By Henry Ojelu
Layi Babatunde, SAN, is a quiet achiever. In his over three decades of law practice and publication of Supreme Court Law Reports, he has devoted himself to numerous worthy causes. In this interview, he shares his concern on some critical issues in the country. He spoke on politics, falling standard of law practice, illiteracy, poverty among other things. Excerpt
You have been in law practice for over three decades now. How has the experience being for you?
I thank God. I would say it has been interesting in a number of ways and equally challenging. But the good thing is that once you enjoy what you are doing, you are happy doing what you are doing in spite of the challenges
When you say it has been challenging, what exactly do you mean?
While one cannot but thank God for the gift of life and modest achievements, the challenges are obvious as I believe you are not spared as well. Nigeria still lags behind in the availability of basic amenities – water, power, roads, public transportation, medicare, human resources etc. So it is a litany of failed expectations as it were. Our lives sadly, have been a story of survival living as they say in the world’s ‘poverty capital’. So since there are no special infrastructural supports for lawyers and the courts which is our turf, we are all in the same boat of redemption seekers so to speak. Borehole and generators survivalists!
Sometimes, the judge is ready to work but there is no power supply. Sometimes the congestion on our roads in the city where I practice, keeps the lawyers, litigants and even judges panting into court! In most courts, proceedings are still taken by the judge long hand with attendant consequences of delay at every juncture. There are no special health facilities or designated fuel dumps for lawyers or judges in the country. So we are all in the-same corner of the globe where talk about infrastructure and social services or amenities have remained largely a discussion about potentials. It is a painful story of hope deferred and it sometimes makes one feel small compared to people of other climes that their countries are even less endowed than ours. It can be challenging and emotionally sapping for anyone but we must soldier on.
How would you rate law practice then when you started and now?
There are now serious and growing concerns about the quality of advocacy, fidelity to the profession, its demands, nuances, tradition and culture. When we joined the legal profession over three decades ago, being industrious was not an alternative. You have to work hard at your calling. You have to know your onion as an advocate. In those days, when you go to court, the judge and your opponent are ready for you.
You must be current and up to date on matters of law and practice. I recall an experience I had with a judge who is retired now. There was a book on equitable remedies published in England. Within the week, the book was published, a copy was already in the hands of the judge. So when we got to court, there was an application that was called up before my case. The Counsel had an application for injunction. The judge then asked the counsel, ‘have you read, so so book on equitable remedies?
We all looked at ourselves because that was new. The judge told the Counsel, ‘ I will adjourn your case, go and read the new book and come back next week’. Immediately we heard that, those of us who had similar applications started asking for adjournment. I went to a bookstore in Ikoyi to look for the book and the seller told me that the book was just published the previous week. I told him but the judge already had it. So I had to order the book from England. That was how practice was then.Now things are a bit different.
So what has changed?
Some have suggested that we are now in the era of fast-food advocacy. Fast food is quick and available, but most times it is not quite healthy. Over indulgence in it could be disastrous health wise. Now, lawyers have opportunity of citing cases they have not read. All they have done is to pick up on line that they erroneously called ‘ratio ‘in a judgment and cite them sometimes aimlessly. Some lawyers will say they are relying on ratio 1, 2 and 3 whatever that means. Unfortunately such abnormalities are even creeping into judgments. Whereas in law, there is nothing like that in case law citation.
As a publisher, law reporter and someone in practice, some of the things I see in court today is very disturbing despite repeated warnings and admonition by the Supreme Court on how best to cite and rely on cases . Some law reporters that I regard as commercial law reporters have made the situation even worse. They cast head notes to judgments like newspaper headlines. Besides, cases have chronological order. You can say look in 1976, this was the position of the Supreme Court on a matter. In 1978, they adjusted their position in this direction in so so case or reaffirmed their earlier position.
So there has to be a chronological order in the reporting of cases up to the Supreme Court otherwise the doctrine of judicial precedent suffers. Sometimes I sit in court and listen to counsel cite Supreme Court cases decided in 1982 and they give it a 2017 citation or reference based on the kind of law report they have read or are using. So sometimes I ask them, this case decided in 1982 did it go back to to the Supreme Court in 2017?
They will laugh and say no, it is the same case. When I ask how come? They will say this one is a new law report. This is a mockery of documentation of court Judgments or law reporting because judicial precedent presupposes the orderly growth of the law such that if a counsel is not up to date, if he cited a case now, a judge can tell him, ‘no, that case has been over ruled in so so year .
The case you cited was decided in 1976 but the Supreme Court changed the position in 1986.’ That is how we used to know law practice but it seems times are changing. My surprise is that such advocates are getting away with it such that we have graduated to a point where fake legislation is being relied upon in court.
Some have suggested that the legal education that produces lawyers is part of the problem?
May be partly. For you to apply case law for instance, you must understand the reasoning behind the judgement. You must ask yourself, why did the Supreme Court come to this conclusion? Is it because they were bound by a previous decision? Is it because of the fact tested against the law? Is there anything that makes this case different from a similar case? Unfortunately there are those who think that it is too much burden, so they resort to an easy way out of citing ‘ratios ‘aimlessly.
Now with front loading some have taken it as a license for ‘cut and paste’. Front loading is not bad in itself, but because of the environment we find ourselves, it has produced unintended consequences. Sometimes it ends up giving the court more work than envisaged. As we often say, cases are like faces, they look alike but they are hardly the same. In the days gone by, when you are on your feet presenting your case, the judge will be engaging you in a pro-active and intellectual manner. Nowadays because of court congestion, lawyers are allocated a few minutes to expatiate on their written submissions. On a number of occasions even the few minutes are denied them so they simply adopt their written address or brief as the case may be.
Where lies the solution to this problems?
It is in us. There is no running away from the truism that ‘Membership of the Bar is a privilege burdened with conditions‘. There is nothing bad in industry, there is nothing bad in courtesy and respect for other people. There is nothing bad in sense of fairness and decorum. We need to change our mind set and approach. Law practice is more than just making money and over bloated ego. That is why we are called learned gentlemen and our profession a noble profession. Go to the police station today and see how lawyers are being treated.
You will ask yourself what happened? Is it because we didn’t conduct ourselves properly over time or because we have sold ourselves cheap? Is it because societal rules and order has broken down? Or is there something wrong with the recruitment process of the Police? You may say, well the number of lawyers now is more than what we had then. But should number now take away our decorum and sense of dignity? We need to look inwards to see where the rain started beating us. The senior lawyers with the help of the bench should take the lead. Thank God the roof hasn’t come down.
Does the school system contribute to the problem in anyway?
It’s probably a combination of school and the environment. Like I said earlier, before a prospective lawyer gets to the law school, he must have passed through a gamut of formal and informal education from home, crèche, the nursery school to secondary school and to the university. Some even think that it is when they get to law school that they are formed. I do not think that is correct. The learning process is a chain.
If what they have been doing is fast food and let my people go kind of thing, what will the school at the tail end of the chain do? If we want to achieve quality result in education, we should be looking at where the students are coming from. I must say though that it not all gloom as there are many lawyers both of the inner and outer bar doing the profession proud and building it up. Self motivation is also a key factor to success at the Bar and I dare say the bench as well. There is always room for improvement.
As a lawyer, do you take every case that comes to you?
I do not wish to be judgmental or sound so, but my own approach is this. I am not obliged to take any and every brief that comes my way. As a matter of personal preference, there are some cases that are not my priority. Not for lack of knowledge or competence, but because sometimes I have problems with the manner and institutional framework of dealing with such cases. I am happy that we have family court in Lagos State now. That is fantastic. Take contentious acrimonious divorce cases as an example. Some divorce cases are not acrimonious, but in others, the couple may be fighting dirty.
Under our laws, as it stands today, all cases are supposed to be heard in the open court. In fact there was a case where the Supreme Court nullified the decision of a lower court because the case was not heard in open court. That is what the constitution says. There is no soft line between it.That procedure in my views does not protect the family nor accord it a pride of place. In the first instance, if people have been married for 10-15 years or even less, there are confidences they would have shared with each other that they would not have shared but for their union.
As it sometimes happen, people disagree so veraciously and suddenly become sworn enemies. And then somebody files for divorce and the law says hear their case in open court. Lawyers and other litigants who are in court for other purposes now begin to watch and listen to evidence in the divorce case like a show in the cinema. The couples then begin to wash their dirty linen in the public without regard to the future of the children all because the law says the case must be heard in open court.
I don’t see why two married adults who want to go their separate ways should not be allowed to meet with the judge in chambers in company of their lawyers if they so wish and let the court address their concern. For me, I don’t see any reason why such kind of cases should not be taken in the judge’s Chambers. Don’t forget that sometimes when you have strangers in court as crowd of observers, couples may even embellish their stories to attract sympathy of onlookers. Emotions are the nature of family quarrels but you would be surprised that such dispute would be easy to resolve if it is heard in chambers. We are talking about family and it is family that builds up the country. I am just using this to give you example of some things I have reservation about.
Would you take a client that has a corruption case?
Everyone deserves to be represented in court no matter the gravity of the offense he may stand accused of. It is a constitutionally guaranteed right which our courts have always most commendably upheld. When you talk about corruption which is an issue that has held our country down for a long time and regrettably still does. However, there is a constitutional presumption that every person is presumed innocent until proven guilty.
Sometimes even people that are said to be corrupt may not be corrupt as alleged after a free and fair trial. This is why trial by media is not only legally wrong it is unduly oppressive if I may say so because sometimes, the allegation may not be as it has been stated in the media.There are instances like that so I will not put a brush and say it is bad for a lawyer to take up corruption cases. That will be wrong. This is however different from a lawyer engaged in corrupt practices using the profession as a cover.
There is this notion that lawyers aid corrupt politicians?
If a client confesses to being involved in corrupt practice to me, I will advise him to explore plea bargain and sin no more. There are other lawful options open to him but he should not mislead the court. A lawyer will be pervert that decides to sit a client down and tell him to lie. It is criminal. In fact that lawyer will be participating in corruption. However to the extent that the constitution presumes every person innocent until proven otherwise, it will be jumping the gun to pronounce a man corrupt even before he makes his plea before a competent court .
The constitution says that the man you are looking at in the dock is innocent until the judge pronounces otherwise. So when you label a man as a thief before the matter is decided, you are jumping the gun. You are the one that is unfair, because you have no respect for the law. The man is entitled to a fair trial within a reasonable time. What is bad and condemnable is for a lawyer to coach an accused on how to pervert the cause of justice. That is criminal. The burden of prove of crime is not on the defendant, but on the accuser. So the lawyer is not doing anything extraordinary so long as he plays according to the rules.
There are so many issues in this country that worries any sane person. Is there any particular issue that gives you sleepless night?
You see the level of debilitating poverty in this country is very troubling. Recently, I was looking through a newspaper which reported how a deputy governor was meeting with ‘repentant militants’ with a view to assisting them somehow. My heart sank just by looking at the share number of people gathered in that hall that the state deputy governor was addressing.
On the other side of the pictorial are pictures of surrendered or recovered arms and ammunitions. I said to myself this is a serious problem and I believe poverty is a major contributory factor. There are groups of young people all over the county in similar circumstances given different kind on names.
Secondly, the level of illiteracy in this country endangers all of us. The number of out of school children is frightening just as the quality of a number of public schools. In the early eighties, I was going to Minna by rail to do a case. At a particular Railway station I saw a lot of teenagers begging for alms at a period I thought they should have been in school. I had a chat with them and my heart sunk. I felt very bad because I saw them just like my own brothers and sisters yet could not do much to help based on the ground rules of their begging as they explained to me .
Sometimes I wonder if some of those young chaps whom our society gave no future are part of the problems confronting us in the north today. Instead of us to look at this problem and tackle it, we are busy fighting ourselves and bleeding the National treasury. Sometimes I ask myself, are we serious at all? The incident i just narrated to you happened in the early 1980s but I have not seen any serious effort to address the problem and the serious gap created by our long years of neglect. We are already late anyway.
We are late. I thought by now we should have been running a race against time to get people out of poverty and put our young generation in school. Whatever we need to do has to be done quickly and now before this country is set on fire. This issue borders me to no end. It really pains me because I look at this country and I say to myself, we are sleeping and snoring while fire is on our roof. We are behaving as if we are less concerned. The truth of it is that we are endangered with the level of poverty illiteracy and corruption afflicting our country. We have even added hate speech, tribe, religion and areas where people used to live peacefully together are now divided. I don’t know why we want to continue like this.
Do you see a future for this country?
I am optimistic because there is always room for improvement. The life of a nation is like that of individuals. You can make a u-turn. There are countries that were worse than Nigeria and they made a u-turn and they are better today. If we tell ourselves the home truth and turn from our wicked ways, may the Lord have mercy on us.
Do you see any prospect in our present leaders bringing about any hope in this country?
The leaders that you find accountable in other countries are so essentially because of citizen’s participation in how and by whom they are governed. It is because the people hold them accountable. Ensuring transparently free and fair elections and making our leaders accountable will be a good starting point. We must work to reverse the level of clannishness, nepotism selfishness and greed that has overtaken us as a people because it won’t take us anywhere. There is nothing bad about personal achievement, but there is everything bad in not believing in your country and contributing your quota to its greatness.
How did you come about your passion for law report publication?
I just mentioned something to you about case citation and reference to ratio. The law report that I publish now was formerly published by the Supreme Court and edited by Supreme Court justices. The law report later went out of print in July 1988. As a Youth Corp member in 1983, I served in the Federal Ministry of Justice. The government printer was on Broad Street not far from Marina where the Fed Ministry of Justice was.
Whenever I got my allowance, religiously, I will go to the government printer to buy the Supreme Court Reports. A large chunk of my allowance went into that. However for you to rely on Supreme Court reports, you have to read everything. There is no short cut. There is nothing like ratio 1 or 2. You have to digest everything. So that habit was already formed in me. So when as at 1988, the law report was no more available it was like I lost a part of me.
Happily the Supreme Court justices under the leadership of Honorable Justice M. L Uwais as Chief Justice of Nigeria granted me the permission to revive the Supreme Court Reports. I am forever grateful to My Lord Justice Uwais and the Supreme Court for this rare honor and bless God for my team which includes my wife, who is also a lawyer.
It would have really been a huge disappointment for the publication to come for one year and cease to come out again. To the glory of God you can now get Supreme Court Reports from 1972 till date on our stable both electronically and in hard copies. This is apart from the improvements we brought to the editorial content.
How easy is it for you combining law practice and publishing?
Well if something is a passion for you, it is more or less seamless. Advocacy and law reporting are like siamese twins. The reason is this. For you to be able to represent your client properly, part of the major tools you need, is case law. So law reporting has helped my law practice. By the grace of God, I have read every judgment of the Supreme Court that we have published. Every single judgement that we have reported, I have read them. That helps me in conducting my cases. Law reporting is demanding but it is very helpful. I read all the judgments because I don’t want to be an arm chair editor.
Would you be comfortable if one describes you as a rich man?
Thank God for being rich in grace. The grace of God upon me and my family are our riches. I don’t see riches only in terms of Naira and Kobo or material wealth There is more to God‘s riches than material possessions . I am grateful to God and all the good people he has brought my way.