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In the wake of the call for legal and procedural reforms in the legal practice, BABATUNDE TITILOLA speaks with a former President of the Commonwealth Lawyers Association, Boma Alabi, OON, SAN, on various issues that may need attention in the areas of dispute resolution, adjournments and economic revitalisation
What are the common issues lawyers face when mediating between two parties in an agreement?
Mediation is becoming a more common tool in this jurisdiction, thankfully. I qualified as a mediator in England as far back as 2005 when I realised, based on clients’ experience, that arbitration can be as costly and cumbersome as litigation. Also, mediation is a less combative approach and particularly well suited to situations where the parties hope to continue to do business with each other after the business dispute has been resolved. In England, it is very widely used in family law cases to minimise conflict between the husband and wife and ensure that the focus is on the best interest of the child or children of the marriage and that is also becoming the norm here, which is a very good thing.
What are your thoughts on alternative dispute resolution and do you think it should be prioritised above litigation?
Well, I was just comparing mediation with arbitration earlier, and both of these methods of resolving disputes are classified as alternative dispute resolution, and yet, they are quite radically different from each other. In my experience, by the time parties voluntarily submit to mediation, they are looking for an amicable resolution to a dispute. Whilst, on the other hand, an unwilling party can be dragged to arbitration as this is the usual dispute resolution clause found in our commercial contracts. This clause, once the contract is signed, is binding on both parties, and arbitration can be triggered by one party in accordance with the process set out in their agreement without further reference to the other.
In this jurisdiction, sadly, parties seem to see arbitration as a preliminary step before litigation and seldom accept the outcome if it is not in their favour. If this was not the case, I would respond in the affirmative to your question and say, yes, prioritise arbitration before litigation because the parties have more control over the process and it can be cost-effective. However, if you are not going to abide by the award at the end of the process simply because it did not go in your favour, then you might as well go straight to court and just stop including ADR clauses in your commercial contracts. Obviously, what I am describing here is utopia because at the time the agreement is being negotiated, the clauses included will be skewed in line with the balance of power between the parties.
Are adjournments necessary in the course of justice, considering the reactions that some lawyers seek adjournments just to delay justice?
Applications for adjournment in this jurisdiction are far too frequent and there is little consequence for wasting the precious time of the court. When counsel or witnesses fail to appear, the courts are generally inclined to grant an adjournment to ensure that the parties are not denied justice through no fault of their own. It is a pity. There should be consequences for wasting the time of the court. I have been in court both at trial level and Appeal Court level when almost 90% of the cases on the cause list are adjourned because one side or the other is unable to proceed and applies for an adjournment. It must be very frustrating for the judges who would have read the files the night before and arrived at their courts ready to proceed only for the case to have to be adjourned in the interest of justice.
Judicial reforms are one of the reigning discussions. What would you say constitute these reforms and what would be the impact if there were reforms?
You heard the Chief Justice of Nigeria at the senate confirmation hearing recently. The system, as it is, is simply not working and a constitutional amendment is needed to address this. In my considered opinion, we ought not to have so many appeals going all the way to the one Supreme Court for the entire country and for all matters. If we are emulating the American system, then, let us do so efficiently. There is a state appellate court as well as a federal appellate court in the United States of America. All 50 states have appeal courts. I don’t see why a matrimonial matter or a chieftaincy claim or indeed a land case, cannot end in the state appeal court for instance as well as appeals on interlocutory rulings, rather than meandering their way to Abuja.
One of the crimes frequently committed is rape. However, is marital rape given enough attention in consideration of what rape is in Nigeria?
The precursor to that question is whether there is any such concept as marital rape in Nigerian law as it stands. The entire law governing matrimonial relationships under the Act needs to be overhauled. A few months ago, England revised theirs, and by doing so, made it possible for couples to divorce without having to show that one or the other is at fault. This welcome amendment means that the privacy of the families is respected and the children are protected from negative publicity in high profile cases like some that we have seen in the news in Nigeria.
There has been a lack of uniformity in the punishment served on the same crime in several instances (either by a difference in courts or difference in local/state laws). Why is this so and is there anything wrong with it?
Well, uniformity is only applicable where there is a mandatory sentence. Otherwise, the court will weigh a number of factors before deciding on the just sentence in the circumstances on the basis of the evidence adduced and the strength of the arguments including any mitigating circumstances. This may likely account for what appears to be differences in punishment for the same crime.
Are there any legal reforms and policies that can be formed to improve Nigeria’s economic recovery and are the lawmakers doing enough to revive the economy through these policies?
We could start with some low-hanging fruits, which can be achieved by simple reforms at our nation’s ports. These simple, yet significant reforms from a cost and time-efficient perspective, will assist our agricultural sector and make our exporters more competitive in comparison to our neighbours in West Africa. This will also position Nigeria to properly take advantage of the African Continental Free Trade Area commonly referred to as AfCFTA.
Is the Nigerian government doing enough in terms of international monetary/economic setups and agreements that would benefit the country?
The entire world is in an economic crisis at the moment because of the Russia/Ukraine war and the resultant shock to the system. Nigeria ironically is one of the countries that ought to have benefitted from the conflict as the oil and gas prices surged and continue to do so due to the measures taken against Russia. Sadly, we are told that our oil is being stolen and we are seemingly helpless. I know for a fact that we can stop this theft very easily if there is political will. You may recall the blood diamonds of Sierra Leone and the method employed by the international community with the cooperation of the Sierra Leone government to end the bloody trade. Well, similarly, oil has its own DNA and the same method can be employed along with other measures to disincentivise the theft. In a nutshell, we can do a lot more to improve our economy.