‘NASS Should Focus on Law Making and Oversight Functions’

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Getting to the top of the legal profession in Nigeria, is a daunting and Herculean task. Reaching the pinnacle however, as an academic through litigation, may even be harder. Professor Taiwo Osipitan, SAN, the son of distinguished Legal Practitioner, Chief Bayo Osipitan, was the first Academic to be elevated to the rank of Senior Advocate of Nigeria in 2002, based on his performance as a Litigator. In a chat with Onikepo Braithwaite and Jude Igbanoi, he expressed his views on burning issues in the polity, including Nigeria’s seemingly unending fight against corruption, constitutional amendment and the much-desired review of the Evidence Act

Prof, Many are protesting that it is not only unconstitutional, but immoral that former Governors that are now members of the National Assembly and also serving as Ministers, should be earning exorbitant pensions from their old roles and fat salaries in their new ones, when old pensioners are being owed their pittance pensions (having served the country for many years in their youth), and many Nigerian workers are not only being paid less than a living wage, but have been owed salaries for several months. Do you agree with this protest? What is the position of the law on this issue?

There is a fundamental distinction, between Law and morals. A Law does not cease to exist, merely because it is considered immoral or unjust. The recent protests are off shoots of non-payment of pensions and salaries of retired Civil Servants and serving Public Officers respectively. Prior to the protests, political office holders who had served in the public sector, were paid their pensions as retirees and salaries and allowances as serving political office holders without protests. I am not aware of any Law, which deprives a person of earned pension, merely because such a person subsequently becomes a political appointee, or has been elected to serve as a Legislator or State Governor. Section 173 of the 1999 Constitution for example, guarantees and protects pension rights of retired public officers.

The Pension Reform Act, also transfers pension related issues to Pension Fund Administrators. It further introduced contributory pension scheme. Employers and Employees are obliged to contribute to pension funds. The issue here is purely legal. Are we saying those retirees who contributed to pension funds whilst in employment, should be deprived of their pension rights because of their decision to serve as political office holders?

In order to prevent simultaneous collection of pensions, salaries and emoluments by political office holders, relevant Laws will have to be amended, in such a way that Political office holders are made to elect between payment of their pensions and salaries/allowances during the period that they occupy political offices. Alternatively, some of the political offices should be part time and only sitting allowances should be paid to holders of such offices. We must however, be careful and avoid creating the impression that it is an offence to serve the Nation in the capacity of political office holders, through arrangements which short change our retirees turned political office holders.

The debate as to whether the appointment of the EFCC Chairman requires Senate confirmation still rages on. What is your opinion on this matter?

The controversy centres on the conflict between Section 2(3) of the EFCC Act, which prescribes that appointment of Chairman of EFCC is subject to Senate confirmation and Section 171(1) (d) of the 1999 Constitution (as amended) which dispenses with Senate confirmation of appointments of Heads of extra Ministerial Departments.

By virtue of Section 171(1) (d) of the 1999 Constitution (as amended) Mr. President does not require Senate confirmation, in order to appoint Head of an extra Ministerial Department. The words “extra Ministerial” are not defined in the Constitution. Extra Ministerial Departments, are Government Departments which function without ministerial oversight/control. They are also Government Departments, whose activities/functions overlap more than one Ministry. EFCC is not placed directly under the control of a particular Ministry. It (EFCC) co-ordinates various Laws and relevant agencies with respect to corruption, financial and economic crimes related issues. It has liaison offices in various agencies, and financial supervisory institutions that are involved in the eradication of Economic and Financial Crimes. EFCC is therefore, an extra ministerial body.

Evidently, there is a conflict between the EFCC Act and the Constitution, on the issue of Senate confirmation of appointment of the Chairman of EFCC. Whereas, the former prescribes Senate confirmation of the appointment of EFCC Chairman, the latter dispenses with Senate confirmation. EFCC Act is an existing Law by virtue of Section 315 and 318 of the 1999 Constitution. The Constitution is the Nation’s supreme Law/grundnorm. All existing Laws must be in harmony with Constitution, in order to be valid. Section 1 (3) of the Constitution, stipulates that where there is a conflict between the Constitution and an existing Law, the provisions of the Constitution will prevail, and the existing Law shall be null and void to the extent of its inconsistency with the Constitution.

Therefore, Section 2(3) of EFCC Act which prescribes Senate confirmation of the appointment of EFCC Chairman, must on the strength of supremacy of the Constitution, give way to the Constitutional provision on non-confirmation by Senate. The appointment of EFCC’s Chairman consequently, does not require Senate confirmation.

In the event of a law suit at the instance of either the Senate or Mr. President, I do not see the Supreme Court exercising original Jurisdiction. The expanded original Jurisdiction of the Supreme Court, is limited to disputes between Mr President and the National Assembly, in so far as the disputes relate to the right of the aggrieved party. National Assembly consists of Senate and House of Representatives. Therefore, the dispute must involve the two Legislative bodies, which jointly make up the National Assembly, as opposed to a dispute with one Legislative body, (Senate). Under Section 318 of the Constitution, National Assembly is defined as “the Senate and the House of Representatives established by this Constitution”. A dispute between the Senate and Mr. President, is obviously not a dispute within the expanded original jurisdiction of the Supreme Court.

Again, the cause of action in such a case, will deal with the confirmatory powers of Senate with respect to the appointment of EFCC Chairman, and the right of EFCC Chairman to be appointed and to function in office without Senate confirmation. Such dispute deals with control and management of EFCC, which is an agency of Federal Government. Interpretation of the Constitution as it affects an agency of the Federal Government of Nigeria, will occupy the centre stage in such dispute. These causes of action are within the exclusive original jurisdiction of Federal High Court by virtue of Section 251(1) (p)(q) & (r) of the Constitution.

May I counsel that the National Assembly should concentrate on its Law making and legitimate oversight functions, instead of attempting to expand its authority beyond its constitutional powers.

Is the Government losing the fight against corruption? The EFCC has been criticised even by the Presidency, for losing so many of its cases. As one who has handled many cases against the EFCC, would you say this is fair criticism? How can the Commission be better placed to perform its duties of fighting corruption? What steps must be taken to make this fight effective?

In every case, there is usually a winner and a loser. I do not agree that EFCC is losing most of its cases. It has won and lost cases. EFCC cannot and is not expected, to win every case. EFCC fights corruption, Economic and Financial Crimes. These crimes are like cancer, which has eaten so deeply into the fabric of our society. These crimes cannot be uprooted over-night. When you fight these crimes, their perpetrators will fight back. Persons who are neck deep in corrupt practices and economic crimes, have very deep pockets. They can afford to hire the best brains, in the legal profession.

Admittedly, EFCC has few good and dedicated prosecutors. Rotimi Jacobs, SAN, Wahab Shittu, Saidu Atteh and Rotimi Oyedepo readily come to mind, as EFCC’s prosecutors in this class. They are however, overworked and evidently fatigued, because they prosecute EFCC’s cases across the Federation and render advisory legal services to prosecuting agencies. Experienced and committed Legal Practitioners should be brought on board, in order to lead other young and upcoming members of the EFCC prosecuting team. The choice of prosecutors, should not be based on friendship and political affiliations with decision makers. It must be based on their track record of performance. We must acknowledge that, hiring experienced Counsel is not a cheap exercise. Government must therefore, be prepared to adequately remunerate such private prosecutors in order to make the exercise attractive and worthwhile.

Lack of deep knowledge by Investigators, of the dynamics of the cases they are investigating also account for loss of some cases. Some of the Investigators are quick to conclude on the culpability of suspects. Some investigators against legal advice, insist on prosecuting obviously bad cases. These investigators blackmail prosecutors. Judges are also not spared of blackmail, by incompetent prosecutors. The Law presumes a Defendant innocent, until his guilt has been established beyond reasonable doubt by the prosecution. There are cases of investigators, who presume the Defendants guilty, and insist that the Defendant should prove his/her innocence.

Some Prosecutors do not know the type of evidence to adduce, in order to prove a crime. They insist on filing of many counts in a charge/information, as if prosecution is a gambling exercise. They also line up many witnesses who, at the end of the day damage the prosecution’s case, through materially contradictory evidence given by them. We also have investigators and prosecutors, who pride themselves with needless publicity in print and news media. They fail to appreciate the fact, that cases are won or lost in Court, on the strength of adequate preparation, gathering and tendering of relevant evidence and insightful final addresses, as opposed to media trial. Prosecutors and Investigators must avoid media trial, and be more thorough in their investigations and prosecution of cases.

It is obvious that the Constitution of Nigeria requires a complete overhaul. What major areas have you identified that require amendment or outright expunging from the Constitution? Some are saying that those that are agitating for the restructuring of Nigeria, do not seem to have a coherent plan as to how Government should go about it. What ideas do you have with regard to how Nigeria can be restructured?

The Constitution is evidently not a perfect document. It cannot be so, because it was drafted by mortals who are themselves imperfect. Perfection is the exclusive preserve of the Almighty God. As we operate a Constitution, the need to amend same to cater for identified defects are revealed. The life of Law is not based on logic, but on experience. Therefore, there is the need for periodic amendment of the Constitution. Undoubtedly we need to amend the Constitution. We however, need good operators of the Constitution whose focal point is on the welfare of Nigerians. We do not need operators with selfish personal agenda. Good followership is also essential, in order to move the Nation forward. We all must be faithful to Nigeria as a Nation, and down play ethnic and tribal sentiments.

I believe that, there is need for restructuring the political and financial affairs of the Nation. The starting point is devolution of powers to the States and Local Governments. However, so much depends on whether we want a very weak centre, in the process of devolution of powers to the States. We cannot afford to balkanise Nigeria, to the point where the centre is weak and defenceless. We must be faithful to Nigeria as a Nation. We need to put Nigeria first, over and above ethnicity. If the centre is weak, we will be unable to curtail internal civil strife and external aggression.

The centre should however, not be too strong as to relegate the State and Local Governments, to the point of irrelevance in the scheme of things. Today, the centre in terms of resources, appointment into offices and distribution of favours, is evidently too strong and attractive. Hence, the clamour for its restructuring. Items in the exclusive legislative list of the Federal Government, such as prison, pensions, stamp duties, Marriages, Evidence Law and Police, should not be exclusive to the Federal Government. It is easier to effectively police a state, using state controlled police force populated by Police Officers from the geographical zone, than sending an officer to police a State outside his/her geographical area.

A State Government has no business collecting Tenement rate using Land Use Charge as its platform, or to Control open spaces. These are local matters reserved for Local Governments, under the Constitution. Autonomy of Local Government Council, should be respected and protected in the restructuring exercise. We need to appreciate the fact that, the restructuring exercise will only achieve the desired results, if those who operate the Constitution and administer resources, are not self-centred. Access to resources and political powers within a restructured zone, must be based on equity and fairness to residents of each zone. We cannot afford domination of the minority by the majority in each zone.

Do you believe that the office of the Attorney-General of the Federation and the Minister of Justice, should be separated?

I do not support the fusion of the Offices of Attorney-General of the Federation and Minister of Justice. The enormity of Attorney- General’s responsibilities, require the separation of the two offices. The Attorney-General is first and foremost, the leader of the BAR throughout the Federation. The office of the Attorney-General of the Federation, should be occupied by a core professional, with keen interest in prosecuting and defending cases in Court on behalf of the Government. Where his presence is required in Court and at Federal Executive Council meeting at the same time, he should step down the latter for the former. He should interact more with the BAR and the BENCH, than with politicians. Insulating the Attorney-General from party politics, ensures even handed prosecution of suspects regardless of political party affiliation. The Attorney-General’s loyalty must be to the Legal Profession, and not to Mr President or government that appoints him/her.

The Minister of Justice should focus on and attend political meetings and Executive Council Meeting. The same arrangement is recommended at the State level. There should be a State Attorney- General and another person should function as the Commissioner for Justice.

It has been said that the legal profession in Nigeria is not only over-populated, the quality of lawyers being churned out in recent times, seems to have lowered. Do you agree? Do you believe that having a 1st degree in another discipline before being able to study law, like what obtains in the United States of America, should be introduced to Nigeria? Will this improve the quality of the legal profession in Nigeria?

There is evidently a general decline in the Educational Standard in Nigeria. The decline is not peculiar to the legal profession. The quality of students admitted to the various Faculties of Law in Nigeria, is not unaffected by the decline in Standard of Education in Nigeria. There are many Faculties of Law. However, there is no remarkable increase in the number of available Law Lecturers. This has resulted in the employment of some Lecturers as full time and part-time lecturers, in two or more Universities. In some cases, these lecturers travel across States, in order to lecture in different Faculties of Law. Apart from the risks associated with long distance travelling, the quality time spent on the road negatively impacts on the lecturers’ productivity.

I do not support the view, that Law should be studied as a second Degree. There is no assurance that, holders of first degrees will be better Lawyers than non-graduates. The likelihood of degree holders working during their studies as Law Students, should not be ignored. We are likely to see more of part-time students and full time workers, if law is made a second degree. This will further negatively impact on the quality of lawyers produced by our Faculties of Law, and the Nigerian Law School.

You played a major role as counsel in the privatisation and unbundling of PHCN, and today Nigerians are still groping in darkness. The DISCOs and GENCOs, have not run short of excuses, as to why they cannot meet the power needs of Nigerians. Did you envisage this situation when your Committee was working on this?

As part of the power sector reforms, the Generating Companies (GENCOS) and Distribution Companies (DISCOS) that emerged from the unbundling of PHCN, were sold to core investors who emerged as preferred bidders in the privatisation exercise. We had then hoped, that supply of electricity, would be steady and readily available to Nigerians. Few years after the privatisation exercise, these expectations have not been met.

Core investors borrowed funds from Banks that charged, and are still charging them, high interest rates. Funds that should have been channelled towards improving their facilities, are being utilised to service various Bank Loans. The owners of Discos and Gencos, need experienced and understanding partners, who will patiently see them through these problems, without demanding immediate returns on their investments.

Nigeria’s antiquated Evidence Act, finally saw some amendment in 2005, but there apparently seems to be a lot more to be desired, as the new Act hasn’t addressed the major issues, especially with relation to electronically generated evidence. As the leading expert in this field, what would you suggest as a lasting panacea to this problem?

You will recall, that the Evidence Act, is one of our Colonial legacies, which was introduced in 1945 during colonial rule. Incidentally, there was no major review of the Act until 2011. The 2011 Act, has evidently solved some problems in our Law of Evidence. It has also provided the platform for new problems.

The removal of Section 5(a) of the old Evidence Act from the 2011 Act, has created problems in cases where there are gaps in the Law. The jettisoned provision, had always provided the platform, for aligning our Evidence Law, with developments in other Jurisdictions when there were lacunae in our Law of Evidence. Today, any rule of Evidence not incorporated in the Evidence Act, or any statute with a flavour of Evidence, is irrelevant and not recognised by our Courts. Given the slow pace of Legislative response to new global developments, the removal of Section 5(a) of the old Evidence Act from the 2011 Act is very unfortunate, because of its suffocating effect on the development of our Evidence Law.

Electronic/Computer generated evidence, stands tall as the greatest achievement of the 2011 Evidence Act. However, on account of the tradition of importing rules/Laws from other Jurisdictions hook, line and sinker, the framers of the Evidence Act have created more problems than they set out to solve.

Admissibility of Electronic evidence under the 2011 Act, is evidently a welcome development. However, the conditions attached to admissibility and evaluation of electronic evidence under the 2011 Act, create avoidable controversies. A party, cannot just tender electronic generated documents, the way other documents are tendered in Court. The message from the apex court, in the case of KUBOR v DICKSON (2013) 4 NWLR (Pt.1345) page 534, is that the proponent of the Electronic generated document, is expected to give foundation evidence, on the status of the computer/device which was utilised in producing such document. It must be stated that, at the time the document was produced, the device was in good condition and did not malfunction. The foundation evidence, is expected to be given by a regular user of the computer, or a person who is familiar with the condition of the computer. The question is, can a user who is not an expert in Electronic Engineering, attest to the good state of the device at the time it produced the documents, without running foul of the rules on expert evidence. What if the device/computer which produced the document, is located abroad? How do we obtain the foundation evidence, from the regular user who is abroad? What is the weight to be attached to such foundation evidence, where the person who issues the Certificate of worthiness of the device is abroad and unavailable for Cross-examination?

Who certifies soft copies of public documents, that are in the public domain? Which of the devices is to be certified? Is it the device used in producing the document, or the device used in copying the already produced document?

And what if the device is the opponent’s device? From experience, it is easier for a camel to pass through the eye of the needle, than for an opponent to certify the state of his/her device that produced the document, if he/she realises that the document will be used against him or her. Few litigants will assist their opponents to establish a case against them, by certifying documents produced by their devices only for the documents to be used against them. These are two out of the problems of the 2011 Evidence Act. The need to take a second look at the Act is evident.

Last year the news broke that your law firm was going into a strategic collaboration with the law firm of Odujirin & Adefulu. Kindly, shed some light on this, as it was not quite clear whether it was a partnership between the firms or just a loose professional alliance?

This is a strategic alliance, of two Law Firms that appreciate each Firm’s area of interest and strength. Each Firm retains its identity, but collaborates in various ways, in order to ensure efficient and prompt service delivery to Clients. The overall objective, is to utilise each firm’s expertise to achieve Clients’ satisfaction. The arrangement, has been fruitful and/beneficial to our firms and Clients respectively.

You are a distinguished academic, but you were called into the Inner Bar based on your performance in litigation. Why did you choose the route of practice instead of academics? What informed your path to the rank of Silk?

I elected not to utilise my academic status, as the platform for my elevation to the inner BAR. Prior to my elevation in 2002, and to the best of my knowledge, there was no Professor of Law, who was still in active service of his/her University, that had been conferred with the rank on account of his/her Court appearances. Most of my senior colleagues were elevated to the rank of Senior Advocate of Nigeria, on account of their academic exploits or as legal practitioners, after they had ceased to be in the University system.

The desire to be the first serving Professor, to be conferred with the rank through the route of Legal Practice, informed my decision. Luckily, my Dad, Chief Bayo Osipitan has a thriving Law Firm, with very keen interest in advocacy. It was easy for me to utilise the cases in Chambers, as the platform for my elevation to the Inner Bar, through the route of legal practice. On a lighter note, although equity leans against double portion, however, equity excepts twins from the general rule, by way of a departure from the rule. Equity supports double portion in matters affecting twins. Hence, my recognition as a Professor and my elevation to the rank of Senior Advocate of Nigeria, through the route of Legal Practice.