Sylvester Imhanobe graduated from the University of Ife (now Obafemi Awolowo University) in 1989 and was called to the Nigerian Bar the next year.
He was awarded the Chevening Scholarship of the British Council to undertake Master of Laws degree at the University of Manchester in 1992 where he bagged the R.G. Lawson Prize for his brilliant performance. He later taught at the Nigerian Law School, from where he resigned as a senior lecturer in 2003 to pursue private practice. He speaks with Eric Ikhilae and John Ofikhenua on how to ensure justice at election tribunals, problems with Legal Education, among others.
As a former teacher at the Law School, why do many consider the Bar final examination very difficult?
You see, there are three levels of Legal Education: the academic, that is, the one in the university. Here, they are taught the substantive law and the rest of that.
The second level is the Law School, which is a vocational institution. It is like where you use your hands; that is, the how. You are taught the application of the principles that you already know.
And, the third level is the post-school. That is, after you have been called, you still have post-qualification trainings.
So, most students that come to the Law School, a few of them don’t appreciate this difference between when you were in the university – that was purely academic and when you are now at the Law School – which is more practical. And, you see, the kind of questions that they meet at the Law School are different.
There are two different types of questions, there are questions that are actually trying to test more of your memory and those are the economic questions. You can cram and come into the examination hall and pass and even do well. But there are questions that are actually meant to test your intelligence and most of those questions are problem questions. They are practical questions. So, you find that 80 per cent of the questions at Law School, if not 100 per cent, are practical questions.
So, you have to know it. There can be no crash programme. When you were very brilliant in the university, you were very good at memorizing; you memorize the entire topic and when the questions come, you pour it as it is.
You can’t do that at the law school, you won’t go anywhere. So, you must first of all, know it and then apply it in any given situation. That is why you find that some students, who would have done well at the university, don’t do well here or some, who didn’t do well there, perform better here out of maturity.
Maturity is very key, because you find that a mature student is likely to do well in Law School, because he is seeing the facts as they are. So, maturity plays its own role. But by and large, it is still the same thing, if you were good at the university, you should still be able to come to the Law School and understand what is being taught and improve yourself.
There is the perception that there is a drop in quality of training for lawyers these days. How to you react to this?
Yes, I agree with you to an extent. You see, one immediate cause of this is that Law is still part of the entire society. I think it is still a function of the falling standard of education generally. But then, talking specifically about Law, we have to watch our private universities. Without saying much about them, most of them are purely out for the money.
So, in which case, the extent of grooming must be thoroughly looked into. Even though there is accreditation and the Council of Legal Education goes round to accredit them and all that, we all know what goes on there.
At the faculty, the number they admit overshoots the number allowed. You have a class that has about 400 students with facilities for just a hundred, So, what can you teach ? Apart from the challenges in the school itself, the bulk of the challenges is even with the students.
The students that we have today are different. This is a digital world and because of that, everything they do, they try to do it on their phones. And like I mentioned a while ago, the issue of maturity is important. You can’t learn Law by just reading law books alone, you must apply them.
So, it is not as if the students are not being taught, but then, their level of concentration has reduced. Most of them will spend so much time on telephone, browsing without studying well. Even when you now teach them, how many of them are ready to settle down?
Above all, we need structural changes in the legal education system in Nigeria.
What defects can you identify in the current structure of Legal Education in the country?
I have, since 2003, been advocating that the Law School should be unbundled. You see, it will sound as if you are trying to attack the system, but until we unbundle the law school we will continue to have this challenge.
The Law School now, as it is, is the only institution in Nigeria where the operator and the regulator are fused as one. There is the Council of Legal Education, which is a Regulatory body that should regulate the law school, but as it is now, it is almost the other way round.
The NCC (Nigerian Communications Commission), as a regulatory body, is different form the telephone service providers; so is the West African Examination Council (WAEC) which regulates the School Certificate examination by secondary schools. That is how it should be with the Council of Legal Education and the Law School.
So, as it is now, where the both institutions are fused, it means that nobody can criticize itself if the Law School is not doing it right. Because they also constitute the council, they will not tell you.
So, the Law School must be unbundled. Separate the Council of Legal Education from the Law School strictly and the examination should also be an external exam. What we do now is that, it is an internal exam. You see, you should separate the Law School from the council of legal education. Let the council perform regulatory roles. Let the Law School perform its role of teaching.
Is that how it is in other countries?
All over, that is how it is. That is how it is in US, that is how it is in the UK.
But, also, it is a matter of choice. You could finish in the UK and then you decide where you want to go to. But in Nigeria now, it is almost compulsory that once you leave the university, you go to the Law School, and look at the number of students from the universities that don’t have admission at the Law school.
Will the separation of the Council of Legal Education from the Law School address the problems you have identified, including the crisis of admission at the Law School?
In a profession that gives so much respect to seniority, you may not get admission for reasons other than you own cause, so it is because of over centralization. The time that Law School was established far back as 1962 you will find that the first set of students at the Law School were just about eight but now, the people that graduate from the universities run into thousands.
We have almost between 13-15,000 graduates from the universities, and how many can the law school absorb?
So if we unbundle Law School and make the council to perform its statutory role, the school will be able to concentrate on its core responsibility. I will propose that Law education should be extended to seven years – five years in the university, then there should be a year that is purely devoted to vocational training, and when you have written your exam and passed, you should have one year of internship.
The reason is that as soon as you are called to bar, I should be able to give you a file to handle any matter.
But, what we have now, which allows only one year at the Law School inadequate, because it is inside that one year that you have the internship; internship of about six to nine weeks, when you send them to the chambers they come here and they don’t do anything. They are thinking of how to pass their exams, considering that this is a country that focuses more on certificates than the skill.
So, under our proposal as well, you will not even have these grades; grading should stop. It is a professional exam. We will just have pass and then we have distinction. We should still give room for those eggheads to be recognized, every other person should belong to pass. What is 2-1, Third Class?
We have to professionalize the profession. If we continue with what we are doing now, we will continue to have poor results. So, there is need for change. Change should also go into the area of Legal Education in Nigeria.
The Independent National Electoral Commission (INEC) is being accused of frustrating the inspection of election materials, even where tribunals have ordered such inspection. Should petitioners be at the mercy of INEC?
I was a counsel in the 2011 presidential petition, that is, the one filed by the Congress for Progressive Change (CPC) against INEC and others. And I recall that I was on the petitioner’s side.
I recall that Justice Ayo Salami (retired) granted CPC an order to inspect the biometric database of INEC in respect of the elections of 2011. As soon as he granted that order, I was on the team that went to INEC, but lawyers from the other side, who were in government then interpreted that order of court in the way that would suit them.
And when we came back and now reported the matter to the court that its order is being flouted, we actually filled a motion for judgment. That motion for judgment was pending as at when Justice Salami was removed. The petitioner had a motion for judgment pending against the respondents, that is, INEC and the erstwhile President Goodluck Jonathan when Justice Salami was removed.
The law is very clear. The court has given an order that you should be allowed to inspect materials, then you should be allowed to inspect materials. But even at the level of the presidential petition, we had an order to inspect materials and we were not allowed.
Now when I watch these things go on, the same people that flouted the order then, are the people that are complaining now. But, the law is very clear; if a court has given an order, it is contempt for you to disobey it. You must obey it.
Having in mind that a tribunal has just 180 days, will it be wise for a petitioner to spend time on contempt proceedings against INEC where order for inspection is flouted?
Yes, that is where the strength and character of the tribunal is called to question. A contempt proceeding does not take a long time. It was difficult before because it was business as usual. Remember that we are under a different atmosphere. What we have even found now under research, is that for every tribunal that you had, there was always a lone voice, at least, a lone voice.
The Judiciary wants to sit up. It is undergoing a lot of cleansing. So, the sensibilities of the judges of today are certainly better than that of that of yester years. We are getting better by the day.
I expect that a judge, who has issued an order for inspection of documents and anybody stands on the way, knows what he/she should do when contempt proceedings come before him/her. But then, like I said, we had a similar situation at the presidential election tribunal and then we were walked away shamelessly.
So I don’t think there is any problem about that. Contempt proceedings and then the court knows what to do.
INEC ought to be fair to all, but it seems to always align with defendants in most election cases. How should INEC conduct itself in election dispute?
We always hear this saying that, it is almost a cliché now, that election petitions are on a class of their own. If we really have to go forward, there are the principles of election petitions that we have to go back and look into.
Basically, on this issue of burden of proof, on who does it rest? This is the area where you tell a man to come and prove what he does not have access to see. There is a school of thought that believes that once a petitioner has laid his petition with the four grounds, particularly when you say that the election was not conducted in accordance with the provisions of the Electoral Act, the burden of proof should move to INEC to show that it did.
But, as it is today, the burden of proof is still on you, the petitioner. So INEC is still giving a lot of leeway to do and undo. But I believe that as we grow, we will have to really look at it very that the burden should be on INEC to show that they conducted the elections based on the provisions of the Electoral Act. This is because it is stage by stage, starting from the voters’ registration, the accreditation, the voting, the counting, the releasing of the result and everything.
It is possible for them to show that, and once they are able to show prima facie, then based on the presumption of regularity, they can enjoy that. But what they have now is that they enjoy that principle of regularity from day one without even showing that they even had a register, which is not good.
Once it has been challenged, they should come up and show this is the register, these are the accredited voters, these are the result sheets, they were collated, the results were declared, before somebody was returned elected.
So, once you have been able to show all that, then the burden should now go to the other person to show where in this chain, it was not conducted in accordance with the law. But where we are now is that INEC is given that presumption from day one and that is where you find that it is a jurisprudential problem, which I believe will also be solved as we move forward.
Do you think 180 days are sufficient for determining an election petition?
It is even more than enough. It is more than enough. 180 days, that is six months. Six months is more than enough. Mind you there is a limit to the number of pages of the petition. They are trying to minimize the size of the petitions and the replies. In fact, it is usually when we don’t know what we want to do that we delay. Go to the point, go straight. 180 days is quite enough.
President Muhammadu Buhari has promised to ensure the prosecution of those found to have stolen public funds. Do you think the court system is ready for this task?
Yes! It is so unfortunate for us to think that our courts are weak, very unfortunate.
We drove ourselves into that hole; otherwise, I can tell you that the Judiciary in Nigeria is one of the strongest Judiciary in the world. We have produced Chief Justices for countries like the Gambia; we have produced justices at the World Court. So, I must tell you that these are products of the Nigerian Judiciary. It is one of the strongest Judiciary in the world.
You see, what we have been going through, like I said, is one of the societal challenges. The judges cannot be divorced from the society from which they grew up. But with the current trend and the change mantra, I can assure you that they have more than enough, both in terms of personnel and the materials, to handle all these cases within a record time, so we can handle them and handle them very well.
Do you think the whole trial process will not be hampered by the usual delay in the judicial process?
No. If you watch the judiciary from 2013, the erstwhile Chief Justice of Nigeria, Justice Aluma Muhktar actually brought out what we call practice directions. These are practice directions from the Supreme Court, the Court of Appeal and at the Federal High Court on criminal trials; trials that have to do with corruption. In fact, we call them new generation offenses. So, with these practice directions, they fast track criminal matters and they are given priority.
Then, with the passage of Administration of Criminal Justice Act 2015 a lot of the focus is now on speedy trial. In fact you are given 180 days. A trial now can no longer exceed 180 days. So the case management system, under the Administration of Criminal Justice Act, is highly enhanced. So, now you are going to see speedy trials.
We have a better system now and all stakeholders are now involved. There is a reporting system. I think there is a quarterly report, whereby if a matter is going to last more than 180 days with you, you must state why. The case management regime has improved a lot.
How would you advise the government to actually proceed with its plans to recover looted funds?
The government should use all available options that are legitimate. The administration of Criminal Justice Acts 2015 has just given us statutory power for plea bargaining. And plea bargain is actually used in circumstances where the prosecutor is not too sure of whether he is going to secure a conviction at the end of the day. There is evidence, but you know it is 50-50 and the accused person, who is now called the defendant under the new Act, also is not too sure. Both parties can then strike a bargain; it’s an agreement. So, there are such situations.
But there are also situations where the laws are very clear, and there is sufficient evidence that you can secure conviction. The Administration of Criminal Justice Act has introduced a new regime of punishment. We are no longer looking at the custodian punishment again.
The focus now is on restitution, forfeiture. If you have stolen and it is proved, you forfeit the property back to government. So, we don’t want to fill our prisons with criminals. We just want our assets back.
So, for those who will willingly return their own, it is good. There are a group of persons, who will do that. But then, that does not now mean that you are free, because you don’t expect the criminal to return all. So, you will still have to explain how you got the remaining ones that you kept to yourself.
Then I will also advise a lot of the criminals to also take advantage of the plea bargain option too. Their lawyers should advise them on that. Plea bargain is very good, it hastens the time for everybody and benefits both sides – you get something, I get something.
The essence of the administration of criminal justice is not really to witch- hunt. That is why I find it amazing that people now want to tend towards the fact that it is a witch-hunt or it’s not a witch-hunt.
There is a proverb in my language, an African proverb that says: where you fell a tree on another, if you want to dismantle them, you remove the one on top first. So, let us use the evidence we have today to prosecute the people of today. They should not be pursuing the persons of yesterday and let the evidence of today to disappear.
So, if by tomorrow we get the evidence of yesterday, we will use that evidence to prosecute the offenses that was committed yesterday.
Why did you choose to study Law?
I actually wanted to study Political Science. But, out of lack of counseling, I didn’t know that I would require, at least, a pass in Mathematics to be admitted into the Faculty of Social Sciences.
So, having applied for Political Science twice to the University of Benin, the University of Ibadan and I didn’t get admission, I had no option than to go and take Law . It was more like an Art subject. You did not require a pass in Mathematics to the Faculty of Law then.
I knew some lawyers then; but then, I preferred to study Political Science just because of the name. You know they called it Pol. Science. So I loved Political Science so much and I love that degree – the B.Sc.
And again, there used to be this distraction about Law – most people felt that lawyers must belong to one cult and that lawyers do not live long, and cannot be Christians. So, for me, and from a Christian background, it was like, what are you going to do in that profession where everybody is covered in black and all that?
So, Law was never in my contemplation, I came to study law when my attempt to get admission into Political Science failed and the only option for me was to go for Law because then, I didn’t want to read History or English or Religion . I wanted a professional course. So, that was how I went in to study Law and honestly, I thank God, it is like God directed me that way.