‘We have taken Arbitration to Other African Countries’
For Alternative Dispute Resolution, Nigeria is fast becoming a hub in Africa; and as Arbitration continues to deepen, Nigeria has actually exported ADR to other African countries, including Ghana, Rwanda, Kenya and others. Mr Olatunde Busari, SAN is one of those who pioneered Arbitration practice in Nigeria in the early 1990s. In a chat with Onikepo Braithwaite and Jude Igbanoi, he spoke on a wide range of issues from Arbitration to Corporate Governance, the NBA, the recent NICN judgement with regard to salaries of judicial officers, why Nigeria doesn’t require a separate court for election matters and insecurity
Arbitration seems to be your core area of expertise. What have you done to promote Arbitration and alternative dispute resolution generally in Nigeria? How popular is ADR today in Nigeria, especially given the slow pace of justice as far as the courts are concerned? Should more emphasis not be placed on it, especially as it is a means of decongesting the clogged court system?
That is correct. I developed a passion for Arbitration and ADR as a young Lawyer in 1995 when little was known about the law, practice and procedure of Arbitration in Nigeria. I read some literature about the subject, and I was attracted to the practice. I saw in it a solution to the congestion of courts, and at the same time, I was encouraged and excited about the prospects of acting as an Arbiter, which meant that I would be a Private Judge appointed by parties to resolve their commercial disputes.
I reached out to practitioners in different jurisdictions in Africa, and also did a background search on the subject. I got introduced to the Chartered Institute of Arbitrators (CIArb, UK) in the United Kingdom. I applied to join the Institute, and also train under them to become a practicing Arbitrator. The response was positive and encouraging. I was asked to write a short thesis on the subject, and I was thereafter admitted to Associate Membership. I was also informed that there was a small Arbitrators’ Group in Nigeria with Mrs Funke Adekoya, SAN as the Secretary, and the late Jurist, Hon. Justice Dr Ola Orojo as the Chairman. Other active members of the Group were Chief (Mrs) Tinuade Oyekunle, Chief Bayo Ojo, SAN, Mr Babajide Ogundipe, Mr Dele Belgore, SAN, late Chief Ashiru, amongst others. I was delighted to join the Group, and I became one of the pioneers of Arbitration in Nigeria. This Group was later to become the Nigeria Branch of the Chartered Institute of Arbitrators (UK) with the Late Justice Orojo as the first Chairman. In course of time, I progressed through the membership ladder of the Institute, and in 2004, I became a Fellow and a Chartered Arbitrator of the CIArb.
I have contributed in my little way, to the promotion of Arbitration and ADR in Nigeria. Apart from being one of the pioneer members of the CIArb in Nigeria, I am also a past Branch Chairman of the CIArb Nigeria Branch, and a member of the CIArb Faculty. As an accredited tutor and assessor, I have for so many years been a part of the Training Team of the CIArb, and we have taken the crusade of Arbitration beyond the shores of Nigeria to Ghana, Rwanda, Liberia, Kenya and other African countries. We have also assisted in the training of Judges of the various courts of record in Nigeria, thereby making the Judiciary in Nigeria learned and proficient in the law and practice of Arbitration. We campaigned for the introduction of Arbitration into the court system, and sometime in 2002, under the auspices of the Negotiation and Conflict Management Group (NCMG), I was invited to join the pioneer steering Committee of the Lagos Multi-Door Courthouse (LMDC) which gave birth to the first ever court-annexed Arbitration and ADR facilities presently in Lagos, and replicated in many other State High Courts and indeed, the Court of Appeal. I chaired the Committee that drafted the Practice Direction which was signed by the then Chief Judge of Lagos State, the Honourable Justice Sotuminu.
I was also privileged to have served as a member of the Management Board of the Lagos Chamber of Commerce International Arbitration Centre (LACIAC), a position I held until early 2022 when I resigned to allow fresh minds to build on what we have established.
In addition to my contribution to the growth of Arbitration, I am a listed Arbitrator with the LMDC, Nigerian Communication Commission Arbitration Scheme, Regional Centre for International Commercial Arbitration, Lagos and the Kigali International Arbitration Centre (KIAC), Rwanda. I am a member of the Maritime Arbitrators Association of Nigeria, and Fellow of the Institute of Construction Industry Arbitrators. I am also a Centre for Effective Dispute Resolution, UK (CEDR) Accredited Mediator, and a designated representative of the Federal Republic of Nigeria on the Arbitration Panel of the ICSID (International Centre for the Settlement of Investment Disputes), World Bank, Washington DC.
In a bid to evolve a modern Arbitration legislation for Nigeria, I served on the The National Committee for the Reform and Harmonisation of Arbitration and ADR Laws in Nigeria, and we presented to the then Honourable Attorney-General of the Federation, Chief Bayo Ojo, SAN, the reformed Federal Arbitration and ADR Bill in 2007. This Bill is the foundation upon which the Lagos State Arbitration Law 2009 was enacted, and also the basis of the good work that the Technical Committee on the Review of the Arbitration and Conciliation Act Cap A.18 LFN 2004 has presented, as the proposed Arbitration Bill which should be passed by the National Assembly any moment from now.
It is a thing of joy to note that today, Arbitration and other ADR methods are viable and commendable means of dispute resolution complimenting the traditional court system, and thereby, helping to decongest the dockets of the Judges and repositioning Nigeria on the path of occupying a pride of place as a destination of choice in International Arbitration.
What more can be done to decongest the courts? Is it to appoint more Judges and Justices? Is it to have separate courts that deal with election petitions, since despite the clogged court system, Judges are pulled from their normal duties to sit on election petition tribunals, while the normal cases then suffer delays? What of the Supreme Court? Should the type of appeals that reach the Apex Court be limited, in order to increase the pace of justice?
The challenge of decongesting the Courts, has always been on the front burner. Having separate courts for election petition matters and regular matters, will not, in my view, solve the problem, as election matters are seasonal and only become necessary after elections have been conducted. Where courts are separated along those lines, it will mean that after the conclusion of the election tribunal assignments, the Courts/Judges would be idle, with no more tasks or responsibilities until the next election season. What can be considered is to attract more competent practitioners as Judges across the various courts, drawn from the Academia and even from the rank of Senior Advocates of Nigeria (SAN).
Another option aimed at decongesting the courts, is to give prominence to virtual proceedings/hearings and as much as it is practicable, encourage parties to embrace ADR methods. Again, one of the reasons the regular courts are congested is due to avoidable delays, for example, frequent adjournments, delay tactics by Lawyers, filing of frivolous interlocutory applications. I believe this can be addressed by administration of civil justice reforms, to reduce unnecessary bottlenecks in the administration of civil justice in Nigeria. It may also be ideal to assign non-contentious interlocutory applications to the Chief Registrars, who should deal with them as administrative house-keeping matters prior to the evidential hearing before the Trial Judge.
The award of costs on indemnity basis can be introduced, to discourage frivolous and unmeritorious cases and applications. Most times, a successful party gets paid a paltry amount as costs. This position must change, and costs based on the principle of “reasonable costs reasonably incurred” should be introduced, so that litigants will know that the actual costs reasonably incurred by a successful party would be paid by the unsuccessful party.
There is also the need to advocate the limiting of cases that should be submitted to the Supreme Court, in order to increase the pace of justice. A former Chief Justice of the Federation, the Honourable Justice Mariam Aloma Mukhtar GCON, had advocated (and I agree) that petitions arising from Governorship elections should terminate at the Court of Appeal, rather than the Supreme Court. This would be a welcome development. It re-enforces the need to avoid distractions at the Apex Court, with specific reference to Section 233 of the 1999 Constitution (as amended) which deals with the appellate jurisdiction of the Supreme Court.
As a member of the Nigerian Business Recovery and Insolvency Practitioners Association, you have experience in assisting agencies and organisations to recover from financially distressed situations, and you have seen common mistakes that these organisations make. What are the key areas you would advise organisations to imbibe, in order to scale through and recover?
The first mistake that many owners and managers of businesses in financial distress make is that, they tend to be wilfully blind to the fact that before a business goes into financial distress there must have been signs and signals pointing in that direction. It may have been some external matters such as government policy, the exchange rates, new technology or internal matters such as incompetent personnel, deficient management, cash flow problems, a combination of all or some of this, or even something completely different. Whichever it is, the cause of the distress must be identified and acknowledged.
The second mistake is that they get unduly sentimental, and are reluctant to admit the fact of distress. They therefore, refuse to seek professional help at the appropriate time or at all, and are averse to assessing new funds by way of structured debt or admitting new shareholders with fresh funds, even where that may save the business.
A third mistake is their belligerent stance against insolvency practitioners appointed by creditors, especially now that we have an insolvency regime that promotes business rescue. This attitude precludes a collaboration with a skilled professional, who may help save all or some of the business. I will advise business owners that once they identify the first signs of distress, or even at the advent of a melt-down of the business, they should seek professional advice, including and especially those of members of the Business Recovery and Insolvency Practitioners Association of Nigeria (BRIPAN).
ßI must also make an observation, about our banking system. It is disheartening to note that, our Banks are not playing sufficient role in supporting genuine businesses. Facilities are given to businesses and ventures, that are obviously structured to fail. There is no due process in granting facilities, otherwise how do you explain the high rate of unsecured facilities taken over by the Asset Management Corporation of Nigeria (AMCON)? We see this everyday in our courts, where defaulters rush to the courts to secure injunctions against the banks for unpaid loans. There must be an overhaul and reform in the banking system, as Banks today only provide an umbrella when there is no rain. The moment it starts to rain, they withdraw the umbrella from the customer. The more certain it is that you can repay a loan, the more uncertain that the Banks will grant you the facilities you require to finance your legitimate business. There must be a robust credit rating system, and our Banks should be a partner in progress to their customers.
Is it ethical to use Third-Party Funding in contentious cases?
It is difficult to answer this question, in the abstract. Simply put, third party funding is where somebody who is not involved in a case provides funds to a party to that case, in exchange for an agreed return.
There is currently no legislation or judicial pronouncement that expressly prohibits third-party funding; but regardless, the common law doctrine of champerty and maintenance continues to apply in Nigeria, and this makes the enforceability of third party funding agreements doubtful.
However, in Arbitration, third party funding has been legalised in a number of jurisdictions (e.g Singapore and Hong Kong), and the proposed amendments to the current Arbitration and Conciliation Act 1988 in Nigeria will abolish the applicability of champerty and maintenance in Arbitration, and this will confer legitimacy on third-party funding in Nigeria and pave the way for Nigeria to join this global trend and strengthen the practice of Arbitration in the country, being one of the leading arbitration centres in Africa.
Corporate governance has always been important to you; in fact, you have championed corporate governance amongst core audiences for most of your career. What does corporate governance mean, and what are the essential elements of good corporate governance?
Corporate governance can be defined as the set of processes, customs, policies, laws and institutions affecting the way a company is directed, administered or controlled. It can be seen from various perspectives for instance, the roles and responsibilities of directors especially in relation to the stakeholder theory, and the framework for evaluating corporate goals. A good corporate governance must embrace the promotion of fairness, transparency and accountability in the running of corporations. This is the essence of corporate governance.
The important elements of Corporate Governance include honesty, ethics, trust and integrity, openness, performance orientation, responsibility and accountability, mutual respect and commitment to the organisation. The debate on the need for good Corporate Governance will continue to recur as we witness in our daily lives high-profile collapses of a number of Banks and Corporations in Nigeria due to poor practices, and particularly, due to failure of trust, integrity and accountability.
Recently, the National Industrial Court of Nigeria delivered a landmark judgment in the case of Chief Sebastine Tar Hon, SAN v National Assembly & 3 Ors. Per Obaseki-Osaghae J. ordering that the salaries of judicial officers be increased after a 14 year pay freeze. Kindly, comment on this.
The judgement raises a number of salient points. The Court had to first determine the Preliminary Objection raised by the Attorney-General of the Federation and Minister for Justice (sued as 3rd Defendant), against the action. There were three grounds upon which the jurisdiction of the Court was challenged, including locus standi of the Claimant, failure to serve a pre-action notice and non-joinder of the National Salaries, Income and Wages Commission (NSIWC) as a party, in view of the provisions of Section 3 of the National Salaries, Income and Wages Commission Act (NSIWC). The Court overruled these objections, for various plausible reasons.
On the major issue before the Court, the Claimant had in his case, submitted that the salaries and allowances of judicial officers has not been reviewed upwards by the National Assembly and the Revenue Mobilisation, Allocation and Fiscal Commission (1st and 2nd Defendant respectively) in the last 14 years. He submitted that in the last 14 years, the Naira has lost its value vis-à-vis the US Dollar, British Pound Sterling and the European Euro, as a result of the devaluation and poor state of the Nigerian economy. He further submitted that the Chief Justice of Nigeria and the various Heads of Courts and other Judicial Officers have on numerous occasions, decried the poor remuneration of Judicial Officers. The Defendants did not dispute any of these facts.
The Court observed that the failure of the 1st and 2nd Defendant to act in accordance with the provisions of Section 84(1)-(4) of the 1999 Constitution 1999 (as amended) rendered the non-compliance as unconstitutional. The Court made comparative analyses with the earnings of Judicial Officers in the United States and Ghana, to come to the conclusion that Judicial Officers in Nigeria are underpaid. His Lordship, Honourable Justice Obaseki-Osaghae, in view of the Exhibits before her, therefore, found that the salaries and emoluments of Judicial Officers in the United States of America and Ghana were being upwardly reviewed on a yearly basis, and concluded that “Justices and Judges who man the temple of justice in Nigeria are themselves victims of a great injustice. What an irony”!
I believe this decision is a landmark, which sets the stage for the entrenchment of the independence of the Judiciary. Judicial officers are motivated when they are properly remunerated, and indeed, to whom much is given, much would be expected. I am of the view that, Judges entrusted with the sacred duty of dispensing justice should not be a victim of injustice. However, whether and how this judgement can be enforced remains to be seen. Another interesting point is that the Defendants can choose to appeal to the Court of Appeal, and the question of a Judge being a Judge in his own cause may arise. Justice Obaseki-Osaghae who delivered the judgement is also a beneficiary of the Judgment. But, objectively, the views of the trial court in this case is a landmark, even if the matter is taken to the Court of Appeal and ultimately to the Supreme Court.
Nigeria has a new Chief Justice whose name has been forwarded to the Senate for confirmation, Hon. Justice Olukayode Ariwoola. Given the challenges of the immediate past CJN, what expectations do you have of Hon. Justice Ariwoola as he settles down in office?
The Nigerian Judiciary has been in the eye of the storm, in recent years. Questions as to the impartiality and integrity of the Institution are being asked on a daily basis, as the Judiciary is regarded as the last hope of the common man. We have witnessed many unpalatable events, with the removal from office of Honourable Justice Onnoghen, JSC amid corruption allegations, attacks on judicial officers by the EFCC, and then the resignation of the immediate past Chief Justice of Nigeria, Honourable Justice Tanko Muhammed GCON. These events have left us with so many unanswered questions as to probity, maladministration and corruption, levelled particularly against the Heads of Courts.
There is no doubt that Honourable Justice Ariwoola, Acting CJN is a good man. He is honourable, detailed, cerebral, God-fearing and a good candidate for the job. Our expectations from him are high. He must avoid the mistakes of the past and turn the tide around in terms of knowledge, character, integrity, incorruptibility and he must be a role model. The new CJN will need to evolve true financial independence for the Judiciary as contemplated under the Constitution of the Federal Republic of Nigeria, and ultimately, the welfare of Judges and other policies and directions must be enhanced, to ensure quick dispensation of justice across the various Courts in Nigeria. There must be far-reaching reforms under his watch, in order to restore the trust and confidence in the Judiciary.
The Nigerian Bar Association has undergone several changes over the years, for example, from the delegate voting system to universal suffrage. How would you rate the recent 2022 election? Are you happy with where the NBA is now? What advice do you have for the incoming Maikyau led Executive vis-à-vis the Association’s future advancement?
The Nigerian Bar Association (NBA) like every other Association, has gone through different seasons and times since its creation in 1900. Between 1900 and 1959, the leader of the NBA was referred to as the Chairman, but that title changed to President in 1960, without any change in terms of powers, duties and obligations. Between 1960 and 1992, the NBA has had a total of 16 Presidents elected through the delegates voting system. However, the NBA ran into crises in 1992 and was left without a President between 1992 and 1998, and during this period operated through its Branches across the country. After the crises, in 1998, the NBA began a new dispensation with Presidents and their Executive members taking the mantle of leadership for terms of two years. The delegate system of voting ran its course till 2014, when it could no longer be sustained. Hence, the last President. elected under the delegate voting system was Mr Augustine Alegeh, SAN.
The era of “one Lawyer, one vote” (suffrage system) was introduced in the NBA 2016 national elections, after the amendment of the NBA Constitution in 2015 to allow for electronic voting. Unlike what it used to be, the new dispensation now principally places the selection of NBA national executive in the hands of much younger Lawyers, as they are in the majority. It will therefore be somewhat uncomfortable for very senior members of the Bar who wish to lead the Association, to solicit for votes from their juniors. This new dimension changed one of the hallowed traditions of the Association, with respect to seniority at the Bar.
One of the reasons for the change of the delegate system to the suffrage system was to address the allegations of electoral manipulations, which characterised the hitherto delegate system, and to significantly reduce campaign costs. Ironically, the new voting system which grants voting eligibility to all Lawyers who pay their annual branch dues and practicing fees, has not guaranteed the desired outcome of curbing electoral fraud, vote-buying and irregularities. The very first electronic voting system of 2016 that brought in the leadership of Mr Abubakar Mahmoud, SAN recorded a lot of irregularities and there were reports of manipulations of the system. This led to several post-election appeals and court cases challenging the elections. The 2018 elections that brought in the leadership of Mr Paul Usoro, SAN witnessed similar problems, and cases of electoral manipulation of the voting site were reported. I acted as the Vice Chairman of the Electoral Committee of the NBA (ECNBA) in 2018 and Professor Auwalu Yadudu was the Chairman. We endeavoured at the time, to ensure that we created a clean data base for all Lawyers prior to the elections. However, despite the electronic voting, candidates still raised questions about transparency, fairness and credibility of the e-voting system. My view is that Lawyers are bad losers, and oftentimes, we do not act as good sportsmen. The NBA is greater than all of us, and we must not pull down the roof of the house in which we dwell.
Despite the challenges of the previous electronic voting in 2016 and 2018, the 2020 and 2022 elections recorded commendable success in terms of transparency of the voting process; however, one issue that remains unresolved is the cost of elections. Candidates had to travel to events all over the country and solicit for votes, spending huge monies organising parties and sponsorship of young Lawyers etc. This issue needs to be addressed squarely. The legal profession remains a noble one, and not a jamboree.
The Y.C. Maikyau, SAN led Executive Committee must push for more electoral reforms within the NBA, to ensure a level playing field for all Lawyers desirous to lead the Bar. I also charge the new administration to ensure necessary amendments to the Legal Practitioners Act, in order to unify the various bodies within the profession as there appears to be a clash of powers between the Body of Benchers and the leadership of the NBA. The amendment should address the subjection of the Legal Practitioner Disciplinary Committee (LPDC) as an arm of the Body of Benchers, as well as the extent of the powers of the Chairman of the Body of Benchers. No association makes progress, if the house is divided. By and large, the incoming Maikyau, SAN led Executive must improve on the gains of the outgoing Olumide Akpata led NBA, who has done well in projecting the NBA.
With a first degree in Political Science, would you subscribe to the call that Law should be a second degree, as is obtainable in the United States? About 1,500 new entrants were added to the legal profession last week at the Call to Bar ceremony in Abuja. With an average of 4,000 new wigs annually, would you say too many Lawyers are being admitted into the Nigerian Bar?
Ordinarily, it should be good news that we have an increased number of Legal Practitioners every year being injected into the profession, but it is sad that most of the new entrants walk the streets without employment. There is an urgent need for the Federal and State Government to strengthen the public and private sectors, such that there will be availability of jobs for the new wigs. In both the private and public sectors, there are little or no vacancies. In fact, most offices are down-sizing, therefore, threatening the few people in employment. There is no job security for the old and new wigs.
I recall with nostalgia the days when the Banks and companies had need on a daily basis for Lawyers for documentation of Debentures, Mortgages, Lease Agreements, Sale Agreements, Development Lease Agreements, Land Purchase Agreements, Deeds of Assignments, Subleases, Hypothecation Agreements etc. Those were the good old days. Today, legal departments of Banks and Companies have taken over these roles, and Lawyers in practice are left with little or nothing to do. Also, because of the hardship of doing business in Nigeria, a lot of businesses have collapsed and the Banks are not into serious lending business anymore.
The legal profession has always been referred to as a noble profession; but unfortunately, the profession is not insulated from the moral decline that we witness in our daily lives, and as a result of the unbridled economic decline in the country, Lawyers are exposed to less than noble activities.
Talking from my humble experience, studying law as a second degree is an advantage, because you will have matured minds with diverse academic experience. It is also an advantage, because we are likely to have people that truly see the profession as a calling, having taken the decision to study law as a second degree like they do in the United States.
Kindly, share your thoughts on the insecurity that has pervaded the country. Are our security agencies up to the task in handling insecurity? One of the victims of the Kaduna train attack and kidnap who was recently released, Professor Mustapha Umar Imam, has confirmed that these terrorists have not only infiltrated places they should not, they are extremely organised; that they participated in the Kuje Prison attack and are planning more attacks. What are your views on Nigeria seeking external assistance on fighting insecurity, given the fact that our security agencies have been compromised?
I do not think we should compromise our sovereignty, by inviting external assistance to fight (on our behalf) the insecurity which we have created by ourselves. To do so, will be an admission of failure on the part of the Federal Government. I do not believe that our security agents are handicapped, in this regard. How do we explain that kidnappers or bandits (or whatever we choose to call them) will take away their victims, who could be tens of hundreds of citizens and they will make phone calls to the relatives of the victims for ransom to be paid yet, their location and identity will not be traced. The truth is that, technology has gone beyond this. This evil act has become a business, and it is painful that those who are paid to protect us, are involved in the business. I don’t want to say more, on this very annoying trend in our national life. How can our law enforcement agents and our military, feign ignorance on the whereabouts of these bandits and kidnapers? Is it possible to have such mass movements of motorcycles or even buses used to abduct these poor victims, without some form of intelligence picking up a trace? Our security agents are more potent when dealing with harmless citizens, but look the other way when real criminals are at work. There are certainly more questions unanswered, on the issue of insecurity in Nigeria.
There must be a comprehensive reform in the Nigeria Police Force and the Army, such that they are well trained, well equipped, well remunerated and their lives insured. We must have an institutionalised life and health policy for our Police and soldiers and celebrate our fallen heroes, such that the families of law enforcement agents will not be left on their own to suffer if they lose their breadwinner in the line of duty.
We understand you will be 60 in November; looking back on your career, how have you managed to balance family life, and work? And what advice do you have for the Lawyers you currently mentor, who want to follow in your footsteps?
Work/Life Balance is very important. You must have quality time for your family, and also for recreation. At the same time, your work must not suffer. My wife, Oluwayemisi is a successful Corporate Lawyer, and she understands the rigours of legal practice; so, she supports me in whatever I do. She also encourages me and make up for whatever lacuna, in terms of creating time for family activities. I make it a point of duty to talk to my children everyday, even when I am out of jurisdiction. I create family outings and vacations, as often as we can afford it. I play golf at my leisure, and I spend time with friends and colleagues. I must say, I am blessed with a supportive wife, family, partners at work and friends.
My advice to young Lawyers is that they must be hardworking, dedicated and honest. The legal profession is very versatile, and a Lawyer will be relevant in any business. You must continue to learn and acquire new skills all the time; after all, no knowledge is lost. I see myself as a Lawyer in training at all times, and that is why I keep participating in local and international workshops and trainings to sharpen my skills and remain relevant. Networking also is a tool of trade, and so, Lawyers must belong to different associations and academic and/or professional bodies, as this will add value to the practice. Above all, we must remain prayerful and God-fearing.