Nd Reduce the Heavy Burdens on Judges’

Arbitration Law of Lagos State 2009 provides clear and simple rules for enforcement.

Advocates of Hybrid processes in ADR especially Med-Arb identify certain benefits such as speed, cost, flexibility and finality of process. However, critics point out that hybrid processes could affect the ethics of the ADR process. Could you share your view on this?

The motivation and perspective of a mediator and an arbitrator can be quite different and a mediator has need to investigate the confidential perspectives of each party in a way that may compromise his independence and impartiality were he to sit thereafter as an arbitrator. To make this transition requires a very high ethical capacity and the very highest confidence of the parties in the individual. Unless this can be achieved then I would prefer to separate the two.

As a seasoned advocate you know that oratory and court advocacy are skills learnt and developed by guidance and consistent practice. Tone, cadence, argument structure etc. are all parts of the elocution of great oratory in court, these take years to learn. While advocacy is taught as a separate module in law schools in most other jurisdictions, and therefore these lawyers are furnished with the advantage of advocacy training from their day of call, Nigerian lawyers do not have any such advantage since the Nigerian law school does not teach an active module for advocacy. Do you think there is some advantage to teaching advocacy in the Nigerian law school?

Absolutely. It is clear to me that quite apart from those skills which are developed through experience, there are very basic rules which can and should be taught. Even just the simple rules about how to address various levels of court, and types of judges; how to dress and comport oneself each of which is an element of persuasion. I see daily that even many senior lawyers have no idea about these things. These things should be taught.

Would you care to share your views on the quality of new wigs being called to the Bar in the past few years and do you share the view that the legal profession in Nigeria is admitting too many lawyers?

I have found that the problem is less with the number and more with the quality of individuals qualified as lawyers by an out dated system of legal education. I like many of my colleagues, have found recruitment to be an ordeal. There are a very limited number of lawyers who have the most basic skills and a viable work ethic. Sometimes out of a hundred applicants less than ten are even worth interviewing. Very poor presentation on paper; poor grammatical construction betraying scant familiarity with the working language; improper and casual salutation and general untidiness sends many applications straight to the trash. Amongst those who can survive an interview, many cannot translate basic training into the resourcefulness, ingenuity and innovativeness required to employ law as a tool for business solutions. So we have too few viably qualified lawyers. These high numbers could find employment across Nigeria if they had skills, but to the contrary they all want to work in Lagos or maybe Abuja whether they are competent or incompetent and what is more, they all want to start from the top.

Nigeria has seen a gradual divestiture of the major international oil companies (IOCs) from marginal oil fields onshore. The effects of the Coastal and Inland Shipping (Cabotage) Act 2003 and increasing pressures from the proposed Petroleum Industry Bill may be speculated on to have contributed in some degree to this gradual divestiture. Notwithstanding the IOCs maintain their interests largely in off-shore assets that enjoy significantly lower tax rates and royalty rates from 18.5% to 0% at depths of 1000 metres. Considering that these rates were set almost 30 years ago in the Petroleum Profit Tax Act 1990 when the technologies that exist today for deep water exploration did not exist, is Nigeria’s interest not significantly underrepresented in the longstanding Production Sharing Contracts? Looking to the future, how can we begin to ensure a greater representation of Nigeria’s interests in future agreements?

We need a ministry of justice that is professional and that employs lawyers for their skill and experience rather than the identity of their benefactors. Then we need leadership in the legal departments of government that have tenured lawyers who are motivated to study their subject and exercise professional judgment in the interest of their client who are the people of Nigeria rather than the temporary political incumbent of the attorney-general’s chair.

You are interested in public policy litigation and you have been involved in various landmark cases. In your view how has public policy litigation shaped our legal jurisprudence in Nigeria?

I think that the impact has been minimal. This is because it is difficult to read any signal from our successive governments as to credible and coherent public policy in any field (civil, criminal or otherwise), also absent is a compelling prescription, our courts do not appear to recognise that judging is a tool of public policy and that such policy is the persuasive context of each judicial decision. So what we have in place of public policy advocacy through courts is eruptions of self serving and self promoting litigations which lead to no certain place.

Members of the Bar and Bench have continuously decried the falling ethical standards in the Legal Profession and Disciplinary committees at the branch and National level are inundated with petitions against lawyers for several forms of professional misconduct. What do you think can be done to restore ethics to the practice of law in Nigeria?

Well, I have been a member of the bar council and I have been chairman of a disciplinary panel. I have seen and learnt many things. One of these things is that even the most egregious breach of rules will not be processed if the culprit has certain personal connections.

We need to teach ethics at the law schools; then we need to create a disciplinary tribunal composed not only of lawyers but of users of the legal services and ensure that it is accessible directly by the public rather than the present process which is replete with obstacles and operated by a mafia and then we ought to make the process public, open and transparent and show the public that in the legal profession bad behaviour will swiftly draw harsh consequences.

There are a lot of cases against the government, is there a way arbitration can help to resolve some of the issues raised in these cases?

Absolutely. The problem with government cases and arbitration in the past has been the corrupt system of patronage in the organisation of tribunals and representation. I have seen cases where the governments have composed teams or nominated tribunals which appear calculated to self destruct. I have seen government lawyers throw in the towel even when their case is otherwise viable. If any government audits its disputes exposure in good faith and in a scientific way, it will find ADR far more beneficial to good government and good business than litigation.

The arrest last week of a Senior Advocate of Nigeria, Mr. Rickey Tarfa SAN by the EFCC is seen by many as an affront to the legal profession. What is your view on this incident?

Nobody is above the law and so I do not succumb to the temptation to view this from a tribal perspective. The tribe of lawyers that is. I think that more than any other profession it is a lawyer who should embrace the opportunity to defend his actions through legal process and I think that Mr Tarfa SAN is well able to vindicate himself.