Thursday, June 30, 2011

OPEN LETTER TO THE PRESIDENT OF THE COURT OF APPEAL - STILL AGAINST HIGH COST OF LITIGATION IN NIGERIA. WHO ARE THEJUDGES NOW WORKING FOR?



By my letter of 15th January 2008, I protested against high cost of litigation in the Court of Appeal. This followed the prescription of increased filing fees and the more objectionable imposition of penalty for late filing of court processes under the new Court Rules.


Refer also to my other two letters respectively of 29th of June 2010 and 19th July 2010 by which I protested high filing fees in the Court as well as penalty for default of filing processes. In the former letter, the President, after a review of my protest agreed that collection of N5000.00 (Five Thousand Naira only) with respect to filing of Notice of Appeal to the Supreme Court was illegal and directed that the collection be stopped forthwith. In its place, the President directed that the appropriate fee of N500.00 (Five Hundred Naira only) be collected henceforth.


In the latter of the two letters, which relates to my personal matter, I demanded for abrogation of penalty for late filing as well as a refund of the penalty I was made to pay in respect of the matter under reference. I concluded with threat of an action in court in the event of your failure to effect the refund and stop further collection of the penalty.


I was to learn soon after my letters that the rules were being reviewed. I was rather optimistic that my various protests might be considered in the review exercise and necessary changes reflected such that the practice of collecting penalty would be discontinued. I, therefore, held up my threatened action in court.


It will be recalled too that the letter of …………………..relating to Chief Thaddeus Inegbedion v NDIC, was a demand for a refund of N4,500.00 being excess payment for filing of Notice of Appeal to the Supreme Court. The Registry of the Court had refused to agree accept our view that we were only liable to pay N500.00. It however, agreed to refund the excess when it was confronted with relevant instruments. Yet, to date, no refund has been made despite repeated demands since 2008.


I have had the opportunity of looking at the new rules since they came into force in April 2011 and I regret to observe that the fees have not been changed. Rather, they remain at the commercial rate before the amendment.


I also observe with great trepidation that the penalty imposed without due authorization under the old rules have also been retained. I am therefore, impelled to continue with my protest against a commercial rate of fees as well as imposition of penalty for late filing not only in the Court of Appeal but in our courts generally under the rules of court.


Let me once more state the crux of my objection. Justice is a social service by the State to the citizenry. It is not yet known to be the intention of the State to treat it otherwise and begin to sell it to seekers of it as a commercial commodity. Even if the State had formed that intention, let it first be expressed in an Act of the National Assembly as a national policy for the Courts to enforce.


From my little knowledge of the law and practice of constitutionalism, and from case law, no member of the executive or of the judicial department can, in the exercise of his ministerial powers, lawfully impose a financial burden on the citizen of this country. And since the prescription of fees as well as the imposition of a penalty is a financial burden, it should be left for the representatives of the people in Parliament, (here in Nigeria, the National Assembly) to do. It amounts to a usurpation of the legislative function of the State for the Judge to enact a rule to extract money from the citizen.


I still stand convinced that under our system, it is out of order for the Chief Justice of Nigeria, The President of the Court of Appeal or the Chief Judge of the High Court of the State, s the case may be to make a rule in the exercise of his ministerial powers, for purpose of raising revenue for himself or for the State.


I stand convinced, if the large body of our case law is still anything to go by that unless the Constitution has directly authorised him to do so or indirectly, by permitting the National Assembly to enact a law authorising him to do so, none of these principal judicial officers of the State can lawfully enact any such provision.


And also going by the case law, since the constitutionality or legality of the action is being raised, the law requires that it is desirable to exercise caution in enforcing it. That the Court has chosen to ignore this position of the law since January 2008 and continue to enforce the provisions thereby collecting money that may ultimately turn out not to have been appropriated to it, or the State, it might be necessary to submit the matter to the Court officially for judicial review.


In considering this, I stand convinced, until I am proved otherwise, that the revenue realisable by the Court from fees and penalty is not money appropriated by an Act of the National Assembly to the Court. And if it is ultimately so adjudged, the collection of the fees and penalty will fall into the realm of ‘corrupt practices and abuse of power’ within Section 15(5) of the Constitution of the Federal Republic of Nigeria 1999 which “The State shall abolish”.


Since 2007 when the new regime of fees and objectionable penalty came into operation under the now defunct rules, I have had cause to discuss with several of my colleagues whose only courage lies in grumbling and gossiping but have failed to talk out. The various words they use to describe the new innovation are not what should be allowed to go into the print. But just a few that can be accommodated have it thus:- “These people” (i.e. the Justices of the Court of Appeal) “are not ready to work. They are after money” (or revenue) for the Court” or “They want money for welfare” or “If you want to get the silk, you have to be careful, these are the people who will comment on you” ……etc…..


It is sufficient to say from the comments that the Bar has been cowed down. And this is not good for both the law and the society. An unguarded Bench with a docile Bar will certainly impact negatively on law and society because the former does as it likes thereby unwittingly perpetrating the culture of impunity that Oguntade, JSC (Rtd) spoke against with passion in his various valedictory/thanksgiving lectures sometime ago.


With the benefit of watching the process of enforcement of the rules during proceedings in court, I can safely say without equivocation that the main concern now seems to be revenue generation. So, I hear, from the temple of justice (?), “Have you paid the penalty?”. I hear “How much did you pay?”. And I see the President of the intermediate appellate court of my otherwise great country picking up a receipt of payment from counsel, and with a calculator, calculating the sum due as penalty to confirm what counsel paid. And my spirit revolts within me. I witness this with utter disgust.


Until now, I had always said that money and justice cannot work together. One will pollute the other. It gives me great anxiety that I am witnessing it at my time. God who made the Judge only commanded him to “Hear the causes…” not count or calculate money; in open Court (?).


In a recent encounter at the High Court of Lagos State where collection of penalty has also become the driving force in the administration of justice, Jose, J. refused an application for waiver of penalty as well as extension of time to file a final written address out of time on account of the non payment of the penalty. Most interestingly, the learned trial Judge acknowledged that the motion, both for waiver and for extension, was not opposed by all the other counsel including Assistant Chief Legal Counsel from the Ministry of Justice of the Lagos State. According to her, “…although the motion is not opposed,…there is no provision under the rules for waiver”.


I recall that late Chief Fola Akinrinsola died in a motor accident a few meters to the Court in Ikeja. I have seen a lawyer collapsing at Court premises; some rushed out of Court to the hospital where he spends about two weeks. Obviously, it will take the litigant an extension of time to get himself properly back before the Court. But from the situation today, such litigant can not be heard on why he defaulted. He must pay that penalty to get justice because “There is no provision for waiver under the rules”. Sir, this is totally unacceptable. And I will keep saying it until the position is either reviewed by you or the Government of Nigeria tells us that justice is no more a social service but is now up for sale.


There are many other reasons why a party or counsel may not be able to file processes within the time allowed by the rules or ordered by the court. Such reasons are no less human than the reasons that may prevent a court or Judge from sitting occasionally or delivering judgment within three months (3) after address or still from releasing copies of judgments to parties within seven (7) days.


As stated above, even under the British system of Sovereignty of Parliament as against Nigeria’s Supremacy of Constitution, the authorities show that only Parliament can legislate to place a financial burden on the subject or sanction what is viewed as a contravention. It is an aberration that under our more superior system, a member of the third arm of government will in the exercise of a ministerial power unilaterally legislate an imposition of a financial burden on the citizen seeking justice in our courts. It will be a test of our practice of constitutionalism.


We can not all lower the standard. I expect that a judge who declines waiver because “no provision for it under the rules” should equally quip whether there is a provision under the Constitution or any law made pursuant to it enabling the President of the Court of Appeal or the Chief Judge of a State to impose and collect a penalty, and yet deprive a citizen of this Country his fundamental right to a fair hearing for failure or inability to pay such illegal penalty.


I see a serious contradiction under our system where a judiciary that has been known to rule out statutory provisions as well as executive actions which encroach on fundamental right of the citizen to a fair hearing can make a subsidiary legislation by way of rules of practice and procedure in our courts, even without an enabling provision, to take away the right to a fair hearing. I weep for my country, I weep for myself. And I weep for generations coming behind.


Perhaps, I should like to remind us that Nigeria is a republic which set out for a land “where no man is oppressed”. It is dangerous for any society to allow its judiciary to turn itself to an instrument of arbitrariness and oppression. It is also dangerous to allow the judiciary to evolve a policy that will invariably promote corruption to some level that might not have been contemplated. Experience has shown since the new rules in 2007 that the scope of corrupt practices have widened and level increased. It will be share hypocrisy for any member of the Bench and the Bar to pretend not to know this.


In the light of the foregoing, I still request by this letter that you review the rules by removing the provisions relating to fees and penalty which are fast becoming a hindrance to access to court and justice.


TAKE NOTICE that if after this letter, the rules are not changed I shall take out a process in a court of law for appropriate remedy including an order for account for all money collected so far since 2007 when the new regime of fees came into force.


In taking this course, I have not failed to consider the odds that I might be confronted with generally. But I look at an example from what a woman did in the Holy Bible when she rose to a challenge before her people “…and so will I go in unto the King, which is not according to the law: and if I perish, I perish”, See Esther 4:16.


Yours faithfully,


Johnson O. Esezoobo.


08033200595


Monday, June 27, 2011

CHIEF G.O.K AJAYI: THE CELEBRATION OF AN ICON AT 80


May 29 of every year is always special for Chief Godwin Olusegun Kolawole Ajayi, Senior Advocate of Nigeria (1978 set). The reason is not farfetched; that is the day of his birth.

Most times, the legendary lawyer, famous for his forthrightness, principled stand on issues, consistency, courage, sharp intellect, mesmerizing advocacy and progressive politics marks his birthdays quietly, celebrating with only his family and a few other intimates. However the 2011 edition was not to go the quiet lane; largely due to the insistence of his wife, children, friends and admirers.


Called to the English Bar (Middle Temple) in 1955 when he was only 24 years old and to the Nigerian Bar two years later, Ajayi, more popularly known by his initials “G.O.K.” has had a tremendously successful legal practice over the decades and is one of the very few practitioners whose pre-eminence in the profession has moved them beyond the portals of mere respectability to the shores of awe- inducing reverence.


In 1978, twenty-one years after he was called to the Nigerian Bar, G.O.K was made a silk, bagging the award of Senior Advocate of Nigeria in company of twelve other legal practitioners to wit:- Obafemi Awolowo, Remi Femi-Kayode, T.A. Bankole-Oki, E.A. Molajo, Kehinde Sofola, Richard Akinjide, Olisa Chukwura, Nwakama Okoro, Mudiaga Odje, P.O.Balonwu, B.O. Nwabueze and Augustine Nnamani.


Of this set, only Richard Akinjide, B.O Nwabueze and G.O.K. himself are alive today. Six years after his call to the Nigerian Bar, G.O.K. became a part time lecturer at the Nigerian Law School, till 1971. In the course of those seven years (1963 – 1971), well known jurists and lawyers today like former Chief Justices of Nigeria, Muhammed Uwais, Alfa Belgore, Idris Legbo Kutigi and Honourable Justice Umaru Abdullahi sat at his feet as students. From around the middle of the 1960s, G.O.K. Ajayi started earning fame as a legal luminary and his reputation waxed stronger down the four successive decades.


So brilliant and trusted as a progressive and competent lawyer was he that he was the foremost legal warrior in the Second Republic for the Unity Party of Nigeria led by the immortal Obafemi Awolowo. He was the lead counsel in the famous 12 2/3 case Awolowo vs Shagari (presidential election dispute) in 1979 and was lead counsel in the equally famous 1983 political cases like Adekunle Ajasin v Omoboriowo (Ondo State Gubernatorial Election Dispute), Bola Ige v Victor Olunloyo (Oyo State Gubernatorial Election Dispute).


Earlier in 1981, he had successfully handled the landmark case of AbduRahman Shugaba v Minister of Internal Affairs. This was a curious case in which Shugaba the minority leader in the Borno State House of Assembly was suddenly arrested and deported to Chad by the National Party Nigeria controlled Federal Government on the grounds that the politician was never a Nigerian citizen.


Aside from Chief G.O.K himself, Nigeria has been blessed with many other extra-ordinary legal practitioners, with late Chief F.R.A. Williams S.A.N. and late Chief Gani Fawehinmi S.A.N.,the irrepressible human rights activist being perhaps the best known.


Yet these two lawyers deeply respected G.O.K’s abilities. Senior lawyers still recount with awe the many battle royales especially between the 70s and the 90s between Williams, better known as F.R.A. and G.O.K, for their respective clients. The formidable F.R.A., the quintessential legal mind also known as “Timi the Law” was said to always find G.O.K, though his junior at the Bar by at least 14 years, a formidable, unsparing and deep cutting opponent.


As for Chief Gani Fawehinmi S.A.N., famous for his “battering ram” advocacy style and always in trouble with the military authorities, G.O.K was easily the preferred counsel to defend him in peak trouble in 1989. Thus G.O.K. was there for him in 1989 before the Transition to Civil Rule and Miscellaneous Tribunal headed by the late justice Anyagbunam.


G.O.K. led dozens of other famous lawyers including Mr. Alao Aka-Bashorun, Chief F.O. Akinrele S.A.N, Dr. Olu Onagoruwa, Chief Mike Ozekhome and Mr. Femi Falana to defend Gani.


Another famous client of G.O.K was retired General Zamari Lekwot who with some other members of the Atyap community of Kaduna State was charged with murder before a Special Military Tribunal headed by one Justice Okadigbo over the Zango Kataf Disturbances in 1990. Against all odds, G.O.K’s fearless and brilliant advocacy led to the discharge and acquittal of the embattled General Zamani Lekwot and his kinsmen. Thereafter a grateful Atyap Community unanimously and joyously conferred the honourary title “ACHOK ATYAP” on G.O.K. ‘Achok Atyap’ means the “The Guardian of Atyap.”


In 1993, G.O.K. was on hand to lead a battery of seasoned lawyers to defend the business mogul turned politician, Moshood Kashimawo Abiola against the charge of Treason preferred against him by the General Sani Abacha regime for demanding the actualization of his mandate to rule Nigeria as president after winning the June 12 1993 Presidential election which was annulled by General Ibrahim Babangida’s regime.


To mark his 80th birthday, a Holy Communion Service of Praise and Thanksgiving was organized at the St. Peter’s Church (Faji) Ajele Street, Lagos. The service commenced at about 1.00p.m on 29th May 2011 with three principal officiating ministers in charge to wit:- Rt. Rev. E.A. Awosoga, the Bishop of Ijebu Ode, Rt. Rev. Ranti Odubogun the Bishop of Ife and the very Rev. (Dr.) P.R. Oludipe, the Provost of the Cathedral Church of Our Saviour, Halowojoda, Ijebu Ode.


The church was filled to the brim and over-flowed with worshippers. The most prominent was the foremost traditional ruler in the land of the Yoruba, South West, Nigeria, Oonirisa of Ife, Oba Okunade Sijuade, Olubuse II. In the entourage of the monarch were his wife, about a dozen other Obas and Chiefs. Other dignitaries in the church included Mrs. Tokunbo Awolowo-Dosunmu, Otunba Subomi Balogun, Mr. Tunji Kola Awodein S.A.N., Professor Elebute, Mr. Tunji Gomez, Mr. Yinka “Afro” Fayokun and other notables in the business world and the professions.


A longish affair, the church service ended at about 4.30p.m and the joy of the occasion was shared with Chief Ajayi by his immediate family, in-laws, kinsmen, grandchildren, associates, professional colleagues and numerous other well wishers.


A reception at the Lagos City Hall followed after the service. Again the venue was jam-packed by happy gaily dressed people. Proceedings did not start until about a quarter after the hour of five in the evening but nobody including the Ooni, appeared eager to leave.


Otunba Subomi Balogun was the Chairman of the occasion, while Chief Femi Adeniyi-Williams acted very competently as the unofficial Master of Ceremony. Professor Elebute, a childhood friend of G.O.K supervised the cutting of Chief Ajayi’s 80th Birthday Cake. All these elders and many more had very kind words for Chief Ajayi, attesting to his candour, integrity and humaneness.


The celebration of the 80th birthday of the legal luminary did not end on the 29th May. It continued the next day at the Lekki Oriental Hotel, Victoria Island, Lagos, courtesy of the G.O.K. Ajayi & Co. Alumni Association, headed by Mr. Tunji Ayanlaja S.A.N.


The Alumni organized a classy cocktail for their old principal. It was virtually a lawyers-only affair. This reporter saw at least one former World Court Judge, Judge Bola Ajibola, at the occasion. There was also at least one judge of the Supreme Court of Nigeria present, Honourable Justice George Oguntade.


There were at least three judges of the Lagos State High Court present: Abiru J., Okunnu J., and Opesanwo J. As for Senior Advocates of Nigeria, they numbered about thirteen, including Supo Sasore, Professor Kasumu, Tokunbo Williams, Ebun Sofunde, Tayo Oyetibo and Layi Babatunde.


There were many other notable lawyers present such as Mrs. Ayo Obe, Mrs.


Titi Kareem, Mrs. Mary Bassey, Mr. Stephen Kola-Balogun, Mr. Chijioke Okoli, Chairman NBA Lagos branch and Mr. Dave Ajetomobi, former Chairman, NBA Ikeja branch.


The masterful Master of Ceremony was an elated and nattily dressed Mr. Tunji Ayanlaja, assisted by Mrs. Ayo Obe. Predictably, choice wines and other drinks flowed and tasty ‘small chops’ were also in abundance. Taking of photographs was also a constant.


Seated with his wife Mrs. Margaret Ajayi and Judge Bola Ajibola in a corner of the room, Chief Ajayi quietly soaked in the atmosphere, listening with a rather studied detachment to the rain of accolades that speaker after speaker were pouring on him with regard to his humanity, strict professional discipline, dedication to duty, industry, knowledge, courage and sartorial elegance.


One scene that those present would not quickly forget was when Adesina Ogunlana, unabashedly gave Chief Ajayi a full length public prostration after rounding up his speech and subsequently dissolved into tears. Earlier on in his speech he had spoken glowingly of Chief Ajayi’s solid support for him in terms of financial, moral and free quality defence of him before the Disciplinary Committee of the Body of Benchers between 2003 and 2009 for his activities as the Editor of this magazine.


Many at the occasion wondered at the rather curious sight of a supposed “man of war” weeping like a baby! And in public too! After all the speeches, Chief was called upon to give his response. Once on his feet to make his speech, any seeming appearance of frailty left him.


In his charming, quietly penetrating voice, the veteran practitioner thanked the organizers of the event, shared some insights and ended with a declaration that he, despite his advanced years, was not yet ready to hang up his wig and gown. This attracted an ovation.


After an alumni gave the vote of thanks, Mr. Ayanlaja drew the curtains on the event saying, “We hope to see you around when we celebrate Chief G.O.K. Ajayi’s 90th birthday.”


People who wanted to leave at that point left and those who wanted to stay back to enjoy the unending flow of wine and soft music, satisfied themselves.