Mike Igbokwe , a Senior Advocate of Nigeria and alumnus of the prestigious University of Lagos in this interview with Legal Correspondent, OLUGBENGA SOYELE, speaks about the maritime industry, maritime law, anti-suit injunction by foreign courts and other legal issues.
Your practice of law is more on maritime law, what makes this aspect of legal practice different from other area of law practice?
Yes, I am more into maritime practice but that is not the only thing I do. To start with, I cut my teeth as a general legal practitioner. In those days, I got exposed to trial and appellate legal practice involving subject matters such as banking, land, tenancy, insurance and criminal cases among others. Later, I got my postgraduate Diploma in Maritime law as well as Master’s in Maritime and Commercial law.
I have done so much in the maritime sector that a lot of people know me more for maritime cases than other aspects of law. Again, I wrote a book titled ‘Nigerian Maritime Cabotage Policy and Law- The case and Advocacy’, which I published in 2007. It is the most comprehensive book on cabotage. It has to do with a lot of papers I wrote and published in a bid to sensitise the Nigerian public about the essence of cabotage. I was one of those who worked hard to ensure that Nigeria had a cabotage policy and a Nigerian cabotage legislation which came into fruition via the Capital Act of 2003. A lot of the papers I presented had been on Maritime law.
Section 16 of the Admiralty Jurisdiction Act has generated controversy in the maritime industry, how would you look at this section? Is there a need for such unnecessary controversy?
It should not generate controversy because it was well- thought of and well delivered. There was a mischief that, that particular section was calculated to redress. That mischief has to do with a situation where ship owners, especially foreign ship owners with ships registered outside Nigeria that come to Nigeria to trade, violate some contracts or do something that will make the ship owner liable. However, either before they are arrested in order to get judgement security for the satisfaction of the liability or after they are arrested and they escaped before giving satisfaction for the claim against them, the case would die and the Nigerian claimant will go without justice.
This is because, the owner of the ship is not based in Nigeria and cannot come and attend to the case. Even when you get judgement you will be forced to try and enforce it abroad because there is no ship or bank guarantee that has been given to secure that claim or to ensure that the claim would be satisfied when you get judgement.
Secondly, even when you get judgement, if the owner of the ship happens to come from a country that does not have enforcement of judgement by way of reciprocity, then you cannot enforce that judgement against the owners of the ship in their country. So, the legislative intention was to ensure that in such a situation, the shipping agents should be held liable for any default of the ship owners.
But, many shipping agents are not happy with this provision of the law?
The reason some people are against this law is that, they argued that in law, especially in contract, an agent should not be liable for damages in respect of a contract where he acted on behalf of a disclosed person. But, what that argument does not appreciate is that, in tort, an agent can be personally liable even though he is acting on behalf of a master or a disclosed principal.
Again, this particular provision was actually put there in order to ensure that the mischief was redressed and that the Nigerian claimant would be given justice. Now, they can sue the shipping agent and get judgement. What I always tell shipping agents is that, they should not complain, all they need to do is to make sure that before they agree to act as agent for any foreign ship, they must get an indemnity stating that the foreign ship will pay in case the ship owner does anything wrong and the shipping agent becomes liable. So, there is no need for controversy, it is one of the best things to happen to the maritime industry.
Are you satisfied with the anti-suit injunction whereby a foreign court will restrain the Nigerian court from resolving disputes that arose in Nigeria?
I am not satisfied with it. One thing we should have in mind is that every country is sovereign. It is true that the United Kingdom was once Nigeria’s colonial master, but since Nigeria became independent in 1960, we have become a sovereign nation and all its institutions or arms of government must be respected and accorded the mutual respect.
Therefore, a situation where a foreign court would make an order to restrain through anti-suit injunction, a Nigerian court from proceeding with a matter that has been instituted in the court on the basis of a foreign jurisdiction clause or law is not acceptable.
It tends to give the impression that the Nigerian court is not respected by the foreign court even though these are two courts of sovereign nations.
It has been argued that it is not the court that is being restrained but the parties that took the case to court. But, be that as it may, the effect of that restraining order is to prevent the court from hearing the case. So, how can you say that court is not also restrained from hearing the case? But, the truth of the matter is that, the time has come or should come when Nigerian courts should now sit up. We have pronouncements made by the Supreme Court in several cases where the apex court said that courts must jealously guard their jurisdiction against any ouster.
The truth of the matter is that whether or not a Nigerian court would hear a case before it on the basis that a party has raised a preliminary objection that the case ought to be heard abroad due to a provision in the contract between the parties that in case there is any dispute, it should be resolved in a foreign court or in foreign arbitration is discretionary. There are certain requirements or criteria that if they are met the Nigerian court can properly exercise its discretion and hear the case in Nigeria.
Can a Nigerian court proceed with a case even when parties have agreed in their contract to settle dispute abroad?
Yes, it is discretionary and there are certain principles that must be applied. But, the problem is that some judges, with due respect to them, either out of ignorance or out of not being aware of what the true position of the law is or some other reasons best known to them wrongly decline jurisdiction to entertain such cases despite the pronouncement of the Supreme Court. Some judges don’t even appreciate that if they delay their decisions or the entertainment of such applications, it gives room for the foreign court to hijack such a case and continue with it.
So, what they usually do is to get anti-suit injunction and use it to harass the director of the company or the individual. They begin by telling them that if they do not comply, certain penalties will be imposed on them, namely; imprisonments of your directors or your good self, fine or seizure of your assets or goods or the company’s assets that are in the foreign jurisdiction. So, if you don’t quickly obey or go to the foreign court to set aside such an anti-suit injunction, they proceed and sell your goods or use police to harass you.
So, at the pains of being imprisoned or their assets being seized abroad, they now complied and ask their lawyer here in Nigeria to discontinue the suit. The serious implication of this is that, the moment the suit is discontinued here; it prevents the Nigerian judge from entertaining and determining the maritime suit. Also, the experience the judge would have garnered from hearing and determining that suit and also the development and the growth of our maritime jurisprudence and law would be hampered.
Another disadvantage is that, the Nigerian lawyers, representing both the claimants and the defendants who ought to have made some money from the case would definitely lose their fees. The case is now hijacked and transferred to foreign solicitors who will now conclude the case and earn fees from it.
So, you have some financial detriments here. The experience which the Nigerian lawyers would have garnered on litigating the matter until judgement is delivered is also denied them. But, the most unfortunate implication is that indirectly and contrary to the provision of the constitution of access to court to redress any grievance rather than going for self -help or an extra-judicial means of resolving disputes is denied them. The implication is that people would no longer have confidence in going to court anymore. They would rather settle their disputes themselves and these may involve dangerous means.
The time has come for the Nigerian court to be bold and ascertain their position in the face of even anti-suit injunction from any country whatsoever by virtue of the fact that they belong to a sovereign nation and the constitution is backing them. Whether on appeal or in terms of going to court, there is the constitutional right of appeal, there is also constitutional right of going to court. The Nigerian court must invoke its judicial powers and jurisdiction to entertain that suit and decide the dispute one way or the other.
Don’t you think slow disposition of justice in Nigeria is the reason foreign ship owners want dispute resolved abroad?
The delay in our courts is not peculiar to only maritime cases and if it must be dealt with, it must be looked at holistically. I know that maritime cases have standing orders governing them not just universally but also in the Federal High Courts. They have to be entertained and determined expeditiously. When you consider causes of delay in our courts, some people will blame the lawyers, some will say the judges are to blame and other would blame the parties. But, my take is that, every person who has a role to play in the administration of justice can cause delay.
For us to have expeditious entertainment and determination of cases, all those persons must cooperate together to ensure speedy trial. I give you an instance, if the judge is ready to sit, the lawyers are ready to proceed and their witnesses are in court, but because Power Holdings has disconnected power and the stand-by generators of the court are down or perhaps there is no diesel due to lack of funds and the court room is too hot, the case will be adjourned.
If the judge is ready, the lawyers are ready but the witnesses are not in court, the case cannot proceed. In a situation where lawyers are ready, with some flying in from outside jurisdiction, their witnesses are in court and the parties are present in court but the judge is sick or has a congested list, the case cannot go on. Even if the judge is ready to sit, the lawyers are there, the parties and witnesses are in court but the registrars are on strike, the judge will not carry files and be calling cases.
So, all these officers in the temple of justice including the government that provides infrastructure must play their roles effectively. A lot has been done with a view to speeding up the administration of maritime justice through the rules of court. The latest one is the 2011 Admiralty Jurisdiction Civil Procedure Rules but because the rules are implemented by human beings ,cases get delayed. Some lawyers are found of wasting time probably because they know they don’t have a good case and want to delay the suit. There are also some judges that delay cases and they give you long adjournment and the case keeps dragging on.
I think we have reached the stage where we tell parties in a suit to file all their processes and set apart three days for hearing of the case and the hearing of the case must end within those three days. Any of the parties that failed to comply would have himself to blame. Until we get to that point we will not make substantial progress in terms of speedy determination of cases.
Again, there is congestion in our courts and we don’t have enough judges to hear the cases. For instance, the Federal High Courts have been given so many jurisdictions under Section 251 of the 1999 Constitution. But, you must back it up with enough manpower and resources as well as paralegal staff and equipment to enable them work speedily. If the court system becomes so slow that the people lose confidence in it, the danger is that they will become lawless.
Some have advocated arbitration as an alternative. Yes, to some extent arbitration could be an alternative but for you to go to arbitration, the contract in which the dispute has arisen must have an arbitration clause and if it is not there you can’t go for arbitration. Secondly, if the parties to the suit are more than the parties to the contract that has an arbitration clause, they cannot also not go for arbitration because arbitration is contractual and cannot be binding on none parties to the contract that has arbitration clause. However, arbitration is doing a lot to quicken the process. The reason businessmen put arbitration clauses in their maritime agreement is just to make sure they do not have to go to the regular courts because of the delay.
How knowledgeable are Nigerian judges in handling maritime cases?
A few of our judges are quite knowledgeable but the rest learn on the job. There are some judges today that were good maritime lawyers before they went to the Bench. Those ones you can’t take it away from them; they are experienced. Now, there are also some judges that by virtue of having been learning about maritime law on the Bench, they were forced by virtue of the maritime cases coming before them to study maritime law.
I must also point out that, some government agencies like the Nigerian Shippers’ Council in conjunction with National Judicial Institute had for many years organised series of maritime seminars for judges, where recent development in maritime law are debated. Without these seminars, a lot of the judges would be making mistakes because maritime law is highly technical.
That is not to say that brilliant judges cannot learn about it on the job but it will not be the same when you have educational background in maritime law because it is very wide. I am of the view that the time has come to encourage more lawyers who studied maritime law to come on the Bench especially at the Federal High Court and also at the Court of Appeal and the Supreme Court.
This is because a maritime case that is decided at the Federal High Court may go on appeal to the Court of Appeal and thereafter to the Supreme Court. So, we need judges or justices who are familiar with the principles of maritime law to be in these courts, so that when such cases come before them they will be in a position to do justice to it. Maritime cases always involve enormous assets running into millions of dollars and they require not just expeditious determination of these cases but also require knowledgeable judges to be able to handle them properly and on time.
You are a prominent member of the Nigerian Maritime Lawyers’ Association. What positive impact has the association brought to the maritime industry in Nigeria?
The association has done a lot; part of its objectives is to create a forum where lawyers that practice maritime law can come together. Also, we belong to Comité Maritime International (CMI); it is the umbrella body for Maritime Associations of different nations. They help a lot in reviewing not just maritime treaties but also in coming up with maritime treaties especially for International Maritime Organisation. So, the Nigerian Maritime has done a lot in sensitizing the public about maritime law and also consults with relevant government agencies in the maritime sector. The association has made a lot of inputs into laws and rules of procedure governing maritime practice.
What is your take on adherence to professional ethics among lawyers?
When I started as a lawyer, the respect for professional ethics among legal practitioners was more than what we see today. In those days, you dare not wear your collar and gown outside court premises; it would be seen as an advertisement. After court proceedings, you have to go somewhere and change to mufti. Again, the incidence of disrespect to seniors and misappropriating or embezzling clients’ funds were not common. You avoid anything that could mar your reputation. I am not saying they were not there but not as common as we have them today.
I think one of the causes is that the Nigerian society has become so corrupt. Most Nigerians prefer to “make it” through quick and wrongful means. They are not concerned about success that is based on hard work. If you know what you are doing as a lawyer and you are patient, focused, hardworking and you know the law, clients will come after you. In the legal profession we know each other. We know the stuff everybody is made of. But, the fact is that you cannot expect a society that is corrupt not to breed corrupt persons and lawyers are part and parcel of the Nigerian society that is corrupt. However, it is not an excuse, the essence of professional ethics is for orderliness and it’s for decency and for progress.
Those that refused to comply with them create problems for themselves, their clients or for the court, even to the legal profession. They give the good ones a bad name. I have observed that some of the people who create problems for the legal profession today are those who never went through training under seasoned senior lawyers. Because, there is no way you will work under a seasoned senior lawyer and you will be doing something else from what you learnt under him. I don’t have any regret for choosing law; it is the best profession you can think of.