Dr. Babatunde Ajibade, SAN is the Managing Partner of S. P. A. Ajibade & Co. Since his admission to the Nigerian Bar, Dr. Ajibade has been engaged in active and full-time corporate and commercial practice. An astute legal practitioner, he has been involved in all aspects of corporate and commercial dispute resolution in Nigeria and has extensive experience in all aspects of commercial arbitration, both domestic and international, as well as in investment treaty arbitration.
Dr. Ajibade is very passionate about the growth and development of the legal profession in Nigeria and has consistently maintained that for the profession to develop to its full potential, Nigerian Lawyers both at the bar and on the bench must unite to present a common front.
He believes that to maximize the advantages of the various aspects of the profession, practitioners must be multi-dimensional in their approach to legal practice.
In this exclusive chat with DNL Legal and Style, Dr. Ajibade spoke on diverse issues affecting the profession.
Enjoy!
DNL L&S: May we meet you sir
Dr. Ajibade: My names are Babatunde Ademola Moyosore Ajibade. I am a native of Ado-Ekiti in Ekiti State. My father is from Ado Ekiti and my mother is from Idoani in Ondo State. I am the last of four children. My father is a lawyer; I am the only lawyer in the family aside from him. I have a brother and two sisters. My brother is the first and the two girls are in between. My mother is a retired nurse, now a housewife. My father is semi-retired. Old lawyers are like old soldiers, they never actually go away completely, so, he still goes into his office every other day but he is based in Ibadan, which is where our firm originated from. We still have substantial operations there in Ibadan but in 1998 we set up this office in Lagos. We now have an office in Abuja as well.
I was called to the bar in 1989. I had my primary school education in Ibadan, at All Saints, then I went to International School University of Ibadan for my O levels, I did one year of A levels at Federal Government College Odogbolu and then I went to the University of Ife and graduated in 1988. I went to Law School and immediately after law school, I went to London to do a Masters. I finished my Masters in 1990 and came back home and did my youth service at Bentley Edu and Co on Campbell Street. After youth service, I went to Ibadan and worked with our firm for about six months, then I went back to London in April 1992 to do a Ph.D. I finished in 1996 and came back home immediately afterwards and I have been practicing in SPA Ajibade & Co ever since. I was elevated to the rank of Senior Advocate of Nigeria in October 2007.
DNL L&S: Why law?
Dr. Ajibade: This is an interesting question because a lot of people had assumed that because my father is a lawyer and because I am the last and all of my siblings had gone in different directions, that my father probably insisted that I must study law so that his books don’t go to waste. But I don’t have any recollection of him ever saying to me, “you must study law”. I think this was very wise because if he had done that, I probably would have rebelled. At some point I wanted to be an architect at another I wanted to be a pilot, then a journalist but I think what he did which was quite wise was that he used to take me to his office and I think I even went to court with him a few times. So, seeing what was going on there, it sort of grew on me that I can do this and I began to feel that law is not such a bad thing and that was how it came about and I have never regretted it.
I am passionate about the legal profession and everything I have done since I qualified has been entirely focused on law. When people tell me that their children want to study law and seek my advice, I say to them that law is too difficult a profession to practice to make a living. I tell them that you have to actually enjoy law because if you don’t enjoy it, it is just not worth the while. In the bathroom, while you are eating you are thinking about law, question is, who wants to be doing that to make a living? But then, if you enjoy legal practice, it is like a child who loves to play football and who is playing in the premier league; he gets paid for what he enjoys. Other than that, there are lots of disappointments and frustrations in the profession and it is that passion that carries you through those periods.
DNL L&S: You have just mentioned your passion for the legal profession. Let us talk about this passion and your becoming a Senior Advocate at a relatively early age. Was it your father’s influence that supported your quick elevation or the passion? Take us through the journey.
Dr. Ajibade: In one phrase, I think it was just the grace of God. Because there were so many things that happened in the run up to my being made a Senior Advocate that were fortuitous. It was not because I was extra brilliant but things just fell into place. I think the starting point is the desire and what I say also to all my colleagues or anybody who aspires to become a Senior Advocate is that I found out that it is not something that just happens. You have to actually work towards it and if you actually have that desire to achieve it and you are ready to persevere and be consistent, you would eventually get it. It may take a while, but you would get it. So, for me, I had always wanted to be a Senior Advocate. I cannot remember when exactly that desire was formed but one incident I remember is that when I was doing my Ph.D., there was a time my father came to London to visit me and I think by then, I had gotten married. I got married whilst doing my Ph.D. and my wife is not Nigerian, so, I think my father was becoming a bit concerned that, “this boy is not going to come back home and I have invested so much in him in the expectation that he is going to come back and run the firm.” So, during the visit, he had a medical appointment and I was driving him and he started going on and on about how I should not be tempted to stay back and I snapped at him and said, “look I told you, I am coming back home, I want to be a Senior Advocate, I am not going to be a Senior Advocate sitting here in London”. I guess that gave him some relief and he just responded, “ok ok if you are sure and you have made up your mind”, and I said yes I have. That is the earliest recollection I have of when I had focused on the silk and this was even before I came back in 1996. But then as I said, fortuitous, when I came back home in 1996 I had a very rosy picture of what the process of becoming a Senior Advocate was. I knew it was based on excellence in the profession but I had thought that once you have exhibited that excellence, you would be invited. That is, sooner or later somebody would tap you on the shoulder and say, “we think you should apply as a good lawyer.”
With this kind of picture in mind, I came back and threw myself into practice. One other thing that also drove that was the fact that I spent four years and a bit doing my Ph.D., while my friends that I qualified with in 1989 by then were seven years post call and had been practicing, so, somewhere at the back of my mind, there was that concern that I had been wasting time while my mates had gained experience and had been handling significant matters while I had spent all this time in the ivory tower. As it was not the case that I wanted to be a lecturer, I felt I needed to catch up. I was working double hard, I was all over the place and these were some of the things that I said were fortuitous because, even without knowing, I was building up the portfolio that I needed to apply for the silk. It was not because I knew that those things were what I needed to do. My father’s friend, Retired Justice Yinka Ayoola of the Supreme Court and the current Governor of Ondo State, His Excellency Arakunrin Rotimi Akeredolu SAN who had worked in our firm for many years back before I became a lawyer were the ones who first mentioned to my dad and to me that, “doesn’t Tunde want to be a SAN?” and I said of course and he asked again, “and what are you doing about it?” and I said, “I am waiting, I am sure when the time is right I would be invited”, and he said, “my friend you better start running around and be visible and do this and that.” I said okay and that was when I started putting things together, but like I said fortuitously, some of the building blocks I required were already in place. One other thing that worked in my favour is that even though my father had stopped litigation practice, he stopped advocacy in the late 80s, our firm still had a reasonable portfolio of cases. Indeed, most of our work then was banking and insurance litigation and insurance litigation naturally gives rise to a lot of travel and a lot of cases because we were defending claims made against big insurance firms like, Royal Exchange, Lion of Africa, Unic Insurance and others. We had a lot of personal injury claims and it gave me the coverage I needed. We were in courts in the Mid-west, Ilorin, Kaduna and so many other places, thus giving me the visibility I needed to apply for SAN.
I think what worked for me was that some of the things that others had to consciously work towards, I had them practically on a platter. So, as at the time I was told that these were the things I needed to do to actually apply for the silk, I just had to top and tail. I only had to work a bit extra to get Supreme Court cases
DNL L&S: You are one of those who are branded as successful transactional lawyers but you are still very active in litigation, which of the two would you consider your forte?
Dr. Ajibade: Starting point is, I am going to push back on being described as a transactional lawyer, I disagree. Indeed, when I qualified, my desire was to be an advocate. During my one-year youth service with Bentley Edu and Co, I got lured into the transactional side of the profession because as you may know Bentley Edu and Co back in the late 80s and early 90s was one of the cutting edge commercial practice firms. They did a lot of Intellectual Property, but also corporate work, which I found attractive. I admired the partners then with their dashing suits and I thought, “I can do this too”, but again, this is where parental influence comes in. I think my father saw what he considered to be me going off track and pulled me back saying to me that there is nothing wrong with transactional practice but that as a lawyer, if you don’t have a solid grounding in advocacy and litigation, people will not take you seriously. That was his view, may be right, may be wrong but in my experience and with hindsight, now that I have been on both sides of the divide, I agree with him entirely. I think even as a transactional lawyer if you are grounded in your advocacy or litigation, you would see things that perhaps other lawyers would not see, you would be better able to anticipate problems before they arrive. So, he pulled me back on that and thank God I saw reason. So, I started out as an advocate and abandoned the desire to be a corporate lawyer but then, subsequently I made a conscious effort when we set up this office in 1998 to get engaged in corporate work because I realized that law is a multidimensional profession and if you are too narrow, there might be times when one aspect of legal practice is down, so, you need to spread yourself a bit wide so, what I then did was to try and develop the transactional side of the practice and it was hard work because I was doing my litigation on one hand trying to become a Senior Advocate and at the same time pursuing transactions. There were times when in a week I could be up and down the express way three times in the course of the week and still go to court outside Lagos and all that.
Anyway, I developed the transactional side of the business and then very soon, I realized that I could not sustain this because first, I risked being a jack of all trade and master of none and second, there are only 24 hours in a day. That was when I convinced my dad that we need to open this practice up and take in partners. I took on partners purposely with the idea that I would in due course return to my core litigation which is what I do now. I head the Dispute Resolution Department in the firm so that is why I push back when people say I am a transactional lawyer. I am a dispute resolution lawyer, albeit, I do quite a bit of arbitration as well as litigation. So, the transactional part of the practice, the corporate finance, capital market work which I did quite a lot of in the past, I don’t do that much anymore. There might still be times when there are transactions my partners want my advice on and I give the advice but that is no longer my forte at all.
DNL L&S: You talked about opening up your firm for partnership. This question is coming against the backdrop of the very discouraging success story of partnership in law firms in Nigeria when compared to what obtains in other parts of the world. From your experience, do you agree that developing partnership in legal profession should be taking seriously, and what are the things that young lawyers should look out for in setting up successful partnership?
Dr. Ajibade: Well, again I think for me it goes beyond whether I think this is something that needs to develop. I say it is something that has to develop. If it doesn’t develop then we are not going to progress. One of the reasons why a lot of things are eluding us in legal practice in Nigeria at the moment is exactly because we don’t have certain skill sets. And, if you don’t have these skills, there are certain transactions that just won’t come to you. Even the Nigerian Government when it has certain types of matters or transactions of significance goes abroad to engage foreign firms because they look around and they think, “how many firms have the capacity and the variety of specialization to deal with a really complex problem whether transactional or even dispute?” So, I don’t have any doubt in my mind that we have to develop partnerships.
Is it easy? No it is not. But even in the West, partnerships are a challenge everywhere. It is almost like marriage, there would always be difficulties but if you are all focused on the big picture or the objectives, then it can be done. And what I think is important is that partners in my view should complement each other. That means that if you want to develop ten practice areas, then it doesn’t make sense if all the partners have specialization in just one. It is ideal for the partners to have varied skills, so that what one cannot do the other can. And then most importantly, and I think this is probably what causes us the most challenge in these parts, we need to be less selfish. Selfishness and greed go hand in hand. I think if money is seen as an end in its self, then a partnership definitely won’t work, because if you make a hundred million naira and one person looks at it and starts thinking, “well, you know I am the one that brought in the client that generated that hundred million naira, why should I share it with anybody”, then, that is the beginning of the end of that partnership.
So, for a partnership to work, there has to be a willingness to work for the common good rather than for just one’s own personal benefit. But then, you have to strike a balance because we all have obligations, I think what needs to be done is to look at the general understanding of the need for partnership and to decide whether it is necessary, where it isn’t necessary, it is more convenient for everybody to remain as sole practitioners. There, you don’t have to give up any control to anybody, you just do your own thing. But if one appreciates the benefit that comes from the growth that you would have if you develop a partnership, then you would be able to give up some things that are not necessarily convenient but you give them up because you are looking at the larger objective.
DNL L&S: Talking about the things that elude us as legal professionals as a result of lack of skill and the need to develop partnership to grow this skill, would you advocate for a merger of firms to achieve this purpose?
Dr. Ajibade: Definitely! But the same things apply. Just the same way you need to choose your partners carefully even if it is a partnership, I think firms, before they contemplate or jump into mergers need to choose carefully; make sure that they are compatible, make sure that there is no undue overlap and make sure that their systems would work. There are so many ways in which you can cut law firm structures. So, if for example one firm is based on what is describe in America as “eat what you kill” and another is based on “lockstep”, immediately there is incompatibility there because one is based on seniority while the other is based on what you bring in. If those two try to merge they are going to end up with a conflict. So, you just need to make sure that in trying to merge, you identify commonalities that would make it stress free and seamless.
DNL L&S: Considering you back ground, one would have easily thought you did not have to go through the hassles of practice to get to the peak. So many will easily attribute the success to your background and not necessarily hard work so to speak, would this be correct?
Dr. Ajibade: I have gone to court in Ilorin from Ibadan on public transport, I have gone to Abeokuta on public transport and many other places. It is a good question you asked because I think one of the challenges we have in the profession is that people see the result and don’t necessarily see the process that led to that result. That is not to say I don’t consider myself privileged. But I consider myself privileged to have had parents who did not indulge their children, because I think I would have been a less well rounded person if that perception that you just described was true and may be if I was just cuddled and wasn’t allowed to actually go out there and experience real life. But that wasn’t the case. I definitely was never deprived but my parents made sure that whilst I wasn’t deprived, I wasn’t pampered. So, I had full experience of what it is like to live in this country and to struggle.
DNL L&S: There is an ongoing clamour for the introduction of local content policy in the legal service delivery in Nigeria? As it is, it would appear so to speak that we have dealt with prohibition of foreign lawyers appearing in court to practice in Nigeria but I am not sure of foreign law firms and other transactions. Do you support this clamour?
Dr. Ajibade: In a modified form. In some form or the other but let me take issue with your assertion that we have dealt with the problem of foreign lawyers practicing in Nigeria. How have we dealt with that? Well we have a provision in our Legal Practitioners Act that defines who a legal practitioner is in restrictive terms which ordinarily ought to preclude foreign lawyers from working here, but apart from the fact that they cannot appear in our courts, if you look at it from a transactional law perspective, foreign lawyers are practicing law in Nigeria and we don’t currently, as far as I am aware, have the capacity to either monitor or prevent that from happening. They are even doing work for our own government. If you look at the NNPC for instance and read through some of the law reports and some of the disputes that have arisen in our oil sector, you would realize that there is a lot of activity by foreign lawyers in Nigeria. Do I support the agitation or the thinking that perhaps we should impose a local content policy? I definitely do. What I think we should do is that we should be realistic. As I said earlier, most of our firms don’t have all the skill sets you need for certain types of matters. You can probably count on the fingers of both hands the number of firms in Nigeria that have more than a hundred lawyers. Whereas you have firms a dime a dozen in the West that have upwards of five hundred, one thousand lawyers. So, we don’t have that kind of scale. To that extent, it is understandable that for certain types of transaction or disputes, either local corporates or government will need to enlist the services of foreign lawyers or firms who have the necessary expertise or skills.
What I think we should be insisting on is that, you cannot instruct a foreign lawyer directly. If you need the services of a foreign lawyer, you must instruct a local lawyer and let the local lawyer engage the foreign lawyer, that way, we ensure that these skills are transferred. The local lawyer except he is a lazy person should be able to participate in the transaction and cross one of the greatest hurdles we meet in legal practice, which is “what’s your track record? Have you done it before? Okay you have never done this particular transaction before, so, why should we give it to you?” If you insist that there must be a foreign lawyer, there must also be a local lawyer participating. So, in a modified way, I think local content policy in the legal profession will definitely be useful.
DNL L&S: You have been very consistent on the issue of Nigerian legal practitioners lacking some skills and how this has negatively impacted the nature of transactions that Nigerian lawyers can handle. What practical advice would you give for bridging that gap?
Dr. Ajibade: Training! Training! Training and more training, that is the only way. I think it goes really to the very beginning of legal education. There are a lot of concerns about the quality of our education system generally, even right from secondary school. If you keep turning out lawyers from universities and law school who cannot articulate themselves properly no matter how intelligent they are, then it is not the problem from universities and law schools, it is a foundational problem. As you know, English language is the official language and tool of the profession. If you know all the legal principles in the world and you cannot express yourself clearly and fluently, those legal principles are just going to die with you. So, this is a fundamental problem. But assuming we resolve these foundational problems, I still don’t see how any legal education system can provide a readymade lawyer. It can only go so far in teaching you the basics but what you really need to become a successful lawyer as far as I am concerned is post qualification training and I think that we are not doing enough of that generally across board.
Most of the magic circle firms are doing as much as they can. That is why in SPA Ajibade, we have a training facility, developed just for training. In my limited exposure abroad, that is exactly what they do. If you go to any of the big city law firms, you find that they have auditoriums and lecture theatres where they bring in people who are experts in various fields, not even just necessarily law because to be a fully rounded lawyer and you want to be an expert in construction arbitration, at some point you may need somebody who is a major construction person to come and explain the crux of construction, because these are the things you are going to come across in the course of trying to handle construction arbitration. You cannot learn that in law school. Law school cannot teach you everything you need to know. So, I think what we need to do in order to bridge those skills gaps that I’ve talked about is to invest more and more in training.
DNL L&S: Are we talking about firms taking up these training individually or having something like the Continuing Legal Education (CLE) of the NBA. Do you think that taken seriously, CLE can bridge this gap?
Dr. Ajibade: I think CLE can help in bridging the gap but I don’t think it would be enough. Training in itself is a major industry, and that is the other thing also about law. We are a bit too mono in our thinking about law in this part of the world. We think about law as practitioners only, but then, there are some people who decided that their niche is just in training. They are lawyers but they are not looking to practice law and they are making a very good earning from just training other lawyers. So, they identify a narrow area, develop expertise in it and develop the capacity to train in it. They are not competing with you for clients. Their clients are lawyers who need training. For instance, back in the day, we spent a lot of money going for Euromoney training. The guys who are doing the training are lawyers like you, but they are not competing with you for clients because you are their clients.
So, CLE is good but it is not sufficient. One of the reasons why we developed a training facility here is that I came to a conclusion that if there is Euromoney training in London and we want to send three of our lawyers, the total cost of that will bring Euromoney faculty here and rather than pay for three lawyers to go for the training, we pay him or her to come and I we can get all our lawyers who are interested in that area of practice to attend. We can even get lawyers from other firms to attend. That way, we would have covered our cost, paid the Euromoney faculty and even made profit while fulfilling the primary objective of first, training our own lawyers and giving other lawyers outside our firm the same training at a subsidize cost. Firms can also get together and when they share the cost of training, it would increase their strength and make it more affordable.
DNL L&S: Our Courts frustrate commercial transactions in Nigeria. Do you agree?
Dr. Ajibade: Absolutely! Our system requires a significant amount of work in so many respects. It is quite clear to me now that successive Nigerian governments have deliberately chosen to undermine the justice sector. That is my view. They have chosen to undermine the justice sector by not giving judges the consideration that they ought to have and I use consideration in a broad sense because it is not just about salaries. It is about a whole gamut, including recruitment process. A system that does not ensure that it is the best of the legal profession that goes to the bench is a system that is not looking to have an effective and efficient justice sector and that used to be the case historically.
If you look at the history of our justice sector, when you had the likes of Justices Nnamani, Ogundare, Eso, Ayoola, it was the people who had excelled in practice that were then invited to come to the bench. We still have quite a few excellent judges, but I think we would be fooling ourselves if we don’t accept that it is a wrong presumption that the person who has been appointed a judge is one of the best that the bar has to offer. That presumption no longer holds. Now it is an open thing, people apply and even sit for exams to become judges. That process is not in my view designed to ensure that it is the best that are taken. That is why I used the word consideration because it is quite broad. Why aren’t the best seeking to go to the Bench anymore or why isn’t it the majority of the best that are seeking to go to the bench anymore? It is because the conditions of service are not just palatable and a lot of people would rather just stay away. I know a lot of people who have been asked to go to the bench who would say, “you know what? I know myself, I know what my standard of living is or what I would like my standard of living to be, why go somewhere where I know that I would not be able to maintain or aspire to a standard of living that is commensurate with what I want to be getting, I don’t want to be put in a situation where I would be tempted to do anything that I should not do.” So, they would rather not go there.
That is why I said that it is as if the Government is deliberate in its neglect of the judicial sector because they see this, I mean it is so patent, if you want a first class justice sector and you appreciate the role that the justice sector plays in advancing your society and growing your economy, why then would you do something that is so clearly designed to run that sector down? Before I became a Senior Advocate, year on year when you would attend the new legal year services, you would hear the Chief Justice of Nigeria at the time consistently complaining about the fact that the budget for the judiciary was constantly being slashed and yet you get senators and politicians who are getting housing allowance, shirt allowance, shoe allowance and so on, it is ridiculous.
I say to people that as far as I am concerned, when I complain about judges not sitting, yes it is frustrating but I think they are even more frustrated, because I think quite a lot of the time, judges don’t sit because they are overwhelmed. So, we need to sit down and revisit what exactly we are doing; do we want to have a justice sector that works? If we do, then I think we need to declare a full emergency in the sector. There is so much work to be done by us as lawyers. In our firm, we host these Annual Business Luncheons. Year in year out, we focus on aspects of the legal profession that we think require examination. The one we had last year was captioned; “Administration of the Courts v Administration of Justice; The Need to Draw a Distinction.” Part of the problem also is that our judges are saddled with the responsibility of administering the courts. I don’t think that they are cut out for that, I don’t think they should be doing that, but then they themselves seem to be reluctant to yield that to other agencies. They should focus on administering justice and not concern themselves about whether there is diesel in the generator or whether there is light in the court. Let somebody else do that, and let the judges just focus on getting ready for court and dealing with court. Even the allocation of cases, the CJ as far as I am concerned shouldn’t be the one deciding this, but then they do not want to give up that control for reasons best known to them.
DNL L&S: Our system allows for a party who is not satisfied with an arbitral award to challenge this at the Federal High Court. In fact, all you need is to pick up just one issue and take it all the way to the Supreme Court. For some, this defeats the essence of arbitration. As a Fellow of the Chartered Institute of Arbitrators, do you consider Arbitration an effective alternative means of resolving commercial dispute?
Dr. Ajibade: Well, you asked the question and you have answered it. I think when practiced properly, arbitration is definitely a very effective way of handling commercial disputes. But, I don’t think arbitration is an alternative to litigation in the sense that, you can abandon the defects in the court system and then rely on arbitration as the solution to your problem. Because, just like you have pointed out, many a time arbitral disputes end up back in courts, so, if you have a court system that doesn’t work and you go to arbitration because you are trying to run away from that court system, many times you would end up back in the court system you ran away from and the queue that you are trying to jump, after spending a few years and a few millions of dollars or naira in arbitration, you end up back at the beginning of the queue because somebody has either challenged the award or is challenging the appointment of the arbitrator, or just trying to frustrate the process one way or the other. But, when that doesn’t happen and you manage it well and go through an arbitral process that is not contested and where parties appreciate the reason why you decided to opt for arbitration in the first place, it definitely is a great way of addressing commercial disputes because it has clear advantages.
Ordinarily, one would have expected that arbitration proceedings should not end up in court as often as they do and this is where I think we as lawyers are letting the side down considerably both in our litigation practices and in arbitration. There is an attitudinal problem. Attitudinal problem in that people are not prepared to follow the spirit of arbitration or the reason for going to arbitration in the first place. So, you can obey the letter but not obey the spirit, so, yes, you have a right to challenge an award, but really what is the spirit behind that? Why did you go to arbitration in the first place if the moment there is an award you are looking for any possible excuse to frustrate that award, to challenge it and then take it all the way to the Supreme Court. So, you have gone through arbitration for four years and now end up in court for another eight years and you want your country to be a destination for investment? Why would anybody bringing money into your country if they hear those kinds of horror stories that if you have a commercial dispute in Nigeria you could spend twelve years in dispute resolution. It just doesn’t add up. So, even we ourselves as practitioners, we need to start thinking beyond what appears to be in the best interests of that immediate client to what is in the best interest of our profession and the country as a whole.
DNL L&S: Do you consider mediation a preferable option as against arbitration?
Dr. Ajibade: There is a debate as to whether arbitration is ADR. Some people would say there is Litigation, Arbitration and then ADR while others would say there is Litigation and there is ADR. That Arbitration is also ADR but that is neither here nor there. My view about all these varieties of dispute resolution processes is that they are suited to certain types of disputes. There are certain types of disputes that I think it is a complete waste of time to try to mediate. Where it is clear that one person is in the wrong and the other is in the right and the person in the wrong, is prepared to fight tooth and nail and use everything in the book to gain the upper hand, it is no use going to mediation. Why don’t you just go to court and start the process early, and if it is the Supreme Court it is going to get to, you get there as quickly as you can. Why waste time mediating. But then, if you have a dispute where you think that there is a misunderstanding and that if a mediator were to explain your position to the other side and if he were to explain the other side’s position to you, that there is a possibility that parties could agree to reconcile, then of course, mediation would most likely achieve a result. So, it takes what you call some kind of early neutral evaluation process, where you have experienced people in the system. If the Multi Door courthouse system works properly, this would be what it is supposed to achieve. Basically, to have experienced people who would look at a dispute and say whether it can be resolved at mediation or whether the dispute is an intractable one that requires to go to court. So, there are so many ways to cut and slice it.
If we take our justice sector seriously, these are things that we need to unpack and put people in place who can assist to dimension all these problems. There is really so much work for lawyers to do, which is why I say we are not multidimensional in our approach to law. We still talk about how we are producing six thousand lawyers every year and how this number is too many. This is only true if they all want to practice, but then there are so many other things. For instance, look at our police stations, in an ideal world, every police station should have a lawyer resident; what you call a duty solicitor, because we talk about breaches of the rule of law, we talk about people being arrested and not being granted bail. If you have a lawyer there who understands the law (the police are not trained to interpret the law) they can consult on what is the legal position. There is something to be said for that and that should be paid for by the government. We can’t all be Prof. Konyinsola Ajayi or Mr. Gbenga Oyebode, MFR. There is a larger role for law to play. There would be those who are successful commercial lawyers, there would be those who are human rights lawyers. Even from the training period at the law school, I think there should be somebody who is looking at the students and identifying the areas of the law that they should be guided towards; commercial practice, human rights angle and so on.
DNL L&S: Do you support the unbundling of the Supreme Court?
Dr. Ajibade: I think those who agitate for unbundling of the Supreme Court are taking an over simplistic approach to the problem. I think the problem goes a lot deeper than just having Supreme Courts in different zones. There is nothing wrong in having regional Supreme Courts or regional Courts of Appeal, because I think those are incidents of practicing proper federalism, which we are not practicing at the moment. But I think the resolution to our problem, is not just unbundling the Supreme Court. The greatest challenge we have is that access to the Supreme Court is too easy. If you don’t deal with that and you unbundle it, you are just unbundling the problem, because even in those regional Supreme Courts you would still have a problem. As long as somebody who is refused an injunction can stay proceedings and then go to the court of appeal and stay proceedings and go to the Supreme court while the substantive dispute is at the court of first instance untouched, and he spends about six years arguing interlocutory processes, even if you unbundle such court system, you are just multiplying the problems.
However, I think what we need to do is to review the structure of our justice sector. Some of them are constitutional issues, they are not things that one person can do. Again, as I said earlier, we need to declare an emergency in the justice sector. Access to the Supreme Court is too easy. I have it on good authority that the Nigerian Supreme Court is probably the busiest Supreme Court in the world. In the US you can’t just go to the Supreme Court. You apply for leave and the Supreme Court would look at the cases and decide which they want to hear and which is not worth their while. But here, once you formulate a ground of law, it grants you an automatic right of appeal if interlocutory and if it is a final decision it is automatic anyway, so, the Supreme Court is inundated. Another issue is that when you unbundle, you would have the problem of inconsistent decisions because if you have three panels sitting simultaneously, it is inevitable that at some point they would decide similar issues in different ways. So, for the Supreme Court, it is not the size of the court that matters, it is how you manage the process of cases coming to the Supreme Court that is significant. I would rather advocate that certain things really should not go beyond court of first instance and certain things should not go beyond the appellate court and very few matters should go to the Supreme Court. What I do think though is that we should consider seriously, the option of having a Constitutional Court, aside from the Supreme Court, so that all these things like election petitions and so on have their own court stream because right now apart from the fact that the judges are overworked, every four years, when we have elections, they have to abandon the regular citizens and give priority to APC and PDP and Fresh Party and all the parties and they spend nine months or a whole year focused on that to the detriment of every other thing. So, I think we should consider so many structural changes to our justice sector.
DNL L&S: Some people have advocated that NBA should be a pressure group to challenge government policies and insist on good order. Others believe NBA is a professional body which should focus on its membership and concentrate on their welfare. What is your own position?
Dr. Ajibade: I think NBA needs to do both. I don’t think it is either or. The question really is not about which of the two NBA should be doing, the question is about how NBA goes about doing them. This is because, if the NBA does one to the exclusion of the other, then I think it would be doing a disservice to the profession. I don’t think there is any other body as well placed as the NBA to insist on the observance of the rule of law. If lawyers would not insist on the observance of the rule of law, who will? As lawyers, one of the things I also say is that as much as we can, we need to eliminate the divides in our profession. Judges were lawyers before they became judges, so, when I say lawyers I am talking about the legal profession as a whole. Rather than describe the NBA as a pressure group I would prefer to describe it as being the guardian of the rule of law. The legal practitioners are the guardians of the rule of law; the lawyers and the judges. Such that when the legislature passes crazy laws, and the citizens on the street cannot do anything about it, it is only lawyers and judges that would step in and deal with it. It is only lawyers that can challenge illegal legislation and it is only judges that can decide that yes “this is unconstitutional.” So, we can’t abandon that obligation.
Now, how we go about it is a different matter; whether we should be doing aluta, carrying placards and marching all over the place is a different matter and I don’t necessarily think that that is effective. In an environment such as ours, one has to be creative. Ordinarily, all that the legal profession ought to do is; identify a violation of the rule of law, present such violation in court, argue the case, secure judgment and enforce the judgment. But the challenge that we have in our society today is that this is not working at all. So, we now need to start thinking creatively about what our alternatives are, because when you have a government that repeatedly refuses to obey court orders then you have to start thinking seriously about alternatives; okay, we don’t want to carry placards, but there must be other things that we can do to compel government to do what it ought to do, and to that extent, the legal profession, the NBA must act as a pressure group of some sort to ensure that government is brought back to toe the line of civilized society . I also think that the NBA needs to do a lot more, in terms of looking after the welfare of legal practitioners. The sense I get is that a lot of legal practitioners in Nigeria today are completely disconnected from the NBA because they don’t see the impact of the NBA in their affairs. To put it in colloquial terms, their attitude is “who NBA epp?” So, they just don’t see why they should go for branch meetings and engagements. We need to ensure that as we discharge the guardian of the rule of law aspect of our calling, we should also not ignore the fact that our members have concerns and that their concerns differ.
The concerns of the lawyers in Otukpo is not the same as the concerns of the lawyers in Banana Island, Lagos and the NBA has to be able to dimension that, and attend to the interests of these two lawyers. I don’t think that we have managed to achieve that. I think the creation of sections which was done few years back has helped because that in itself is to allow different lawyers to gravitate towards their areas of interest, but there is still a lot more that needs to be done to bring all lawyers into the fold. Like I said bridging the divide, talking about corporate counsel, lawyers in the ministries of justice, you are talking about lawyers in the courts, the litigators, there is too much finger pointing, some looking down on the others, others criticizing the others of being snooty and arrogant. We need to bridge all those divides because the problems are common to all of us.
DNL L&S: Since 2015, the kind of disrespect that the government has treated the judiciary with, has been unprecedented. You have just confirmed that NBA at some point would have to serve as a pressure group of some sort. Do you think that the NBA has done enough regarding this blatant disrespect to the judiciary particularly to court orders and rule of law generally and If not, what are those steps we need to start thinking of in your view?
Dr. Ajibade: In terms of whether NBA has done enough in this regard, I would say that the NBA has done a significant amount. The NBA has made the right pronouncements. I don’t think that the NBA can be faulted. Some of the situations in which we find ourselves are such that the disrespect to the judiciary has been unfortunate. Unfortunate in the sense that they created significant division even within the profession and I don’t think our profession has ever had it so bad. Right from the raid on the homes of justices of the Supreme Court and other justices where, while it was clear to everybody that this was dastardly behavior on the part of the executive then on the other hands the revelations that came out of the raids also gave others concern because what the executive did was wrong but what they alleged they found was wow! So, we are not in a good place and I don’t think that the NBA could have done much more than it has done in terms of the pronouncements it has made. Now in terms of actual actions that it has or could take, do I have any suggestions? Yes. But I will keep my powder dry for now. There are ingenious ways to deal with these issues. How exactly I would go about it if I have the opportunity, I will keep that to myself for now.
DNL L&S: Welfare of young lawyers have been one of the ‘bait’ used by successive NBA office aspirants to get the support of young lawyers, but consistently there is still this agitation. Is the issue of welfare of young lawyers a matter the NBA should handle or a matter for the senior members of the profession? Where should this gospel be preached more; NBA or individual senior members of the bar?
Dr. Ajibade: If I may go back to what I said earlier about the need for us to unite in the profession. I think this depiction of the profession as being made up of young lawyers and senior lawyers in itself is problematic. Mr. Atoyebi who just made the silk during the last elevation how old is he at the bar? Is he a young lawyer or a senior lawyer? We have lawyers of six to seven years call who, what they may lack in experience, because God has been kind to them, they have been fortunate to identify a niche area and are much more comfortable than some lawyers of about thirty years post call. I know people who are my call, who can’t even put food on the table. Should we categorize them as senior lawyers or see them as young lawyers now because they are unfortunate? Is being a young lawyer based on one not being successful? Do you become a senior lawyer the moment you have somebody working with you? So, I think there are definitional problems here, and that is why I keep saying that we need to have a united profession. All these divisions on whether these are the young lawyers and the others are the senior lawyers or these are the commercial lawyers and these are the litigators make us lose sight of the problems. My solution or my own view on this welfare issue is that self-interest is what ought to prevail and we all need to be pulling together. Let us assume that a young lawyer is anybody who is not self-employed, that for me is a better example because if you are talking welfare, if you are not the one who owns the business and you are working for somebody, then to me you are a young lawyer because you are looking up to somebody to pay you and that person in my view if he has any business sense, must realize that there is competition for talent out there. Therefore, if he wants to attract good lawyers to work for him and while everybody else is paying X, he is paying below X, he would get the poorest of the poor in terms of quality. So, there is competition for talent and naturally if you are an employer of labour you must try to meet what the market is demanding.
Similarly, if you are a ‘young lawyer’ and like I said a young lawyer for me is not by age; physical age or age at the bar but, if you are in employment, are you paying any attention to how the business actually runs, how the person who you are complaining saying that he is not looking after your welfare generates the money to pay what you are demanding as welfare? If as an employee, I am not paying any attention to that and I am just interested in demanding my salary at the end of the month and if there is a crisis, I feel that it is not my business, the owner should go ahead and deal with it, then it is a challenge. That is why I say we need to come together as a profession. If as a profession we realize that we are in the service industry and our obligation is to address the client’s challenges, then that lawyer in employment would be as focused on service delivery as the owner of the business. The owner of the business would be focused on the welfare of the people working with him because he knows that if he doesn’t look after their welfare, they will not deliver good service. If a client comes in, it is easy to know an environment where people are happy to work and where they are not. So, if you are a slave driver and you are not looking after the welfare of your employees they will communicate it, their body language, their mien, their attitude, everything will communicate it to people that interact with you, so, I don’t think that it should be about young lawyers and old lawyers, I think it should be about what it takes to run a successful law practice?
Let us all come together and define what that is and what role each person has to play in achieving that. If you ask me, this is an area where the NBA has a significant role to play. I think the NBA has to start by enumerating the number of lawyers in Nigeria. How many of them are in sole practice? What is the average salary that lawyers are paying in various places? It cannot be the same because of varied cost of living. The NBA should have a data base that says, “we have done an analysis, we have done a survey, this is the average salary that is being paid in Lagos, and this is our recommendation.” I heard some lawyers talking about minimum wage, how do you enforce that? It is not about minimum wage but you can use moral suasion. When you have your data right, you can use moral suasion. The NBA can come out with recommendations that say, “we have done a life style survey as far as we are concerned this is a reasonable amount to be paid as salary as a minimum in Lagos, Ikot Ekpene and other places. We are not saying mimumum wage we are not saying you are obliged to pay, but if you don’t pay it, you would know that the NBA has made a pronouncement on that”. And the NBA has to arrive at that based on empirical studies. These are some of the things that we should do.
DNL L&S: The jury is out there on which is superior, lawyers that are in practice or lawyers that are in house? Which side of this divide do you belong?
Dr. Ajibade: I am going to be sounding like a broken record now. I think these divisions and distinctions are unfortunate, unnecessary and unhelpful. I know of many lawyers in practice who with the greatest respect, I don’t consider to be particularly good. I know many lawyers in house, who I have the highest degree of respect for and who I know are in house not because of any inability but out of choice. So, it is like the way Nigeria has demystified everybody, at some point they were saying it is these old politicians, then we had some really young politicians who showed how dastardly they could be and we realized that it is not about age anymore. Then at some point they said it is the men, they are the ones that are terrible but we have had some female politicians and business people who showed us that what men can do, women can do even better. So, I don’t think we should do the in house not good and lawyers in practice are good thing. I think we have bad lawyers and good lawyers in both camps. And what I have found is that the expertise of the in house counsel has increased exponentially. So, somebody who is in house is subject to the same issues I was talking about, concerning the reason why firms grow or why it is important for firms to go into partnership because they develop specialization. Imagine someone who is in house and who is general counsel or company secretary of a reasonably large company there is only so much you can do yourself. The reason why you are in house or the reason why you need to enlist the services of external counsel is not because of any inability on your part, but because you have enough on your plate, so, you have to farm it out. I think it is a disservice for the person on the outside to think that the person in house has some incapacity and that is why they are in house. It is rather a symbiotic relationship and we all have to work together and same things for the in house people. Our colleagues in house also sometime tend to forget that we are working together and try to kill their colleagues when it comes to fees. The way they slash fees sometimes is really awful. We have had instances where we had to tell clients that we cannot work for them anymore. You want the same quality of work and you want us to subsidize your work. You are a lawyer yourself and should have an idea of what is a reasonable fee to pay for the nature of work done. So, if you are an in house counsel and because there is pressure from the board, or from the MD or from whoever owns the business, all you do is to try and slash legal fees to the bare bone, you are also not working in the interest of the profession as a whole. So, that is why I said all of us, both from the outside and the inside we all need to pull together rather than pointing fingers at each other.
DNL L&S: While it is agreed that there is no need for the finger pointing, we should not also forget that it would look as if the profession rewards the excellence of those in practice only, you are rewarded with the rank when you do excellently well in practice, this is not so with those in house. No matter how good you are as an in-house counsel, there is no recognition for you.
Dr. Ajibade: Personally, I think that that is counterproductive. The designation Senior Advocate by virtue of the attachment to advocacy is only available to practitioners generally. Of course, we have the academics who are also conferred with the rank. My view is that both for in house and for corporate counsel, there are other forms of recognition. May be they need to be enhanced but I think they exist already. But then, I have named a few names earlier. Aluko and Oyebode is easily in my view the most successful law firm in Nigeria at the moment, in terms of size, visibility, international reputation, ranking. Mr. Gbenga Oyebode is not a Senior Advocate of Nigeria but does that take anything away from him? He is MFR, former chairman SBL, sits on many boards and has received so many other accolades. Anybody who is a Senior Advocate and is looking at Gbenga Oyebode and saying, “yea, I have one up on you”, in my view is deluding himself. So, I think there is a challenge there. People sometime say to me I am not a typical Senior Advocate. Maybe I am not, because for me, it is not something that should make you go around thinking that you are better than everybody around you. First it is a privilege and not a right, you have been recognized for your skills in a particular area of law but that doesn’t mean that there aren’t people who have other skills in other areas of law that are equally laudable and have been recognized. But I think that we should do even more to make all aspects of the legal profession feel a sense of belonging and feel a sense of recognition, so, someone who is a human rights crusader might not be super wealthy but if you have done so much in terms of human rights and pro bono work, and done so much in terms of freeing awaiting trial inmates, these should be identified and recognitions awarded for that so that it is not just about wanting to be a Senior Advocate in the legal profession.
DNL L&S: What would you consider if any, to be the turning point of the success story of SPA Ajibade and Co. To some, it is having what is now loosely referred to among the younger ones as “the brief”, What story can you reference?
Dr. Ajibade: Well, even yesterday, we had a management meeting and we were talking about the fact that we haven’t had ‘the Brief’ in a while. But to be honest, I think that for the purpose of running a successful law firm, whilst ‘the brief’ is important, what is even more important is what in terms of electricity generation you call ‘base load’. Base load means the steady trickle of work and money that keeps the firm afloat. Because the system doesn’t support you in any way, it is ‘the brief’ when it comes that you would use to build your house and change your car, but the most important thing is not ‘the brief’ it is the base load. It is to have the good client base who are reliable and who would pay you. Because having a practice is when whichever way, come rain come shine, you are able to meet your obligations at the end of the month. That kind of practice relies on the trickles not the brief, that is my attitude. But having said that, there have been ‘the briefs’ from time to time and we all pray for them to come but I don’t think that I can put my finger on any particular one as ‘the brief’. It comes from time to time.
DNL L&S: what would be your advice to lawyers on how to sustain client base to be able to maintain the base load?
Dr. Ajibade: Client service. That is the most important thing. One of the greatest mistakes some lawyers make, because we tend to be a generally arrogant bunch, is that we look down on our clients. I don’t think you can build that base load if you don’t develop empathy with your client. That is what makes them always come back to you, that is what will give you that base load. Regarding empathy, people take it to various degrees, some have such great client care that they remember the client’s birthday, this is great but something as simple as giving constant updates is enough. Some lawyers will have a client’s brief and something as simple as giving the client an update on the case becomes a big issue. They say things to the client like, “I am in charge of this thing, why are you harassing me? You have given me the brief now. Go and rest don’t disturb me, I will tell you when the judgment is delivered.” And the client will simply shrug and he will be with you until the judgment and high chances are that the client will go somewhere else because he or she has not enjoyed the experience. But if you go to court or if it is a transaction and you are giving the client regular updates and you are explaining and not trying to make it appear to them as if you are a magician, you have the client’s confidence. This is how to develop a base load.
DNL L&S: What inspires you?
Dr. Ajibade: I like to get things done. So, if I go through a day and I think back and see I have sorted this and that, I feel very fulfilled. I would say that was a productive day and that gives me the energy to get up again and say let’s do it again. My wife says I am a workaholic and recently, my dad too has started saying that. This is rich coming from him because he was a workaholic in his day, but it is particularly rich coming from him because even though we have a great relationship now, it has not always been like that. Father son relationships are always turbulent. Back in the day, he never thought I was going to turn out to be much, but now people see us and say, “how did you do it?” and we say, “it is God o”.
DNL L&S: How do you relax?
Dr. Ajibade: The question is do I relax! I keep fit. I used to play squash but I haven’t done that in a while because I developed a problem with my back and the doctor advised me to lay off. The pain has gone now, so, I am thinking of starting again. But even when I don’t, I like to jog, at least once a week, I try to do twice a week but if I don’t do once a week I would feel it, everything slows down, thought process, movement, I will know I have to go and break out a sweat. The moment I sweat it all out I feel sharp.
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