‘Restrict Right of Appeal to Apex Court’

In a jurisdiction where partnerships do not seem to thrive much, its good to see a partnership that has thrived for several decades. The upscale law firm of Sofunde, Osakwe, Ogundipe & Belgore (SOOB Law) established in 1989 by the name Partners, has weathered the storm for over 30 years and is still going strong. Onikepo Braithwaite and Jude Igbanoi spoke to the firm’s four partners, Ebun Sofunde, SAN, Jide Ogundipe, Dele Belgore, SAN and their new Partner, former Nigerian Bar Association (NBA) Lagos Branch Chairman, Yemi Akangbe, who came on board when one of the founding Partners, Gabriel Osakwe voluntarily retired from active legal practice. The Partners spoke about their areas of expertise, and shared their views on some topical issues, while Mr Akangbe spoke about his experience and some of his achivements as Chairman of the largest Branch of the NBA

Ebun Sofunde, SAN

Chief Olanipekun, SAN’s speech at the Supreme Cou;rt during the valedictory session for Mary Peter-Odili JSC, expressly pointed out serious concerns over conflicting judgements of the Apex Court. What could be responsible for this, and how can it be addressed? The lower courts are also more guilty of conflicting orders and judgements. What is the solution to curb this malaise?

What could be responsible for the rate at which conflicting judgements are given by the courts are the following:

(a) too much workload for the Judges such that they do not have enough quality time to devote to each case and embark on the necessary research;

(b) some Judges do not necessarily place much importance on research and the analysis of previous decisions on a relevant matter; and

(c) the Judges are not adequately assisted by counsel who have the duty to draw the court’s attention to previous decisions that are, or appear to be, relevant.

Suggested solutions are:

(a) in the case of the Supreme Court, to reduce their workload by seriously restricting the right of appeal to it; and

(b) in the case of all courts (including the Supreme Court), to encourage the reduction of their workload indirectly by;

(i) making it unattractive to file actions and/or appeals that clearly lack merit by awarding proper and realistic costs against the losing party; and 

(ii) penalising counsel by the award of costs against them personally for bringing or maintaining frivolous actions and/or appeals, and if necessary, also taking necessary disciplinary proceedings; 

(c) in the case of all courts (including the Supreme Court) to encourage a more conscious attitude to the analysis of relevant cases by;

(i) ensuring that the criteria for the appointment of Judges should consciously include a propensity for research and analysis; and

(ii) making it unattractive for counsel to fail in their duty to draw the attention of the courts to relevant decisions. 

The retirement age of Justices of the Supreme Court was recently recommended by Chief Afe Babalola, SAN to be raised to 75 and Judges of the High Court, 70. Do you agree with this call? The retirement of one of your founding Partners, Mr Osakwe elicited a number of questions. Is it the policy of your firm that a Partner must retire at 70, or it was just a voluntary decision by Mr Osakwe? 

I agree with the call for the retirement ages of Justices to be raised to 75 for appellate Justices and 70 for High Court Judges. Now, a lot of experience and maturity is lost with retirement at the current retirement ages.

As a matter of fact, the Partnership Agreement that we signed in 1989 provides a clause therein for retirement at the age of 65. However, upon realising much later that 65 was too young an age for a Partner to retire, we did not enforce it. Chief Osakwe voluntarily retired at the age of 70. 

Can Section 137(3) of the Constitution apply retrospectively?

Section 137(3) which reads:

“A person who was sworn in as president to complete the term for which another person was elected as president shall not be elected to such office for more than a single term”

defines or qualifies a substantive right. It has nothing to do with procedure. The reason for this distinction is that any law on procedure is, without more, presumed to be retrospective. However, a law on substantive rights is always presumed to be prospective, unless there is something in its language which, expressly or by necessary implication, makes it clear that the lawmakers intend it to be retrospective.

Is there anything in the section that expressly or by necessary implication makes it clear that the lawmakers intend Section 137(3) to be retrospective? The use of the expressions “was sworn in” and “was elected as President” suggest that the section in question applies to an event that had already happened before the law was passed. This would tend to suggest that, this manifests an intention to make that section retrospective. But, if one gives it that meaning, it would be open to a conclusion that it does, therefore, not apply to persons who are sworn in to complete a President’s term after this section came into force. Is that the true intendment of the lawmakers? It is doubtful. 

In my opinion, the provision is meant to regulate that occurrence whenever it happens. In interpreting it this way, that would tend to make it less evident that the lawmakers intend to make the law retrospective. So, whilst there might be argument in favour of saying that it is retrospective, the argument is not clearcut.  

What is your opinion about the new law passed by the National Assembly criminalising the payment of ransom to kidnappers? Should this be so, when people are kidnapped not through any fault of theirs, but because the Government has failed to secure the lives of Nigerians?

I am not aware that a new law has been passed criminalising the payment of ransom to kidnappers, but I am aware that it is afoot. Again, without seeing the text of the law, it is impossible to evaluate it. However, in my opinion, it does not sound right to criminalise the payment of ransom. Such people who pay ransom should be treated as victims, unless their intention in paying over the ransom was to enable the kidnappers to be enriched rather than to save the lives and/or secure the release of their loved ones. 

Jide Ogundipe 

You were recently named a Global thought leader in the ‘Who’s Who Legal’. Please, tell us the significance of the recognition, and how does the legal industry in Nigeria benefit from your wealth of experience having been so recognised internationally? 

Who’s Who Legal (WWL) is a publication that seeks to identify the foremost legal practitioners, in multiple areas of business law. It features over 24,000 of the world’s leading private practice Lawyers from over 150 national jurisdictions.  It is impossible to buy entry into any of its guides.  So, being recognised by the publication is an honour conferred as a result of colleagues from around the world considering my work to have merit. Being recognised as a “Thought Leader” over the past couple of years in two separate practice areas (Asset Recovery in 2021 and Commercial Litigation in 2022), is a very special honour.  

I am unsure what, if any benefit, this recognition confers on the legal industry in Nigeria, which tends to focus more on legal practitioners recognised by a Judiciary-led Privileges Committee, than those recognised by their peers and clients.  Indeed, it is unlikely that many people in the legal profession in Nigeria are even aware of WWL. As my clientele is primarily non-Nigerian, the recognition has helped in directing non-Nigerians seeking legal counsel in Nigeria to making inquiries to my firm. What it might do, is encourage colleagues to seek to provide the levels of professional service that are demanded by clients in the leading commercial markets of the world.  This is really important, as legal practitioners from other jurisdictions continue to look to grab more of the most valuable work from Nigerian practitioners.

You have expertise in the field of asset tracing and recovery. How successful have you been in recovering Nigeria’s stolen assets? People are sceptical in that they believe that the funds recovered are simply relooted by others. Is there any truth to their belief? Or that nothing really comes out of it? For example, the case of the millions of Dollars found in a flat at Osborne Towers, Ikoyi. We never heard what happened to the funds, nor was anyone really brought to book for it after the initial noise making

As I indicated earlier, WWL featured me as a “Thought Leader” in the field of Asset Recovery in 2021. I also indicated that my clientele is made up, predominantly of non-Nigerian businesses, governments and individuals.  My asset recovery practice has been, primarily, on behalf of private clients.  I have had zero success in recovering assets for Nigeria, for the simple reason that I have never received instructions from any Nigerian government, department or corporation to seek to recover assets.  In my view, receiving instructions from governments in Nigeria is, to a very significant extent, based on political and personal influence, rather than on any appreciation of abilities or expertise in a particular practice area.  Given this, it is unsurprising that there is wide-spread scepticism that there is any true will on the part of the Federal Government, to pursue the recovery of value lost as a result of misfeasance by anybody, let alone by government officials.  

However, it would be unfair to be completely dismissive of official recovery attempts, as I am aware that there are ongoing efforts to seek recovery of lost value, not only in Nigeria but also in other jurisdictions around the world.  Indeed, a very interesting action embarked upon on behalf of the Federal Republic of Nigeria (FRN) (with which I have a very peripheral connection) recently closed in London, and judgement in that case is awaited. If the FRN is successful, it may receive a significant award in its favour. 

The suggestion that recovered assets will simply be “looted again” is inaccurate, although, it is easy to understand why there should be such a perception. One therefore, needs to take a more nuanced view of what is going on. The “looting” is an ongoing problem, and the perception that anything recovered will simply be misappropriated again, is not aided by what I describe as the Nigerian State’s schizophrenic approach to addressing the problem. On one hand, there appears to be genuine efforts to tackle the problem, and, at the same time, one observes instances where the effort does not seem to be genuine. The Osborne Road case you reference, is an example of this.  Authorities discovered (allegedly through a whistleblower) the presence of a huge sum of Federal Government cash in private premises, to where it had been improperly located.  The owner of the property, turned out to be the wife of a senior intelligence officer.  Once the initial media attention died down, information about the case became difficult to obtain. I am unaware of the current status of the matter, or if there is any actual pursuit of anybody for what appears to have been a most irregular situation. Certainly, nobody is presently standing trial in connection with the discovery. 

The recent media revelations about the Federal Accountant-General is another instance where we might, once again, witness this schizophrenia. Arrests are made with much fanfare, and then there is no proper follow through with efficient prosecutions.

Recently, two ex-Governors were pardoned after being prosecuted up to the Supreme Court and convicted of corruption charges. We understand that it is a prerogative that cannot be questioned. How do you think this kind of pardon reflects on Nigeria’s image abroad where assets are traced to for recovery? Do they take us seriously?

The pardoning of convicted former Governors sends, in my opinion, completely wrong signals to Nigerians and other people around the world, other than to Nigerian politicians. Quite apart from the fact that Nigerian courts, in my opinion, hand out far too lenient sentences to convicted political office holders, the signal it sends to Nigerian office holders is that one can essentially steal from one’s own people, safe in the knowledge that if caught and successfully prosecuted, a pardon awaits. This is another example of the schizophrenia I mentioned earlier. It is difficult for observers to take such things, as signalling any true desire to address the problems.

How would you rate the success of the Buhari Administration’s fight against corruption? 

Definitely not an A!

Dele Belgore, SAN

Arbitration is your forte, and you are a certified Tutor for the Institute. Given the fact that around here most people easily challenge arbitral awards, how well would you say arbitration has been entrenched in Nigeria? How can we ensure that parties have confidence in arbitration in Nigeria?

About 25 years ago when we started running training courses for the Chartered Institute of Arbitrators, we were confronted with a number of negative and erroneous perceptions. One, that arbitration is only a tool for Lawyers. Two, that arbitration was only for large money disputes. Three, a reference to arbitration was a challenge to the courts’ jurisdiction. Four, Nigeria lacked the requisite expertise and skill for arbitration. I am happy to say that, these perceptions have largely dissipated. Today, in Nigeria, arbitration and ADR is no longer the preserve of Lawyers or only for large monetary claims, the courts have become supportive of the process, and we have quality arbitrators that are readily benchmarked to international standards. I will admit that incessant challenges to arbitral awards is a problem, but, as our understanding of the process increases and the commercial realities of accepting the finality of an award percolates, I would expect that gradually, we will progress positively in that area too. Acceptance of the finality of awards is obviously an area that has to be improved upon, to bring about greater confidence in the arbitral process. 

What do you have to say about so many arbitration bodies in Nigeria? How can we ensure cohesion?  

First, there are not even enough arbitral bodies in Nigeria. With arbitration and ADR, it is “the more, the merrier”. Arbitration is a commercial service that should cater to the needs of various sectoral consumers. So, as the sphere of commercial activity grows and diversifies, so also should be the options of arbitration services available. The UK which has about 20 -25% of Nigeria’s population, has a lot more arbitral bodies than we have. Why? Because aside from the well-known arbitral bodies, the diversity and strength of commercial activity over there has given rise to various dispute resolution bodies that cater to specific industry sectors, such as those exclusively for the travel industry, for rental disputes, consumer protection, sports and so on. The issue of cohesion therefore, does not arise, so long as the various bodies share the fundamental objective of promoting arbitration & ADR, though their methods and ways of pursuing that objective could be and is expected to be different.

People are confused about the recent judgement of the Court of Appeal setting aside Anyadike J’s judgement which declared Section 84(12) of the Electoral Act 2022 null and void, but at the same time heard the matter on its merits and also declared the law unconstitutional for being discriminatory contrary to Section 42 of the Constitution. What is the effect of the intermediate court’s decision? Does it have the effect of restoring Section 84(12) or maintaining the declaration of its unconstitutionality?

The heart of the matter to my mind, emanates from decisions of the Supreme Court that enjoins lower courts to deal with all issues presented to them. This makes sense at a practical level, because if a lower court determines the issue of say a Plaintiff’s locus standi solely on the basis that that issue is dispositive of the entire case without bothering to pronounce on the other issues raised, should that matter go on appeal and the appellate finds that the Plaintiff does have locus, the matter would be sent back to the lower court for a determination of the other issues. If then, that court rules on those issues and the matter goes back on appeal, a lot of time would have been spent on what was in essence a preliminary issue. So, the Supreme Court said even if you find that there was no locus, for instance, rule on that, but go ahead to determine the other issues in the event that you were wrong on locus, so that your decision on those issues and the one on locus can all be taken together by the appellate court. This is an eminently sensible principle. 

The confusion people have over Anyadike J’s judgement on that Section 84(12) of the Electoral Act 2022 issue, is that they have interpreted her views on the constitutionality of that section as the ratio decidendi of the case. It is not, in my view. The ratio is that the Plaintiff in that case, did not have locus standi. All other pronouncements by her are obiter dicta. So, in the strict sense, the constitutionality of the Section 84 matter is yet undecided. If the court process in Nigeria were much quicker than it is, and a matter like locus can be solely determined and disposed of within a very short time, this would not have been an issue because the trial Judge would have dealt with only that issue and within a short time be back to deal with the others in the event that the appeal court finds that she was wrong on locus. 

You ran for Governor in your State, Kwara, albeit unsuccessfully. Have you put your ambition on hold? Or should we expect you to run again in the near future? 

I am presently an officious bystander, in matters of seeking elective office. The future is not ours. But, having said that, we should (and must) all actively engage with issues of governance. We must engage the process. Have a voice either directly by seeking office, or indirectly by supporting those you feel can adequately speak for you. Our lives, safety, prosperity and well-being, depend on it. If you allow the neighbourhood idiot to speak for you, you’ll only have yourself to blame for the consequent idiotic outcomes.

Yemi Akangbe 

As NBA Lagos Chairman, you inherited the huge project of building a befitting Secretariat for the Branch. How far did you take this project before you left office? We ask because many Branches, including a sister Branch, took many years to complete theirs, and such projects are often trailed with massive corruption which mostly end up in litigation.

Over the years, successive administrations of the Branch had made attempts to construct a befitting Bar Centre for the Lagos Branch, but it has proved somewhat elusive to achieve. My administration was able to break the jinx by commencing the project, unfortunately, we could not conclude it before the end of our tenure. Hopefully, the new administration will conclude the project. One of the main reasons for our inability to conclude the project was because in the first year of my administration, we were focusing on getting land within the vicinity of the High Court, so, we were considering some of the Federal Government properties around the Lagos High Court, We engaged the Minister for Works and Housing, Mr Babatunde Raji Fashola, SAN, but, we were not able to get a suitable property in that vicinity. By the second year of our administration, we then took the decision to commence construction on the land in Lekki given to the Branch  by the Lagos State Government.

With regard to allegations of corruption in the process of building a Bar Centre in other Branches, I cannot speak about other Branches, as I have no knowledge about their internal affairs. However, I can speak about the Lagos Branch, which is considered as the number one Branch in Nigeria, in all respects. I can boldly say that we have not had a case of corruption in our Branch to date, and this project is given further credibility by the eminent members in the Project committee, ably Chaired by a seasoned builder, in the person of Dr Wale Babalakin, SAN, Mrs Mfon Usoro as Vice Chair, Babasola Alokolaro as Secretary, and other members such as Mr George Etomi, Prof Gbolahan Elias, SAN, Mr Dele Belgore, SAN, Mr Val Obi, SAN, Mrs Chinyere Okorocha, Messrs Tony Nwaochei, Tobenna Erojikwe and Kehinde Daodu to name a few of them. I believe that with the efforts shown thus far by the new administration, we should have a Bar Centre of ours in no distant future.

Pls, Share with us your experience administering the largest of the 126 Branches of the NBA, given especially the cosmopolitan nature of Lagos.

It is indeed, a rare privilege to have led not only the largest Branch of the NBA with over 10,000 members, but also the largest Association of Lawyers in sub-saharan Africa. Of course, an Association of that size presents one with its own challenges. But, when I look back, I feel gratified by the many achievements and successes recorded by the Branch under my leadership.

I recall that my decision to run was simply borne out of belief in the saying that “if you want a thing done well or properly, do it yourself”. I did not want to sit on the fence and criticise the system like many people do, so I decided to throw my hat in the ring. I campaigned on the slogan of “providing platforms for upliftment of our members and increase their social mobility”. All my manifesto promises were fulfilled and  just to mention a few:

Continuous Professional Development Committee: This committee, under the chairmanship of Tobenna Erojikwe, recorded many successes.  For the first time in the history of the NBA or any of its 125 other Branches, we collaborated with other professional institutes to train and certify our members in other vocations. One of such collaborations, was the signing of a  memorandum of understanding with the Chartered Institute of Arbitrators in training and certifying our members in the field of Arbitration and ADR. The Branch sponsored 100 members on that training, and those 100 members now practice in that space. We were in the process of signing such understanding with the CITN and ICSAN when Covid struck, and the eventual lockdown forestalled the process. We also  had many group mentoring sessions for our younger members, the one-on-one mentoring sessions where we paired  younger Lawyers with senior Lawyers for a duration under a unique mentorship system. We were again, on the verge of commencing the law firm mentorship programme, where we would have paired small law firms with established law firms, in order to shadow and mentor the small ones, when the lock down commenced and that could not be achieved.

Welfare of members: For the first time in the history of the NBA, our administration embarked on health care insurance cover for our members. We decided to provide members, with an affordable health care service. We signed a memorandum of agreement with Hygeia, to provide medical insurance to members at a negotiated rate of N20,000 per year, to cover our members and their spouses. With that cover, our members had access to medical facilities with top grade hospitals in Lagos. Again, that was a first in the history of the NBA or any of its 125 other Branches.

Automated Branch Activities: Our administration ensured a construction of the Website for the Branch, and made sure that all Branch activities could be carried out electronically.  Payment of Branch dues, application for letters of good standing, identity cards et al are now obtained on the website, without the need to go over to the Branch physically. Again, no previous administration in the NBA or any of its other Branches had done that before.,

These are just some of the many firsts recorded by the Branch, under my leadership. So, looking back, I am glad that I was able to contribute positively to our dear profession, and I believe that if we all can emulate that, we might be able to contribute to fixing the larger Nigerian society. Societal changes can only be achieved through common will, so if we all come together and fix our homes, organisations, associations, our sphere of influence, we might just get that change that we have been yearning for, as a country or as a people. 

The NBA is in the process of electing its national officers in the next couple of weeks. As one who has held an important office in the Association, what would be your advice to young Lawyers as they make their choices? 

My advice for young Lawyers, is to exercise their choice wisely. The position of the leader of the NBA is very important to members of the profession, as well as to the citizenry of the country. I say this because, the NBA is the foremost pressure group in Nigeria, and the choice of its leadership is critical to its contribution to nation-building and the sustenance of our democracy. We are the only profession trained to administer and advance the cause of justice and the rule of law, to that extent, we have to play an active role in ensuring that only altruistic, credible and competent persons lead the Association. 

In addition, the profession itself is at a point where it is being confronted with too many challenges; and without a true leader to steer its ship, it may sink. We have issues such as encroachment into our market by both foreign firms that want to come and take over our space and other professionals within the country, encroaching on our space, such as accountants, estate agents to name a few. There is the major issue of remuneration of young Lawyers, how to ensure they earn a living wage during a period of tutelage. We are also confronted with Executive lawlessness and rascality, disobedience of court orders by Government and citizens, issues of indiscipline by Lawyers themselves. When you weigh up all theses challenges confronting the profession, one will realise that except we get our choice of leaders right, we may not have a profession one can be proud of in years to come. 

Thus, it is incumbent on members of the NBA, whether young or otherwise to ensure that the most credible candidate becomes the next President at the forthcoming election. I implore members not be passive on this occasion, they must interrogate the candidates, their background, track record and their programmes before pitching their tent.  Hopefully, we will have a President that can continue with the giant strides that the Olu Akpata administration has recorded. 

Thank you All.