruling on appeal. Yet some have taken the political path of least resistance accusing the judge of partisanship, even corruption.

From a strictly legal view, the judgement might in fact be wrong as this columnist in fact believes but until the contrary in proved, is not suggestive of foul play or corruption. The point must in fact be made that a situation where unfavourable court decisions are attributed to extraneous considerations other than of judicial efforts leave much to be desired and portends great danger to the polity. As a time will come when Nigerians will begin to pick and choose what decisions to obey which is contrary to the foundations of our jurisprudence – all court decision are valid until set aside and must be obeyed whether favourable and convenient or otherwise.

The point must also made that it must be conceded that Justice Bello as a court of first instance has the right (you might even call it a constitutional right) to be wrong. That is why there is the appellate system to challenge faulty judgments. In one case, when a trial judge who noticed an error in his judgement sought to rectify the same by issuing and personally serving hearing notice of counsel to re-open the issue leading to his error. His attempt at infallibility as a trial judge was roundly deprecated by the Supreme Court. Bakare vs Apena (1987) 4 NWLR (pt 33)1.

So it must be conceded to all courts of first instance, that the judge is entitled to be sincerely or genuinely wrong. And the present situation where opponents read political coloration or corruption into unfavourable judgements must be discouraged.

Returning to the case at hand, while it is obvious that the learned trial judge relied heavily on the Peter Obi vs INEC (2007) 7 S.C 268 in extending the tenure of the 5 judgments, it is submitted that his lordship should have relied on the Ladoja vs INEC (2007) 7 S.C. 99 case where Gov. Ladoja was illegally ousted for 11 months but could not get an extension as the court firmly held that it has no jurisdiction to extend the governor’s tenure.

The case was decided by the same panel that decided the Peter Obi’s case on the same day. What is more, the Supreme Court clearly limited the application of the Peter Obi’s case by saying that “for the avoidance of any doubt, this judgment affects the governor of Anambra state alone” at page 319 (supra).

This column has repeatedly made this point but several scholars disagree and have been quick to apply Peter Obi’s case in several sates without seeking court interpretation such as in Ondo, Edo, Ekiti and Osun State. Well, they are right and this column is wrong, but then why are they now agitated that the reasoning has now been applied by a court to PDP states. What is good for the gander is no longer good for the goose? Or is the Peter Obi’s decision only for the “progressive states”?

Yet another aspect of the decision that is erroneous, is the second Oath of office reasoning. This is a very popular view but which is erroneous in the face of the decision in the Supreme Court case of Balonwu vs Governor of Anambra State (2009) 12 S.C. 31 where some Anambra state legislators heed sought to continue with Gov. Obi on his being sworn on the 17^th March 2006 when Chris Ngige was removed as governor. They had argued that a second proclamation by Gov. Obi the bonafide Governor was the valid proclamation that gave legality to their tenure and not the first proclamation issued by the ousted Chris Ngige. The Supreme Court said “no”, that the first proclamation by the ousted governor was the valid one under the doctrine of necessity and the second proclamation by bonafide Gov. Obi was mere surplus age. Had his lordship adverted his mind to this decision, his lordship would have not been swayed by the popular but erroneous second oath of office argument.

The result of the judgment which will allow persons to benefit from their wrongdoing should also have bothered his lordship, a politician wins a fraudulent election, which is eventually set aside, years into 4 year term and then wins the re-run, and he is now allowed to start a fresh 4 year term.

This is absurd and it is a trite principle of law that the law does not allow or recognize an absurdity. Lex non cogit ad absurdum. In fact the question that should be asked is, whether the Delta State Governor, Emmanuel Uduaghan almost three and half years into 4 year term, should not be given a fresh 4 year term. Thus spending seven and half years for a 4 year tenure based on his wrongdoing. Can any situation be more absurd?

Perhaps, it is for the danger inherent in the Peter Obi’s case that the late Chief Gani Fawehinmi SAN and Justice Uwaifo (retired) Justice of the Supreme Court did not share the general euphoria of the Peter Obi’s case even though they were roundly condemned by so called progressive scholars. Gani must be having a good laugh in his grave!!

The solution to the present problem is for the Attorney General of the Federaion, the Chief Law officer of the Federation to rise to this great occasion by eschewing partisanship and appeal as a party interested to the Court of Appeal under the constitution and raise a constitutional issue for reference under section 298 (1) of the 1999 constitution from the Court of Appeal to the Supreme Court and have the matter determined in a few weeks by the Supreme Court (excluding the CJN) as a matter of constitutional importance before the April elections. Gamioba vs Esezi II (1961) 1 ANLR 588 OLAWOYIN VS C.D.P (No2) (1961) ANLR 625 Bamaiyi vs A.G. Federation (2001) 7 S.C. (pt 1) 62.

This is not as difficult as it seems. What is crucial here is the political will to act can the AGF step up to the challenge? And if that is done, the argument of the late sage Gani, that the issue of tenure elongation is under section 285(1) of the constitution can only to be determined by an election tribunal should be raised for adjudication by the Supreme Court.

It is most desirable that these urgent steps be taken to stem the tide of chaos and anarchy which seem to loom over the nation as the 2011 General Election approaches.

A stitch in time will save not only nine but prevent the Federal Republic of Nigeria from going up in flames ala Tunisia, Egypt and Libya!!

Supreme Court Again to the Rescue: Tenure Elongation by Ademola Adewale

For what is literally the umpteenth time the Supreme Court has once again come to the rescue of a troubled nation with its recent decision on tenure elongation in 5 states in the Federation namely Bayelsa, Cross River, Adamawa, Kogi and Sokoto States.                       

The decision which pegged the tenure of State Governors at 4 years certain has sent shock waves to several sections of the nation the legal community inclusive. Although the point must be made that some of us are not at all surprised at the outcome of the case; this column has consistently canvassed the view, that on the authority of Ladoja V. INEC [2007] 7 S.C. 99 and Balonwu V. Gov. Anambra State [2009] 12 S.C. (Pt 1)31 the tenure of a Governor whose mandate was truncated for any reason but who subsequently was re-elected and re-instated could not be extended beyond the years provided in the constitution. This view was for a long time an unpopular minority view submerged by the din of the very popular Obi V. INEC [2007] 7 S.C. 268 which many legal scholars touted as being the Carte blance for extending the tenure of a Governor whose tenure is disrupted in any way. It was tenaciously argued that the period served before the disruption is a nullity at law, since nothing can be built on nothing. And the valid tenure only starts to run upon the second and valid Oath of office! This ingenious argument will be examined in greater detail in this essay.

The facts leading to this recent epochal decision, of the Supreme Court are that in almost identical situations, the Governors of the 5 states earlier mentioned, had their elections annulled several months into their tenure in office which situation led to a re-run elections which these Governors won overwhelmingly. As a result of which they were sworn in afresh as Governors. So the big question then arose when did the tenure commence and expire?

The camp of the 5 Governors and their supported argued that their former tenure in office became nullified by reason of tribunal/court judgments which nullified their election. Thus they argued that since nothing can be built on nothing, such a nullified period was nullity including the Oath of office. And that their terms of office - dejure (legally) as opposed defacto (factually) started to run when they were  sworn into office, the second time following their respective re-runs victories, So this was when the 4 year term started to run. For this submission the celebrated case of Peter Obi V. INEC [2007] 7 S.C. 268 was cited in support. This was the case where Dr. Chris Ngige was in the office of Governor of Anambra State for almost 3 years before his election was nullified and Peter Obi was declared the winner and subsequently sworn in. It was held interalia that Peter Obi's tenure started to run from when he was eventually sworn in as Governor and not the 29^th May 2003 when his tenure was deemed to have commenced. The opposition would have none of this tenure elongation argument. They submitted that the tenure of a Governor is 4 years certain from the period when his tenure is presumed to have started which is the 29^th May of every election year. They further argued that in the case of the 5 Governors, they cannot or should not be allowed to benefit from their own wrongs; these were Governors whose elections were tainted by electoral fraud and irregularity which led to the nullification of their initial elections. Thus to allow tenure elongation for them under any guise was simply unconscionable and against any form of decency. The second Oath of office argument was also debunked as being self-serving; as they argued that government was a continuum, and that the first Oath of office was the valid one, as there can be no vacuum in office of a governor, thus to all intents and purposes all the acts of the Governor at his first coming prior to nullification were valid. Reliance was placed on Balonwu V. Gov. of Anambra State (Supra) where the attempt of certain members of the Anambra State House of Assembly to extend their tenure on the basis that the first proclamation that was done by Gov. Ngige became a nullity upon the nullification of his mandate, and that their tenure validly commenced when the bonafide Governor Obi proclaimed the inauguration and that her tenure thus stated from the said proclamation which event had the potential of extending the tenure of the said legislators.  The Supreme Court flatly refused the submission particularly that based on the second swearing in ceremony holding interalia that the first proclamation by Ousted Gov. Ngige was valid for the 4 year legislative term and that the second proclamation was mere surplussage.

On the certainty of the 4 years term the celebrated case of Ladoja V. INEC (Supra) was cited and relied upon in the famous case the Supreme Court had refused the prayer of Governor Ladoja for the extension of his tenure by the 11 months he was illegally removed by a faulty impeachment process. The Supreme Court had said in very clear terms that no Court in Nigeria had the powers to extend the tenure of a sitting Governor.

This was the summary of the arguments canvassed for and against the 5 Governors at the Federal High Court, the Court of Appeal and the Supreme Court Tenure elongation found favour at both the Federal High Court and the Court of Appeal.   At the Supreme Court leading constitutional lawyers, Chief R.A. Akinjide SAN, Second Republic Attorney General of the Federation, the inimitable Chief G.O.K Ajayi SAN, and Prof. Itse Sagay SAN, renowned legal scholar and prolific writer were invited as Amici curaie assist the Court with their wealth of legal knowledge and learning. In line with the complexity of the occasion, the highly revered jurists were divided in their opinions on the issue of tenure elongation. Chief Akinjide SAN favoured tenure elongation for the 5 while both Chief Ajayi SAN and Prof Sagay SAN were strongly against any form of tenure elongation.

The controversy surrounding the case was further deepened when the Supreme Court did not deliver judgment on the dispute as scheduled but chose to adjourn the judgment indefinitely. The rumour mills were rife with all kinds of insinuations, legal and political permutations.  Some suggested that the Court could not come to a decision because sharp conflicting views, some uncharitable persons even claimed that the justices were being wooed by politicians to compromise their views. But in a unanimous 7man decision the Supreme Court put paid to all these rumours by sacking all 5 embattled Governors.

The decision as expected is sending shocking waves throughout the length and breadth of the country but certain issues remain unresolved.

·     Salaries and Emoluments earned while in office

A collateral debate has arisen in some quarters as to the need for the sacked Governors to refund salaries and emoluments earned while in office illegally.  This is a very ingenious argument but cannot succeed jurisprudentially: The Governors while in office had taken several decisions while in office; approved appropriation laws, inaugurated State House of Assemblies, signed various Bills into Laws, appointed commissioners, undertaken various projects, some might have issued Death warrants for those convicted of capital offences; will all these acts of the State be declared illegal merely because the Court has now held that the Governors were not legally in office at the material time? The answer is a big No. Thus while the Governors were not legally dejure in office at the material time, there were defacto (in fact) in office and so these acts are legally saved and ipso facto their earnings, salaries and other emoluments of office.

Conversely, if there first term in office is held to be invalid and thus a nullity, then their term of office will only start to run after they were sworn into office the second time and by which consideration they will still be in office until 4 years after the second Oath of office collecting salaries and emoluments.

I submit that the court faced with the difficult choice of nullifying the first Oath of office and tenure in office, while allowing the Governors to continue in office under the second oath of office and asking the Governors to refund monies for the ill-fated first period while still continuing in office; chose the option of cutting short the tenure of the embattled Governors even if the impression persists in certain quarters that the said Governors are "escaping with their loot"

·        Acting Governors and fresh elections

By virtue of section 191(2) of the 1999 constitution as amended; when a Governor and his Deputy vacate office in circumstances similar to which these Governors were removed, the Speaker of the concerned State House of Assembly is entitled to be sworn into act as Governor pending the holding of elections into the office of Governor. For 4 out of the 5 states, namely Adamawa/ Bayelsa, Cross Rivers and Sokoto States complying with these constitutional provision did not present much of a problem inspite of the reluctance of one or two of ousted Governors. However in Kogi State a unique situation played itself out. A few weeks to the celebrated judgment, fresh elections were held by the Independent National Electoral Commission, INEC into the office of Governor of Kogi State, at which election Captain Idris Wada emerged winner as Governor-Elect, Thus upon the aforesaid decision, Captain Wada made a claim to be sworn in as Governor, while the Speaker of Kogi State House of Assembly relying on the aforementioned provisions of the constitution also made a claim to be sworn in as Governor. The situation was further complicated by the actions of the States, Senior Judges. The Chief Judge of the State who was approached by Wada for swearing as Governor, declined citing constitutional provisions which make no provision for Governor-Elect upon this judicial rebuff, Wada promptly approached the President of Kogi State Customary Court of Appeal who immediately sworn him Wada as Governor. The Chief Judge perhaps to prevent what he considered as a Constitutional Harakiri quickly swore in the Speaker as the Acting Governor. Thus immediately after the aforesaid decision of the Supreme Court, there were two Governors in Kogi State, the State's Speaker of House of Assembly and the Governor-Elect, a situation which gave rise to much confusion.

However, INEC acted swiftly to check any descent to anarchy, by calling a Press Conference chaired by the INEC's helmsman himself Prof Attahiru Jega directing that Wada be immediately sworn in as Governor of Kogi State. Thus further confusion was averted. Yet all is far from being well in the 5 States even though INEC has announced election dates for 3 States and elections will in fact hold in Adamawa on the 4^th of February 2012. In Bayelsa elections may be shifted until further notice due to the sudden death of one of the contestants. In Cross Rivers State where elections have been slated for 25^th February 2012, the Action congress of Nigeria CAN, is already up in arms over what it calls the unholy haste of INEC to conduct elections into the office of Governor. The party is suggesting April 4 as the Ideal date for the election. The party has threatened to boycott, the scheduled election. Even in the other 4 States events are still unfolding and it might still be premature to make categorica! assertions.

·        The tenure of the Governors of Ekiti, Ondo, Osun and Edo States

What these Governors have in common is not that they were sworn in a second time but that some people stole their mandates and were wrongly declared winners by INEC and thus stayed in office for some time before the said Governors could retrieve their mandates. So the critical issue whether Peter Obi V. INEC is the applicable law or the decision in Ladoja V. INEC. This is a moot point but this writer pitches his tent with the latter decision until the Supreme Court decides otherwise.

INCIDENTS OF TRANSFER AND RE-ASSIGNMENT By Ademola Adewale

A few months ago, both the Lagos State High Court and the Federal High Court with particular reference to the Lagos Division were involved in the massive transfer of judges and re-assignment of cases.

These actions as could be expected resulted in a variety of situations some positive others not so positive, a mixed bag of convenience, inconvenience are even hardships. The first inconvenience experienced by counsel and litigants alike is locating the exact court room of the judges before whom there are appearing. This is in spite of the copious details of the new arrangement of court sittings as set out in a circular under the hand of the Chief Judge dated 16th March 2010. It has taken a few months and several weeks for lawyers to get the exact location of the judges before whom they are appearing. Even now it is still common place for a lawyer to ask another; where is Justice X Court now? Where does Justice Y now sit? Or for a litigant to ask where is Justice Z's court?

Next is the issue of actual transfer of cases, the convenience or hardship it has caused, where for instance a matter in the Lagos State High Court at TBS was part-heard and could not be concluded before the transfer took effect the parties and counsel who have had to drive from the Mainland to Lagos at every trial day are certainly pleased now that the matter is now at Ikeja. On the other hand, the inconvenience of having to travel to Ikorodu from Lagos Mainland for a case that was initially at Ikeja or worse still as in a case I am involved to travel to Badagry.

In respect of the Federal High Court Lagos, a Part heard criminal matter that was at the point of conclusion before final address has now been kept in abeyance by adjournment sine die awaiting the necessary directive from the Chief Judge of the Federal High Court for the conclusion of the case in Lagos since the trial judge has now been transferred to Abuja. Yet, the subject matter of the action is in Lagos, and none of the parties has any intention to travel to Abuja to conclude the matter.

In the meantime at both the Lagos State High Court and the Lagos Division of the Federal High Court scores of files and cases are yet to be re-assigned to specific courts more than 3 months after the massive transfer and re-assignment took effect. This is in spite of the spirited efforts of the administration arms of the judiciaries in question. All this contributes in no small measure to the delay in the administration of justice.

A related development even if in the lighter mood is how the transfer and re-assignment has exposed both counsel and litigants alike to the different approaches of different judges. A few true life examples will illustrate this point. In some of the courts some of the judges allow the particular counsel involved in the particular cases to sit in the inner Bar apparently for the purposes of making them speak audibly into the microphone for purposes of recording the proceedings. So imagine counsel who were used to this approach before the first judge who has now been transferred taking their place in the inner Bar to conduct their cases before the new judge only to get a sharp reprimand from the judge freshly assigned to the case who wondered aloud at the presumption of counsel who are not silk who take it upon themselves to sit in the inner Bar. Unfortunately his Lordship did not enquire from the Bar the reason behind this strange behaviour before forming an opinion.

In yet another instance where counsel sought to take his witness through the long drawn examination in chief the preference of the former judge in a court the newly assigned judge cut him short by directing counsel's mind to the provisions of the new rules on the conduct of examination in chief under order 32 of the 2004 Rules which consists of merely adopting witnesses deposition. Counsel's attempt to explain to his Lordship that he was merely trying to play safe by adopting the procedure preferred by the former judge merely irritated his Lordship who expressed the opinion that counsel will do well to familiarize himself with the rules rather than give unconvincing reasons for his incompetence. On other hand there have been instances of counsel who did not impress the new judges in certain courts by their insistence on following the new rules in the manner of the judges who formerly manned the courts. Their Lordship felt their approach was lazy. Indicating their preference for the rigorous old fashioned examination in chief. Interesting studies in contrast!.

The different peculiarities of each judge also provides interesting studies of human character; the patient judge, the not so patient judge, the stickler for the rules and procedure, the 9 O'clock judge, the flexible Judge etc. Still talking about different approaches, while some judges allow any counsel even litigant to remain in their court rooms during pre-trial even if they are not directly involved in the pre-trial conference so long as they do not disturb the court session, yet others insist only parties and the counsel directly involved in the pre-trial Conference to remain in court. Then it is also obvious that some judges are still settling down in their new divisions that is their new administrative divisions; Revenue, General Civil, Family and Probate, Land, Criminal etc. But in accordance with their status as repository of law and procedure; they are adjusting very fast as we the counsel who are appearing before them. After all as an old relation was wont to say no one brought anything from Heaven we all learnt things here on earth.

On the whole in spite of the expected hiccups the process of massive transfer of judges and re-assignment of cases has been by and large effective with all the various stake holders involved, the court and judges, lawyers and litigants alike making the necessary adjustments and it is hoped that by the time we all resume from the annual vacation all the noticeable bottlenecks would have eased off and the system would start to work much more smoothly again.

However, it has been suggested in some quarters that to lessen the normal problems associated with such a serious exercise in future the exercise should be carried out towards the end of the legal year in early July to take effect on the resumption of a new legal year late August and early September perhaps the relevant authorities will look closely at this proposal for such exercise in the future.

APPOINTMENT OF JUDGES: MATTERS ARISING By Ademola Adewale

The recently publicized list of nominations for appointment as judges to the Lagos High Court is already attracting public debate and criticism. That is to be expected. The judiciary as the last hope of the common man must necessarily attract the attention of all sections of the society who are per force stakeholders in the administration of justice thus have both a stake and a say in the men and women appointed to preside over the affairs and disputes of others. Accordingly, the concerned authorities, the Governor, Chief Judge, State-Judicial commission, House of Assembly and indeed the potential judges must take all the comments and criticisms in their stride and in good faith. The situation cannot be otherwise particularly in a mega city/state like Lagos, the nation's commercial capital.

Some of the most pungent criticisms are:
• The list of Nominees standing presently at 28 names is too long and unwieldy.

• By far too many interests are represented on the list, the Magistracy, the official Bar, the party (Action Congress), the Eleko (Oba of Lagos), Ikorodu Oga, Awori; Badagry (Egun) and several other interests.

• Too many women Nominees.

• The list is tilted against private legal practitioners and court going public officers in favour of bureaucratic lawyers and technocrats.

• The presence on the list of a few nominees with disciplinary records.

• If the numbering of the list is anything to go by, then the positioning of nominees is very questionable.

• The absence of consultation with the local branches of the Nigeria Bar Association (NBA) before the list of Nominees was announced.

How much of these criticisms is justified?

The best approach to start the discussion of this very important topic in which all of us, whether as lawyers, judges, administrators and even ordinary citizens are all stakeholders is to look at the mode of appointment of judges.

IN THE PAST
From my modest studies of Autobiographies. Biographies, memoires and even valedictory speeches of retired judges the common thread that ran through the testimonies of these retired judges is that they were nominated for judicial appointment by Chief Justices/Judges and other senior judges who had watched and observed their conduct in and out' of the court room over time and consulted with other judges and sometimes the leadership of the local bar about the suitability of a particular lawyer for appointment as a judge. Even those from the official Bar were more or less subjected to the same scrutiny. It was not merely a matter of seniority in status of rank that determined suitability for appointment so a Director who did not pull his weight or was altogether unsuitable as a judge could be by passed for a promising Deputy. The lawyers of those days had very little to do with their nomination and appointment as judges. In fact from many of the accounts I read there was always this great feeling of surprise and even trepidation when a lawyer who has never attended a judge in chambers except to move ex-parte applications is informed by a court registrar that the Chief Judge or Administrative Judge will like to see him: what have I done wrong? Did I say anything harsh in Justice Integrity's court? Or is the content of my pleadings or affidavit contemptuous of court etc. Only to be told by the judge that his name has been nominated for appointment to the Bench.

The above informal approach seemed to have worked wonders all the same going by the remarkable achievements of our judges of the days of old v/ho were highly regarded in all parts of the common Law jurisdiction. The above approach accords with the practice in the UK According to .Dame Elizabeth Lane Q.C- First Female English High Court Judge in her Autobiography - Hear the other side- Audi Alterem Partem. "The message was that I was to go to the House of Lords at 2 0' clock that afternoon as the Lord Chancellor (then Lord Gardiner) wished, to see me. My heart stopped beating what could I have done in the county court which could possibly merit a rebuke from the Lord Chancellor himself? Well, perhaps I had been a bit too sharp with that solicitor and an order I had made was perhaps some what unorthodox, but I was sure that I had done nothing which would deserve dismissal. Justice Lane picks up the narrative later "After a few minutes, in which I had not been given the slightest hint of what was to come. I was shown in to the Lord Chancellor. He was very agreeable and then said he wished to appoint me a High Court Judge assigned to the Probate, Divorce and Admiralty Division. I was stunned, so much so that, to my shame, I had to ask him to repeat what he had said".

As in everything else the American experience is completely different from ours and from that of other common law jurisdictions. The appointment of the (State) County Court Judge and (Federal) District Court Judge varies from state to state. In some states, the appointing authorities can nominate any lawyer directly to Bench either from the academia, legal practice even Corporate in-House Counsel while in some others lawyers actually contest elections to be appointed as Judges. Imagine lawyers printing manifestoes and soliciting for votes to sit on the Bench!!! The appointment to the United States Supreme Court,, which the
Americans call, the U.S. High Court is however more grueling as the Presidential Nominees must face rigorous congressional drilling as in the case of Justice Clarence Thomas and his antagonist Prof (Ms) Anita Ward. Justice Clarence barely got true, while many have been known to fail this grueling Senatorial hearings and their nominations turned down.

However, even this has its downward side as a Judge called Associate Justice apart from the U.S. Chief Justice gets appointed to the United States by virtue of his political leaning. Therefore a listing of the United States Supreme Court Justices from 1789 till date will tell you at a glance the political leaning of a judge. Imagine seeing Ademola Adewale JSC (PDP) and Adesina Ogunlana JSC (A.C)!! (I am not a card carrying member of any registered political party neither do I know Ogunlana to belong to any). Apart from academic interest, it is obvious that the American example is not at all relevant to us in Nigeria.

To return to our theme about the appointment of judges; it is a fact that the old method of appointing judges has since been discarded no thanks to a variety of reasons.

First is the issue of interest groups. Unlike in the past when merit alone was the key factor in the appointment of judges, nowadays merit has to be balanced with other socio-political considerations. These factors which are part of the intractable national question entail that various interest groups in society are represented at all levels of government and administration including the judiciary so as to give everyone a sense of belonging. Thus, where any group appears left out the cry, of marginalization- that is cry of exclusion rents the air. Even the nation's constitution recognizes this by the provision of the highly contentions federal character in Section 14(3) of the 1999 Constitution - the policy which also goes by other names such as Quota System, Zoning and Rotation has been the source of much controversy in the land. In direct relation to the appointment of judges Lagos State presents a peculiar case, because of its status as the former capital of the nation and its cosmopolitan nature it is home to all Nigerians particulars indigenes of neighbouring states most especially Ogun State. Many of these classes of Lagosians, unlike indigenous Lagosians have the unique privilege of wearing two caps, where necessary: The cap of Lagos State, and at other times the Cap of their indigenous states. This dual citizenship is not available to the indigenous Lagosian who has Lagos and Lagos alone his state of origin.

To complete matters, the several sub-ethnic groups in Lagos, the Isale-Eko, Brazilian/Sieria-Leone descendants, Aworis, Ikorodu, the Epes and Eguns (Badagry) naturally expect to be accommodated in the key areas of public life including the judiciary.

Now that appointment to the higher Bench is as comfortable as it is competitive, the level of competition for the High Court Bench is better imagined. The challenge is to balance these various interests with the need to ensure only the best sit on the High Court Bench to dispense justice.

To further compound the problem these are the days of partisan politics, when the interest of party faithfuls cannot be swept aside with a wave of the hand.

PRIVATE V OFFICIAL BAR RIVALRY
For as long as any one can remember there is always a keen but healthy rivalry of members of the official Bar from the Ministry of Justice, Government Departments and Agencies and Magistracy on one hand and private legal practitioners on the other. But in recent times perhaps due to the advent of partisan politics when the party in power automatically controls the personnel of the official Bar, the balance if heavily tilted in favour of the official Bar and the present list of 19 members of official Bar to 9 legal practitioners constitutes almost proof beyond reasonable doubt of this unhealthy tendency.

THE BATTLE OF THE SEXES:
Ordinarily in Lagos as in all parts of South-Western Nigeria, the women have always competed shoulder to shoulder with the men in all areas of life. And from historical even pre-colonial times till present day Lagos women have boasted of as much distinctions as the men. Remember the Madam Efunseke Tinubu, Lady Oyinkan Abayomi, Dr. Abimbola Awoliyi and more relevant to our discourse, Stella Marke, First Lady Magistrate, Justice Omo Eboh First Lady Judge, Prof Jadesola Akande, Mrs. Hairat Balogun, Justice Roseline Omotosho, several Judges serving and retired including the present Chief Judge Justice I. E. Akande, Mrs. Funke Adekoya SAN, Mrs. Ayo Obe and numerous legal practitioners. The ability of our women for even the highest judicial posts in the land has never been in doubt. But at all times the competition with the men has been on equal footing, a list of 19 female nominees to 9 male nominees is anything but equal.

Also suspect is the numbering of nominees: Unless of course the numbering is random. In which case those down on the list are at a disadvantage since the relevant agencies may conveniently focus on those listed above at the expense of those below for the few available sits on the Bench.

On the other hand, if the numbering reflects the official rating or ranking of the nominees, it is with due respect a most questionable and disturbing list. A classic illustration is Mr. Christopher Ayodeji Balogun as No 19 on the list.

A seasoned legal practitioner with excellent pedigree, I dare to say even unguardedly and without solicitation that Mr. Balogun has all it takes to be elevated to the highly coveted rank of SAN. There is no basis whatsoever, for Mr. Balogun to rank lower than No. 3 in any well drawn up list of nominees for judicial appointment not only in Lagos State but any part of Nigeria.

Equally disturbing is the presence on the list of lawyers with disciplinary records some. of whose matters are yet to be disposed off.

The final query in respect of the list of nominees is the noticeable attitude on the part of the relevant authorities not to consult deeply with the local branches of the NBA before purporting to draw up a list of judicial nominees. This is even more disturbing in the face of the resolution at the last Annual Bar Conference Lagos in August, 2009, that the NBA. has to be closely involved in the appointment of judges even with the right to nominate people though the relevant authorities have the final say on who becomes a judge.

CONCLUSION:
It is obvious that the appointment of judges in Lagos State is a very serious affair but with the required sense of responsibility, a credible and transparent approach can still be fashioned out for the appointment of judges in Lagos State that will maintain the delicate balance between ensuring merit and accommodating the various interests .in the state. But the recently published list of 28 nominees is very far from the ideal. It should be completely discarded and a new one drawn up after due consultations.

QUARE:
In the lighter mood, now that the process of nominating .judges is faulty, do we abolish the institution of judges, as some have advocated in respect of the rank of SAN?

OKAFOR V NWEKE AFFIRMED ONCE AGAIN By Ademola A. Adewale Esq.

Ever since the Supreme Court decision in Okafor v Nweke (2007) 3SC (pt 11)55 legal tongues have been wagging, both literally and figuratively about the jurisprudential value of the case. Some scholars have argued that the decision is faulty because of the harshness of the decision. For instance since the decision case after case have been struck out because the court processes were prepared in the firm's name. Cases that have almost been concluded are struck out or dismissed because a party that had consented all along to the procedure suddenly realizes that the court processes were initiated in the firm's name and should thus be dismissed. Appeals at various stages are dismissed not because the appeals are unmeritorious but because at the judgment stage, after briefs have been filed and the appeal argued, the court all of a sudden realizes that the appeal was initiated by a Notice of Appeal filed in the firm's name. in all of these instances the merits otherwise of the cases or appeal count for nothing, neither the amount of legal work that has been done before it dawned on the court or one of the parties that the case was initiated by a court process singed by a firm and not a legal practitioner enrolled at the supreme court.

The litany of judicial woes that have arisen as a result of the supreme court decision in the Okafor vs. Nweke's case have made many scholars to conclude that the decision was arrived at per incuriam without the consideration of other relevant statutes and decisions. Some lawyers in fact argue that all Equities of the case were not argued that is earlier decisions relevant to the case were not brought to the attention of the court. In this vein these legal pundits point out that earlier decision of the Supreme Court in Cole vs. Martins (1968) All NLR 161, where in a similar situation, a court process filed in the name of Lardner & CO. was held properly filed Mr. H. A. Lardner a legal practitioner who was duly enrolled at the Supreme Court who had registered his business enterprise under the existing laws of the time.

Similarly there was the case of Registered Trustees of Apostolic Church Lagos Archdiocese v Akindele (1967) NMLR 263 at 265, where the offending process had been filed in the name of J. A. Cole & CO., a firm registered by Mr. J.A Cole a legal practitioner duly enrolled at the Supreme Court. The court had held that it will not be prevented from such a procedural issue from determining the merits of the case.

Thus in the face of hardship being occasioned by several litigants as a result of the decision in Okafor v Nweke's Case (Supra) where the Notice of Cross Appeal and motion for extension of time to cross-appeal were filed in the name of J.H.C. Okolo (SAN) & Co. was held to be incompetent and struck out because the name JHC Okolo (SAN) 8s Co. was not a person or name enrolled as a Solicitor & Advocate at the Supreme Court on the roll of lawyers in accordance with sections 2(1) and 24 of the Legal practitioners Act, it has been strongly argued that had the cases of Cole vs Martins (Supra) and Registered Trustees of Apostolic Church vs Akindele (Supra) been cited to the court in the Okafor vs Newke's case the decision would have been otherwise. Based on this line of reasoning this legal scholars argue that the Okafor vs Nweke's case should be seen as an isolated departure from the norm and that filing of a court process in a firm's name should be been as a mere irregularity and not a fundamental defect.

However, the full imports of filing a court process in a firm's name has now been put to rest in the recent Supreme Court case of Ogundele vs Agiri (2009) 12 S. C. (Pt 1) 135 (a), 165 1166 in the said case in relation to a brief filed in the name of Ajibola & Co. the Supreme Court had this to say "Before the reservation of the judgment. I had drawn the attention of Mr. Ajibola off record to the fact that their Brief was faulty in that it was signed by "Ajibola & Co" and there is was no evidence that it is a firm duly registered as such. He did not respond to my observation. Even recently in the case of Okafor & Ors vs Nweke & Ors (2007) 3 SC (pt 11) 55, (2007). All FWLR (Pt 368) 1016, this court per Onnoghen JSC dealt with this issue of fact. A partnership or firm, unless duly registered as such, with respect, is not a legal practitioner recognized by law or a person entitled to practice as a barrister and solicitor. See also sections 2(1) and 24 of the Legal Practitioners Act. Cap 207 LFN. See the cases of The Registered Trustees of Apostolic Church Lagos Archdiocese vs. Rahman Akindele (1967). NMLR 263 @ 265, First Bank of Nigeria Pic & Rankassa Enterprises Ltd vs. Alhaji Sulmanu Maidawa dated 27th March 2002 at pages 13 8s 14 - per Mangaji JCA (of Blessed memory) unreported my concurring judgments contributions in Suit No CA/J/234/2000-Major General Musa Bamaiyi (rtd) vs. Danladi A. S. Garila dated 9th December, 2004 (unreported) and CA/J/241/2001- Dominic Nwani v Bakari 85 Anor, also dated 9th December, 2004 (unreported) If learned Counsel who appear before this court, persist in this practice of signing court process in this court as & co, without evidence of being duly registered as such, it may be obliged to disrega rd or discountenance, such process including briefs. Such signing in my respectful but firm view, is NOT an irregularity as held by the court of Appeal per Alagoa JCA, in the case of Unity Bank Plc vs. Oluwafemi (2007) ALL FWLR (Pt 382) 1923 relying on the case of or decision in Cole vs. Martins (1968) ALL NLR 161 (Lardner's case). It is a fundamental error". (Emphasis mine).

The above view of the Supreme Court puts the defective nature of signing or preparing court processes in a firm's name of & Co beyond any dispute. However one aspect of the case that is commendable and worthy of emulation is the dictum that "However, in the interest of the litigants. I will go on for the last time with the merits of this Appeal". This approach of the Supreme Court to do justice to a case in spite of the error of counsel in not properly endorsing a court process shows clearly the court's disposition to place substantial justice above legal technicalities in line with a long line of decided cases.

Uba v Nwora (1978) 11-12 SCI.
Nishizawa v Jethwani (1984) 12 S.C. 234
Nneji v Chukwu (1988) 3 NWLR (pt 81) 184
UTC v Pamotei (1989) 2 NWLR (Pt 103) 244.

Beyond the prmciple of Stare decis embedded in the Supreme Court affirming its earlier decision in Okafor v Nweke what I consider the crux of the recent Ogundele v Agiri's decision is the overriding desire to do justice. It is my humble submission that while Okafor v Nweke remains good law judges ought to reserve the discretion to do substantial justice in matters before them based on the facts even where it appears that the rule in Okafor v Nweke has been breached.

The desire to see justice triumphant and law prostrate must the creed of the court at all times.

LAW AS A FIRST OR POST GRADUATE DECREE By Ademola Adewale

LAW AS A FIRST OR POST GRADUATE DECREE

At a recent book launch in honour of eminent jurist and Chairman of the Independent Corrupt Practices Commission ICPC, Justice Emmanuel Olayinka Ayoola, retired Justice of the Supreme Court of Nigeria, foremost lawyer Chief Ate Babalola SAN, re-opened by way of a passing remark an old and lively debate within the legal profession, that is whether or not the law Degree should be taken as a first or a second, that is Post Graduate Degree.

In reviewing the book dedicated to Justice E. O. Ayoola as a Jurist of integrity. Chief Ate Babalola SAN had commented on the fact that Justice Ayoola had first taken a degree in the liberal Arts from Oxford University before proceeding to read law, in which latter discipline he had distinguished himself rising to the pinnacle of the judiciary as a judge of the Supreme Court-Chief Babalola SAN, then proceeded further to make the point that a background in either the liberal Arts or other disciplines was a sine qua non to a successful career in the legal profession and that based on that personal conviction, when its newly licensed University, the Ate Babalola University takes off, only graduates will be admitted to read law in the said University. This effectively indicates the learned silk's position on this age-long debate as to whether the law Degree should be a first or post graduate Degree course in Nigeria.

Without any attempts at an Ad Hominen broadside, I respectfully submit that the learned silk's position is understandable, he himself having first undertaken a Degree in economics before studying law, so quite naturally he is influenced by his background, just as I am willing to concede that yours sincerely having read law as my first degree have never appreciated the clamour for law to be made a post graduate degree.

However, beyond personal preferences, this is one issue that need to be looked at critically and objectively, before coming to a well informed conclusion, moreso when the future of the legal profession depends on how this critical matter is resolved.

Let me start my commentary by a comparative analysis of two sets of Nigeria's great lawyers and judges, those who read law as a first Degree whether or not they possessed post graduate qualification in law on one hand and on the other those who read law as a second Degree whether or not they proceeded to obtain post graduate degrees in law. Permit me to call the former Class A and the latter class B.

CLASS A
1. Chief F.R. A. Williams SAN
2. Mr. Fawehinmi SAN
3. Mr. Kehinde Sofola SAN
4. Chief Richard Akinjide SAN
5. Chief Olisa Chukwurah SAN
6. Chief G. O. K. Ajayi SAN
7. Justice C. Idigbe
8. Mr. Alao Aka-Basom
9. Chief Debo Akande SAN
10. Justice Kayode Eso

CLASS B
1. Dr. Taslim Elias
2. Justice B. 0. Akpata
3. Justice B. 0. Ayoola
4. Mr. Fidelis Nwadialo SAN
5. Chief Obafemi Awolowo SAN
6. Mrs. Folake Solanke SAN
7. Chief Ate Babalola SAN
8. Chief Bolalge SAN
9. Justice C. A. Oputa
10. Justice M. A. Odesanya

*Chief F. R. A. Williams SAN and Justice Kayode Eso may not be perfect examples, as their law Degrees from Cambridge and Trinity College, Dublin respectively, were specialized Degrees that combined both law and liberal Arts, such as LL.B, BA or LL.B, MA.

Still talking comparative analysis, it has been the practice in the United Stages for over a century for Saw to be studied as a Post Graduate discipline, while in England it is not so even till date, so the Americans have had Oliver Wendell llolnnes, Cardozo, Warren, Burger, and the British have had their Dennings, Diplock, Devlings and Hailsham as great Judges.

The question is from the Nigerian illustration and the British/American comparison, which is the better approach, law as a First Degree as obtains in Britain and Nigeria, or law as post Graduate Discipline as obtains in the USA and which of the Class A or Class B lawyers is better. Well, one man's opinion is as good as the other.

Yet another issue that is related to the topic is the question of maturity. It has been said in several quarters that making law a second or post Graduate Degree ensures the maturity of lawyers. The major problem with this reasoning is that no empirical study or data has ever been adduced to show that there is any advantage to be gained from admitting persons to the Bar at a relatively advanced age over admitting persons in their early 20's to the Bar. Neittier has empirical evidence been adduced to show that there is an ideal age bracket for persons to called to the Bar.

In fact from all available evidence a diligent person can succeed irrespective of what age, he is called to the Bar: Chief F. R. A Williams was admitted to the Bar in his early twenties, he succeeded greatly at the Bar, Ditto Chief Remi Fanis Kayode, Chief Awolowwo was in his late 30's he was also a resounding success. Most lawyers get called to the Bar somewhere between their early 20's and 30's yet succeed at the Bar. The point being made here is that the age at which a person is called to the Bar has no relevance to his potential to succeed. Thus, where the issue of a law Degree as a post Graduate discipline is tied to the prospect of enrolling matured persons, at the bar, no cogent and compelling factual evidence has ever been adduced to support this view.

One interesting view point is that the essence of law being made a postgraduate discipline is that by the time a person is admitted to read law, he already has a background in another discipline preferably the liberal Arts which makes the would-be lawyer broad minded and well suited for the learned profession. This is indeed a valid point. However, it is submitted that this presumed advantage is exaggerated, the factual reality is that it is impossible for anyone to make a successful career at the bar and by extension the bench simply on a diet of legalese, that is the law and law alone. A truly legal mind must be grounded in literature, history, the social sciences such as politics, economics, even religion (without being a Fanatic or extremist). And in this age of the computer and the internet, a good grasp of the basic sciences in addition to the analytical and critical approach of science are very vital for making a truly learned mind. And I dare say as a second generation lawyer with almost 25 years of my own personal experience at the bar, most lawyers I have come across be they young and old qualify to be rated as intellectuals n may fields of life particularly in the Humanities. Thus, the emphasis on the possession of a first degree before studying law is with due respect neither here nor there.

Admittedly at the heart of this debate is the concern over perceived fallen standards particularly from new entrants into the profession. The legal profession at least in the last 30 years from the time of the 2ND republic has remained a profession of choice, with practically every other professional in the Humanities and social sciences adding the legal qualification to his resume. Thus bankers, accountants, stockbrokers, corporate gurus are not done with education until they have added the LL.B, B.L to their C. V.'s. The situation is even more graphic under a civilian dispensation as at the present time, retired generals and retired civil servants are not left out of fray. They all want to be known as lawyers particularly when they have political ambitions, so there is a great demand in society for legal qualification.

On the side of the authorities, the measures put in place to ensure quality control is far from ideal, yes the Nigerian University Commission NUC and the Council of legal Education appear to be making efforts to ensure quality control but efforts are often checkmated by the Universities with respect, it is submitted that there are by far too many Universities offering law as a degree programme. To make matters worse these schools do not keep within the quota allocated them by the Council of Legal Education. With the result that the law school is constantly faced with a backlog of qualified students ready to undertake the one year vocational training at the law school. In fairness to the Nigerian Law School and the Council of Legal Education they constantly wield the big stick- withdrawing through the Nigerian University Commission NUC, the accreditation of those schools that exceed their admission quota. But as is usual wish such actions, it is the hapless students that suffer when punitive measures are taken.
However, beyond all this the parameters by which students are admitted to read law even in those Universities that pass both the NUC and CLE accreditation test, unlike in the past when admission to read law was very competitive in the Universities that offered the programme. In some Universities in the past only good A-level passes in 3 Arts Courses were good enough to read law, on the average persons who had less than 10 points could not secure admission to read law, in fact in some years as much as 12 points were required. Even those Universities who admitted through the Joint Matriculation Exam JME, its was standard practice to insist that only candidates with at least 280 points in the JME combined with 5 credit passes at the West African School Certificate Exam WASCE or GCE 0-Level at one sitting were good enough for admission to read law. These days the GCE A-Level or Higher School Certificate HSC Certificate has been dispensed with in all our Universities and even now that admission is entirely through the JME it is not unusual for candidates who scored 200, 210 and 220 which is barely over 50% to be admitted to read law on the basis that those were the highest scores nationally. The big question is must candidates be admitted to read law annually even when they do not meet certain basic academic standards can a certain bench mark not be set say 240 marks an average of 60% in JME below which no students will be admitted to read law in any year no matter how low the general scores. And those marks may be reviewed upward depending on the general scores.

Yet another source of concern is the high number of people admitted to read law not strictly on merit but extraneous considerations such as federal character, quota system, catchment area, vice chancellors list, dean's list, Head of Department's list.

This enthronement of mediocrity through these considerations have had a negative impact on the profession; lawyers who cannot express themselves in simple and correct English and find the simplest of motions difficult to move or argue, lawyers who cannot easily follow proceedings in court not to talk of recording same accurately for either their personal use or that of their principal, lawyers who cannot coherently articulate their view point on any legal issue or an other topical issue of the time for that matter. It is these scenarios that ignited once again the debate as to whether law should be a first degree or postgraduate degree course.

Speaking for myself based on my comparative analysis earlier Nigerian lawyers and judges, and English/American Juristic no evidence has been shown that those who studied law as a post graduate degree are inherently better than those who did law as a first Degree. It is personal devotion and diligence of each lawyer that makes the difference at the end of the day.

Furthermore, for certain socio- economic reasons law should remain a First Degree discipline in Nigeria. To start with mote than 60% of the populace live below the poverty level, and to expect that the average Nigerian family to fund a child/ward through 10-11 years of tertiary education to produce a single lawyer is a most onerous burden on the Nigerian society. Even now that law is essentially a first degree programme it is almost daily becoming a very elitist profession. Tuition fees at the law school is N250,000.00 in addition to the compulsory laptop for each student. Thus on the average it wilt take between N750,000.00 - N 1 million to train a single student through the one year law school programme. This cost does not take into account the expense for the degree programme which is now 5 years in most Universities.

In a country where scholarships are almost impossible to come by even for brilliant students and where education is not subsidized at any level particularly at the University level, how will brilliant but indigent students get the opportunity to become lawyers. As for the riposte that the legal profession is not for the poor and indigent, that cannot be a remark worthy of serious thought in Nigeria irrespective of its validity elsewhere. How many of our present day legal luminaries came from privileged homes?

Suggestions
However, as a senior lawyer and stakeholder in the legal profession, I share the concern of other stakeholders that the present situation of legal education in Nigeria leaves much to be desired and certain changes need to be urgently taken to address the situation and ensure that only the best materials are admitted to need law. My own personal suggestions are:

a. The need to revisit the educational system to reintroduce the HSC/GCE A Level for University admissions for schools that so desire to admit through the said programme.

b. For schools that wish to continue to admit through the JME, the NUC/CLE should insist on a high cut-off mark below which no law faculty should admit no matter how low the performance that year even if it means no person is admitted to read law in any Nigerian University that year.

c. The CLE working with other stakeholders in Nigeria should set a realistic number of people to be admitted to the bar annually, the number should be adhered strictly, and the quota be rigidly enforced by the law school with violations severely punished.

d. Furthermore, the law degree programme should be enriched with the exposure of the law undergraduates to courses in Philosophy, History, Literature, Economics even Political Science. Personally, 1 have always believed the lawyer ought to be truly learned and not limited to knowledge in strict legal issues. My heroes on the Bench have always been those judges who are at home with literature, philosophy, Latin and the like, the Oputa's, Kayode Eso's and Lately Pats-Acholonu of blessed memory. Also on a personal note myself and many of my contemporaries were exposed about 30 years ago at Ife, to a rich academic diet of philosophy. Logic, History, even sociology which even though appeared irrelevant at the time has benefited us immensely afterwards 1 respectfully submit that the modern lawyer stands to benefit from even a greater exposure to these variegated knowledge that can only make him a better lawyer at the end of the day and from which knowledge even the society will be better of.

Finally, while I share the present concern that the training of lawyers is inadequate but I am strongly of the opinion that it is not by making the law degree a second degree that the legal profession and the society will be better off. The law degree should remain a first Degree with the necessary adjustments to meet the realities of the moment.

‘VARSITIES ARE TO BLAME FOR SORE POINT OF LEGAL PROFESSION’

Background
OLUREMI Jacobs, the Chief Judge of Ogun State says law was not his choice although his father's influence took the centre stage as he was forced, to abandon English and drama which he had purposed in his heart to study.
Although Mr. Justice Jacobs who is perhaps the longest serving Chief Judge in Ogun State, would have ended his career as an artist following his avowed love for the Laureate Professor, Wole Soyinka, he
however, expressed no regrets studying law as the profession had not only gave him fame but ranked him as one of the best brains in the nation's judiciary.
He told the Nigerian Compass his foray into the profession he called the oldest profession in the world, this way: "I was born in Lagos in 1946.I attended St. Paul Primary School Lagos, thereafter I proceeded to Baptist Academy, Lagos.
After my secondary education, I proceeded to the most popular University in Nigeria, the Obafemi Awolowo University Ile-Ife then the University of Ife, thereafter the Nigeria Law School.
I must add that my father was also a lawyer and I didn't want to read law, I must be frank with you. I wanted to read English and Drama because I love Professor Wole Soyinka and Literature as well. I love to observe nature. I used to observe the trees at night, the sky and the stars. And all these are very romantic and they are in the line of arts. So I saw myself as an artist. So when my father said will you read law ? I did not like it. I only enter law in Ife and other universities, I put in for English and Drama and no other university gave me admission except Ife. So as time progressed I began to see that if you let go you see the hands of God in your life. There are a lot of things that happened to me while I was growing up. For example, my name is Remi Jacobs my mates in-school called me Remi J, you know Remi J means Justice Remi? In 1973 or 74, I don't know if you know Funke Adekoya (SAN) in Lagos, she called me Remi CJ and it was during my 60 birthday that she reminded me that "Do you know that I
used to call you Remi CJ?" What I am saying is that all these things are prophetic. If you are sober and you sit down there are times you will know when God is speaking to you. I want to say that although people believed that I was born with sliver spoon in my mouth because my father was a lawyer and my
mother was a big businesswoman and so on but the sliver spoon was not put in my mouth when I was born. I really think that it was God that put the sliver spoon later".

Choice of career
Let me tell you, I had to read law to honour my father's request. Shortly after I became a lawyer, I opted for work with the Cooperative Bank and the then General Manager of the bank, the late Chief Onagoruwa said, look go and start practice. I didn't want to practice because my father was in practice and I didn't want to work with my father at all. So I thought I should hide and work in a bank and the man who should have employed me was the one telling me to go and practice.
He gave me his old chambers and I moved in there and I found out after leaving law school that it is not easy if you want to be a good lawyer and then go into practice, you need to go and understudy respectable and professional lawyers. So I joined Odunlade for four months but I did not like the setting.
There was a time I came for a case in Abeokuta, if I tell you how I came for the case you will laugh. I had to handle a matter in Ibadan and it was urgent, it was a problem between the muslims and they said they were coming to disrupt service on Friday. So I went before the Magistrate's court to get an order to restrain them. The other side did not come to court and the magistrate said he was not going to grant an order unless he saw them. I had to go on a Wednesday so that I could get the order before Friday but we had a case for Wednesday at the High Court. So when I got to Chambers, my senior partner was so angry that he insulted me in the presence of litigants. So when I came for the case in Abeokuta, one of the litigants who was present when I was ridiculed by my principal, told the Magistrate that his lawyer could not come to court but sent his clerk. The litigant referred to me as .a clerk, and I conducted that case satisfactorily well and it was my brilliant performance that made a senior lawyer present in court to give me a job in his chambers. I was being paid N100 monthly whereas the senior lawyer who offered me job in his chambers paid me N100 a week, so I quickly jumped at it.
The deal also gave me the freedom to handle my personal cases. So that was how I started my practice here in Abeokuta and I was in practice for a long time till I became a Judge. So I will say that God has been faithful and I must say somehow, he directed me to read law.

Pupilage
I served under Odunbiyi. He also later became a judge. A complete gentleman, soft- spoken, very thorough and he have a fatherly disposition. He made things very easy for me that I did not regret working with him. With the benefit of hindsight I think it is the best thing that has ever happened to me. I don't know what may have happened if I had stayed back at my father’s chambers in Lagos I can not say

My father's chambers in Lagos
My lather died in 1988 but before he died I had made up my mind about what to do. So one of my father's junior took over the running of the chambers. He too is old now and don't go there again.

The Bar and the Bench
I will tell you that it is unfortunate; it is not only the Bar but the society generally. The standard is falling by the day. I remember one day a lawyer was in black jeans, nobody has to teach you if you go through the law school you have to embrace the culture. There is no more difference between the police and the Bar. When we were young if you see a magistrate passing by you had no choice other than to wait and have a look at him but now the reverse is the case.
In those days either a judge was in Chambers or not one was always afraid to pass by his chambers, even in the Ministry of Justice when junior lawyers sees a senior lawyer he or she would stand to greet the senior lawyer. But what do we have today? It has now reached a stage where the juniors would greet his seniors by a mere wave of hands; Oga how are you? In practice, one thing still stands out and that is decorum.
Some lawyers would come to court only to give the judge a fight but you give a judge a fight on law but not attitudinal type of disrespect to judge. The judge is a human being and he too will have to react somehow. The law is the oldest profession and it is also a noble profession many people have contested this and we have told them that look what God did first was to make the law. He said 'let there be light'.

Legal education in Nigeria
Like I said, it is a societal problem, standard is really falling. If you look at the authorities of the law school, they are trying very hard to improve the standard. Most universities in the country today are producing half-baked graduates. Sometime when you speak with some of them you will be disappointed. One very important aspect of the practice of law is the language. You must be able to use language to your advantage but today you found out that some of these lawyers lack education and to make up for it they now employ rudeness just to impress litigants. Unfortunately a lot of the litigants are illiterates, they look at the drama and they conclude that the man is courageous, the man is very bold. These are the areas I discovered indequacies and I am trying to see what can be done about it. There are different committees of the NBA where reports are being lodged so that some of these wrongs can be corrected.

Embarrassing moments
One day I was in the magistrate's court and there was a boy charged for wandering. He pleaded guilty but while the police were stating the fact of the case I discovered that they did not justify the conviction for wandering.
So I got up as amicus curiae, a friend of the court to defend this boy .While I was talking and the magistrate was writing, suddenly I discovered that some people were laughing behind me. Then I looked back and I saw the boy saying in Yoruba, "Se e ma bo mi ni "(Are you going to feed me?). I was just performing my constitutional duty but unknown to me the boy wanted to go to jail. It was very embarrassing because the magistrate, having agreed with my submissions that the fact of the case must sustain the charge even when the accused person had pleaded guilty.
TO BE CONTINUED…

CONTINUED FROM LAST WEEK…
...As a Judge
When I was handling the Gani Adams case, his lawyers came that I should give their client bail and the Ministry of Justice did not oppose the application, so why should I keep him in custody when those that should oppose the bail never opposed? So I released him and the police got angry and withdrew my orderly. By coincidence a week later I became the Chief Judge then the same Commissioner of Police that withdrew my orderly sent an assistance to come and control traffic leading to my house.
That was how he started sending people to come and talk to me. It was very embarrassing that because I did my job, you withdrew my orderly. God has a way of doing things as I was going to react by sending the accused person to be remanded in police custody when someone told him and he says "ha! let's go and beg him o" so he sent one of my closest friends to beg me. I always say something that this is not the power that is mine. Power belongs to God and I am holding the power in trust for God. I am very conscious of that, what I would not do as Remi Jacobs ,.I will not do it as the Chief Judge. I may be wrong but that is the way I see it.

Appointment as Chief Judge
I was not even thinking of any appointment all I was thinking about was my comfort. After my father died we had to start administering what he was doing, we're only two ;myself and my brother. The former Chief Judge , Justice Delana. when I was the chairman of the Bar Association we had a discussion on the Bar and when I was leaving he said Remi why don't you join us?
I said let me think about it, so he said I should go and think about it. I didn't even know how 1 was appointed all I knew was that one judge ask ed for my C.V and I suspected that that judge nominated me. The beauty of this judgeship is that you don't apply, you are appointed. So you feel the joy when you are appointed, it is a recognition of your rare qualities. It is- now becoming worrisome when people come to sit in front of you and say my lord I want to become a judge, how do I go about it? I think it has to do more with the situation in the country because some of these people when they see that practice is not moving on fine ,then the next thing is to say I want to become a judge. It is unfortunate because it robs the Bench of the best. The beauty of it is that you should be begged to come to the Bench. I have a judge I begged him to become a judge, I really begged him to accept the appointment. I mean that is the beauty of it.
There are things that I cannot tell you about this Chief Judge or no Chief Judge. You know there was this controversy here and there, we were two and I was the most junior and the other person was the most senior. While this thing was dragging on for a long time then at a stage Abuja said that look let's put a stop to this thing and there was a meeting in July where further deliberations were adjourned to October. But as God would have it, nobody remembered that the other person was to retire in August of that year while the matter was being fixed for a latter date. So by the time they were to meet in October it was only my name that was before them. As a matter of fact someone said that are you not lucky that you're the most junior? Four of us were appointed and I was the most junior in my set. So I knew that it was very likely that I will become the Chief Judge one day but not at the time 1 was appointed the Chief Judge. So if you look at it since 1 was the youngest all the others retired before me. Then will I say it is because I am brilliant? Or because I know how to do it? No, it is God.
And because I never lobbied for it or expected it when it came I was literally humbled. That day I was just saying God is this the way you do your things? Do you know that it was only a day before that day that the Governor saw me eye to eye? He told his aides to go and bring me as it will be embarrassing to swear in the number one man in the state judiciary without knowing him physically before hand.

As chairman armed robbery and fire arms tribunal
Let me tell you one funny thing about it. When I became the chairman of the tribunal, I became very conscious of the position and I prayed to God that my experience will not affect my decision. So the first person I sentenced to death, because there was no appeal against my decision I could not sleep very well. I was very much afraid that supposing that I wrongly sentenced this boy, his blood will be on my head and I became very restless.
However, the day the boy was killed he confessed. We have this saying in law that it is better for 99 guilty persons to go free than for one innocent man to be condemned. So man's judgments are still subject to God's review

Judges, threats and judgement
Not really because I am not afraid of anybody, in fact I dare anybody. There was this case I don't know whether to call it interesting or not, there was a boy charged for snatching a car. The lawyer who was the defence counsel was the complainant that gave the car out for sale but thereafter changed it to stealing. I almost believed him just as I had adjourned for judgment and my judgement was ready and I called my clerk and messenger, asking them to pray for me because of the decision I had taken in the matter.
So one day, a man wanted to see me desperately and I asked the policeman to come in with him and then I asked him what the problem was. The fact was that the lawyer of that accused had another matter before another judge where he gave the same defence. I had finished writing my judgment and I was going to discharge him so when I had what the man said, I sent my clerk to get me the case file. After
retrieving the file and discovered the same defence, what else should I do other than to convict him. My experience did not affect my job at all and fortunately for me most of them confessed before they were killed.

Judges, Magistrates performance in the state
Let me say this sincerely, I think that we are blessed in Ogun State. It is true because we are human beings we are not perfect but I tell you anywhere lam, I'm very proud of our judges. Before now, there were some doubts about one or two but as things stands today I can vouch for almost everybody on the Bench . Even there are lot of improvement at the magistrate’s court because for the first time Magistrates were given cars, it has never been so before. Judges are also having jeeps the magistrate's court because for the first time Magistrates were given cars, it has never been so before. Judges are also having Jeeps.

Ogun and other states
You see the thing is this, most states hid what they have. Most of the oil rich states are not more comfortable but we still thank God that there are some improvements. I don't want to compare because I was once accused of running down the former administration. I am a human being if you are nice to me, I have to acknowledge that you are nice to me. Otherwise even if you are not, there is God that sees everything. It will be very unfair for you to take care of me and for me to deny. The executive and the judiciary We have mutual respect. I think that in spite of what the executive has done for us that cannot affect our decisions. I must say again that we have a very cordial relationship. The Governor will not interfere in our activities. He will always ask, CJ are you all right? Let's face it we are human beings too.
10 years of judiciary in a democracy I will say that we have done our best and we will keep doing our best. You see the point is this, let's take a typical case one party on the right and one party on the left, one of the parties will always complain that the judge is not fair to them. We are used to that kind of things. The only thing is that once you do what is right your conscience is free. But don't forget one thing that the judge is a human being and we apply the law and the law is always right. We have two lawyers on both sides trying to persuade him and then he had to go along with one of them, he may be wrong and that is the reason there is appeal court , presided over by there persons who will then reconsider what one person has done. Then seven people will still sit to reconsider what they decided. One must be conscious that we are not perfect but what we will not be able to defend is what is glaring . For instance, when you say 2+ 2 =4 and you now say 4+ 4 =7, that is fraud. If a judgment is fraudulent you will know because it is like a building. You state your case, you put in your evidence and then you are building and all of a sudden the building started collapsing, you would definitely see that there is a problem somewhere.

Cases and their challenges
The Alake case because of the controversy that surrounded the case. At a stage I had to threaten parties with order of arrest. Sometimes a judge need to behave like a mad man, the case was very challenging but at the end of the day I thank God.

SANs and the court
No, you see if you are a new judge, may be you can be intimidated by SANs appearance but then as a judge, you must be the master of your court. The first thing to do when you have such a situation is to stamp your authority on the court. If you don't take control of your court that would be very unfortunate.
I once had a very funny incident long before I became the Chief Judge, not even a senior judge. I was in Ota and the court was full to capacity that day and a SAN got up and told another lawyer to shut up. Apparently foreseing an ugly incident, I came to the rescue of the junior lawyer by simply putting a stop to his excesses. I simply said 'I am here". So you stamp your authority. The SANs too are human beings, they will like to test your patience and your knowledge of law. At times they throw some nasty things at you.

Abolition of SANship
I don't support that because if you abolish, the title of SAN, what other title would you confer on lawyers who distinguished themselves? The only thing is that the process should be re-visited so that the awardees should be those who merit the prestigious title. So when you talk about SANship, the awardees must be highly cultured in their address to the court including their interpersonal relationship with the juniors. Above all a SAN must be a credit to the profession.
But the way it is going, some lawyers are saying the process is no longer transparent as it has become ' a man know man' affairs. However I want to say that the system is alright but if there is a fraud I am not aware. When you send your CV the secretariat would check the CV. Now the Privileges Committee will now cross-check the CV and this included the cases submitted whether they are correct. There is a boy that was disqualified because he used his father's judgment as one of the cases he presented.
We tried to do all that to ensure that the process is transparent. But people are saying that some people are influencing the process, this I don't know. What I know is that the people appointed are the qualified ones.

Attorney General Office and the Minister of Justice
I think the Attorney General of the Federation should be able to prepare his cases without any dictation from the executive. The AG decides cases that should go to court and those that should not go to court. Don't you think that when a matter affects the executive and he is a member of the executive, there is a tendency for him to say take it to court. The court should not be a dumping ground. I think that the AG office should stand on its own while the Minister of Justice who is a member of the executive should advise them on legal issues.
Culled from Compass Thursday, November 19, 2009