Let's amend the Constitution to allow states appoint own judges, says Pedro – Guardian
Former Lagos State Solicitor-General, Mr. Lawal Pedro (SAN) in this interview with YETUNDE AYOBAMI OJO spoke on topical issues, including calls for the abolition of the death penalty, judiciary independence, EndSARS protest and the VAT controversy.
FG has no constitutional power over VAT on states, domestic trade
Despite global advocacy for the abolition of the death sentence, Nigeria still retains the death penalty in her statutes. What is your position on the death penalty?
I believe that the death penalty has outlived its purpose and the statutes that created it should be reviewed. The question we should all consider is whether the death penalty has served as a deterrent to other would-be offenders? The answer is no! We should also ask ourselves whether it is of any value to society? With due respect, the answer is also no. As a country, I sincerely think that our correctional centres should have been developed beyond what we have today. We have vast land in the country where we can build new prison facilities and send convicted criminals there to farm. In Ibeju to Epe for instance, there are Islands that can only be accessed through the water. We can build new prison facilities in places like that and send convicts there. Whilst there, they can become useful to themselves and the society instead of just killing them because they have committed offences that attract the death penalty.
For those clamouring that by abolishing the death penalty, there will be no justice for the dead victim, the question they should consider is whether killing the condemned person, will revive the dead victim? I would rather advocate a reformative and restorative system of justice instead of killing people, who have committed a capital offence. This will be similar to what we have in Islamic jurisprudence, where the victim or his family is compensated for the loss suffered. The convicted person or his family should be made to cater for the family of the person he or she has killed. It’s unfortunate that is not applicable in Nigeria due to our common law practice. The irony of the matter is that even though the death penalty remains in our statutes, no condemned inmate has been executed in recent times. They remained a burden to the country because taxpayers’ money is used to feed them daily. We can make them productive to the nation and that should be part of the focus of reform in the justice sector.
Recently, the Chief Justice of Nigeria (CJN), summoned judges over conflicting decisions and for indiscriminately granting ex-parte orders in political matters. What do you think is the real problem with our legal system?
There is a need for discipline among our colleagues. When some judges were summoned over conflicting orders and granting of ex-parte motion, I felt that was not the solution. The lawyers involved in the cases also have cases to answer. Judges can be given benefit of the doubt of not being aware of earlier orders on the subject.
I recall that when I left the Ministry of Justice (MOJ) and appeared before a judge in a private matter two days later, the judge who was unaware that I had already left the Ministry was shocked and confused because the matter before him did not involve the state government and he thought I was in a wrong court or case. Obviously, he did not read the newspapers or watch the news on television to know about my retirement from service. Some of these judges actually try to insulate themselves from what is happening around them and would like to premise their decisions on the evidence before the court only. Therefore, if neither counsels for the parties brought the earlier decision to the judge’s attention, he should be pardoned, but the lawyers should take the blame. If the earlier decision was brought to the attention of the judge and he still proceeded to make a conflicting order, the judge has no excuse and should be sanctioned.
What particular areas do you think the government should focus attention on in its reform agenda?
The government should focus and spend more on the security and justice sector. When that is done, you will see rapid development, as the country would be investor-friendly. There is no reason a case should last more than 18 months in a High Court and six months in a Magistrate court. It is only then that investment will be drawn to the country. When people engage in business, there is bound to be dispute or breach of contract, but we must have an effective justice system that would evoke confidence that such dispute would be fairly and timely resolved. To deal with corruption cases, if a suspect is prosecuted and convicted within six months, most people who want to engage in a similar crime will caution themselves. What is happening now is that even a suspect arrested at a scene of the crime is bolder to urge the law enforcement agency to charge him to court because he knows that the matter will remain there forever until witnesses or evidence are lost and he will eventually be freed for lack of diligent prosecution or evidence.
Does that mean curbing delays in justice delivery could improve the system?
We don’t have to copy other countries blindly in the reform of our judiciary. We must look at our own peculiar situation and find a workable arrangement or model that will reduce, if not eliminate delay in justice delivery. However, as much as the Constitution of Nigeria remains the way it is presented, not much improvement in the justice delivery is expected. Lagos State should have not less than 100 judges, but even if the State wants that number of judges, the challenge is that the appointment has to go through National Judicial Council (NJC), which is an absurd situation in a federal system. Why should the Federal Government be paying the salary of a judge of the High Court of a State? State Governments should take care of their judges and determine how many of such judges they require and can fund. If I have my way, every Local Government in Lagos must at least, have one High Court complex with not less than four courts. How can one be living in Igando area and has to travel to Lagos Island or Epe to access the court and justice? Alimosho Local government is the most populated, yet it has no High Court.
Today, if the Chief Judge requests for the appointment of 10 judges for Lagos, FG will look at its budget and say they cannot afford to fund more than six and that is the end of the story. Is that ideal in a federation? In some jurisdictions outside Lagos, the total cases before the judges in the entire week are not up to the list of cases before one High Court judge in Lagos. But the judge will collect the same salary as his counterpart in Lagos. My suggestion is that the Constitution should be amended to allow states to appoint their own judges. There could be some form of coordination by a federal agency like the NJC but appointment, management and payment of salary should be rested with the States.
The jurisdiction of the Magistrate Courts should also be increased to free the High Court of some cases. There are about 200 Magistrates in Lagos State, so what are they doing? They are doing landlord and tenant matters. To me, such cases should not last more than three months in court. There should be a Mediation Unit annexed to a Magistrate. The first hearing of such cases should go to the Mediation Unit for resolution, which shall be taken before a Magistrate in chambers to be endorsed as consent judgment of court. It is my view that if landlords and tenants cases are resolved amicably, it will be an incentive for investment in housing. People are selling two to four houses in Nigeria to buy one house or flat in London because of the ease of collection of rent and timely determination of tenancy disputes over there.
What are your thoughts on judiciary independence in Nigeria?
As far as I am concerned, our judiciary is independent and autonomous in respect of the core function of the judiciary, which is the dispensation of justice. Is anyone telling the judiciary not to or how to dispense justice?
So, I believe the area we have issues with is financial autonomy for the Judiciary. In my view, unless the Constitution of Nigeria is amended, the judiciary cannot be as independent as it should really be. According to the Constitution, the High Court of a state is treated as an appendage of the Federal Government because the recurrent and capital expenditures of the High Court of a state reside with the NJC. It means that if a state government spends money on the State High Court, it is being magnanimous. By the Constitution, the state government’s responsibility is for the Magistracy and other State Courts like customary courts. If you look at our Constitution on the issue of funding of the Judiciary, it provides that money standing to the credit of the judiciary in the Consolidated Revenue Fund shall be paid directly to the Head of the judiciary. The question is, when is any amount deemed to be standing to the credit of the judiciary? Is it when the budget is prepared as agreed to by the Governor or his Budget Ministry or when it is passed into law by appropriation Act or law or when money is available from revenue generated? This question is important because the judiciary is funded through the government budget, which is an estimate. So, assuming N100 billion is the budget of the Judiciary out of the total state budget of N900 billion, and for the whole year, the government only generated 300 billion, can the Judiciary still get full funding for the year?
My suggestion is that stakeholders should be asking for an increase in the percentage of the judiciary’s budget. Most people who talk about financial autonomy for the Judiciary have never worked in government, so they don’t know how these things work. In my view, it is the percentage of the total budget of the federation or a state government allocated to the judiciary that we should focus on and demand for an increase. Ordinarily, the budget ought to be divided into three, since there are three arms of government, but we know that the Executive have more responsibility. Legislature’s functions are limited to making laws and performing oversight, while the Judiciary is there to dispense justice. I am sure the budget of the Judiciary is lesser than the budget of the Ministry of Works. That is where the challenge is. We should fight for an increase in the budget envelope of the Judiciary. If for instance, the Judiciary is having four per cent of the total budget of a state, then it should be asking for 10 per cent so that it can have more money to carry out its constitutional duties.
It’s one year now since we witnessed the EndSARS protests and all the problems that came with it. What would you advise the government to do differently to avoid such reoccurrence?
Well, to me, the EndSARS protest is now history and we must always learn from history to fashion our future. All the issues that made the EndSARS protest come to the fore, have been with us for quite some time. It is just that few people could not make them any longer and decided to stage a protest to hold the government to account. I believe that the government is trying to address some of the issues raised by the protesters through the various panels that were set up. We should allow the panels to conclude their works and come up with recommendations, after that, we could analyse them and also make suggestions.
The EndSARS protest is just the tip of the iceberg of the larger problem that is facing us in this country. The challenges in the country are much; poverty, unemployment, insecurity and many other things that led to the protest. When you have graduates who cannot find jobs, then what do you expect from such idle youths? It’s a big problem and we must all join hands together to solve them. I think Nigeria has not done much to assist the low-income earners and small and medium businesses, which are engine rooms for the economic development and growth of any nation. Whether the banks cooked up their books, I don’t know but every year they declare huge profit after tax. After payment of dividends, how is the balance utilised? Is it to build more structures and branches, which are not needed because people now do online banking? Such funds should be used to give out loans for small and medium enterprises for investment and development purposes. I, therefore, believe that the banking industry and the legislature, particularly the National Assembly are better placed to save this country from total collapse. But are they ready to make the sacrifice? I doubt it.
The security situation around the country has become alarming. Are you worried about the situation, especially in the Southeast?
I feel very concerned about what is going on in the Southeast and everybody in Nigeria should really be concerned. The same way we raised the loudest voice about what happened in the North against the kidnap of Chibork girls and other attacks, we should raise our opposition voices against what is happening in the East. It reminds me of what happened with the June 12 election annulment and the resistance that followed. At the height of the matter, it suddenly became a Western region problem alone. Now, the chick has come home to roost. It is the failure of every Nigerian to stand up for truth and justice then that led us to where we are now in this country. Therefore, we should not be looking at what is happening in the East and close our eyes because if it is not contained now, it will affect all of us as a nation, directly or indirectly.
We have been so divided in this country and it is working against us as a nation. I have always advocated true compliance with the Federal Character Act in the appointment of people into political offices and career posts in Nigeria to give every tribe sense of belonging. I believe this will save this country from drifting into chaos. Had previous governments implemented the federal character principles religiously, IPOB, Oduduwa Republic and so many other agitations would not have arisen.
What is your take on the current battle between the Federal and State Governments on who should collect VAT?
It is a misconception of the law to state that the Federal Government has no power to enact VAT Act and collect the tax. The true position is that FG has a limited scope of the area it can impose and collect VAT and that is in international trade and commerce as well as interstate trade and commerce.
If we check the Exclusive Legislative List in the Constitution, we will find Trade and commerce. It is ultra vires the National Assembly and the FG to impose a tax on domestic trade and Commerce reserved for states. I recall while in office as Solicitor General, a dispute arose between the Federal Government and Lagos state on control of Tourism and Hotel. In the consolidated cases, the Supreme Court upheld the constitutionality of the Lagos State law on Hotel Occupancy and Restaurant Consumption Laws, which seeks to regulate, register, classify and grade all Hotels, Motels, Guest-Inn and other tourist-related establishments and collect consumption tax, which law was directly in conflict with the provisions of the Nigerian Tourism Development Corporation (NTDC) Act.
And recently, before the Federal High Court, the issue of whether VAT Act has covered the field of consumption tax in Nigeria arose between the Hoteliers Association of Nigeria, Federal Inland Revenue Service (FIRS) and Lagos State Government. I represented the state government in the case and filed a counterclaim to challenge the constitutionality and validity of specific sections of the VAT Act, but not the entire Act and the court agreed with me and delivered judgment to declare the sections invalid in favour of Lagos State. That was the first case to the best of my knowledge, which nullified some provisions of the VAT Act, as being unconstitutional.
So, the Federal Government has no constitutional power to impose and collect tax on the consumption of goods and services within a state in respect of domestic trade and commerce, such as the purchase of items in stores or supermarkets or a bottle of coke in a hotel. Therefore, any state government that enacts a VAT law will be doing so rightly within the power conferred on it by the Constitution. But, if I am to advise, a state government should simply title its law “a consumption or sales tax law”, which will achieve the same purpose as VAT law and avoid the confusion of double taxation or doctrine of covering the field, which most people, particularly public commentators do not understand the legal meaning. I say this because of the general principles that where the Federal and a State government enact a statute on the same subject matter and there is conflict, the federal law prevails.
You turned 60 years on October 6, 2021. How has life been for you so far?
Almighty God has been good to me and my family. I am eternally grateful to Him. There have been challenges, but I would say the positives far overweigh the negatives that I have faced so far. I have many reasons to thank God for His blessings, mercies, goodness, love, guardian and kindness. Truly, I have many reasons to be grateful to God.
What motivated you to read law in the University?
I was motivated to read law because I was born in the area where we had the first set of courts in Nigeria, which are Igbosere and Tinubu. In those places, you see lawyers passed by in their robes every day and more particularly by my role model and uncle, Hon Justice Muheeb Kotun, who was then a Magistrate and later became a High Court Judge in Lagos. He was married to a sister to my father. He loved me like any of his children. I was around eight years and loved to play football. Each time there was a family meeting in which my father presided, I was the person to serve family members in attendance with drinks, but the meeting would not start on time until this big uncle arrives and I ended up missing my football match. I always wondered why he was so important that everybody, including elder members of the family, have to wait for him to commence the meeting. My father told me that he was a Magistrate and that it was important to wait for him though he was junior to him. When I asked what it takes to become a Magistrate, I was told one would have to study law in the university first. Instinctively, I decided I would become a lawyer so as to become important like my uncle. When he later learnt that I gained admission to study law at the university, he completely showered me with love and affection that I was one of the few persons that can even drive his personal car for personal outings.
You spent all your time as a civil servant in the Lagos State Ministry of Justice. What was it like working there for almost three decades?
I got into the Lagos State Ministry of Justice just after my call to Bar in 1986. My plan was to work there just for two years based on the agreement I had with my role model, but I found myself working for nearly three decades. Working there was a wonderful experience as I worked in most of the departments and rose through the ranks to become the Solicitor General of Lagos State and Permanent Secretary in the Ministry in 2008. I was also privileged to have been rewarded with the rank of Senior Advocate of Nigeria (SAN) in the same year while serving as a civil servant. That was the first time any civil servant in Lagos or any other state in Nigeria would be conferred with such an honour.
That was a landmark achievement in my life and in Lagos State as it is different from those who came into the Ministry on political appointment and became SAN. Lagos State Ministry of Justice is not just a Ministry, but also a law office and perhaps the biggest and largest law office in Nigeria and in sub-Sahara Africa. The Ministry is a good place for any lawyer that wants to excel. There are opportunities. For those that just want to earn a living, it accommodates them. Those that are lazy and get paid after 30 days for doing nothing are also accommodated because the Ministry is still part of the civil service. For me, MOJ developed me and I will ever remain grateful for the opportunity to have worked there, particularly with bosses such as Hon. Justice Nurain Kessington, Alhaja Wonu Folami, former Attorney General, Hon Justice Bode Rhodes Vivour, Hon Justice Ayo Phillips, Hon. Justice Doris Okuwobi, Mr. Fola Arthur Worrey, Prof. Yemi Osinbajo (SAN) and Ade Ipaye, the Deputy Chief of Staff to the President of Nigeria. I had a good time in the Ministry and some of those hardworking staff I left behind are still doing great there.
What were some of the challenges you faced in the Ministry of Justice as Solicitor-General and Permanent Secretary?
The challenges I faced were a result of what you can call Civil Service mentality. In 2008 when I was appointed Solicitor-General, I happened to be one of the most junior directors in the Ministry. Then, I had seniors in age, at the bar and in the civil service before I was appointed to become Solicitor-General and Permanent Secretary. That was against the Civil Service convention, which stipulated that the most senior director in a Ministry becomes Permanent Secretary. Understandably, some persons didn’t like that, but some knew I had put up a lot of industry to earn the appointment. There was an uproar after my appointment and some people said I got the appointment because I was a Lagosian, others said I was Prof. Osinbajo’s boy. But I will forever remain grateful to Senator Asiwaju Bola Tinubu, who insisted on my appointment. The good thing that later happened was that a few months after my appointment, I became a Senior Advocate of Nigeria. That simply put the matter to rest because, by virtue of my new status, I became the most senior lawyer in the Ministry.
Can you recall some of the cases you handled for the state, while you were in the Ministry?
There are many of them but I will just mention a few. The case of Reverend King was one because as Solicitor-General, I was the coordinator of high profile criminal cases in the Ministry and the then Director of Public Prosecution (DPP), who is now a High Court Judge worked with me on the case up to Supreme Court. The case of Major Hamzat Al-Mustapha is another high profile case. The initial trial was clogged through petitions against the trial judge, Ade Alabi. When the matter started de novo, I led the prosecution and secured a conviction, but regrettably, the Court of Appeal upturned the conviction. I was also involved in all constitution cases for or against the Lagos State government in the Supreme Court. For example, the Ikoyi land dispute between Lagos State and the Federal Government and Hotel Occupancy and Tourism case, which I earlier mentioned.