‘Senior lawyers aid corruption with opaque charges for election cases’

Former Court of Appeal President Justice Ayo Isa Salami was
unsparing of the bar, the bench and politicians in his dissection
of the Buhari administration’s anti-corruption crusade. The war, he
argued, can only be won if lawyers, judges and politicians mend
their ways. He was delivering a paper at the National Democracy Day
Anti-corruption Summit in Abuja.

THE pursuit of wealth is not a bad thing in itself because
without the food and comforts which wealth provides, life will be
penurious and drab. But always remember that any wealth accumulated
on a selfish basis, at the expense of the State in defiance of
social justice helps to create a disorganised society in which
everybody will eat everybody and no one person can be safe.”

– Chief Obafemi Awolowo

The use of public funds in election litigation

The theme: “The use of public funds in election litigation and
the integrity of the Judiciary” could not have come at a better
time. Being an election year, it is a period in which we have the
highest numbers of election matters in Court. I reliably gathered
that there were about 639 pre -election cases that arose from the
various primaries and 736 election petitions emanating from the
just concluded elections. This clearly reveals the heated nature of
electoral contest in Nigeria. Notwithstanding that our laws provide
for resolution of disputes arising from electoral process through
the Courts, the alarming number of election petitions in Court
leaves much to be desired. The development calls for a review of
our electoral process. This is a matter for another day.

Our focus, today, is on the use of public funds by political
office holders to pursue election cases, for personal or private
gains. This remains a major source of concern in Nigeria because of
the negative impact it has on our socio-economic development. Over
the years, public funds meant for developmental projects, aimed at
improving the lives of the citizenry are diverted and embezzled by
selfish individuals in government, through the awards of inflated
or phony contracts. Funding of election petitions has become one of
the ways through which public funds are mismanaged and wasted. It
is an open secret that election matters have become a sort of
windfall to the legal practitioners engaged in election matters.
The humongous fees being charged by these lawyers in pre and
post-election matters are mostly paid with public funds or
taxpayers’ monies, especially where the client is a public office
holder who has no right to use such monies to defend his
election.

Lawyers have become complicit in this decadence; taking undue
advantage by charging high fees in naira and foreign currencies.
Most of the time, the senior lawyers insist on collecting their
professional fees in cash, in order to avoid the funds being traced
directly to them and also to evade payment of tax. It may be
necessary for the Central Bank to flag cash withdrawals from
government accounts that exceed a certain threshold and demand a
purpose for the withdrawal.

A common trend now is having over 10 Senior Advocates appearing
in a matter for just one of the parties and you wonder what value
those numbers are adding to the legal representation in court.
Unsurprisingly, the litigants with the highest number of Senior
Advocates are invariably those that have unfettered access to
public funds. Why this is the case, your guess is as good as
mine.

Again and quite disheartening, I have it on good authority that
public funds used by some State Governors to prosecute election
matters concerning them individually is far more than the entire
budget appropriated for the Ministry of Justice and the Judiciary
in the respective States. By this, they are inadvertently weakening
institutions and empowering a few individuals who probably have no
stake in the affected States.

However, the ministries of justice across the nation need to be
revamped and strengthened as they are now shadows of what they were
in the past.

Sadly, most senior lawyers who should ordinarily be role models
and persons of integrity in the society, display acts or conducts
unbecoming of persons of the noble profession. They have become
conduits to launder public funds. A case which readily comes to
mind is a criminal charge by the EFCC against a Senior Advocate of
Nigeria relating to converting to personal use, concealing the
source of, disguising the origin of and retaining in his account
huge amount of money to the tune of about a billion naira belonging
to a State Government. The money was allegedly paid with State’s
funds for legal services rendered in personal capacity to the
Governor, who was then a governorship candidate. I understand trial
is ongoing in respect of the matter and I do hope justice will be
served at the end.

From the above, it clearly shows that lawyers handling election
petition matters for political office holders charge excessive and
arbitrary fees simply because they feel the politicians have access
to public funds to service these fees. It goes without saying that
these politicians are forced to tamper with public resources
because they are under pressure to do everything possible to retain
their seats.

Granted that lawyers enjoy a wide liberty charging for their
services; the charges must be reasonable and not arbitrary.
Charging and collecting fees for legal services in an opaque manner
does the society no good; it stands to promote corruption, tax
evasion and money laundering.

The Rules of Professional Conduct, 2007 (RPC) is a guide,
containing the ways and manners lawyers must conduct themselves
whilst relating with colleagues, clients and to the legal
profession itself. Rules 48 – 54 of the RPC, 2007 clearly provide
for specific guidelines to follow when charging clients. These
rules unfortunately did not put a limit on the amount to be charged
in respect of any transaction but only puts a guide on how to go
about it.

However, Section 15 (3) Legal Practitioners Act (LPA) 2014 (as
amended) gives a bit of a leeway and I believe this is a section
the Hon. Attorney General of the Federation may wish to take a
closer look at.

Section 15

There shall be a Committee, to be called the Legal Practitioners
Remuneration Committee, which shall consist of

the Attorney-General of the Federation, who shall be the
chairman of the committee;
the Attorneys-General of the States; and
the President of the Association and three other members of the
Association.
The quorum of the committee shall be three, of whom one shall be
the Chairman of the committee or some other member of the committee
nominated by him to act as chairman of the committee on the
occasion in question.
The committee shall have power to make orders regulating generally
the charges of legal practitioners and, without prejudice to the
generality of that power, any such order may include provision as
to all or any of the following matters, that is to say-
the maximum charges which may be made in respect of any transaction
or activity of a description specified by the order;
the ascertainment of the charges appropriate for any transaction or
activity by reference to such considerations as may be so
specified;
the taking by practitioners of security for the payment of their
charges and the allowance of interest with respect to the security;
and
agreements between practitioners and clients with respect to
charges.
The above in my considered opinion may be an opportunity for the
Hon. AGF to use the instrumentality of his office through the
Committee to regulate fees charged by lawyers particularly in
election related matters. This power seems only to have been
exercised in respect of Legal Practitioners remuneration for legal
documentation and other land matters under the Legal Practitioners
(Remuneration For Legal Documentation And Other Land Matters) Order
S.I. 7 of 1991.

The Nigerian Bar Association also has a pivotal role to play in
ensuring that lawyers abide by the provisions of the Rules of
Professional Conduct. A review of the Rules has become necessary to
guard against lawyers charging excessive fees and colluding with
politicians to rob the State of its wealth.

Sometime in 2010, I recommended for a reduction of the
involvement of the Judiciary in electoral matters. I wrote to the
then President Goodluck Ebele Jonathan GCFR and also copied the
Senate President and the Speaker of the House of Representatives
wherein I stated inter alia that:

“By this singular act of involving the Supreme Court in election
controversy, it seems to me with the greatest respect, that the
political class is widening the frontier of judicial intervention
in a matter that is principally or primarily a political issue. It
is my respectful view that our efforts should be to find a
permanent and enduring solution to extricate our Courts from
election matters. To my little knowledge, it is only here in
Nigeria that the outcome of an election is not known until it goes
through the labyrinth of legal procedure. Rather than seek to
reduce this anathema, if not completely eliminated, it is being
promoted to a status of festivity, so much so that after an
election to a political office there could be four or more
petitions. I believe that purposeful efforts should be directed to
discouraging such mindsets and means devised to reducing such
petitions to the barest minimum.

There is nothing preventing a provision denying right of
petitions to candidates or political parties whose candidates
failed to score a certain percentage of the total vote cast. This
may reduce multiplicity of petitions. There is no point allowing a
candidate who cannot take the office even where his petition
succeeds to petition against an election. Where the office enures
to a candidate and political party other than the candidate or
party that successfully petitioned, such latter candidate should
not be allowed to bring an election petition.”

Though the above was written about a decade ago, I still adopt
and make this passage my recommendation. If I have my way, I would
even propose further that all election petitions including
Presidential should terminate at the Court of Appeal. This, I
believe, will insulate the apex court from undue and unnecessary
interference of politicians and would thereby eliminate cost of
litigation at that level.

Integrity of the judiciary

Judicial integrity is key in a society governed by rule of law,
without which confidence in the judiciary cannot be reposed. When
the judiciary is constrained by corrupt practices, the integrity
becomes soiled. The biased interpretation and application of the
laws impair one of the most potentially effective tools in the
fight against corruption.

There are circumstances which affect the integrity of the
judiciary; low remuneration, a high concentration on jurisdictional
and administrative roles in the hand of Judges, combined with
far-reaching discretionary powers and weak monitoring of the
execution of those powers. This does not only generate extensive
possibilities for the abuse of power but it also creates an
environment where whistle-blowing becomes more unlikely because of
the extensive powers of individual holding these powers.

An honest criminal justice system, including the courts, is sine
qua non to any comprehensive anti-corruption initiative. The lack
of integrity within the judiciary will absolutely devastate legal
and institutional mechanism designed to curb corruption, no matter
how well targeted, efficient and honest. It will serve no purpose
to design and implement anti-corruption programmes and laws if the
law enforcement agencies do not seek to enforce the law, or a Judge
finds it easy and without risk to be bribed. Judicial integrity
should therefore be a cornerstone of any anti-corruption
programme.

The integrity of the judiciary has recently become a topic for
serious discussion considering the related events surrounding the
judiciary and the conduct of its officers. The notorious issues of
prolonged, delayed or hijacked adjudication of appropriate justice
has made Nigerians and indeed, the international community, lose
faith in the country’s judicial system’s ability and capacity to
adequately fight corruption. The role of Judges and the Judiciary
in the fight against corruption cannot be over emphasized.
Importantly also, is the sacred duty of the judiciary to ensure
that justice is not just done but seen to be done. The National
Judicial Council (NJC) through the instrumentality of The Code of
Conduct for Judicial Officers of the Federal Republic of Nigeria,
2016 (Revised) has put in place, some guidelines to regulate the
conduct of Judicial Officers. Rule 10 of the statute clearly
forbids Judicial Officers from giving or taking of any benefit,
advantage, bribe however disguised in the discharge of their
duties.

There are instances today where some Judges have been petitioned
against and found guilty of receiving bribes to influence cases
before them. Some serving and retired Judges have also become
conduits in channelling bribes to judicial officers in order to
pervert the course of justice. The Judges are often approached with
huge sums of money they find difficult to resist. These actions are
inimical to the judicial system.

Notwithstanding the above, I say with all sense of modesty and
responsibility that majority of Judges or Justices in our Courts
are not corrupt as it is being bandied about in some quarters. I am
convinced we still do have in the majority great men and women of
impeccable integrity in the judiciary.

Unfortunately, the conduct of a few corrupt elements gives the
general impression that the entire judiciary is corrupt. These few
bad eggs act with a lot of impunity once the price is right. We
also do have Judges who are not necessarily corrupt but highly
incompetent and lazy. A corrupt and an incompetent Judge are no
doubt two sides of the same coin! A corrupt judicial officer can
easily manipulate an incompetent or lazy Judge particularly in
Courts that sit in panels, like the Court of Appeal and the Supreme
Court.

Overall, both the bar and bench, have a pivotal role to play in
the fight against corruption and uphold the integrity of the
Judiciary. An effective and efficient Judiciary guarantees fairness
in legal process, but a compromised and corrupt Judiciary cannot. I
have a strong conviction that we can achieve a Nigeria of our dream
if the bar and bench get it right.

It is pertinent to note that the National Judicial Council (NJC)
needs to be more alive to its responsibilities. The last 10 years
have been quite challenging for the Judiciary because fidelity in
law is being rapidly eroded. The general perception in the public
is that the Judiciary is riddled with corrupt elements. This should
be of serious concern to the members of the Council.

The Chief Justice of Nigeria (CJN) in my opinion should not
double as the Chairman of the NJC. The heads of both institutions
should be independent of the other. For example, the Head of
Service is not the Chairman of the Civil Service Commission etc. A
corrupt CJN may be manipulative and exploitative and in doing so,
the entire judiciary suffers. From experience, most members of
Council defer to the CJN out of authority and not superior
reasoning for fear of losing out on some privileges, such as,
extension of tenure, appointment of protégés as judicial officers
among other things. It is most disheartening that we still have
members at the NJC today who are well above 80 years and you still
find the tenure of the same sets of Justices being renewed. An
appointment that should ordinarily have tenure of office has now
been converted to life! I say no more on the productivity and state
of health of these members.

Also of note, is the Council restricting its power to discipline
judicial officers. It chooses to limit discipline of judicial
officers to act(s) of misconduct that invariably translates to
establishing a case of bribery and not of incompetence. It is,
therefore, incumbent on the complainants to establish that the
judgment being complained of was financially induced or procured.
To succeed in corruption cases there must be corroboration and it
is common knowledge that corruption, like adultery, is hardly
committed in the glare of the public. Whereas elsewhere
incompetence is a basis for removal of judicial officers.

Another indiscretion in the performance of the Council is its
fixation for retirement of culprits. In its existence of almost 20
years, it is very doubtful whether up to five judicial officers
have been dismissed for corruption. Most of the time, what you have
are retirements with full benefits, even in circumstances where the
culprits were found guilty of receiving bribe. In an instance, a
judicial officer was found liable to have received the sum of N200,
000, 000 (two Hundred Million Naira). He was merely retired
apparently without an order of refund. Clearly, this could not have
served as a deterrent; no lesson taught and no lesson learned. Any
judicial officer found guilty must be made to face the full wrath
of the law to ensure that the ugly trend is arrested.

The issue of integrity does not solely revolve around the
judicial officers. A case well investigated could be lost if it is
not efficiently and diligently prosecuted in Court. A case that is
inefficiently prosecuted is bound to fail and be thrown out by the
Court for lack of diligent prosecution, which in the circumstance
may not be the fault of the trial Judge as he is expected to be an
impartial arbiter.

The antecedent and neutrality of the prosecutor must also be
taken into account. It is note worthy, that during the tenure of
President Muhammadu Buhari as a Military Head of State, the
neutrality of the prosecutors were ensured by bringing together
state counsel from the various State and Federal Ministries of
Justice to a pool. It was from this pool that counsel were selected
or drawn to prosecute cases, in a manner that no counsel is allowed
to handle a case emanating from his State or a State within his
geographical area. It was this arrangement that made the likes of
Shoremi, JCA from Ogun State to become a prosecutor in Kano
State.

It should be noted that adverse Judgment of a Court may not
always be influenced by corruption or incompetence of a Judge but
could be a product of inadequacies of the prosecution or poor
investigation.

Provision of accomodation for justices and judges on
retirement

It is important to state that in addressing the issue of
integrity within the Judiciary, the Government must ensure a fair
and equitable retirement plan for Justices and Judges across the
Federal and State Courts.

The idea of providing accommodation for only the Chief Justices
of Nigeria on retirement, no matter how brief their tenure deserves
a closer look. From the grapevine, I gathered that it costs the
Judiciary above a billion naira to construct and furnish the
retirement home of a retiring Chief Justice of Nigeria and
unfortunately all the other Justices of the Supreme Court, not even
the next most senior Justice is accorded the same privilege. Also,
a sum equal to the monthly pension of a retired Supreme Court
Justice is again paid to the retiring CJN in addition to pension
benefits on monthly basis to maintain the retirement home.

I honestly do not see the need to spend such humongous amount of
money to build such large edifice as retirement home for a person,
let alone a Judge retiring at 70 years of age. I believe such huge
funds could be used more productively to provide accommodation for
all the Justices of the Supreme Court and not just the Chief
Justice of Nigeria. This courtesy, in my opinion, should also be
extended to all the Justices and Judges of the various Courts who
have served the country diligently and meritoriously. If this act
of discrimination against other judicial officers is allowed to
persist, it is capable of inducing corruption based on anxiety to
provide for the future.

Another common occurrence is the improper monetization of houses
to some judicial officers. It is relevant to state that when the
policy was being introduced, the Judiciary opposed it vehemently
mainly because of the Justices of the Court of Appeal and Judges of
the Federal High Court, for the simple reason that if the policy is
permitted in the Judiciary, judicial officers on transfer or posted
to new divisions might have accommodation problems and may be
compelled to seek accommodation in environments that may not be
conducive for a judicial officer.

As a result of this consideration, the monetization policy was
dropped and not applied by the government to the Judiciary. I
recently gathered that judicial officers and other staff of the
judiciary are now acquiring houses belonging to the judiciary under
the guise of the monetization exercise, which is not applicable to
the Judiciary.

I do not think this is right and proper in the circumstance and
I suggest that the Government stops this unfortunate trend and
reverse it where necessary. It is important to note that the main
purpose of providing residential accommodation for Judges or
Justices is to, among other things ensure that they reside in
secure and conducive environment. Any attempt to monetize these
properties will defeat the purpose and also lead to needless and
avoidable expenditure.

These are manifest inequalities that must be addressed. In a
similar situation in the past, Hon. Justice Muhammed Bello, former
Chief Justice of Nigeria of blessed memory reversed the purchase of
a property by one of his predecessors as a retirement home
insisting that it was inappropriate to sell the property to the
retiring judicial officer. The said property is presently being
used by the Court of Appeal as official residence of one of its
Justices in Ikoyi, Lagos.

I thank you for listening.

Subscribe ToNairalaw News!