After 44 years at the Bar Chief Gabriel Nkadi Osakwe has undoubtedly earned the esteem and accolade of recognition as a fulfilled legal practitioner. As he turned 70 recently he shared his experience on a wide range of issues of contemporary importance to the country and legal practice in a conversation with May Agbamuche-Mbu, Jude Igbanoi and Tobi Soniyi
Your law firm, Sofunde, Osakwe, Ogundipe & Belgore is one of the longest surviving law partnerships in Nigeria. Given the fact that we have not had the benefit of seeing many partnerships that have survived their original partners, standing the test of time as yours, what has been the secret of survival for almost three decades?
Trust, honesty, integrity, transparency, accountability, perseverance, spirit of give and take, total commitment to the practice, contentment and friendship.
The rank of Senior Advocate of Nigeria has existed as a rank of distinction and the attainment of the highest echelon of achievement in the legal profession in Nigeria. It is a status akin to the Queen’s Counsel of England and Wales separating the inner and outer bar for centuries. However there have been calls to remove the rank of Senior Advocate from the Nigerian jurisdiction for failing to be awarded on a transparent or fair merit system. What is your view on the call by some lawyers for the abolition of the rank of Senior Advocate of Nigeria?
It is true that the award has not been done on a transparent or fair merit system. But you should not throw away the baby with the bath water as the saying goes. Instead, the system should be sanitised. The award should not be seen as a commodity for sale, as it is presently perceived. It should be awarded only to those lawyers who, not only have the requisite number of cases, but have also distinguished themselves in the profession by contributing to the development of the law. A lawyer who takes a point of law in an area he perceives there is an ambiguity or lacuna up to any level but preferably to the Supreme Court, is said to have contributed to the development of the law. Presently, it is seen by most lawyers as a necessity for advantage/social recognition. To meet the numbers, I am told that some lawyers go to beg for/buy cases (mostly criminal cases) in which they have next to no experience. As soon as they meet the numbers, they start lobbying the judges. It then appears that merit is evaluated by whether or not you meet the numbers or federal/gender character. To sanitise the system, I propose as following:
(a) The Judiciary should not be in charge as SAN’s should be chosen by their peers and, also to avoid the indirect consequence of the leaders of the bar (who recently have only been SAN’s) being chosen by the Judiciary.
(b) It is discriminatory against litigants in court. Litigants should have equal rights in court proceedings. A situation where Senior Advocates are accorded special attention/privilege in court during trials is wrong. The privilege accorded Senior Advocates of Nigeria by law is limited to call over days (motions) i.e., to mention their cases out of turn. Many Lawyers/Judges are ignorant of this.
You have seen over four decades of the legal professional. You have seen the great men and women of this noble profession stand up to popular opinion, to the government and to traditional beliefs that were retrogressive. How can the Bar today learn from the great lawyers of old in influencing society positively and encouraging the principles of Rule of Law and accountable governance?
By emulating those great men and women in their solid character and courage to speak out against what is wrong.
The current administration assumed office amid much concern about corruption and impunity in public office. President Buhari, as part of his election campaign, vowed to eradicate corruption and restore accountability in public service. What is your opinion of the Government’s fight against corruption vis-a-vis the allegation that the principle of rule of law is being compromised because of partisanship and high-handed investigations by anti-corruption agencies?
Corruption should be fought by this Administration in accordance with the Rule of Law. A situation where a suspect is locked up first before concluding the investigation on the matter is against the Constitution of the land. They should be ready to prove their case in court before tampering with the liberty of any citizen.
The fight against Judicial Corruption has now led to the recent indictment of a number of Judges sitting in superior courts. What additional measures would you suggest in the campaign against corruption at the Bench, to ensure Nigeria has a clean and incorruptible Judiciary?
I do not think that Nigeria can have a clean and incorruptible Judiciary. The Judiciary is part of a corrupt society, and members of the bench are appointed from an already corrupt society. But we can try by:
(a) The process of appointment of judges should be based only on merit.
(b) Where the allegation of wrong doing against a judge on the face of it has merit, the judge should go on suspension until the matter is resolved.
The recent Panama papers leak has brought to the fore ethical issues of the use of tax havens by corporations and data protection. What are your views on the use of tax havens by companies? What implication does the use of tax havens have on the fight against corruption?
Human beings, by nature, seek and take advantage of benefits. So long as such are legal, I have no objection. The use of tax havens by companies is not by itself illegal. It is a place where by law you are entitled to pay little or no tax and also hide your identity in obscurity. But there could be moral/legal issues as regards public officers as in the case of the Prime Minister of Iceland who resigned because as at the time the economy of his country was down and a bailout was being sought, he was benefiting from the Panama Tax havens. A public officer in Nigeria is required by law to disclose his assets. It will therefore be illegal for him to take advantage of a tax haven which allows secrecy. In the UK, public officers criticised a US company, Starbucks on a moral front (who they acknowledged not to have broken any laws) for paying unreasonable tax in the UK, although it was making so much money there. Starbucks was now obliged to pay substantial tax it was not obliged by law to pay. It will therefore be morally wrong for individuals in such government to be Shareholders in companies that benefit from tax havens.
As regards corruption, in so far as a tax haven provides for secrecy, it makes it easy for public officers to channel funds obtained by corrupt means into such companies with little chance of being caught or such funds being recovered from them.
The Administration of Criminal Justice Act 2015 was passed with the hope that it would reform our Criminal Justice System and usher in greater efficiencies in the nation’s courts. Now the act has been in effect for a full year do you share the view that it is producing the reforms and efficiencies hoped for?
No I do not share the view that it is producing the reforms and efficiencies hoped for. This is for the simple reason that our problem is one of attitude and not so much of reforms in the law. You can enact the best laws and rules in the World and it will still not work in our clime, because of our attitude to the reforms. I say that because, when you have the best or model laws, you still need human beings to implement or enforce those laws. The issue is whether the people to apply those laws are prepared to make it work. A classic example is the criminal trial of the Senate President at the CCT. You had a situation where lawyers went on appeal on a preliminary issue to the superior court and were seeking for an order of stay of proceedings, up to the Supreme Court in spite of the very clear provision of Section 306 of the Administration of Criminal Justice Act 2015, which says there shall not be an order for stay of proceedings in the trial court where a party files an interlocutory appeal. Clearly, you can see that the mischief Section 306 is seeking to cure is the inordinate delay suffered from an order of stay of proceedings, yet you find lawyers still seeking for such order, thereby causing delay in the proceedings in the trial court. So until the users and enforcers of the law are prepared to change their attitude, the reforms in the law will not achieve the desired effect.
Despite Arbitration’s obvious effectiveness, litigation remains the most used means of resolving commercial dispute. Why do you think this remains the case?
Well, I think it is more of an awareness issue. The more lawyers are aware of arbitration and its effectiveness, the more it will be inserted in Commercial contracts. You know that the basis for referring disputes to arbitration is commercial, whereas litigation is Statutory. So if parties do not insert it in their commercial contracts, you have to resort to litigation. The more people are aware of arbitration and its effectiveness, the more they will insert it into their contracts.
It is widely believed that in today’s practice of Litigation lawyers are skilled in employing delay tactics that make it difficult for the courts to decide cases within the shortest time possible. What can be done to rid the practice of Litigation of these dilatory tactics and reform the administration of justice in Nigerian courts?
I have always believed that our problem is with the system (I mean the stakeholders, the lawyers and judges) and not so much of our rules or our laws, though some of the laws are archaic and need to be brought to terms with the modern times and technology. I believe that you can get the best rules in the World, but if the Courts and the lawyers are not in tune with them, they will not achieve the desired result. In 2004, when Professor Yemi Osinbajo, then the Attorney General of Lagos State, introduced the 2004 High Court of Lagos State (Civil Procedure) Rules, fashioned after the Civil Procedure Rules in England and Wales, which introduced innovations such as frontloading, amongst others, the idea was to have speedy dispensation of justice and make litigation more efficient, but can it be said that there has been a significant improvement from the old days? My answer is No. In fact, it has even taken a downspin now. Matters are still pending in court for several years, notwithstanding those innovations that are working in other climes. So you will agree that it is not the rules but the stakeholders that are the ones that need to change their attitude and orientation.
Due to the excessive delay occasioned in the resolution of Election Petitions, the Legislature introduced section 134(2)’s 180 day time limit within which electoral disputes must be resolved. Since its introduction some have argued that section 134(2)’s provisions for 180 days for the resolution of election petitions violates the right to fair hearing by restricting the Petitioner’s time to prepare and argue his case. Do you believe that the 180 days for the resolution of Election Petitions is a violation of the right to fair hearing?
No, I do not believe so. The right of fair hearing has been circumscribed by sec. 285(6) and (7) of the 1999 Constitution as amended. The background to the introduction of the 180 day provision was that election petitions took an inordinate length of time, which is an undesirable distraction to people running the affairs of the state. You will recall the Osun State experience, where Governor Olagunsoye Oyinlola was in government for 3 years and 6 months or so out of a 4 year tenure, before the Court declared that he was not the rightful occupant of that seat. Meanwhile, he had been paid salaries for that long and occupied the seat for that long. To cure that mischief, we then had the 180 days provision inserted in the Constitution, in order to ensure that election matters are determined expeditiously and the rightful owner of the peoples mandate can concentrate on carrying out the mandate. As a matter of law, the 180 days provision does not amount to an infraction of the fair hearing requirement, for the reason that it is also a Constitutional provision i.e. Sec. 285 (6). Thus infraction of the Constitution does not arise. Perhaps, as an issue of fact, it may appear to be unfair, because it will appear that 180 days may not be practical to establish a case, given the volume of materials a petitioner needs to prove his case. How can a court determine a petition regarding the presidential election in 180 days, and the petitioner has only 10 days to prove his case of irregularity for instance, in 774 local governments? The only remedy to this unfairness will be an amendment of the above stated Constitutional provision limiting the delivery of judgment by an election tribunal to 180 days.
How important do you think the rendering of probono services is to the growth of a lawyer and by extension the Nigerian legal industry? Why do you hold these beliefs?
It is part of our professional ethics to do probono cases.
The nation is currently witnessing a dangerous escalation of violence allegedly perpetrated by nomadic herdsmen wreaking havoc and mayhem on farming communities in the South East and South West of the country. A posited solution to this violence has been a National Grazing Reserves Bill which is intended to identify and preserve areas of land for grazing. Would you support such a law? Do you see it as the solution to the escalation of violence we are witnessing?
I will not support such a Law. It is unrealistic in a federal system of government which we pretend to operate in Nigeria. Moreover, there is bound to occur, limitless ethnic clashes. I will rather suggest creation of Grazing Reserves on areas in the normal native soil of the cattle merchants. The creation of cattle routes as some have suggested may be difficult to implement and police.
After much controversy the 2016 budget has been passed, but what do you see as the effect of originally benchmarking estimated revenue at $38 per barrel, when it now sits at $42 per barrel?
The difference should be put back into our reserves.
The Buhari Administration in the past few months has introduced several policies to restructure the oil and Gas Industry including amending the Petroleum Industry Bill. The National Assembly is also seeking to amend the Nigeria Liquefied Natural Gas (NLNG) Act. How would you assess the impact of these legal changes on the oil and gas industry?
The Petroleum Industry Bill is yet to be passed into law. Unfortunately, the undue delay has been caused by personal, group and ethnic interests. From the proposed bill, there ought to be substantial positive changes in the industry. We await the passage of the said bill into law.
In spite of the privatisation of the power sector, Nigerians are still faced with inconstant power supply caused by, among many other reasons, a shortage of gas feedstock, a failing transmission network and an excessively difficult business environment which forces the cost of doing business up. How can the government effectively resolve this issue of power production and distribution?
The issue of power production and distribution to my mind, can be resolved by removing power from The Exclusive Legislative List into the concurrent list and by privatisation of both production and distribution.
The Minister of Industry, Trade and Investment Okey Enemalah recently requested that the National Assembly review certain business laws to position the country as a more attractive destination for foreign investment. His statement was made in view of Nigeria’s low ranking in the current World Bank ‘Ease of doing business’ ratings. What laws, if reformed, would yield benefits in enabling and improving the ease of doing business here in Nigeria?
The laws to be reformed would include the Companies and Allied Matters Act, The Nigerian Investment Promotion Commission Act, The Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, The Immigration Act, The Company Income Tax Act, The Customs and Excise Management Act, The Investments and Securities Act and The Central Bank Regulations (dealing with Certificate of Capital Importation).
There has been a significant increase in the number of parties that refer their disputes to Arbitration thereby leading to a corresponding increase in the proliferation of Arbitration organisations. However there appears to still be much room for growth in the use of Arbitration as a dispute resolution mechanism. Could you enlighten us on the possible challenges affecting the growth of Arbitration and ADR in Nigeria? In your view how can these challenges be surmounted?
The main challenge we have is in the area of training and awareness. A large number of lawyers still perceive arbitration as a prelude to litigation. Nowadays, almost every lawyer who has an award against his client jumps to the court to have it set aside, even when it is obvious that there is no merit in their application. In so doing, they also have the award locked up in court for as long as the matter would be, if they had gone to court in the first place. That mental attitude has to be done away with and one of the ways is for the arbitral institute to train and retrain users of arbitration, in order to have the right orientation towards arbitration. That is the only way we can surmount the challenges facing arbitration.
For the steady advancement of international arbitration Nigerian courts have to demonstrate the willingness to enforce foreign arbitration awards and a procedure of enforcement that is straightforward and seamless. These are important considerations for potential parties to Arbitration. In that light how would you assess the process for the enforcement of foreign arbitral awards in Nigeria?
In order to have a seamless and straightforward enforcement of any award (be it domestic or foreign) the courts have to ensure that matters before it are disposed of expeditiously. In that process, enforcement can be disposed of without any delay.
There are reports that the Ondo State chapter of the JUSUN has begun an indefinite strike due to the alleged failure of the state government to honour an agreement reached on the financial autonomy of the judicial arm of government. Previously, Justice Adeniyi of the Federal High Court held that the 36 state governors and the FCT should comply with the constitutional provisions on financial autonomy for the Judiciary. What are your views on the failure to comply with this decision of the court by some state governments?
Failure to comply with the decision of a court of competent jurisdiction by some state governments is executive rascality.
The Capital Market is one of the foremost institutions for driving economic development in any country. What is your assessment of the regulatory environment in the Nigerian capital market?
The regulatory environment in the capital market as created by the former D.G. of the SEC Ms Arunma Otteh, got us out of the woods when the Capital Market crashed before she took over. I hope what she did will be sustained and improved upon by the new D.G. For instance, learning is key to the success of any institution. Now, you have the SEC organising periodic seminars for the operators. Under Otteh, the entrants into the market now take examinations, to ensure that operators are well grounded in the industry, unlike before, when it was just done by referral from members.
Having had an illustrious career in the law since qualifying in 1972 what would you say is your most defining moment?
My most defining moment is the establishment and successful running of the partnership called, Sofunde, Osakwe, Ogundipe & Belgore.
The legal profession is indeed a tasking profession. The Section on Business Law under Mr. George Etomi held sessions on health for lawyers, including testing for high blood pressure. As an avid golfer how has the game helped you relax away from the law and what advice will you give lawyers who find themselves unable to find time for sporting activities? As the issue of high blood pressure is on the rise.
Golf has helped me tremendously in relaxing away from the practice of law. My advice to lawyers in our hectic business is to always find time to exercise.
Congratulations on your 70th birthday. What do you see the future holding for you as you consider retirement?
As I consider retirement I hope to be able to play more golf in the best golf courses in the world.