RETAINING THE RANK OF SENIOR ADVOCATE OF NIGERIA,

What started off as pockets of protests amongst a few radical lawyers and a handful of others frustrated in their legitimate quest to be admitted to the rank of the inner Bar has all of a sudden developed a life of its own metamorphosising into a movement that has a whole class of lawyers in its fold. I am talking of no other than the movement for the abolition of the rank of senior Advocates of Nigeria, ironically led by certain Elders of the otherwise conservative Premier Branch, the Lagos Bar. This movement coming at a time when even the Supreme Court had occasion to berate certain members of the inner Bar thus "what kind of country is this where senior Advocates of Nigeria are used to mess up the judiciary? We will not allow this kind of practice. This is wrong", in a recent failed attempt by embatted Anambra Politician Dr Andy Uba to unseat Peter Obi as Governor of Anambra State. The time has come to take a very critical but objective look at the rank of senior Advocate of Nigeria SAN and its continued relevance to both the legal profession and the administration of Justice in Nigeria. Yes, the highly coveted rank of SAN is seriously under attack and justifiably so. Several reasons, some of them self-inflicted are responsible for the bad blood and negative reaction that the otherwise lofty status generates in recent times.
Some of the reasons include:
i. The sheer arrogance and pomposity many in the inner Bar unusually display both in and out of court. The recent botched attempt to register the Body of Senior Advocates of Nigeria incorporated is a clear manifestation of this tendency.
ii. The disposition only to take the privileges and advantages without a corresponding willingness to provide leadership and make sacrifices. Example, the SAN'S ARE AUTOMATIC National Executive Committee NEC members but only a handful ever turn up for meetings, members of the Inner Bar have been lobbying seriously to be made Court of Appeal and Supreme Court justices at the expense of other judges who rose through the ranks yet, there are no guarantees that a SAN will readily make a better judge. The rank of NBA Presidency is now conventionally reserved for silks at times in the face of more committed non-SANs with a track record of service to the Bar. Yet, when a proposal was made for the SANs to pay more for annual practicing fees, the silk resisted strongly inspite of dominating the commanding heights of the profession.
iii. The silks dominate the mega briefs in the profession, charging huge fees for services which a competent non-silk will perform excellently for infinitely lesser fees.
iv. Unlike in the past, many silk cannot be credited with distinction in any area of the law and quite a number after getting the award show no interest in the development of the law but rather venture into areas completely unrelated to law like business and politics yet at every opportunity are quick to remind others that they are Senior Advocates of Nigeria. On the other hand, there are many lawyers completely sold out to the law and its practice who are strangely denied the award yearly.
v. Closely related to the last consideration is the emergence of instances in the legal profession where God Fathers who have the ability to make their children, wards and protegees SAN at the expense of more experienced, much older and more competent lawyers. Thus the highly exalted rank of SAN has been hit by the infamous Nigeria factor reduced to the status of political favours to be dished out to loyal cronies and at other times to the highest bidder.
vi. There is also the issue of application fee which the authorities explained unconvincingly as being necessary to weed out unserious applicants and unconfirmed miscellaneous expenses necessarily incidental to obtaining the award.
vii. The last two factors have ensured a succession of SAN's in some families and chambers.
viii. Opponents of the rank insist that the privileged status works, against the attainment of equity and justice by the courts as many judges are easily overwhelmed by the mere presence of a SAN in a cause or matter to tilt the balance of justice unfairly in favour of the Senior Advocate.
ix. Still some of our more radical and egalitarian colleagues question the justification of a special class within the rank of lawyers pointing out the classlessness of the American Bar. They also point out to the fact that in Ghana, the status of Senior Advocate of Ghana has since been abolished and that even in England the country of Origin of the Queens Counsel there are on going debates as to the continued relevance of the rank to modem day dispensation of justice.
x. Finally, the involvement of quite a few silk in unwholesome and unethical practice and conduct constitutes very bad advert for the rank of SAN. These arguments are formidable and very thought provoking for quite a few of us who still believe in the retention of the rank in spite of all odds. Yes, we see the great abuse to which many a Silk has subjected the exalted rank to nor do we play the Ostrich about the mediocrity that has come to be associated with the rank in recent times, but to the extent that the rank of Senior Advocates of Nigeria is built on the ideals of excellence and distinction to which all legal practitioners, should aspire to, so long will some of us desire the retention of those ideals. The fact that we might not attain such a rank in our life time is another matter, indeed to dwell on that can only rob ones analysis of objectivity which unfortunately is in very short supply on this debate. Many on both sides of the argument maintain their positions either based on where they are now or might end up, let us strive to raise this very serious debate above personal and parochial considerations of I, me and myself, or what is in it for me?
Returning to the theme of excellence the rank was instituted in 1975 and has been warded almost yearly ever since till date, taking a random sample of the first half of the awards between 1975 - 1992, perhaps we may detect any awardee to whom distinction could not be ascribed, Chief F.R.A. Williams, Mr. Kehinde Sofola, Chief G.O.K Ajayi. Prof. Ben. Nwabueze, Chief Olisa, Chukurah, Mr. A. N.Anyemene, Sir Clement Akpamgbo, Chief Ladosu Ladipo, Prof. A. B. Kasunmu, Chief R. A. Fani-Kayode, Mr. Fidelis Nwadialo, Mr. Abayomi Sogbesan, Dr Mudiaga Odje, Chief Toye Coker, Chief Mrs. Tolake Solanke, Mr. E. O, Sofunde, Mr. L. N. Mbanefo and Chief Wole Olanipekun. Let someone point out any one of these 20 SANs some of whom are dead but many of whom are still living who were not lawyers of the highest distinction. So the rank of SAN was undoubtedly at inception linked with excellence, which is a high and lofty ideal to which we should all aspire. So if in the other half of the award, excellence and distinction have now fled, yes there is a problem but the problem cannot be innate in the rank since it was not part of it at inception, it was a problem that arose with time. In other words the problems now associated with the rank of SAN are of recent origin and can thus be tackled from source. The reasons responsible for the fall from the Olympian heights of the status of SAN include:
a. The dethronement of merit in the selection process.
b. The emphasis on loyalty and affluence above competence.
c. The emergence and pervading influence of Godfathers.
d. The emphasis on technical number of cases over quality of
cases and advocacy; which some lawyers have described as the preference for quantity over quality.
e. The ever-present issue of Geographical spread. These factors are neither exhaustive nor do exist in water tight compartments so will be examined together as they in fact tend to overlap.
The most damaging factor responsible for the bad light in which the rank of SAN is now seen by a large section of society, legal and non-legal alike is the obvious dethronement of merit in the elevation of lawyers from the Outer Bar to the Inner Bar. As lawyers in society, we are natural light bearers and the whole society watches with rapt attention everything we do both individually and collectively. How many times have our clients asked us why Mr. Lagbaja who has a reputation as a good lawyer is not a SAN why Chief Tamedu who is reputed to be an excellent advocate both within the legal and non-legal circles is yet to be conferred with the exalted rank. Recall, the general embarrassment to the whole profession of the non-award of silk to the indefatigable activist, quintessential law publisher and consummate advocate. Chief Gani Fewhinmi for several years until
less than 10 years. Now, if it is non-lawyers who recognize the competence of our members for the award, imagine us learned colleagues who know a lot more equally deserving colleagues who have not been accorded the award. Very senior colleagues who have contributed to the profession as advocates, who have themselves trained other lawyers even SANs, who have developed the law both in court, books, journals and even membership of critical committees yet for strange reasons have never been thought good enough for the award. I will not on grounds of decorum mention any of the living but I think there can be no greater indictment of the award, that
persons such as the late Mr. Fola Sasegbon one of the pioneers of the shipping and Maritime law practice in Nigeria or Prof. Jadesola Akande, a first rate constitutional law author and teacher were not rewarded with the award in their lifetimes but at every award there is a substantial number of awardees of modest abilities and anonymous contributions to the development of the law, whose main claim to distinction is the affluence of their practice and their loyalty to one of the awarding Godfathers. But the question is the silk a reward for wealth and commercial balance sheet of practice or professional ability or competence?
This is where some of use have a serious problem with the revised Guidelines with the emphasis on the opulence of applicants chambers as opposed to quality of advocacy. It is in fact conditions such as this that promote the emergence of God fathers who are ready to invest in the applicant for personal gains by making available to him finances, a well furnished chambers and an offer of partnership that is more technical than substantial. This approach puts at an undue advantage lawyers with deep pockets over their less materially endowed colleagues but more able and committed to forensic advocacy. It is submitted that there should be a reversion to the old criteria that places professional ability over material well-being.
Equally, counter productive is undue emphasis now placed on the technical number of appearances in both the Supreme Court and the Court of Appeal. A counsel may have none or very few cases in the Supreme Court but may never the less be a Superior advocate both in the written and oral form to a lawyer who sleeps in the Supreme Court.
Thank God for the written address system that has been adopted in most of the Jurisdiction in the nation at the High Court level, all applicants should be required to submit a copy of the Written Address filed under their hands along side copies of the decisions submitted for application to the Privileges committee for assessment. That should be a most revealing exercise.
In respect of the observations about the domineering influences of SAN's in the administration, this argument is neither here nor there. A large number of judicial officers I have had the privilege of appearing before for well over 23 years .are not in the least intimidated by even the "Ancient" SAN; they accord them all the rights and privileges befitting their elevated status but by the same taken hold them to the highest standards possible as leaders of the Bar, errors and omissions that would have been over looked for lower ranking lawyers are with SAN's strictly viewed. Submissions and applications made in bad faith usually on grounds of Senior Advocates standing rather than on law and procedure, are politely but firmly refused at times with punitive costs.
It is a fairly common phenomenon for certain silks to vow not to appear before certain junior judges when the major "sin" of the judicial officers that qualifies them for the "Junior" status is the refusal to indulge learned SAN's erroneous submissions and professional excesses.
Even the comparison with American Republicanism is misplaced. Nigeria and USA have radically different historical and cultural roots. The Americans started off as a persecuted settlers Haven. So from the onset the philosophy of the New world was to reject the Order of the Old world. Here, most although not all, our traditional customs were based on a well-established social stratification that recognizes nobility, integrity and success through hard work. Thus our practice of modem day republicanism must naturally flow from our historical and cultural background. And as for Ghana jettisoning the rank, our local realities are certainly different and we cannot be expected to follow blindly our West African brothers. After all it is different strokes for different folks.
The issue of national spread is an extremely sensitive one, which goes to the root of our existence as a nation. In any case, it is a constitutional provision all that can be said at this stage is that the policy must be applied responsibly so as not to undermine the spirit of excellence that ought to pervade the award of silk.
Ultimately, the most formidable argument of the abolitionists is ironically its weakest and albatross. The argument that since the rank of SAN has been highly abused and no longer connotes distinction to many, the same should be abolished. This is an extremist argument obviously inspired by anger and frustration but which if followed to its logical conclusion will only result in absurdity; a reductio ad absurdum.
In all sincerity, what institution, office or area of our rational life has not been plagued by abuse, corruption and mediocrity? Is it our values, education, admissions into schools, appointments of public officers even judges, elections both at general elections. Even now at the Bar, Police, religion, politics and government even our corporate existence, as a nation is not free from the ills of corruption nepotism or mediocrity. We might as well in creating the Utopian society go all the way abolishing these ills, abolish the Nigerian State as well.
The reasonable and practical solution to this serious problem is not the lazy and absurd throwing away of the baby and with the bath water as being suggested but a reinvention of the rank of SAN; be it from the point of view, criteria for appointment membership of privileges committee, status, duties and privileges etc, all aimed at ensuring that only the best are appointed and remain in the rank of SAN. There is nothing that says a strict code of conduct cannot be devised for members that erring members be sanctioned by way of suspension even outright permanent demotion to the outer Bar of errant members. That I submit is the only way of creating a rank or office that will stand the test of time not the lazy and destructive tendency to pull down everything a vocal section of society cannot lay its hands upon.

SAN: not a do or die affair.
For several reasons, such as limited number of appointment (to guarantee quality) life-span (which is entirely in the hands of Providence), fortune/Luck, several other factors all beyond human control, it should be obvious that not all brilliant lawyers will take silk in their life-time. Conversely, not every one who takes silk is permitted by Almighty God to live long enough to enjoy the rich benefit of the lofty title. A few years ago, a very brilliant classmate and colleague who had taken silk only a few years earlier passed on in a ghastly car accident.
These things are simply beyond us. But what is within our power while we still breathe is to excel in our stations in life and by extension areas of legal practice. Thankfully we have many unsung heroes who nonetheless excelled, and have continued to excel even without taking silk. Speaking for myself, I met or at least heard of the following non-silk who achieved distinction at the Bar or in the academic without taking silk, Pa J. A. Cole, Prince G. M. Boye, Chief R, A. Akinyemi, Mr. Fola Sasegbon, Mr. Adenugba Adesina, Mr. Fred Egbe, Mr. Alao Aka- Basorun, Chief A. A. Oguntuase, Prof. B. O. Iluyomade, Prof. Jacksola Akande, Prof. Abiola OJo amongst others who all passed to the great beyond. Amongst the living we have Chief Chris Ogunbanjo, Mrs. Hairat Balogun, Chief Badru Olaogun, Mr. Chiobi Ekpechi, Prince Yemi Adefulu, Senator Dipo Odie Jirin, Chief I. O. Ajijola, Prince T. A. Awosanya, Prof. U. U. Uche, Chief V. A. Odunaiya and several others who have achieved the greatest distinction in various aspects of the legal profession be it advocacy, solicitor practice, academics, legal publication and scholarship yet without the coveted silk status.
I do not believe that the history of the legal profession in Nigeria can be written without inscribing the above names and several others in gold though they never took silk (the living may yet do so).
I am fully persuaded that our watchword ought to be excellence and distinction with or without silk.

TAXATION AND ALL OF US

Taxation is as old as the human society. Evidence of its antiquated history abounds in the holy book The Bible - which records that Jesus Christ our Lord was born at a time when the reigning Emperor Caesar Augustus commanded a census of the whole Roman Empire for the purpose of taxation.
In His short yet most eventful life, the Saviour was recorded as endorsing the legitimacy (legality) of taxation as captured in the very popular phrase "Render unto Caesar what is Caesar and unto God what is God's", he practiced what he preached-recall the directive to Apostle Peter to go a fishing and use the coin retrieved from the mouth of a fish to pay for His and Peter's taxes. And for the evangelist in our midst at least too notable tax collectors who were public enemy No. l in those days, Matthew the writer of the first book of the New Testament and the diminutive yet irrepressible Zaccheus. It must be noted that the essence of taxation in those ancient times was as a tribute, an acknowledgement of servitude and an instrument of oppression.
Even much after biblical times, taxation continued to shape the course of history in several parts of the world; taxation by the British colonialists of the American colony led to the Boston massacre in 1770, where British troops massacred American citizens, Boston Tea party of 1773, which eventually led to the American Revolution War at the end of which the United States of America attained sovereignty. In the United Kingdom there was the obnoxious poll tax which led to several social upheavals in that nation in the course of history.
Coming nearer home, the British as part of its colonial administration in Nigeria introduced various taxes in Nigeria the most obnoxious of which was the poll tax which was meant to be paid by every adult, male or female. This of course only worsened the master/servant relationship between the British and the indigenes leading at times to many unrests the most prominent of which was the Aba Riot of 1929. There were also other localized social discontents in the colonial and immediate post-colonial era such as the Abeokuta women uprising led by irrepressible Mrs. Funmilayo Ransome - Kut and the deposition by the government of the defunct western Nigeria of Sir Olateru-OIagbegi as Olowo over tax related matters.
However, in spite of the inglorious antecedents of taxation world wide, since the dawn of the modem era when the symbiotic relationship of the society as represented by the government with the citizens became well detailed in a social contract taxation has assumed a very critical and positive role in all progressive societies; it is axiomatic that it is the civic duty of every adult in society to pay tax except in special and exceptional cases. Governments in all society demand the fulfillment of this obligation in return for which they provide basic conditions of living and necessary infrastructure, which allow each citizen to realize his full potentialities. This is the social contract in a simplified form.
In even the most advanced societies, where citizens are otherwise free to pursue their quest for happiness to the full at times bordering on licentiousness, the permissiveness of society never extends to payment of taxation. In the United States of America for example seen by many as the bastion of permissiveness the aura of liberty remarkable does not extend to taxation, The celebrated Boxing promoter Don King has fought many battles over the payment of taxation, several years ago Televangelist Jimmy Swaggart was embroiled not only in sexual scandal but problems of tax evasion, even now popular Movie Actor Wesley Snipes is in prison for tax evasion, and most recently a number of the highly charismatic President Obama's nominees could not get US ministerial confirmation over matters relating to payment of taxes. Across the sea in Europe taxation is no less seriously enforced, a few years ago popular Nigerian Televangelist Pastor Asimolowo had a running battle with the British tax officials on the payment of tax, but befitting of his status as a true man of God, he has since made the necessary adjustments to emerge last year as the highest tax paying cleric in the whole of the United Kingdom and one of the highest tax paying individuals in the nation.
Coming nearer home, in a strictly legal fashion there is a surfeit of legislation on various areas of taxation at Federal, State and even Local Government levels. Personal Income Tax popularly called the PAYE, pay as you Earn, Companies Income Tax Capital Gains Tax, Petroleum Profit Tax, Withholding Tax, Value Added Tax etc. Talking strictly on the theoretical plain, if the nation were to strictly enforce its sundry tax legislations there will be more than enough money to run the country smoothly and provide all the basic needs of the citizens, with little or no regard to the once free flowing Petro-dollars which has been the mainstay of the Nigerian economy in the last 35 years. But then in Nigeria the best theories count for nothing.
In this instance the reason why the nations tax regime has not been a major source of revenue earner for government at any level unlike in other places is not far fetched but rooted in our immediate past history. At Independence and for more than a decade thereafter, the nation's tax laws particularly in relation to the individual were strictly enforced. Even, the nation's jurisprudence on taxation of that era was quite rich and still provides veritable reference materials for modem day lawyers. ADERAWOS V FBIR (1966) LLR 195 FBIR V REZCALLAH (1962) ANLR 1 FBIR V ALUMINIUM 1 AG (1971) 2 NCLR 121. AKWULE V R (1963) ANLR 105.
But the increase importance of Oil revenue in the nation's economy following the astronomic rise in the influence of the Organization of Petroleum Exporting Countries OPEC from 1974 was to herald a paradigm shift away from taxation as a major source of revenue of government with double-edged result. Government did not need to bother itself with strict enforcement of the nation's tax laws on the citizens, since tax administration is expensive even in the most advanced societies, by the same token since the government particularly the Federal Government did not derive its money from the tax paying citizen, it felt no moral duty to provide the citizens with the basic conditions and, infrastructure necessary for the advancement of society. Thus the bulk of the money made by the nation in the hay days of huge oil sales went into private pockets to the detriment of the nation's development and progress. The citizenry for its own part developed its own reaction of not paying taxes to the state, in the belief that any such payments only went into private pockets to be shared by those in power and their cronies. This moral overhang has continued till date particularly at the Federal level and sadly enough, there is nothing till date to debunk this moral question. Even in the dying days of the military government when Tax Consultants - which ought to have read Private Enforcers were appointed to augment the fast dwindling oil revenue, nothing by way of development came the way of the nation from the huge sums of money raked in from companies. The administration of the Value Added Tax, VAT 80% of which is derived from Lagos State by the Federal authorities has not fared any better. In the premises of these historical realities every attempt by government particularly at the Federal level either to increase tax or devise fresh forms of taxation has always met with stiff resistance by the citizens, such as when a few years ago, the Federal Inland Revenue Service, FIRS sought to raise the amount of VAT from 5% to 15% citing the practice prevalent in the Western African sub-region, the citizens of the country rose in Unison with one voice against the proposal and the plan was promptly shelved. Unfortunately, till date apart form posturing and postulations such as the much touted Draft National Tax Policy there is nothing by the Federal Government to morally justify increased T'axation of Nigerians by the Federal Government or its agencies. This is most unfortunate!
However, the Lagos State Government with its performance since the inception of democracy 10 years ago and more particularly in the last 2 years of the administration of Governor Babatunde Fashola SAN has demonstrated clearly its moral entitlement to demand of its citizens, the discharge of their civic responsibility to pay their taxes as and when due. This is one government that can look any and every citizen in the eye based on its service delivery in virtually every area of life, health, education, security, roads and transportation, construction and repair of social infrastructure, to answer the question in the mind of every citizen why he needs to pay his taxes promptly. In this regard one notes with some degree of interest bordering on amusement, the recent visit of the nations Tax helmsman Mrs. Omoigui Okauru to the Lagos State Inland Revenue Service. Madam Okauru must be told in no uncertain terms that the Lagos State model will not work at the Federal level except the Federal Government matches its quest for more tax revenue with the ability to deliver the elusive "dividends of democracy" as Nigerians are entitled in the manner of the Americans 250 years ago to demand that "no taxation without performance".
In specific regard to Lagos States increased revenue drive based on the payment of Personal Income Tax while this is a most welcome initiative in the face of dwindling Federal Allocation based equally on even faster dwindling Oil Revenue and the global melt down but great care must be taken to get the maximum, not necessarily full support as there will always be tax-defaulters in any society, support of the citizenry. In this area the rate of assessment is most critical and the government must resist the temptation to rely heavily on the opinion of smooth talking and sartorially elegant consultants and technocrats who are cut off from the day to day realities of the citizens. Rather the government needs to do wide rage consultations with members of the private sector who are the real genuine and "grassroots" stakeholders in coming up with a realistic and practical rate of assessment that will guarantee success for the state's new tax initiative. With specific reference to the Rate of Assessment that is being advertised for professionals particularly lawyers, it is submitted that the advertised list is most unrealistic and needs to be downwardly reviewed to ensure massive compliance by lawyers.
If not the state administration led by a Senior Advocate of Nigeria will be put into an embarrassing position of either turning a blind eye to massive default by his colleagues and risk being branded biased in favour of his Constituency, or be forced to "descend heavily" on erring colleagues and lose vital support of his learned friends.
The model of realistic and practical assessment arrived at by genuine consultations with stakeholders should be applied across the board to all strata of Lagos society.

Men of God and payment of taxes.
Since this article started off by venturing into areas otherwise reserved for clerics and theologians perhaps it is only fitting that this article be brought to an end on this issue. As stated earlier on in this article, the Lord Jesus Christ, the author and minister of the Christian faith paid tax» so by rule of theological precedent, no clergy of the Christian faith can be heard to question the state's right to demand taxes of all citizens, believer or pagan. Historically the tax demanded by imperial Rome of her conquered people was very oppressive which was why tax collectors were most loathed by ordinary citizens yet Christ endorsed the tax and set a good example of paying the same. Whilst not claiming expertise or even serious knowledge of other faiths, it can be reasonably assumed that the civic responsibility of the Christian faith is equally replicated in other faiths.
However, practical concerns have been raised in respect of clerics, who do not earn a fixed salary in respect of their service to their Creator, how are these unsalaried men of God who depend on the free will gifts and donations of members of their congregations be assessed to tax? Here there are no easy answers. But let there be wide consultations with all stakeholders and sincerity on every one's part.
A real man of God who earns a salary ought not to lie about his status as a salaried worker or found it difficult to meet his obligation to the state. Neither should the state be carried away by the flamboyance and opulence of a handful of clerics to believe that men of God are cash cows to be milked for revenue.
But what is not in dispute is that where the Church or Mosque leaves the realm of the Celestial to engage in business like other mere mortals it is liable to be taxed like every one else. AREC V JDP (2007) 5-6SC96.

At the end of the day, the inescapable facts are:
(1) All of us as law-abiding citizens are under a duty to pay our taxes as when due.
(2) The rate of assessment must be fair, reasonable and realistic, not mindless, revenue driven assessment.
(3) The state must deliver and continue to deliver on the provision of amenities, infrastructure and conditions of living, that guarantee the greatest happiness of the largest majority.

A VIEW OF ELECTRONIC GENERATED EVIDENCE

One of the most heated debates within the rank and file of the legal profession is the issue of the admissibility of electronic generated evidence particularly computer generated statements of Accounts.
Opinions are sharply divided amongst lawyers as to the admissibility of computer generated evidence with all manner of views being expressed some logical, others plausible while some are extreme bordering on the ridiculous.
One of the more popular views expressed is that the Evidence Act being an Old legislation enacted on the 1st of June, 1945 did not contemplate computer evidence thus statements of accounts produced by the computer are inadmissible.
The decision of the Court of Appeal in UBA PLC V SAFPU (2004) 3 NWLR (pt 861) 516, that Statements of Accounts produced by the computer in the form of print outs are inadmissible under section 97(1) and (2) of the Evidence Act even though otherwise relevant. For good measure the lamentation of the Court of Appeal in that case of the need for the amendment of the Evidence Act to be able to admit computer generated Statements of Account is quoted with flourish. Yet another equally competing and popular legal view is that computer generated Statements of Account are admissible in evidence under the Evidence Act. The decision of the Court of Appeal in the case of TRADE BANK V CHAMI (2003) 13 NWLR (pt. 836) 158 which conflicts with the earlier cited case of UBA V SAFPU (2004) 3 NWLR (pt. 861) 516 where computer generated statement of account was admitted by virtue of Section 38 of the Evidence Act is usually cited off-hand by lawyers in this group. .
In recent times some high profile criminal cases conducted by the Economic and Financial Crimes commission EFCC where statements of Accounts generated by computer prints-cut were rejected for not satisfying section 97 (1) (g) and (2) (e) of the Evidence Act have only sparked off more heated debates as to whether the Evidence Act allows for computer generated Statement of Account with both groups above maintaining their hard line positions on computer generated evidence.
The humble view of this column is that neither of the conflicting decisions in UBA V SAFPU AND TRADE BANK V CHAM1 (SUPRA) satisfactorily answers the question whether computer generated evidence is admissible under the Evidence Act or not. Indeed by giving conflicting decisions on the admissibility of computer generated the Court of Appeal with due respect has only added to the confusion over the admissibility of computer generated evidence as every lawyer and Court has a perfect excuse to pick and choose between the two decisions in support of their reactions.
Beyond further fueling the controversy neither decision directly answers the question whether computer generated statement of accounts is directly admissible under the Evidence Act taking into consideration the provisions of section 97 of then Evidence Act.
On the question of whether or not the absence of the word computer from the Evidence Act which was enacted pre the computer age, ipso facto makes computer generated evidence inadmissible. It is submitted that there is nothing esoteric in the word computer or in the device itself, what is important to note is that computer generated evidence like any document is produced by mechanical process, whether it be IBM Machine, computer print out even the archaic manual type writer or typesetting machine. The essence of statutory Interpretation is to interpret the words of a statute in line with current realities. That is why the American Constitution is still being interpreted till date even though made over 250 years and the Magna Carta of 1215 was on the English Statute Books for over 700 years before the statute was rested about a quarter of century ago. At no time did the age of the law stand in the way of its application to modem situations. Thus, with all due respect it is erroneous in law that on account of the old age of the Evidence Act and the fact that the word computer is missing from the Evidence. Act, computer generated evidence is inadmissible under the Evidence Act. In respect of the TRADE BANK V CHAMI case, it is submitted that the decision was delivered per Incuriam. On the nature of the Banker's Book/Statement of account admissible under the Evidence Act Section 97 was not adverted to, only sections 38 and 91 were referred to. The Court held that while section 38 is applicable section 91 was not. With due respect to their Lordships it has been held in a long line of Supreme Court case that a Statement of Account/Banker's Book to be admissible under the Evidence Act it must satisfy the requirements of section of 97 (2) (e) of the Evidence Act.

YASSIM V BARCLAYS BANK DCO (1968) 1 ANLR 171
YESUFU V ACB (1976) 4 SC 1
OGUMA V 1.BWA (1988) 1 NWLR (pt.73) 658.
Thus it cannot be correct that just because statement of account is generated by computer it is exempted from the strict certification requirements of section 97 (2) (e) of the Evidence Act.
If anything, the myriad of manipulations that a computer generated document could be put makes this strict requirement all the more imperative, We shall return to this theme later.
On the other hand the decision of the Abuja Division in UBA V SAFPU is not anymore helpful either. Even the lamentation about the need to amend the Evidence Act to be able to admit computer-generated Statement of Accounts is somewhat confusing.
As stated earlier there is nowhere in the Evidence Act that prevents the admissibility of computer generated statements of Account, so any talk of an amendment of the Evidence for that specific purpose is misplaced. In addition, it is not clear from the Judgment whether the refusal to admit the computer print out statements of Account is because it is simply a computer generated document or because of the provisions of section 97 (2) (e) of the Evidence Act were not met. The Court in fact held that the computer print out statement of account is relevant, so if it relevant is it not because it satisfies the provisions of the Evidence Act on admissibility and is thus cognizable under the Act. It is submitted that the Court ought to have limited its comments to the failure of that particular document to meet the requirements of the Evidence Act under Section 97 (2) (e) in which case the talk about legislative amendment to admit computer generated statement of account becomes unnecessary.
The view of this column is that computer generated statements of account just like any other computer generated evidence is admissible as documents generated through mechanical process but in the case of bank's statements section 97 (2) (e) of the Evidence Act as to certification must be strictly adhered to: to wit.
(a) That the book from which the entries were copied and made was at the time of making one of the ordinary books of the bank.
(b)That the entry was made in the usual and ordinary course of business;
(c) That the book is in the custody and control of the bank.
(d)That the copy has been examined with the Original entry and is correct.

UNITY LIFE & FIRE INSURANCE V IBWA (2001) 7 NWLR (pt.713)610.
YASSIM V BARCLAYS BANK DCO (SUPRA)
YESUFU V ACB (SUPRA)
OGUMA V IBWA (SUPRA)
All these decisions are Supreme Court decisions which are juridically superior to the 2 cases of TRADE BANK V. Chami and UBA V SAFPU which are not only conflicting but the source of so much controversy.
The above Supreme Court decisions are directly on point in respect of the admissibility of the Statements of Accounts/Bankers Books, thus remain the law on the admissibility of statements of account no matter how generated be it manually or by any form of mechanical process including by way of computer print out. It is in fact submitted that the compelling reason for certification is on account of the ease with which computer whiz-kids from all sides of the divide, be it those out to defraud others including banks and unwary customers or those on the side of banks and even prosecuting agencies bent on nailing a fraudster, can readily manipulate electronic records and documents for their parochial interest. After all, the primary rule of the computer m spite of all advancements is GIGO Garbage In Garbage Out. It is whatever information you feed into the system true or false that you get.
Certification remains the only guarantee against manipulated evidence from being freely admitted in a Court of law. The Supreme Court succinctly captured the compelling need for certification in the case of ARAKA V. EGBUE (2003) 7 SC 75 @ 84/85: "One main objective behind section 97 (2) (C) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the Original. This in addition to the need/or the preservation of public documents. In this age a/sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context a/section 97 (2) (a) could be tutored and therefore not authentic. Photo tricks could be applied in the process a/copying the Original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the Original and therefore not a carbon copy of the Original. The court has not the eyes of an eagle to detect such tricks”

We can add nothing useful to this observation of the apex Court.

CONCLUSION:
The Evidence Act even in its pristine form can readily accommodate computer generated evidence including computer print-out statement of accounts but such evidence must comply with the certification provision of section 97 (2) (e) of the Evidence Act. That remains the only way to ensure that only authentic computer generated statement of accounts rather than manipulated, forged, contrived or fake statements of accounts are admitted in Evidence.
Nevertheless, the entire Evidence Act needs to be overhauled to enact a modem and up to date Evidence Act for our dear nation to bring our law and jurisprudence of Evidence in line with the best global practices.

Ademola A. Adewale
Legal Practitioner.

In the temple of justice, when you want ferret out some facts or truths, truths unpleasant to your opponents, the minister you press to work is cross-

Amidst the popular clamour for electoral reform, one of the most recurrent issues of discourse is the question of the provision of a time-frame for the determination of electoral disputes.

It is not in dispute that most Nigerians would like a situation where all electoral disputes particularly those relating to the high office of Presidency and Governors are resolved before the holders of these Constitutional offices are sworn in and begin to discharge the duties of their office. Most are disgusted by the spectacle of Governors, Senators (and by extension the president) being sworn in, taking far reaching decisions, assenting to bills, spending public finds, earning jumbo salaries, appointing a retinue of Commissioners, Special Advisers, Special Assistants etc.; in short living the life of a Constitutional chief Executive for months and years only to be removed at times nearly 3 years after as has happened in several States such as Anambra, Edo, Ondo and Ekiti (though the jury is still out on the latter State in view of the re-run elections).

In fact the singular absence of a time-frame in the report of the Electoral reform Committee is enough reason for a cross-section of the populace to reject both the report and the government’s white paper thereon.

In principle, this desire of the Nigerian people cannot be faulted as it is most desirable that the people know the leaders they have chosen well before such leaders are sworn into office and begin to play the vital Constitutional roles which affect the lives of the people in a profound way. But this article will examine critically the practically and even legality? Yes, legality as this should not be assumed of a time frame for election petitions.

First the argument for a time-frame within which to conclude election petition: this is a very common argument that it bothers on criminality to allow election petitions to drag on for years while those with stolen mandates occupy public office and proceed to further loot the public treasury for a few years before they are thrown out. The conventional wisdom is that such a person should not only account for every sum collected but in fact be prosecuted and all his actions nullified. The reasoning here is that this is the best way to discourage people from electoral malpractices and stolen mandates.

Support for this opinion is found in electoral situations both at home and abroad. The 1979 Presidential election out of which the 122/3 States controversy which was resolved before the winner Alhaji Shehu Shagari was sworn in is cited as an example. On the foreign scene, the 2000 American Presidential Election which involved the Florida re-count debacle between Bush and Gore popularly called Bush V Gore which was also resolved by the United States Supreme Court provide ready ammunition for this school of thought. The group argues forcefully quoting Dr. Anthony Akinola in THE GUARDIAN of Thursday 19 March 2009 @ page 79 “someone who did not win an election should not, under any circumstances, be allowed to assume the position of President of the Federal Republic of Nigeria or governor of any State in the federation – even for just one day. The oath of office is sacred: it should not be administered when we are in doubt.”

Prima facie – at face value, this argument seems unassailable and admitting of no reasonable counter argument. But upon a calm and dispassionate evaluation of the situation if may be found that the matter is not as simple and straight forward as the advocates of a fixed period of time for the resolution of electoral disputes would seem to suggest.
In commencing a critical examination of the subject of time limitation for resolving electoral disputes it is important to stress, even at the expense of sounding pastoral, that there is nothing new under the sun. And as the Holy Book says “that which hath been is now; and that which is to be hath already been.”

The idea of time limit for the resolution of electoral disputes is not a such a new thing. As far back as 1982 in the 2nd Republic, The Electoral Act 1982 in Sections 129(3) and 140 (2) thereto provided for 30 (thirty) days for the resolution of electoral disputes either in relation to the Presidency, Governor, National Assembly and State Assembly posts. But the Supreme Court in the celebrated 2nd Republic case of Dr. Paul Unongo V Aper Aku (1983) 14 NSCC 563 held the issue of time limitation in the resolution of electoral disputes Unconstitutional.
A few years ago, a brilliant lawyer and potential silk in the person of A.J Owonikoko Esq. tried with all forensic advocacy at his disposal to get the Supreme Court to overrule the Unongo V Aku case in the equally celebrated case of Yusuf V Obasanjo (2003) 9-10 SC 53, but to no avail. The Supreme Court stuck firmly to her guns as held in Unongo V Aku’s case.

Why then would the apex court stick to this unpopular view”, which is now the cause of strange developments in which electoral matters are decided 18, 24 or 28 months after the wrong person has been sworn in and has benefited immensely at least from the lack of time frame in the determination of electoral disputes? No one other than the Supreme Court can best answer this question.

In Unongo V Aku’s case, the Supreme Court’s said “Any electoral enactment which specified a time constraint on the court to determine an election petition is to say the least very absurd and indeed defeats the intention of the constitution and the Electoral Act itself, which is to enable an aggrieved candidate to an election to seek redress in court.”

Also in Unongo V Aku’s case, the Supreme Court held that “there can be no doubt that it is within the province of the National Assembly to prescribe the practice and procedure to be followed by a court which ha an election petition ….. but such power cannot in view of the constitutional doctrine of separation of powers amongst the thrice arms of government, that is the Executive, Legislative and Judiciary, extend to the limitation of the time within which a case properly instituted in a court can be heard and determined. If the power were so to apply, as indeed applies under the Electoral Act, then it would, in my opinion, be ultra vires because. It amounts to unconstitutional interference with judicial functions.”

In the Yusuf V Obasanjo’s case the apex court held that “ it would appear to me that the decision in Unongo and a few others following, might have resulted in the most encouraging and assuring absence of the regimental fixation of time within which to determine an election petition in the present Electoral Act. That is a development for which the legislature receive my kudos. That is how it should be in a democracy.”

The court stated clearly that “it is certainly against all known principles of fair hearing as the court, by the provision (of time limit) is hemmed to a fixed date within which it must, as a matter of law, deliver judgment.” {Emphasis added}.

Thus, the Supreme Court based on the view that to fix time limit for the determination of election petitions will stifle or frustrate a parties right to fully ventilate his case, held that the 30 days period prescribed in the Unongo V Aku’s case was unconstitutional, and the 30 days period for bringing amendment under Section 132 of the Electoral Act 2002 of the Yusuf V Obasanjo’s case is unconstitutional.

Indeed, it is this desire to allow parties ample opportunity to present their case that prompted the apex court in the recent celebrated case on Interrogatories Abubakar V Yaradua (2008) 1SC (pt 1) 77 to allow the Appellant, Alhaji Atiku Abubakar to deliver interrogatories on Prof. Maurice Iwu even when the same was not front loaded with the Appellant’s petition as required by the Election Petition practice direction and to allow the Appellant’s appeal on the refusal to allow interrogatories by the lower court, which is an interlocutory appeal contrary to the provisions of the said Election practice direction which barred interlocutory appeals.

The overriding objective of all these decisions of the Supreme Court on election petitions was stated as being “the need to ensure that all relevant evidence is given to ensure that justice is seen to be done.” That the ends of justice ought not be sacrificed just because of the desirably to have the case disposed off speedily.” Most importantly because “courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing.

Thus on the strength of this welter of judicial opinion that the fair hearing of election petitions which entails granting all the parties, petitioners and respondents alike adequate opportunity to fully present their cases, which might take weeks, months and a few years, takes precedence over the desirability of speedy hearing of election petitions, does the clamour for time-limit to the determination of election petitions hold any water?

On a more practical in some level if some of the election petitions in some of the South-Western States had been more timely determined, would some of the petitioners had been able to call in the evidence of the British forensic Experts Adrian Forty, whose expertise exposed several instances of multiple thumb-printing of ballot boxes by the same voter/voters and various other electoral shenanigans that characterized the 2007 elections? At yet another level of comparative analysis, the comparison to 1979 Elections, 1983 elections, 1991-1993 elections or the 2000 American Presidential Elections are not always apt. there are certain fundamental differences between Nigerian elections post 1999 and all the above elections both locally and abroad.

Take the 1979 Elections for example. The problem that arose was not in relation to widespread electoral malpractices like ballot box stuffing, voter intimidation and the like. Rather the problem was in relation to the votes cast in (old) Kano State. Alhaji Shehu Shagari had secured ¼ of the votes cast in 12 States to Chief Awolowo’s ¼ of votes cast in 6States. But the legal question was whether Alhaji Shagari who secured less than ¼ of the votes cast in the 13th State of Kano, had satisfied the constitutional requirement of ¼ of votes cast in 2/3 of the 19 States of the Federation, which led to the hair-splitting argument as to whether a State could be divided into fractions or not. At the end of the day the supreme court had accepted the hair-splitting argument that a State could be split into fraction such that where a candidate secured ¼ of the votes cast in 2/3 of a State; that is 1/6 he could be declared a winner. This is of course not an occasion to determine whether the supreme court was right or not and volumes of books have been devoted to analyzing that celebrated case. What is important for this discourse was that the Awolowo V Shagari, 122/3 case was strictly a point of law issue which was decided in less than 3 months after the election and probably could be still so promptly decided, if that was the sole issue for determination. (1979) 6-9S.C 51.

Contrast that to the 2003 Presidential elections where allegation of malpractices were raised in 12 of 36 States namely: Adamawa, Kaduna, Enugu, Taraba, Ebonyi, Benue, Cross-River, Edo, Rivers, Bayelsa, Imo and Ogun State. And a total of 355 witnesses were called. In Buhari V Obasanjo (2005)7S.C (Pt1)1.

Still talking about the 2003 elections; in the Ngige V Obi’s case over 400 witnesses were called in relation to Gubernatorial election in a State (Anambra) with 21 Local Government Councils.
The 2003 presidential election, trial and appeal took 26 months while Anambra 2003 Gubernatorial elections, trial and appeal took almost 34 months to dispose off.

To cut down drastically on the spectacle of an election petition averaging two, three years to determine the President of the Court of Appeal issued Election Petitions practice Directions 1& 2 2007 aimed essentially at eliminating the calling off dozens of witnesses and long-winded lawyers speech. Reducing practically everything into paper-work, and the cross-examination of only the most vital witnesses. Thus after the 2007 elections, it was not unusually to see parties loaded the court with dozens of bags of fully loaded “Ghana-must-go” bags of documentary evidence and lawyers paperwork; petitions, motions, affidavits and written address. Already in existence of facilitate speedy hearing of these disputes and provisions of precedent to electoral matters over the common and general matters involving the common and ordinary man-section 148 of the Electoral Act. How many times have my ordinary Nigerian clients suffered adjournment of their cases because the presiding judge is away on an electoral tribunal or because the appellate courts are only able to attend election petitions? Extrapolate that by the number of practicing lawyers who do not have the good fortune of being on an election petition legal team and you have a fair idea of the effect on the system.

Yet with all these privileged status the election petitions still take an average of 20 months to get finally disposed off.
With regard to the American example the comparison is non-existent. The 2000 American Presidential debacle relates to disputes as to proper voting by the use of the voting machine – the notorious Chad; dimpled, hanging, pregnant, swinging door, tri etc in a handful of countries-equivalent of our local government area, certainly less than a dozen in the disputed State of Florida. Even then it took that great nation more than 5 weeks of earth –shaking political wrangling to deal with the situation before that nation’s Supreme Courts could bring the situation under control!

Would the famed American political machinery have survived if the dispute had been more widespread, say over 3 States? In any case, the 2000 debacle is child’s play to the controversy which usually surrounds a mere gubernatorial decisions in Nigeria. So the American system offers no useful comparison and assistance.

Finally, if as we have established it still takes an average of 20 months to resolve electoral disputes, with all our best efforts, how do advocates of time-limit propose that government be run in the interim by Senate Presidents or Speakers whose electoral mandates may be under judicial scrutiny? By caretaker committees of civil servants? Will that be democratic? I certainly hope not the usual mantra of by the courts! The judiciary must resist the popular clamour of being invited to get involved in the political terrain; no matter the pressure the courts must never be involved in politics administration lest she becomes like the proverbial elephant tricked into her doom by the deceitful praise singing. The courts are of course too wise to fall for such seductions.

At the end of day, the solution to stolen electoral mandates, long drawn electoral disputes, non-credible elections, is not constitutional amendment, electoral reforms, very stiff penalties for electoral offences, time-limit to settling electoral disputes. They all might help though. But the solution is a change of heart by all of us at every level to ensure free, fair and credible elections. Unfortunately the solution is not as easy as it appears; habits die hard!

CASE REVIEW RE: OLALEKAN AKINTOLA I.G.P & ORS. DEFINING THE LIMITS OF CONSTITUTIONAL LIBERTY

With the recent reporting of the decision of Lagos State High Court in sult IP/300M /2006 between Olalekan Akintola V I.G. P& ors (Unreported Lagos High Court Suit) where the limits of the Constitutional right is personal liberty were judicially defined by Justice B.O Shitta-Bey (Mrs) the Squib has shown once again that is a serious law magazine contrary to the impression in some quarters that it is no more a judicial gossip tabloid set by its proprietorship to profit from the goofs and gaffes of judicial officers and workers’
The relevant facts of this uncelebrated decision which nonetheless has great constitutional import, is that one Mr. Olalekan Akintola who defied the Lagos State Environmental Sanitation Law 2000 by being found in a public place on Saturday the 24th April 2004 at New Carrage Ifako Gbagada between the hours of 7:00am to 10.00am when there was a restriction on public movement in the observation of the monthly Environmental Sanitation exercise, was arrested and detained at the Ifako Gbagada Police Station, Gbagada pursuant to the said Law. He therefore subsequently filed an act under the Fundamental Human Rights Enforcement Procedure Rules challenging amongst other things.

1. The Constitutionality of the said Lagos State Environmental Sanitation Law.

2. The constitutionality and legality of his arrest and detention under the said Law.

3. N10 million for his arrest and detention under the said law.

In the aforesaid judgement, Justice B.O Shitta-Bey (Mrs) upheld the constitutionality of the said Law under Section 45(1) of the Constitution of the Federal Republic of Nigeria 1999 as being a law reasonably justifiable in a democratic society (a). In the interest of defence, public safety, public order, public morality or public health”

His lordship having upheld that the detention of the Applicant was not wrongful or illegal and thus his claim for N10 million was dismissed as being unmeritorious. In essence the court held that the Environmental Sanitation Law of Lagos State 2000 restricting the right of citizen on the last Saturday of every month is Constitutional and that the police under relevant authority will be acting within the law in arresting and prosecuting a citizen who defies the law.

The exact limitations of fundamental right particularly the right to liberty has agitated jurists for several years with lawyers sharply divided over the issue.

Radical lawyers particularly those with civil liberty bent tend to believe that the exercise of these rights is almost absolute excepting those involved in patently criminal activities. In support of these liberal view the 2nd Republic cases of Fed. MM of Int. Affairs V Shugaba (1982) 3 NCLR Oyegbemi V A.G (1982) 3 NCLR 895



Adikwu V. F.H.R (1982) 3 NCLR 395 are readily cited that the citizen is entitled to the enjoyment of his fundamental rights, which rights are not only Constitutional but in fact inalienable and enjoy global imprimatur by virtue of the United Nations Charter on Human Rights. The celebrated cases of Agbakoba V SSS (1998) 1HRLR A 257 is part of this advocacy.
The meaning here is that Constitutional rights ought to be interpreted liberally as stated in Rabiu V State (1980) 8-11S.C 130 C 148-149.

The other school of thought made up of conservative but none the less brilliant lawyers who in fact consider themselves not only realistic but objective. This argue that no right be it ordinary or inalienable is absolute; that it will be absurd to hold that the enjoyment of any right is absolute as human beings have a tendency to abuse rights that are not in one way or the other curtailed. In fact such a situation will merely breed chaos and anarchy. They argue that it is proper to let such citizen know that his rights stop where the other citizen’s right begins. Sic uteres tuout alienum non laedus. Your right to stretch your hands ends where my nose begins. And in the case of society there times in the interest of security, law and order and public health that a citizen’s right has to be subjected to the rights of the greater majority of other citizens, hence reasonable curtailment of the individual citizen’s rights.

Thus this group fined realistic succour in Section 45 (1) of the Constitution that allows the State to make reasonable laws to check the excessive enjoyment of fundamental human rights.

Recent developments in the nation’s jurisprudence will tend to support the caution urged by this group in relation to fundamental human rights.

In the case of Dokubo-Asari V FRN (2007) 5-6 SC 150, where the Applicant applied for bail in the exercise of his Constitutional right to liberty in denying him bail the court held that his activities which were a threat to the peace and security and therefore his personal right to liberty has to b subjected to the nation to live in peace. Thus the court declined him the exercise of his fundamental human rights including the right to personal liberty stating such a right is not absolute and can be curtailed in some instances.

Still on the limitation of human rights, the case of Dr. Lewis Chuhkwuma V C.O.P (2005) 8 NWLR (pt 927)278 where the public order Act that limit a citizen’s right to freedom of Association and Freedom of expression by subjecting public gatherings to police permits was held to be Constitutional is also routinely cited.

Both schools of thought have valid argument but it humbly submitted that in the content of the instant case, the decision of the Hon. B.O Shitta-Bey in the instant case is in order Lagos State like many other Nigerian States and cities are groaning under the weight of filth and waste.

Indeed, Lagos was at the very top of the dubious pack, but in recent times by taking drastic measures, the city is fast becoming the garden city of Lagos by the strong determination of the Governor Babatunde Fashola to make the city comparable to any of the best in the World such as New York, London, Tokyo, Paris etc in term of clean environment and aesthetics. The monthly environmental sanitation which requires every Lagosian to stay indoors between 7.00a.m – 10.00a.m to clean up their environment is just one of the cocktails of initiatives to give Lagos a clean and healthy appearance and environment. If the price which every citizen is to pay is to stay indoors to clean up his environment for a few hours once every month to ensure a clean and healthy environment is with due respect, greater that the right of every individual to personal liberty which has shown above is not an absolute right.
Thus it is submitted that the decision of The Hon. Justice B.O Shitta-Bey (Ms) in suit IP/308M/2006 between Olalekan Akintola V I.G.P & Ors correctly demilits of a citizen’s Constitution

RE: BODY OF SENIOR ADVOCATES OF NIGERIA INC AND OTHER MATTERS By Ademola Adewale Esq.

One of the issues over which the rank and file of legal practitioners in Nigeria is sharply divided is the move by a group of Senior Advocates of Nigeria to register under part C of the company and Allied Matters Act CAMA.

Ever since the attempt came into the open, things seem to have fallen apart amongst Senior Advocates of Nigeria, SAN and Non-SAN and both parties are no longer at ease (Apologies to the great writer Prof Chinua Achebe). So much so that at the last NBA, National Executive Committee NEC meeting in Minna tempers were said to have flared at a stage amongst otherwise learned gentlemen nearly resulting in fisticuffs. The upcoming NEC meeting at Oshogbo, in the state touted to be the source of the descendants of O’odua promises to be no less stormy when the issue comes up once again for discussion.

At the heart of the controversy is the determination of a section of the nation’s Inner Bar to register a social/friendly society of Senior Advocates of Nigeria, an action which they consider merely an expression of her fundamental right to freedom of Association guaranteed by the constitution. The point must however be clearly made that not all SAN’s are in support of this move, although quite naturally none has come out to voice any dissent to the move, while many silks are simply indifferent to the whole episode. They do not see how the registration of such a body will either improve or take away from their standing at the Bar and their ability to corner the juiciest briefs in the land.

But amongst non-SAN of all hues and class, be they Senior, middle age or junior, very rich, modestly rich or down right indigent, the fear of the proposed Body of Senior Advocate of Nigeria, SAN incorporated is very real and the rallying cry against a potential permanent class destination at the Bar contrary to the famed Equality and Oneness of the Bar.
Yet, the fear is neither exaggerated nor misplaced but borne out of the hard reality of the almost complete domination of the profession in recent times by members of the Inner Bar to the detriment of the larger OUTER BAR.

The privileged class of the Inner Bar is of antiquated English Origin just like the Nigerian legal profession itself. The rank known as Queen’s/King’s counsel depending on whether the monarch is a king or Queen is over 500 years old and has been occupied through the ages until present times by some of the greatest legal minds that ever lived, Francis Bacon, was a king’s counsel, John Scott, who became Lord Eldon and played a major role in the development of the principles of Equity was a King’s counsel, Lord Denning in his days at the Bar was a King’s counsel, Quintin Hogg who later became Lord Hailsham of St Marylebone was a Queen’s counsel while at the Bar and most recently the Cherie Booth, who has retained her maiden name for professional purposes, the wife of the immediate past prime Minister of Britain is a Queen’s Counsel.

At the introduction of the legal profession in Nigeria, a few number of Nigerians inspite of stiff British competition became Queen’s Counsel, Q.C, before the title was scrapped in 1963 when Nigeria became a republic. This elite class of lawyers included Chief Rotimi Williams, who was reputed to be the first Nigerian to earn the rank, Chief H.O Davies, Egerton-Shyngle, Oladipo Moore, Dr. Teslim Elias, Chuba Ikeazu G.C.M Onyiake, K. Kotun RA. Fani- Kayode and a few more others.

The rank resurfaced in 1975 with Chief F.R.A Williams being once again the first beneficiary together with (his brother giant both intellectually and in physical size) Dr Nabo Granham-Douglas. This time around the rank had been Nigerianised and re-styled Senior Advocate of Nigeria, SAN.
The award was repeated in 1978 when 13 of the best legal minds Nigeria has ever produced including Chief R.O Akinjide, Chief G.O.K Ajayi Chief Obafemi Awolowo, Mr. Kehinde Sofola, Chief Olisa Chukurah, Pro B.O Nwabueze, Dr. (later justice) A. Nnamani and others.
The awards have been awarded almost every year ever since with about 300 both living and dead having been admitted to the Inner Bar ever since.
Comparatively the rank is still highly coveted and exclusive when one considers that only 300 living and dead lawyers have been elevated to the rank from the fold of about 75,000 living, dead and non-practising lawyers.
In the early days of the award through the exact criteria outside of being “a lawyer of destination of over 10 years at the Bar” was a closely guided secret, the award was almost completely without controversy.
Who could question the inimitable brilliance of the doyen of the Bar Chief F.R.A Williams, the irrepressible doggedness of Mr. Kehinde Sofola (He strongly resisted being designated Chief all through his life), the professional wizardry of the 122/3 legal calculus of Chief Richard Akinjide, the forensic advocacy of Chief G.O.K Ajayi or the intellectual sagacity of Prof. B.O Nwabueze, the advocacy and colourfulness of Mr. H.A Lardner, the dexterity and booming voice of Chief G. C.M Onyiuke, or the eloquence and delivery of Sir Clem Akpamgbo etc.

The undisputed fact is that the Senior Advocates of old were selected solely on merit and the greatest of cynics could not fault their being deserving of the award.

On their own part as masters and leaders of the profession they conducted themselves fittingly: No Senior Advocate of old will lobby for a solicitor brief, no matter how juicy or any brief at all yet no case of national or jurisprudential importance could be decided without their input. Even if merely as Amicus Curiae check out the Impressive List of SAN’s in Abioye V YAkubu (1991) 5NWLR (part 190) 130.
No Senior Advocate of old no matter how brilliant will prepare a brief without an input from a team of juniors. How did the famous Black Table of Chief Williams emerge?

Senior Advocates of old were for the most approachable even to the youngest of lawyers for assistance. About 24 years ago at the premises of the Lagos High Court a group of us Law Student at the Law School accosted the late Chief Williams SAN with our Body of Benchers form, the great man asked for a big chair worthy of his size and a desk, he endorsed not less than 20 forms on that occasion. Who is that modern day SAN who can perform the same act of grace?

In the past when a silk walked into a crowded court room most of them did not think beneath their dignity to invite even very young lawyers to share the Inner Bar with them rather than stand or perch at the back. Many of the old generation Silks would not be offended if the court elects to stand down their contentious matters while running through the list to dispose off non-contentious matters.

Not these days! Most Silk will take strong exception to even lawyers who had been at the Bar almost 20 years before their admission to the Bar sharing the Inner Bar with them simply because the old lawyer has no Silk to his gown. And only the firmest and boldest of judges would dare to run down his list and adjourn non-contentious matters while standing down learned Silk’s case.

Yet, it is this preference for only rights and privileges without responsibilities, this, condescending attitude of We Vs Them”, that is at the heart of the wide gulf of separation that now exists at the Bar between Silks and Non-Silks.

To this strained relationship can be added the growing feeling in some quarters that a sizeable number of awards are now made on extraneous considerations outside of merit.

Silks also as a group, without prejudice to individual dispositions and attitudes, have been carrying on as a law unto themselves arrogating more and more powers and privileges unto themselves well beyond the traditional. Only a Senior Advocate can be Federal Attorney-General, only the SAN can aspire to the post of President of the Bar with a realistic chance of winning, the SAN are permanent members of the NBA NEC, though most of them stay away from meetings, the averages SAN insist in calling his case ahead even members of the Body of Benchers though the latter is the highest body within the NBA, with members invariably older at the Bar than most new generation Silks.

Silks scramble for solicitor briefs contrary to the old rule that upon being elevated to the rank members must be devoted to only advocacy. And as for litigation, their domination of juicy briefs is complete. This domineering attitude has naturally generated much resentment within the legal profession provides the basis for the idea of the registration of the Body of Senior Advocates of Nigeria Incorporated, which many fear justifiably will seal permanently the present strangle-hold on the profession by Silks and perpetuate the division of the profession into thereby destroying the legendary unity of the Bar.

Very senior lawyers who are not Silk recall how they united behind their Nigerian Seniors drive away the expatriate Silks and lawyers and wonder whether they have only succeeded in changing one master for the other, while younger lawyers are not happy about their growing helplessness in a profession where they are increasingly becoming second class citizen with little prospects of improvement in status because of the very low probability of taking Silk – the competition is extremely stiff involving both meritorious and extraneous considerations.

Already extremists from both groups of agitators are calling for the scrapping of the coveted title as the only permanent solution to the rampaging antics of Senior Advocates of Nigeria. This throwing away of the baby with the bath water cannot be a solution to a difficult but not intractable problem. There must still be an objective reward system to which brilliant and diligent advocates can aspire. The challenges are to make system movement based and transparent and occupants of the rank alert not only to their privileges but their first amongst Equal within One Virile Bar.

The proposed Body of Senior Advocates of Nigeria negates that by seeking to create a class of super lawyers who, our immediate experience is anything to go bye will shortly claim to be greater than even the Bar that produced them.

The idea of the Body of Senior Advocates of Nigeria should be immediately and permanently jettisoned in the interest of one united strong and indivisible Nigerian Bar Association.

Ademola A. Adewale
Legal Practitioner

PROF S. A. ORETUYI (1935-2008):THE PASSAGE OF THE GREAT TEACHER By: Ademola A. Adewale Esq.

Products of Great Ife, (former University of Ife and now) Obafemi Awolowo University, Ile-Ife and in the particular context of this article, the law faculty of that great citadel of learning and culture (many a student unable to cope with rigorous academic discipline of the school had mischievously re-styled the second limb of the famous motto "torture") have always been proud, almost arrogant of their Alma Mata and the academic heritage bequeathed to them by their passage through the portals of the Ife law faculty.

One of the great academic Gurus who kept the Ife tradition of academic excellence alive for more than a generation was Prof. Solomon Akinboye Oretuyi LLB (Ife) LLM, PhD (Lond.) who recently passed on.

A great scholar and teacher. Prof Oretuyi taught several areas of the law at both undergraduate and Post-graduate levels. His specialties were Land law with emphasis on Conveyance and Customary Land law and Insurance law.

A natural teacher, he demystified those highly confusing doctrines of English land law and conveyance: Fee simple. Fee simple Absolute, Fee simple Entail, Seisin, Dowager etc which were as awe-inspiring to many of us as students as mathematics remains permanently to all generations of students. His teaching of the law of Insurance, was a must, even though Jurisprudence remained the only compulsory course in the final year for several decades.

However, having taken pains to teach the student the correct things. Prof Oretuyi in typical Ekiti style (no offence intended to the good people of Ekiti) made it very clear that the student deviates at his own peril from the acceptable path. There was the true life episode of a student now lawyer of many years standing who upon being asked in the tutorial class, what is fee simple replied quoting information obviously obtained elsewhere other than from Prof. Oretuyi's lecture. "A bundle of property rights". Prof Oretuyi property retorted "Awe, Am asking you about Fee simple, and in spite of all I have taught you, you are telling me its a bundle of right! Chances are you will fail this paper in June". Those were the days of Almighty June, you fail in one subject you repeat the whole year.

The student in that episode promptly made the necessary adjustment and "saved himself from a certain failure, potential repetition of class, even termination of academic career by the dreaded "Advised to Withdraw" from me school's Senate.

Prof. Oretuyi was reported to be amongst the earliest set of Ife law graduates graduating in the 2nd class upper Division which for a whole generation was the highest class of degree a student could graduate in at Ife until a certain Miss Folusho Aweda broke the jinx by graduating in 1st class a feat she repeated at the law school.

In fact Prof Oretuyi's academic record was reported to be the standard by which all successive graduates were assessed. The story continues that Prof. OretuuPs performance at undergraduate level was in fact worthy of a first class degree but the pioneer lectures of the faculty, may of them renown legal scholars from Oxford and Cambridge were skeptical about awarding a 1st class Honours Degree to an African from a young African University.

In any event. Prof. Oretuyi's 2.1 performance was enough to get a University scholarship to study for both his LLM and PhD at the prestigious University of London in the U. K.

Upon his return to Nigeria, Prof. Oretuyi with other equally eminent scholars such as Prof. D. A. Ijalaye SAN, Late Profs. Okunniga, Odumosu, Iluyonmade, Profs. J.O. Fabunmi, Itse Sagay SAN (many conveniently forget that Prof. Sagay was both student and later Professor at Ife before his short lived and tumultuous stay at Benin), Mr. Abel Emiko, Prof. Olu Adediran, Prof. Akintunde, Eniola, Dr. Surinda Boparai and Dr. (Mrs.) H. Boparai, Prof Esiemokhai, Prof. G. K. Vukor - Quarshie, Mr. Kaiser Bames Prof. (now Justice of the court of Appeal) M. O. Owoade, Prof Anifalaje and others: toiled ceaselessly to make the Ife law faculty the faculty of choice, it was for many years and I believe still is. Profs S. A, Adesanya SAN, C.O. Olawoyin SAN, A. B. Kasumu S.A.N no particular order, were also at various times part of the Ife success story.

Prof. S. A. Oretuyi by dint of hard work rose through the ranks to become Senior Lecturer, Associate Professor, Dean and Professor at various times at Ife. A thorough bred academic, he taught and in some instances served as Dean in many of the law faculties in the South Western part of Nigeria in addition to being visiting Professor at many Universities in the United Kingdom thus enjoyed tremendous goodwill and respect in the academic community. He was also for many years a member of the Editorial Board of the University of Ife Law Report (UILR).

Typical of the old generation of Nigerian academics, he lived a simple even Spartan lifestyle completely devoted to teaching, writing and research. Thus had no inclination towards primitive accumulation of wealth that is now the order of the day sadly even among modem day academics. He probably was worth a post retirement house at his homestead in Ijan-Ekiti or at best two, One in Ado-Ekiti the State capital the other his home town, a big farm which he must have stopped attending to personally save for supervision with the onset of diabetes about a decade ago, libraries and tons of books and research materials.

But a man whose accumulation of Human capital in the last 3 Decades includes Justices S. B. Candide Johnson, H. A. O. Abiru, 0. A. Williams. J. K. O. Oyewole and K Jose of the Lagos State High Court, Justices G. 0. Kolawole, A. Ogie and Babs Kuewumi of the Federal High Court, Justice B. A. Adejumo, President of the National Industrial Court, NIC, Justices Diran Akintola and M. A. Adegbola of the Oyo State High Court, Justice C. I. Akintayo of the Ekiti State High Court, Justice L. C. Azuama of the Imo State High Court, Justice A. Ogunfowora of the Ogun State High Court, Prof. U. A. Kalu SAN, Dr. Konyin Ajayi SAN, Mr. I. A. Adedipe SAN, Mr. N. 0. 0. Oke SAN, YusufAli SAN, Chief A. B. Kalejaye SAN, Mr. Supo Shasore SAN, Mr. Layi Babatunde SAN, Mr. Femi Atoyebi SAN Mr. Seeni Okunloye SAN (Deceased) Chief Chike Chigbue SAN. (Deceased), Olu Daramola SAN, Mr. Dele Adesina SAN, Mr. Obafemi Adewale, Mr. Femi Falana,, Mrs. Roli Craig, Mr. Dave AJetomobi, Mr. Bisi Ade-Ademuwagun, Mr. Steve Kuyuro, Mr. Ade Sanusi, Mr. Dare Akande, Mr. Dele Oloke, Mr. Victor Opara, Prof. Ademola Popoola, Prof Bolaji Owasanoye, Prof. Olawale Ajai, Dr. Lanre Fagbohun Dr. Kole Sodipo, Consulting Guru Leke Aider, Financial Anaylst Opeyemi AgbaJe,' Prof Ademola Yakubu (deceased). Prof O. Akanle, and in fact a whole generation of lawyers including this Writer: was an extremely wealthy man whose passage to the great beyond is worth celebrating. Adieu, Sunre 0. Baba Oretuyi, Great teacher!