“Nigeria’s Political Class Are Bad Losers”

Is the legal profession in Nigeria, biased against female Lawyers? Or why is the number of female Senior Advocates of Nigeria (SAN), less than 10% of the total number? These issues have been subtly discussed over the past few years, in the legal community. Mrs Olayemi Badewole, SAN took up the gauntlet last week, in a very engaging chat with Onikepo Braithwaite and Jude Igbanoi, in which she bared her mind on a plethora of professional issues, including that of the abysmally low number of female SANs, complexities in the Plateau lawmakers’ case, Election Petition jurisprudence, discipline of Lawyers and the challenges of juggling motherhood with active legal practice

Learned Silk, tell us about your journey from being a New Wig to the Inner Bar. Many have, over the years, expressed dissatisfaction that the number of female Lawyers who have so far taken Silk since the inception of the rank, is abysmally low. Is it more difficult for women to attain the rank? What were the challenges you faced along the way? What words of wisdom do you have for female Lawyers who wish to tread the path to taking Silk?

I was called to the Nigerian Bar on 10th December, 1991.  

I agree that the number of female Lawyers so far elevated to the Inner Bar since inception of conferment of the prestigious rank in 1975 is abysmally low, when compared with male Lawyers of the Inner Bar. However, I do not think the abysmal number, is due to the fact that it is more difficult for women to attain the rank. I would rather say that, it is a function of awareness and interest on the part of female Lawyers. This is because; as a legal practitioner, no matter how well qualified, you must make the requisite application to the Legal Practitioners’ Privileges Committee for conferment of the rank, before you are considered for elevation.   

If a female Lawyer works like her male counterpart, knowing the statutory requirements that would qualify her for consideration for conferment of the rank and she works at it, there should be no impediment for her when the time is right.  

I must acknowledge that because of the peculiar socio-cultural status of a woman as child nurturer, homemaker and family builder e.t.c, combining active legal practice as a professional, with her socio-cultural roles is a challenge. This perhaps, may make it more challenging for women to attain the rank, but, it cannot deter a woman who enjoys active legal practice and who has interest in attaining the rank. Women by nature are wired to multitask, even within 24 hours of each day. I also faced the challenge; of juggling motherhood, child nurturing, home making and family building, with active legal practice. 

The other challenge involved in qualifying for consideration for conferment of SAN, is the difficulty in having cases tried and appeals heard at the High Court and Appellate Courts respectively. This is a herculean task foisted on the judicial system. because Nigerians are highly litigious and they beseech the Courts for good, bad or no reason at all, thereby congesting the Courts. For instance, High Court of Lagos State had over 7,500 new cases filed last year as at November 2023. Court of Appeal Ibadan Division had 411 new appeals lodged last year. The effect of the congestion is such that, no matter how hardworking a female Lawyer is, she needs to engage unique case management mechanisms that would enable her have a sufficient number of completed trials and appeals that culminate in judgements on the merit; which are needed to file application for conferment of the rank. 

My advice to female Lawyers desiring the privilege of the Inner Bar, is that they should have confidence and build up their knowledge of legal practice, work hard consistently and diligently, they should be thorough in their case research and learn from other good senior Lawyers. Going to court should not only be for them to conduct their case(s); they should attend courts to learn from seniors and colleagues who have excelled in the profession. They should not be deterred by the imperfections in the court system, because they can only make their mark within the same system by setting good and better standards themselves. 

Would you say there is gender disparity in the legal profession in Nigeria today?  If so, what could be responsible for this, and how can it be addressed? Or is it just a microcosm of the Nigerian society generally?

When you say gender disparity in legal profession, can we really say that there are differences in access to education, resources and opportunities within the legal profession, which favour male Lawyers and do not favour female Lawyers? Are there any differences between male and female Lawyers that are institutionalised through law, justice and practice of the legal profession or social norm? As far as I know, admissions into the Universities in Nigeria to study law are not gender based; qualifying examination for the Bar; making appearances in the Courts; filing Briefs of Argument and Pleadings etc, is not based on gender. So, it may be difficult to classify the current situation whereby there appears to be more male Lawyers in view than female Lawyers as gender disparity, because the institutions involved in producing Lawyers and through which Lawyers operate, are not gender sensitive. 

An online publication reported gender disparity in our profession, and cited the example of only few female Attorneys-General amongst the 36 States of the Federation and few females on the Bench. There are no accurate records of the number of female Lawyers practising as in-house Counsel/Solicitors, Company Secretaries, Corporate Administrators etc in the Corporate Sector. Again, it is more a function of how may female Lawyers applied for the position of Attorneys-General and judicial officers. The appointing institutions, are not gender sensitive. Female Lawyers must do more by putting themselves forward, consistently too, for the appointments. If for instance, there is vacancy for 14 judicial officers in a State, and 50 male Lawyers applied, whilst only 2 female Lawyers applied to fill the vacancy, a final selection of the 2 females and 12 male Lawyers may appear as gender disparity, whereas, in actuality, there was no gender disparity.

In Lagos State for instance, there are more female Judicial Officers on the State Bench. Lagos State has had no fewer than 6 females occupy the exalted position of Chief Judge of Lagos State. In addition, the Magistracy in Lagos State has more females sitting as Magistrates than male. The Court of Appeal currently has a female  as President of the Court of Appeal; the Supreme Court has produced a female Chief Justice of Nigeria, whilst there are no less than three female Justices sitting at the Apex Court today (exclusive of those to be sworn in soon). At the Court of Appeal, many females are sitting there and head Divisions of the Court. As time goes on, I am sure that if more female Lawyers apply to the Bench nationwide, more will be evenly distributed at the three tiers of the Superior Courts of Record. This is because; there is clear indication that more female Lawyers are being called to the Bar than male Lawyers. So, whilst you may say that there is gender imbalance, you cannot say there is gender disparity in the legal profession.

In the latest conferment of the rank in 2023, 5 female Lawyers were elevated amongst a total of 57 successful applicants. This is a function of how many female Lawyers applied for conferment. I am optimistic that as more female Lawyers are being called to the Bar, more being elevated to the rank of SAN, more female Lawyers will apply and be elevated to the Inner Bar.  

How come Election litigation does not seem to have been well established after almost 24 years of democracy? For example, Lawyers ignore the law and judicial precedent, and still include pre-election matters like issues of party membership and sponsorship, or constitutional qualifications as part of their election petitions, or issues of non-compliance with the Electoral Act that they are unable to discharge the requisite burden of proof for? What do you think can be done to stem this tide of bringing frivolous petitions to the Tribunal, and wasting precious judicial time? 

In my humble view, election litigation is well established in Nigeria. I can count more than few Lawyers who are election litigation specialists. As far back as the case of Chief Obafemi Awolowo vs Shagari & Ors SC.62/1979, when judgement was delivered on 26th September, 1979, our Courts have established unequivocal judicial precedents on election issues. This is not to discountenance that subsequent amendments of constitutional provisions relating to election, Electoral Act and INEC Regulation and Guidelines for the Conduct of Election may generate novel decisions that will further enrich our election case law and jurisprudence. 

The big challenge confronting our noble profession, is the application of the established judicial precedent by legal practitioners and the political class. For instance, the appellate courts have long settled the law on the distinction between pre-election and post-election matters, as well as the sacrosanct nature of time prescribed for instituting and prosecuting election matters. In addition, Section 285(14) of the Constitution defines pre-election matters as relates to matters prescribed under the Section. The Supreme Court has also emphasised that issues such as nomination, sponsorship and qualification of candidates are pre, not post election matters and that circumstances under which qualification of a candidate may be questioned post election are circumscribed by constitutional provisions in Sections 66(1), 107(1), 137(1) and 182(1) of the Constitution. I have no doubt in my mind that specialist election litigation Lawyers, are aware of the provisions of the election laws and the judicial precedents. They cannot ignore them, as to do so would herald the peril of client and Counsel. It is a matter of professional integrity. 

When a Lawyer writes or settles pleadings, addresses and briefs or addresses the court as an advocate, he must, barring human error, write, plead and make submissions that espouse the law. To do otherwise, would be self degrading and professionally suicidal. The foremost duty of a Lawyer is to uphold the rule of law, doing so as he counsels and advocates for justice to protect the rights of citizens in the society, including his clients. Do not forget that the Rules of Professional Conduct for Legal Practitioners makes it mandatory that a Lawyer “shall not handle a legal matter which he knows or ought to know that he is not competent to handle, without associating with him a Lawyer who is competent to handle it”.

What I am saying is that our noble profession, which is the second most respected globally, should and does, have zero tolerance for professional incompetence. Lawyers ought not to include pre-election matters in election petitions; and because of the well-established principle of law/rule of evidence to the effect that he who asserts must prove, allegations of non-compliance with provisions of Electoral Act, which a Lawyer knows from the evidence available to him cannot be established, ought not to be pleaded in the petition. 

The Political class, on the other hand, are bad losers who, when they win, they praise the courts, INEC and even the President, as if His Excellency were the Judiciary. When they loose, they abuse and curse the Courts, INEC and Lawyers. In addition, even when a Lawyer has given candid legal advice on the futility of proceeding to institute legal action, they insist on filing the action to stay relevant and visible in the political space. They are the ones who find accomplices in Lawyers, who on their behalf, file petitions that mock established judicial precedents.         

If I may liken the relationship of the Bench and Bar to that of regulator and operator; when the court executes its duty to regulate proceedings according to law, be it in an election, criminal or civil matter, the courts must also ensure that legal practitioners conducting the cases before the courts comply strictly with the Rules of Professional Conduct for Legal Practitioners. The court must not refrain from imposing punitive costs on Counsel and litigants in deserving cases. The courts should reprimand and sanction Counsel for infamous conduct and in deserving cases; the court should go as far as making pronouncements on record on the specific infamous conduct of Counsel, and refer Counsel to the NBA Disciplinary Committee for appropriate discipline. The disciplinary process must be speedy, transparent and conducted by people of high integrity who are proven role models of the legal profession. If a litigant is aware that he will incur huge costs if he files a frivolous action, the litigant is more likely to think twice before insisting that the action should be filed to keep him relevant in the political space.

If an erring Counsel engages in abuse of court process to collate cases, such frivolous actions should not be counted as relevant when considering contested cases presented for consideration for conferment of the rank of SAN. By the time heavy sanctions and punitive measures are applied to Counsel and litigant, the number of frivolous cases being filed to congest the court will reduce. 

As a follow up to the previous question, we see that some judicial officers may also be responsible for some of the problems being experienced in Election litigation. Recently, we saw the decisions of the Court of Appeal in the Plateau Lawmakers and Governorship cases. While the Governor was able to appeal the Court of Appeal decision at the Supreme Court, and get justice with the overturning of the lower court’s decision, the Lawmakers have no further right of appeal to the Supreme Court against the decision of the Court of Appeal, which has been proven to be somewhat perverse. Kindly, share your views on this? Can there be any redress for the Lawmakers? 

The jurisdiction to correct a perverse decision by its reversal lies with the Appellate Courts; that is, the Court of Appeal and Supreme Court. However, by virtue of the provision of Section 246(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to wit: “The decisions of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly election petitions shall be final.”, the Supreme Court cannot entertain an appeal from the Plateau State Lawmakers. As far as the appeal is concerned, the Court of Appeal is the terminal Court, and it would seem that there may be no redress. However, the matter may not be closed for Plateau State Lawmakers.

Bearing in mind that an obiter of the Supreme Court yesterday may become the law tomorrow, and that the decision of the Supreme Court is supreme even though obiter, the affected lawmakers may, on the premise of the positive pronouncements made in the Governorship matter, found a declaratory action at the High Court to obtain appropriate declaratory reliefs for their office. Based on legal principle ubi jus ibi remedium, even a declaration by the High Court confirming pronouncement of the Supreme Court as it pertains to the Lawmakers may propel the Lawmakers’ High Court case to the Supreme Court, which will let them have opportunity of making its obiter findings a ratio of the Supreme Court. It is a wise saying that, a manifest wrong must be corrected by all legal means available to the aggrieved. That would be justice prevailing.  

I must also add that seeking amendment of Section 246(3) of the Constitution is not a viable option, as that would further congest the election matters transiting to and terminating at the Supreme Court. Political matters currently terminating at the Supreme Court are a docket full; adding National and State Houses of Assembly election petitions, will compound the ease of dispensation of justice at the Supreme Court. 

In addition, notwithstanding the strong words engaged by the Supreme Court in describing the Court of Appeal decision affecting the Plateau State Lawmakers, the Court of Appeal should be seen as a Court comprised of human beings who are by nature not infallible. Several subsequent decisions of the Supreme Court, for Election Petitions emanating from Ogun, Rivers, Taraba, Sokoto, Lagos, Delta and Nasarawa States amongst others affirming Court of Appeal Judgements in the Petitions, attest to the integrity of the Court of Appeal and soundness of its decisions. 

Some believe that the Land Use Act 1978 (LUA) is a failure. Do you agree?  That its implementation has been poor, especially in a place like Lagos that is a beehive of economic activities. For one, that it takes too long to perfect a title in Lagos. Then maybe there’s what is seen as a contradiction or controversy, that while Section 1 of the LUA vests land within a State in the Governor, Section 44(3) of the Constitution vests the mineral resources beneath the land in the Federal Government. In fact, there are also areas within a State where ordinary land belongs to the Federal Government. Do you think that its time that the LUA is amended to address its anomalies? Kindly, share your views on this. Do you have any suggestions on how to make the LUA work better, if you believe that its implementation is not up to par?

The Land Use Act, 1978 (“LUA”), like some other laws in Nigeria, is a good law requiring requisite amendments that will align the law with current realities. Its main objective was to make land easily available to all citizens of Nigeria, and remove the menace of notorious Omo-onile. In practice, State Governments all over the Federation have utilised the law to raise internally generated revenue, build housing estates and infrastructure. Citizens have also benefitted from implementation of the law by the State Governments, through government allocations of commercial and residential plots of land to them. In addition, under the Act, Local governments are vested with powers to grant customary rights of occupancy to any person or organisation for the use of land in the Local Government Area for agricultural, residential, grazing, and other purposes. See: Section 6 of the Act. 

In Lagos State in particular, allocation of State land under the Act and subsequent transactions in such allocated land by way of assignment, sub-lease, power of attorney or mortgage is a major revenue driver for the State. However, despite being a revenue driver, the process of perfecting such subsequent land transactions, known as processing Governor’s Consent has been variously described as cumbersome and overly expensive. The Act must be appraised, from the overall view of the achievement or non-achievement of its main purpose. One may ask whether it actually made land easily available, to the generality of Nigerian citizens? Whether the menace of the Omo-Oniles have been eradicated, and what is the cost of obtaining State land allocation and processing subsequent land transactions in the various States of Nigeria? A candid response to these questions, points to failure of purpose of the Act. Whilst the operation of the Act enriched the individual States, the same cannot be said of the citizens whose hard earned earnings are turned over to the States to either obtain land allocations from the States or regularise their respective land holdings by the States, or perfect their titles, or defend their State land allocations from land grabbers, etc. In some cases, State land allottees have to incur additional expenses of compensation and settlement of Omo-Oniles periodically. 

These are some pitfalls of implementation of the Act. Amendment to the Act, must address the main objective of the Act, which has been replaced by revenue drive. It should also focus on how land will actually be made easily available to all citizens, regardless of their State location.   

There is no contradiction in the provisions of Section 1 of the LUA and Section 44(3) of the Constitution, as regards the vesting of all land in the State in the Governor of the State to hold in trust and vesting of the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the exclusive economic zone of all Nigeria in the Government of the Federation for their management as may be prescribed by the National Assembly. Notwithstanding the Latin maxim; quic quid plantator solo solo cedit, by virtue of the provisions of Section 1(1)(3) of the Constitution, and  Section 44(3) of the Constitution relating solely to proprietary interest in all minerals, mineral oils and natural gas in/on/under land and in/under/upon territorial waters overrides the rights of the State Governors as holders/trustees of land within the States. Furthermore, this should not be construed as a contradiction, in view of the fact that Mines, Minerals, Oil Fields, Oil Mining, Geological Survey and Natural Gas are matters under the Exclusive legislative list of the Second Schedule to the Constitution. 

Are you satisfied with the state of the Nigerian Judiciary, the way judicial officers are appointed etc? Or what do you think can be done to improve this? Some have argued that part of the reason for the condition of the Judiciary, is the poor remuneration and allowances paid to judicial officers, which today, cannot attract the brightest and best. Another complaint is how slow the wheels of justice roll, also no thanks to the fact that Judges are taken from their already heavy dockets and are made to serve on Election Petition Tribunals, thereby leaving scores of cases of litigants to suffer delays. Kindly, share your views on this

The Judiciary , like the economy and other aspects of the Nigerian society require significant reform. Members of the Body of Senior Advocates of Nigeria (“BOSAN”), have a Committee that is working on the reform of the Supreme Court. I am sure  BOSAN will make positive impact through the reforms they will recommend. 

Appointment of judicial officers, should be based solely on merit and qualification. This should be one of the ways, of bringing about reformation in the Judiciary. Another way is to look at the remuneration of the Bench and upgrade it to appropriate standard, bearing in mind that Judges and Justices as public servants cannot engage in any other business. Again, what is needed is not just adequate remuneration; the Court Rooms, Chambers and Court Premises must be secure, serene and conducive for judicial exercise. When a Judge/Justice closes from the Chambers, how does he get home safely? And where is home for him? How does he prepare for retirement, and have a retirement home? If the conditions of service of judicial officers were improved, that sector will attract more good Lawyers. 

It would also improve the ease of delivery of justice. Judges are saddled with heavy case dockets not because they created the cases, and I am sure Judges would be relieved and happy if the wheels of justice moved faster. However, the cases in court are instituted by Lawyers; never by laymen. The solution to decongesting the courts of heavy case dockets lies with Lawyers who are working in-house in whatever capacity and practising Lawyers. It is the collective duty of all the senior and junior Lawyers at the Bar. Lawyers must always give their employers, colleagues and clients candid legal advice and solution oriented counselling. If a client has the benefit of good legal advice and is made aware of the consequences of committing infractions or engaging needless litigation, I am sure he/she is likely to have a change of heart and avoid litigation. On the part of the Judiciary, new suits should be scrutinised by an Admin Judge who would candidly identify frivolous claims, and dismiss them summarily. Should such a case be repackaged and re-filed again with the same frivolous claim, a heavy penal fine/cost should be imposed on the litigant and Counsel, who presented the case in Court. 

In essence, if it could be identified at early stages that a case as presented at the Filing Registry or Process Section lacks substance, such a case should not be approved for listing on the cause list. However, in engaging this procedure, the Admin Judge must bear in mind and balance the citizens’ rights to have their day in court, with the necessity of weeding out frivolous cases in a consistently transparent manner that mirrors integrity of the court system. Furthermore, the courts through the judicial officers must actively and positively make the judicial system work and be seen to be working efficiently, without fear or favour. The courts must avoid any form of influence, but must be seen to be quick, fair and just.  

There is nothing wrong in Judges and Justices, presiding over Election Petition Tribunals. Election Petitions are seasonal and time bound, so not much time or rather predictable time is spent at the Election Tribunal. Election matters are also cases, which must be determined by the Judiciary, so they should not be seen as cause of delay in quick dispensation of justice. 

Virtual court proceedings are gradually catching on and being conducted more in Nigeria. How can this improvement be made more entrenched in our legal system, so as to curb the endemic delays which have plagued our justice delivery system for many years? Are Nigerian Lawyers and Judges really prepared for it, especially as it has been revealed that many of our colleagues and Judicial Officers know nothing about technology, not even the basics, to the extent that they are not even computer literate? 

Virtual Court proceeding, is a good innovation in our justice delivery system. For one, it helps to beat the traffic and saves mobility costs. However, I do not think that it would be suitable for all proceedings. I do not think it would curb endemic delays in justice delivery system, but where the litigants, Counsel and judicial staff are technology smart, the proceeding could be adapted for complex cases involving witnesses and Counsel in different locations. 

What are your thoughts on the discipline of Lawyers in Nigeria, and how can the profession be better regulated to steer away from mediocrity and quacks? 

The Rules of Professional Conduct for Legal Practitioners makes it the duty of every Lawyer, to report any breach of the rules which comes to his knowledge to the appropriate authorities for necessary disciplinary action. By this singular provision, every Lawyer is a policeman of his learned friends within and outside the courtroom. Discipline starts with self-discipline; thereafter, we should politely correct our professional colleagues when the occasion demands it, and not hesitate to report glaring professional misconduct that could tarnish the profession whenever such infraction comes to our knowledge. In addition, clients who are victims of Lawyers’ professional misconduct have the opportunity of seeking redress from the Legal Practitioners Disciplinary Committee. More of this, including instituting civil actions to recover damages from Lawyers for professional misconduct should be encouraged, to maintain discipline in the profession. 

Even with the coming into effect of the Violence Against Persons Act 2015, the reported incidents of violence against women is embarrassingly on the rise. How can this law be made more effective, and given more bite to ameliorate these shameful acts and abuse of women? In fact, domestic violence is generally on the rise, as there is also an increase in cases of women assaulting their husbands too. Just like the Gospel Singer, Osinachi Nwachukwu’s husband who was alleged to have regularly abused her, stands accused of murdering her, Maryam Sanda was convicted of murdering her husband, Bilyamin Bello. What are your views on this?

Promulgation of the Violence Against Persons Prohibition Act 2015! is a good development. The Act seeks to eliminate violence in private and public life, prohibit all forms of violence against persons and provide maximum protection and effective remedies for victims and punishment of offenders. The Act inter-alia, focuses on investigation of allegations bordering on rape, infliction of injury, intimidation, forceful ejection from the home, spousal battery, emotional, verbal and psychological abuse, incest and similar offences. The fact that there are more reported cases of violence against women, shows increased awareness among women of their right to seek redress for violations which hitherto, were wrongly condoned by the society. 

There should be a deliberate drive at educating the public on the import of the Act, and ensuring that reported cases are promptly prosecuted, determined and given wide publicity. 

With regard to domestic violence in marriages, whenever a crime is committed, spousal relationship of the victim and accused should only be considered as a factor if it establishes opportunity to commit the crime. It should not add any sentiment, or exonerate the crime. The society should find a way to educate adults of marriageable age not to die or kill for marriage, and that couples should learn to walk away anytime they see signs of domestic abuse. 

As a Nigerian, what are your  expectations of the Tinubu administration vis-à-vis fighting corruption, insecurity and getting the Nigerian economy on the road to recovery? Is the administration on the right track?

My expectations are high, because I want Nigeria to change positively in my lifetime. The positive change cannot be driven by the administration going by our political history. All of us must consciously drive the change, determined that there must be a turn around. This is because the richest man or company in Nigeria today does not feel secure, and there is no guarantee for good health, structure, justice, food and even water. This is because corruption has adversely affected the supply of genuine products and services. It is a disincentive for both local and foreign investments, it is anti-development; both government and the governed must galvanise efforts to turn around Nigeria, by consistently pointing out the ills in the society which we want to change and how. If the government is not performing, we must point out what it failed to do and demand that it be done, giving time lines and repeating the demand until government shifts. 

Nigerians must bear in mind that, in corruption, there are always two sides, the giver and receiver. The venom has degraded every aspect of our nation, including the institutions. We must all agree that, enough is enough. I do not see any reason why the Government would, as they say, be shopping for FDI. Money within Nigeria and monies currently held by Nigerians here and overseas, can turn Nigeria around. The anti-corruption agencies such as ICPC, EFCC, NPC should be strengthened with a crop of intelligent officials who must be insulated from politics, and their appointment based on proven integrity. Nigerians who are arrested for corrupt practices should also determine to cooperate, and make recovery of the funds and dispensation of justice easy. 

Finally, Government officials should live by example. Time will tell if the administration is on the right track. 

Thank you, Learned Silk.