‘Our judges are in a sorry situation’
Olisa Agbakoba (SAN) is a former president of the Nigerian Bar Association (NBA). He was admitted into the Nigerian Law School in 1978 and attended London School of Economics and Political Science, where he obtained LLM in 1980. In this interview, he speaks on the issue of two senior lawyers accused of offering gratification to […]
Olisa Agbakoba (SAN) is a former president of the Nigerian Bar Association (NBA). He was admitted into the Nigerian Law School in 1978 and attended London School of Economics and Political Science, where he obtained LLM in 1980. In this interview, he speaks on the issue of two senior lawyers accused of offering gratification to a public official, delay in justice administration among others. Excerpts:
The Economic and Financial Crimes Commission (EFCC) recently arraigned two of your colleagues before a Lagos State High Court, for allegedly offering gratification to a judicial official. Is it normal for a lawyer to assist a judge who has financial challenge?
It would be inappropriate to blame an inadequately paid judge whose mother has a terminal illness for asking for help from friends. You don’t expect that a judge whose mother is dying would be thinking about Code of Conduct. I remember when Justice Adeleke retired from the Supreme Court, and in her valedictory speech, she said she had nowhere to go to. The point is, it shows the sorry situation of judges – the fact that a judge could be put in that condition.
I took it up at the National Judicial Council (NJC). I said we can’t sit here, supposedly the third arm of government by the constitution, and our judges are dying; they have no houses. I requested the CJN at the time, Justice Mariam Aloma-Mukhtar, to take it up. Subsequently, I went to court against the Attorney General of the Federation on the point of how to fund the judiciary and I won, even though the judgment hasn’t been enforced.
If a judge is in a situation where his mother is dying, he will take money from anybody and lose his job. It doesn’t have to be from a lawyer. But the issue is, why would a judge be in that sort of position in the first place? A SAN is even a better person to ask for assistance than a governor. Why would chief judges of respective states go cap in hand to governors for goodies for their judges? Why? I know so many judges who are in difficulty. Some can’t even pay school fees. It’s about funding of the judiciary.
What will you say is responsible for delay in hearing and determination of cases in Nigeria?
Every business has a model and Alternative Dispute Resolution is a model for resolving disputes. So, the first thing I will recommend is to change the model. Our dispute resolution system is outdated; it is about 200 years old. It is too slow, technical and lacks speed hence we need to change the model and make it quicker.
I was a member of the National Judicial Council, and being a former president of Nigerian Bar Association (NBA) I know what I am talking about. Sometimes, it is the law profession, the judicature of the whole system that changes idea but that hasn’t happened yet. In England, a judge controls the court but in Nigeria, a judge does not.
A lot of times, lawyers control the process because we say judges should not descend into the arena. At a time that was correct but, it is no longer so. We all watch football, the fact that a referee aggressively gives a red card does not mean he is on the side of Liverpool. This is because next week, you will see him issuing red card to a Liverpool player. In Nigeria, judges are a bit too courteous not to take charge of cases because they don’t want to be seen as taking sides and that causes a tremendous delay.
For instance, something happened to me before Justice Okechukwu Okeke of the Federal High Court. The case was that of Oceanic Bank Plc but I forgot to insert Plc in the heading of the process. However, it was stated in the body of the process. Even, lawyers on the other side understood that it was Oceanic Bank Plc. But, the judge said no, he insisted that I cannot amend unless I bring an application to that effect. That caused another six months delay.
But, in England, such a thing cannot happen, because the judge has the power to amend the error. The model used in England is called the Case Management System. So, that is the first cause of delays in our courts, because judges are not in charge of cases filed before them.
The second is the fact that the nature of disputes is so diverse that the regular courts can no longer cope. If you look at the cases involving the banks, you will notice that 80 per cent of these cases are basically on ‘I owe you N10 and not N5’. These are issues that a tribunal made up of people with revenant experience will be able to resolve. So, we need to diversify our courts and leave regular courts to continue; we need to open new channels. It is like a highway that is congested, you may need to expand it.
What is your take on the state of the economy?
When I gave a presentation during an oil subsidy discourse, and sat close to the former minister of finance, Okonjo-Iweala, I told her that I cannot understand what government was talking about. There are 43 value changes in the oil industry and 43 persons are benefiting from it but no Nigerian is involved in it. So, why should we put all our resources in foreign banks to the detriment and exclusion of Nigerian banks? So, you can see that the leakage is massive.
At times, I get so angry the way things are being done in this country. Money is just running away from the country and government seems not to be noticing it. It baffles me.
Do you support devaluation?
The choice here is between regulation and deregulation. The regulation logic would encourage the CBN to dictate the exchange value, in this case devalue it. This is the position favoured by IMF. The contrary view, which I feel is more reasonable, is to deregulate the environment and allow market forces to determine the exchange value. Also tied to this is that the CBN should allow free flow of forex. CBN should expand the space and allow all Nigerians to participate in this. Currently, the centralized system on this issue excludes critical stakeholders from Dangote to the ‘mallam’ on the street. The problem with Forex is that CBN does not have enough, but if we expand the space, we would be surprised that many Nigerians can participate and increase the stock. All that is needed is to create a legal framework to encourage this participation, subject to money laundering rules.
Since the price of crude oil has nose-dived, don’t you think it is time for diversification?
This is already notorious in the face of the post oil economy that we are witnessing. The roadblock, however, is the massive infrastructural deficit to serve as a backbone. We must return to ‘Receivable Financing Option’. The proposal that Nigeria pledges her oil to receive loan from countries like China, should be revisited. We need to fill our huge deficit gap by receivable financing. It is only such huge receipt of funds that could plug the serious infrastructural deficit that impedes diversification in Nigeria.