In this interview with Vanguard’s Law & Human Rights, Chief Mike Ahamba, SAN, spoke on the controversial tax reform bill before the National Assembly and why the North cannot complain.

He also spoke on other issues including slow judicial process, alternative dispute resolution, six-years single term for political office holders and the ‘Go to Court’, syndrome.  Excerpts:

By Ise-Oluwa Ige

A senior Advocate of Nigeria, Oluronke Adeyemi recently lamented that the slow pace of judicial process in the country is discouraging foreign investors from coming. How do you react to this and what do you think the relevant authorities can do to tackle this?

Well, I think the judicial process is very slow. But it is slow everywhere. I once read a magazine where it was said that the average time a case would last in the United States of America was three years. At that time, that was about the average of what was happening in Nigeria. There are procedures and processes that must be followed. But let the person who made that statement propose what ought to be done. We shall see whether it is right or wrong.

I don’t like a situation where we condemn without proposing an alternative. Like I would say, for example, where you have a motion for extension of time, and there is no counter-affidavit opposing it, the highest official in the registry of that court should be in a position to grant it and let the processing go on. But sometimes, in our courts, somebody filed a motion for extension of time to file a process, even with the process in court, you are waiting for the court to regularize it.

It can take two years particularly in the appellate courts. But if the highest official in the registry of the court is allowed to deal with that where there is no counter affidavit, nobody will be hurt. Instead, judicial process will be enhanced. This type of thing is what I think should be done. There is something they introduced recently, called pre-hearing session. As far as I am concerned, that is the oopposite of what we are supposed to do.

Pre-hearing session which may be six, three months away when the matter could have started and ended within three months. It is now counterproductive. It has to be reconsidered. I think a conference of senior litigation lawyers and experienced judges, both past and present, can be constituted to make a recommendation on this.  I have made two proposals here now. There may be more. Let anybody talking about it make his own proposal. You don’t just say it is slow; you should be able to tell us what you think makes it to be that slow. We will need to start somewhere. But, lets know that judicial process is governed by rules. If the law allows you 30 days to file a paper, the opponent cannot file unless you are out of time. And you cannot shorten that time because the court is not idle. 

Like I said, there are areas that would not require empanelling the court to sit just to say: not opposed; in the high court, move in terms of your motion papers; the same thing that a registrar could have done because most of those registrars now are lawyers. This is my position.

I think the learned silk was actually suggesting Alternative Dispute Resolution

In Nigeria? I don’t think that thing is working. Let me tell you this, right now, I have a matter at the Supreme Court that wouldn’t have been there now but for the fact that I went into out-of-court settlement after winning the case. We agreed. We did a Memorandum of Understanding and they used it to delay the matter and suddenly woke from slumber to challenge the judgment. I did an earlier matter in which my people ran into trouble because the judge who wrote the judgment said the matter should go back to the original panel. Now, within that period, one had died , another had become old. Till today, we have not been able to achieve the reconvening of that panel. 

So, when we are working in a place where people don’t think there should be honour and commitment to justice, such Alternative Dispute Resolution will not work. You will find out that after wasting time doing it in that alternative place, the person who loses might then decide to take the matter back to the court. And all the time you have spent will have been wasted. And you cannot make a law that it shouldn’t happen. 

I think it is better to go into that court and take care of it. When you win an award at the alternative place and somebody drags you through the High Court, Court of Appeal to the Supreme Court and being asked to go back to the tribunal to that award, why? These are some of the things we have to look into. If you are the one that opted to go before that panel, you should be bound by it. 

But the Supreme Court has decided that if you enter into dispute resolution in a village, it binds the parties though it doesn’t bind the court. If it binds the parties, it should also bind the court so that there would be no reopening of the issues that have been determined by people themselves. These are areas that should be examined. What I am saying may not be absolutely correct. I believe we must all make efforts to hasten judicial process in Nigeria. It is absolutely slow. 

What is your view on single term of six years for all political office holders?

  Our problem is not what we have now but the mind-set of those we are electing into office and those electing them. If a man is a thief because of two terms, he would be a thief if it is one term. At least, in the present circumstance, if he wants to ‘thief’ the money, he will slow down the first time so that he can have the second term. So, when a person comes into office with negative mindset as we have in Nigeria, even if you give him seven years, it will be a seven years of looting if he is a looter. We can only be safe if the person is a good human being at heart. 

Mind-set of the person who is elected is the important thing. Also making it possible for the people to speak and deliver judgment on a sitting executive in the next election is absolutely necessary. The INEC, I must continue to say, is number one in the list of political problems we have in the country now. They have refused to allow people to deliver their yellow or red cards on a sitting executive. They remove those they want to remove and sustain those they want to sustain there. 

You mean instead of the people electing, it is the INEC doing their role?

Yes, it is the INEC, instead of the people. And when you complain, they tell you: Go to court. So, judiciary comes next. That place, a person committing sin over sin, over fraud, if you challenge him, he will say: go to court. I have always said that members of that branch of our government should be angry with that type of statement if not ashamed of it. For me, as a lawyer, I’m ashamed of it because that is my area of operation. It is the bar and the bench that is called the legal profession. And if people can commit havoc and come out openly and you challenge them, they will tell you, don’t disturb me, when I finish with what I want to do here, you can go to court. That is an insult on the court. It is an insult on the legal profession generally.

And these are the areas we have to start looking at: How to control and make them better. This is because it is a chain reaction. If the INEC is free and fair in an election, 80 per cent of what they do should be sustained. In my book, Getting Things Right in Nigeria, I devoted a chapter to this situation. There, I discussed the Uwais Commission with its report. These are the areas I think can be controlled so that things can get better. 

Unfortunately, we focus on the politicians only. Whereas, the politician is a variable. There are constants around. And the politicians are controllable by these constants. Now, when the constants refuse to control, why do you blame the politicians again? This is the way I’m looking at this situation. If we want solution, let’s stop pretending. I have been in the opposition party, I have been in government party, I have seen all of them. I have seen everything. Get INEC right, and Nigeria will become good overnight. 

I watched the present chairman of INEC open his mouth to tell the nation that they had to bypass BVAS. Bypass?

Now, go and check their account, the amount of money they spent advertising BVAS and saying unless something was done by BVAS, it will be illegal. And then, you tell us openly that in the middle of the election, you had to by-pass BVAS. Who gave you that authority? Where did you get that authority? And it was condoned. That is the problem. I heard him say it. I also heard him tell former Senator Dino Melaye that he should go to court. So, we have to look at these things

But I was thinking that when you are asked to go to court, what it ordinarily means is that, yes, if you are dissatisfied, instead of taking laws into your hands, you are expected to go to court for intervention and justice. Does the expression, ‘Go to court’ now mean something else?

They are the people making people think that if they say go to court, they know you will come back with nothing because they have compromised the court. When this statement is made, for instance, in Imo State, there was a purported local government election in 27 local councils with 294 wards. Only 11 election petitions were filed. The reason was simple. People don’t trust the judiciary again. Out of all these number, for the ward election, only one person stood up to challenge it. Only 10 chairmen stood up to challenge what happened. But there is no one living in Imo State who did not know what happened on that day—That there was no election anywhere. But here we are. This election was conducted by the local INEC in Imo State.  What is the difference between that election and the one conducted by INEC? So, there must be a way to control those who are doing election. 

I recall that Chief Olanipekun’s argument then was that when you are in for a four-year tenure and you know the constitution still allows you to go for additional four years, instead of you to focus on governance, as soon as you are one year in office, you have started strategizing on how to win your second term. His argument therefore was to curb this so that those elected can focus on governance.

 What I had planned to do if I had successfully become the governor of Imo State was to ban anybody who came to the Government House to talk to me about second term. I will tell them at the gate not to allow such person. If you are given one term, lets us take 100 years, share it by four now. Is it not 25? 25 people alone will have chance. If it is full eight years, you will find that it will be 12 and a half. What else are you looking for in your life. So, if we now start reacting to the negative-minded people, we can’t stop reacting. We have to get people to react to government law, react to people’s desire which is that INEC should be free and fair and that those who enter that place should behave themselves, otherwise they go to jail. 

After all, one president from South America was there recently after office. If things happen and you let them go, then, others will try. We must stop reacting to the people who are negative minded. People should rather react to our laws and comply. This is because if we keep changing the law because of the behaviour of the people, there will be no end to changing. Right now, nobody can say he has written any authentic book on elections in Nigeria. This is because for every election in the country, there is a new law. Is that right? Check it. 1983 election with a 1982 law; 1991 with a 1989 decree; 1999 with a 1998 decree; 2003 with a 2002 Electoral Act; 2007 with a 2006 Electoral Act; 2011 with a 2010 Electoral Act. Is that the way we are going to learn something? Why are we reacting to that if the law does not favour you and your party lose election? The thing they changed in the 2003 election, those things were no longer there in the 2007 election. It wasn’t comfortable for those who were rigging election.Is that the way we are going to run this country? So, the day we begin to react to our law instead of making the laws to react to people, we will be getting it right.

The on-going proposed tax reform bill to reshape the country’s revenue distribution is generating controversy particularly as it affects the move to allocate Value Added Tax, VAT, revenue based on derivation principle. What is your reaction to bill?

Nobody should be worried about equity. Equity is an international concept. If what they are doing is equitable in the equation of sharing revenue, nobody should complain because he hasn’t benefitted as much as he used to benefit. I don’t see why anybody should complain about being denied the money derived from something he doesn’t appreciate. You don’t allow people to drink beer in the North. Those who drink it there, their Islamic police would catch them and punish them. Then, the ones they drink in other places where they tolerated beer, when the money comes from it, you want to take a share. Is that equitable? Just look at it. Allocation, in Nigeria, to be fair, must be based on derivation as it was done when we agreed to be a Federation. I have been preaching this. When we agreed to be one country at the 1959 conference in London, we agreed on 50 per cent derivation of everything. So, whatever you (the federating units) produce, you surrender 50 per cent to the Federal and keep 50 per cent to yourselves.

That made everybody to work. At that time, we had the groundnut pyramid in the North. Those pyramids have been allowed to disappear because those who used to produce them are now ‘chopping’ from other sources. So, I don’t see how anybody is hurt by an equitable decision or proposal. If the North must share in VAT, they must then allow all aspects of anything VAT to also operate in their area. I don’t drink alcohol and I have no intention of telling those who drink it not to do so. All I can tell them is to drink reasonably. But if you want to kill a man for daring to sell beer, why must you take VAT from there?

This is the point. And it is not beer alone. Anything you will condemn, what comes from it, you should forget about it. This is my position on this matter. I don’t see anything wrong in what the National Assembly is doing. Derivation was the key to our agreement to be together. It was the military that tampered with derivation. So, when the 1979 Constitution came, they now allowed not less than 13 per cent. In other words, they started restoration. And that is what is still in our constitution. I think what the National Assembly is doing is good and they should be allowed to conclude the matter. Everybody should go and work hard.

Recently, the senate wrongly removed the Chairman of CCT, Justice Danladi Umar from office invoking section 157(1) of the 1999 Constitution when Paragraph 17 (3) of the Fifth Schedule to the 1999 Constitution clearly provides how the head of CCT should be removed. Vanguard did a report to call senate’s attention to that serious error and the N/Assembly back-tracked. How do you feel that our senate peopled by senior lawyers could demonstrate such poor understanding of the law?

Well, they made the mistake. I congratulate them for having the courage to admit their mistake. Because one of the problems of Nigeria is that once an authority has taken a step, they think they cannot recant. They said they are sorry for making the mistake and I think we should accept that and tell them to sin no more. They have apologized for that error and I think that is enough.

The NBA is currently investigating some lawyers over their involvement in Kano emirate tussle through filing of processes before different courts which resulted in conflicting rulings. Do you share your association’s position?

Yes. It is right, neat and proper. One of our professional rules is that lawyers should not take step to misdirect the court. They are supposed to direct the court properly even if it is against the lawyer. But to go asking the court to do what should not be done, that is a breach of our rules. If somebody is involved, they shouldn’t shy away from punishing the person. We have our procedure. They should follow the procedure. If there are people who have misdirected the court as people have been doing like getting the Federal High Court to do things without jurisdiction, those are very serious offences because they nearly set that place and Rivers state ablaze. So, I think it is good for them to investigate. If they find out they have not offended anybody, the matter should die there. But if they have, they must pronounce the punishment. They should send them to disciplinary committee to see whether they should be punished or not.