The general consensus among lawyers is that legal practice is gradually gravitating towards Alternative Dispute Resolution (ADR) instead of the traditional litigation mechanism. The interest in this kind of practice is gaining greater attention among practitioners. This climaxed with the recent flag-off of the Lagos Court of Arbitration in addition to the existing Multi-door Court-house. But there are fears among some lawyers about the possibility of such a practice resulting in dwindling professional fees.
In this encounter, Layi Babatunde, a Senior Advocate of Nigeria (SAN) and the Editor-in-Chief of Lawbreed, publishers of Supreme Court Law Report, says lawyers will, in the contrary, benefit from ADR practice.
He also spoke about professional specialisation in law, issues about the award of SAN, solicitorship and federalism, among others.
ON the fear of losing professional fees with ADR, he said: “ADR is a welcomed development. The whole essence of administering justice is to maintain a certain balance and relationship that is fair, just and equitable so that society can be in peace. Lawyers should try to assist, and see to it that people’s emotions don’t run riot; that people are guided by rules; that they are guided by pronouncements that are not just only made because of anyone. That it will be the same situation if the facts and circumstances were the same and the parties different.
In other words, we say cases should not follow persons but what the law says. So to the extent that the ADR provides the mechanism to help to resolve conflicts, to smoothen relationships between people, to make people go ahead with their lives without necessarily resorting to other means of solving disputes that will dislocate the society, it is welcomed. Let us not forget, the courts are highly congested. There is hardly any forum where we engage in discussions, either in the country or outside the country and they examine our investment climate, they talk about our justice delivery system. They say it is cumbersome, it is slow and some go as far as saying that it is not working although I would not agree with that. Of course, there are challenges, but we can’t say it is not working. We can’t continue as it were, in the same direction without looking for other ways to complement what we have.
In fact, that is the reality of the situation. Don’t forget, if you talk about arbitration, mediation and conciliation; whatever approach you adopt, it is the willingness of the parties that counts. If they are okay with it, why should someone complain because he thinks he is not going to make money from it? If you think ADR will help you resolve your matter efficiently, why not? In any event, lawyers are engaged in ADR and they get paid. There are major disputes that are settled through arbitration or through mediation.”
On specialisation in law practice, he stated: “By the time we came into the profession about 30 years ago, the opportunities we had were not the same with what we have now. There are several areas of practice that are emerging now that were not there when we came in. For instance, ICT has now emerged. Even the copyright/trademark issues used to be limited to certain areas. There are people now who basically practice entertainment law. It was not so before. It is becoming an industry on its own.
In those days, taxation was not practised as it is today. Many lawyers are more involved in publishing today. For instance, most of the law reports that were available in Nigeria many years ago were foreign law reports. If you check today, you will see several law reports published by Nigerians and their editorials are prepared by lawyers. I was hoping that by now, at least, one or two universities should be offering courses in law reporting. The Supreme Court has moved away from relying on foreign cases. It has said so severally in its decisions. That means that what we do locally at the High Court, Court of Appeal and the Supreme Court ought to be readily available to fill the gap that was created by abandoning it largely due to the foreign law report.
Law reporting in England, for example, is a serious business. It is very important.”
Will retaining the rank of SAN inspire commitment and hard work? He agrees: “The truth is that every profession always has something to aspire to – whether as engineers, lawyers or doctors. Doctors don’t remain on the same level if they make progress in their career. Even lecturers in the universities don’t remain at the same level; they progress up to the point they become professors. The rank of SAN essentially came from the English tradition. But there is a legislation that backs it up. The Legal Practitioners’ Privileges and Disciplinary Committee did not just come from the blues; it is an act of legislation, that you will have a committee that selects people and confers them with the rank.
But to answer your question directly, yes; it is capable of inspiring people. But the fact that certain things are not being done the right way as perceived by some people, may not necessarily mean that even those in the profession generally don’t want the rank. If you look at it progressively, the number of applicants seems to be more than what it used to be. To me, that tells something about the lawyers and what they want the future of that rank to be.”
This is how he elucidated on the criteria for the award: “You could either apply as a legal practitioner, that is somebody who is an advocate in practice or you apply as an academic who has published certain law books that have become points of reference.
Of course, minimally, you must not be less than 10 years at the Bar, among other things, such as concluding cases at the High Court, Court of Appeal and Supreme Court. Most importantly, you must be of good character. If you have all the cases and you are found wanting in character, the likelihood is that you may not get it.”
That the criteria did not take into account other categories of lawyers who are equally good but have chosen to do more of solicitorship. He said: “Unfortunately, it is difficult for me to speak on that. May be in the future, there may be opportunity to address the criteria and the categories. The criteria are reviewed from time to time. But don’t forget that the title of SAN is related to advocacy. Solicitorship is a different kettle of fish. If you take the case of
England, the solicitor is on one hand and the advocate in the other. In fact, the solicitor feeds the advocate who goes to court with cases. They are doing totally different things. But that does not diminish the fact that they are making very huge contributions. However, the law as it stands today and the criteria that are issued for it, doesn’t take cognizance of them. May be in future, they can be accommodated.”
On the propriety of splitting the profession into two, he stated: “I will rather suggest that we specialise. For instance, you just mentioned those who are into solicitorship; it is not because anybody split the profession into two, but they chose to do that. It is a matter of personal decision. The truth is that over time, if a lawyer does not specialise in certain aspects of the law in which ever divide he belongs to, the practice of the profession at whatever level will become a big challenge to the counsel.”
On whether Nigeria can change the present federal system of governance, which is considered too expensive, he said: “Whether you have a presidential system of government or parliamentary system, the most important thing, to me is the attitude of those who run the government. If we elect people who don’t care, whatever name you call it; if those who run it don’t believe in it, you will just have it in paper. Ordinarily, we have a local council meant to be closer to the people. But how close is it to the people in reality? Fundamentally, we need to change our attitude. Our emphasis is on material acquisition. “My car is bigger than your own syndrome”. If we don’t get out of this mentality, it will destroy us. We can’t run a country like that! Whether it is parliamentary, presidential or whatever name you call it, the basic needs of man are the same. It is not the structure, the title or the name that solves the problem. It is the way that we operate it that matters most. Is there any law that says that if you are a local council chairman or a minister; when you are on the road, you must move with 10 cars? Which law says that if you are a minister, governor or commissioner; if you are going to commission a project, you must charter a private jet? Is that in the manual of presidential system? When they staged the coup in 1966 and we had a parliamentary system; those politicians they accused of stealing money, what they did, was it in the manual of parliamentary system? The fundamental thing is: “let us change our attitude.” We are meant for one another. That is how God ordained it. No amount of bravado will change it. That is the reality of our lives and the earlier we realise it, the better.”