Commercial law practice in Nigeria has certainly come of age, given the contributions of some of its practitioners to the development of the legal profession. Mr. George Etomi, a foremost commercial law practitioner told JUDE IGBANOI last week that the scope of the award systems in the legal profession needs to be widened to embrace non advocates. He also commented on the state of the nation, including the Anambra Coup saga, the Bola Ige murder trial and the tinder-box that has become of the Niger-Delta region amongst other issues

Q: Congratulations on your recent award by the Center for International Legal Studies in
Budapest, Hungary. How do you feel receiving such an award from outside the shores of your own country?

A: I feel very good. Let me explain that the Centre for International Legal Studies is an international center for the propagation of legal excellence. They do this by way of publications in which contributions to important legal work are made. As a lawyer, I am sure you are familiar with such notable works like Sweet and Maxwell, Butterworths, Kluwer Publications, and so on. A lot of these are published by the centre. The centre also works in conjunction with a number of scholars, big establishments, universities, law schools, and they organize programmes throughout the entire year. It was established in 1976 and it's based in Salzburg, Austria.

We were invited about 15 years ago to make contributions by way of papers and seminars throughout the entire period. I have been one of their resource persons through the years. Sometime last year they decided to honour a number of us who have made valuable contributions especially in the area of international legal work as it concerns emerging markets of which Nigeria is one. We were invited to become Fellows. That was the convocation that took place in Budapest. On that occasion, the President of Hungary as well as the First Vice President of the Constitutional Court of Hungary were both inducted into the centre. So, it is an honour that I feel very proud of, that this sort of recognition is given to what I have done over the years in this area of commercial law.

Q: The reward system in the legal profession in Nigeria is increasingly being faulted. To this end, lawyers who have distinguished themselves in commercial practice are now crying out louder to be recognized in the award of the rank of Senior Advocate of Nigeria. As one who has been in commercial practice for so long, would you align yourself with that call?

A: I certainly do. The reason is that whilst I appreciate that the A in SAN stands for advocate, I believe that the reward system by which efforts made towards the development of the law should be such that every practitioner, no matter what aspect of legal practice you find yourself should be recognized and rewarded accordingly. I do know that the criteria are being slowly increased. But there is a sharp demarcation between the efforts of those who are visible, i.e. advocacy and those who have branched into what we now call commercial law.

My background for instance, I finished at the London School of Economics with a Masters Degree and come straight back home and started working with Chris Okubanjo & Co. He was one of the pioneers in the area of commercial law. So I cut my teeth under him. But I quickly realized that it was a distinct branch of law which deals with the actual efforts of enterprise, be it at the businessmen level, be it at the corporate level, be it at the international finance level. The experience that I have had is that there is quite a wide area spanning such diverse fields that I think shouldn't really be missed out.

When I left Chris Ogunbanjo & Co in June 1983 I went straight and decided that I would look more into the area of commercial law, though I did a bit of advocacy. Since that time I have worked in that area. I think those who are in charge of giving honour should recognize the exposure given by those leading commercial law firms. So, in my opinion, yes, I think the periscope should be enlarged to look at this segment of our developmental law.

Q: What about lawyers in corporate practice? Where do they fit in? Those who have made their mark as Legal Advisers and Company Secretaries. Aren't they deserving of such honours?

A: They are! They are! This is the point I am making. The difference between advocacy and non-advocacy is that one is more visible. When you are an advocate you are in court and at times you handle a sensational case, it's covered by the press. So you are highly visible and therefore those who constitute the Privileges Committee tend to interact more with you. Then there is also the mistaken believe that when you are in corporate practice you are there to make money as though if you are in litigation you are not there to make money.

So, the general belief is that when you have got your reward in some form, why do you still require any type of honour. I think that, respectfully, is not the way to look at things. There are corporate lawyers, be they lawyers who advise large corporations, be they those in the banks, be they those who have set up commercial practice who contribute immensely to some of the most major transactions that take place. In fact, they are the benchmark in retainership standards. When you do corporate law, there is no question of managing legal advice. This is because the kind of transactions involved, you are dealing with colleagues from other jurisdictions.

For instance, if you are dealing with a complex financing structure such as you find in the NLG for example, you will be dealing with solicitors from the UK, the Netherlands from the US. You will be dealing with some of their topmost commercial law firms. You are either good or you are not. There is something lacking in our honours system. The people who have made such huge contributions simply go unrecognized; because of the mistaken believe that in any case they have got their reward, working for their pockets as it were.

Q: Your firm acted as lawyers to the now moribund Nigeria Airways. Before it went under, Nigeria Airways was said to have been plagued by a myriad of intractable problems, ranging from corruption, mismanagement to the high-handedness of Aviation Ministers, all resulting in financial strangulation and eventual collapse. What are the problems mitigating against Nigeria operating a successful national carrier? The opinion seems to be that we need to understand these things as we prepare to launch a new national carrier.

A: What I would say is that I am extremely reluctant to discuss my clients on the pages of a newspaper. So the comments I will make regarding Nigeria Airways will strictly be limited to those aspects of the operations that will not involve divulging sensitive information.

Generally speaking, what I discovered in my experience working with Nigeria Airways is that a lot of the burden she labours under are punitive. Most of the damages that have bedeviled and created a crippling burden on the airline have been punitive. It was either the management had simply decided to ignore an obligation in a contract or simply done it in a manner for reasons other than are honourable in discharging those obligations. Because it's an international airline, they will sue in jurisdictions where the law has a lot of certainty about it, in the sense that you can discharge legal obligations and litigations very quickly.

When you hear some of the gory details as to why an obligation was not honoured you will appreciate why some of the judges get incensed and proceed to award punitive damages against Nigeria Airways to teach them a lesson. Nigeria Airways is a classic example where punitive measures happen. You hear it in school, you read about it, but you seldom see it practice. For instance, there was a time the airline contracted its entire ticketing operations to a British firm. When there was a change of government, there was a suspicion that the contract did not meet some of the best practices. So there was an instruction from the then Minister to cancel.

It's alright for a Minister to take a political decision, but then the implementation of that act is the left to management. All that the management needed to have done was to seek legal advice as to the nature of the contract, its content and whether or not the Minister's desire that the contract be cancelled can be done simplicita. That was never done. The instruction was simply carried out. The terms of the contract were ignored. So the company ran to court. They sought and obtained an injunction stopping the Nigeria Airways office in London from selling tickets, because it was a breach of its own right. In the event of that, the airline was threatened. It wasn't liquidation but those were the steps that led gradually to it.

When we were finally contacted and we looked into it, it was clear that you must honour terms of a contract. You are a corporation and therefore you have a continuous life. It does not matter whether Mr. A who was M.D., you didn't like his face. You just needed to honour the terms of the contract. It took us a long time to get the injunction lifted to get the airline reopen its office in London. Then we had to sort out the mess and eventually when we did, Nigeria Airways had to pay out massive amounts. I am not sure that woman could have collected that sort of money had she done the business of loading the aircraft. Again, the airline itself was not generating what it had to pay out.

Another example that led directly to the death of the airline was the lease. They could have taken the lease directly. But they chose to go through a third party who then set up a chain of offshore companies who did nothing. What that meant was they had to pay huge down payments. The lease obligation was that they had to pay about a million dollars every month without any guarantee that they could make back that sort of money. When it became clear that that aircraft could not make that sort of money, they had to go into the resources outside of that aircraft to ensure that the lease was kept alive. So Nigeria Airways and the entire airline started working for an aircraft! In spite of that, it didn't work.

Again, there was this issue of Managing Directors not being happy with what their predecessors had done. A new Managing Director comes in, he is unhappy with the bargain; he does not bother to find out how to rearrange it or negotiate the contract. He simply picks the aircraft, goes to Amsterdam, dumps it there and turns his back as if that ended the problem. So one of the sub lessors goes in there, takes the aircraft, fixes it and slaps Nigeria Airways for breach of recovery conditions, slaps them with backlog in lease rentals and then comes up with punitive claims, which is clearly the difference between what they would have paid for the life of the lease.

By the time we got involved, we gave a legal opinion, clearly spelling out what the problems were. The examples abound so much. The way I look at it is that it's not rocket science to run a successful airline. Smaller countries do it very successfully. Ghana, Kenya, Gabon, Ethiopia and other smaller countries around us. Private airlines are doing it. What makes the difference is that those who do, must know that any business of an international nature is legal based. So the most important department you should have in terms of understanding and discharging your obligations is the legal department. That department needs to be strengthened. It's a department that pre-empts problems before they happen. You see, once your aircraft is seized it means loss of confidence for the passengers. There were many instances where people took Nigeria Airways to London and they were never sure they would come back with it. Of course, they have to make alternative arrangements and that cost a lot of money.

Q: One issue that has engendered so much angst among Nigerian lawyers is the use of foreign lawyers by the Bureau of Public Enterprises in the privatization programme. The Nigerian Bar Association spoke out vehemently against it, but the defence of the BPE was that they were carrying out World Bank directives. To some people that makes the BPE look like an appendage of the World Bank. What is your view on this?

A: This, for me, is one of the tragedies of the Nigerian state. Incidentally we were one of the lawyers who drew the attention of the NBA to it. As commercial lawyers, we were the first to object. Now, I do not begrudge the BPE or anybody in trying to ensure that they meet with international standards. But incidentally, when the BPE came out with the rules which sort of opened the field for foreign law firms, we said to them that there is nothing wrong with working with foreign partners, but the BPE could have a pool of foreign firms that Nigerian firms can work with if you don't want them to go and search for partners. But to have Nigerian law firms relegated to the background in favour of foreign firms who do not understand your terrain, because they are going to work here anyway, I think was missing the point completely and I did draw the attention of the then Director-General of the BPE to it. One unintended consequence was that it reduced the Nigerian practitioner to the levels of the people who write 419 letters!

Sitting in most major law firms abroad were letters from Nigerian law firms soliciting to be partners with these foreign firms to come and do work for them. Ask yourself; are we the first to privatize? Are we the first to embark on a buying and selling exercise of our own enterprise that we must pull down the entire sanctity of a noble profession simply because we want to meet with the standards?

Yes, the desire to see that the quality of advice you get at all levels meets with best practices worldwide. That is the minimum expectation of the World Bank. But they also expect that an exercise like this should be seen as an opportunity to develop capacity from within the country that is embarking on it. We do a lot of work with foreign law firms outside of the BPE. I don't see that they come and replace us here. I did mention it to the DG at that time that look, you have an opportunity to raise the level of professional standards in this country by ensuring that you patronize local firms. But if you choose to do it the way you are doing it, history will not be kind when we remember those who have helped.

We belong to a network of international law firms and we meet once in every quarter to basically look at what is going on internationally. You could tell from the Singaporean firm, the Egyptian firm, Hong Kong, which had undergone similar privatization exercise. You could tell the difference year after year from those firms. Not only had they become a lot more experienced in these areas, it has shown in their output and they have basically enriched the level of international standards that are required. So I do not subscribe to the fact that the World Bank required that these things be done to the detriment of local firms. Incidentally, el- Rufai, who is now a Minister, had a rethink of the issue and I know that a few more local firms are being patronized. But it is by far unsatisfactory.

Q: It's also on record that you did quite a lot of legal work on the Lagos MetroLine project, which never saw the light of day. Many factors have been attributed to the failure of that project coming to fruition. Placing the MetroLine project against the backdrop of Nigeria's mass transit generally, would you say the problems were political or economical?

A: They were political! Now, this subject deserves a fuller forum to correctly discuss, because we need to learn from the mistakes of our past. As you correctly mentioned, we did act for Intern Infra, a consortium of 18 French companies that won the contract to construct the MetroLine. It was meant to have been funded by the Lagos state government and partially through resources provided by the firms. One of the conditions was that they needed the Federal Government guarantee. In spite of the bitter rivalry between the then UPN and NPN government, the Shagari administration actually provided the Federal Government guarantee to the Lagos State government.

Lagos state transferred some money as down payment. What really saddened me was that the late president Mitterrand who had a soft spot for Nigeria succumbed to the pressure by one little French company for the need to have this project done. So, he gave the French government grants by way of exports credit facilities for that loan to be covered against the protestations of financial institutions in France at the time. Close to 700 million dollars was provided as standby facilities for the project.

Unfortunately for us, the Buhari administration came and the first thing they did was to investigate major transactions with a view to finding out who got kickbacks and all that. They set up this enquiry. When I saw the direction it was going, I realized that it was simply an excuse to give some type of dignity to the fact that they wanted to cancel the project. I went out of my way and I spoke to the counsel who was acting for Lagos state. Short of going down on my knees, I told them that you guys are making a very big mistake! Whatever you do, do not cancel this contract! Let this contract stand! I cannot over emphasize the value of a mass transit system for a city the size of Lagos'. His response to me was ' governments come, governments go'.

The attitude of the government was to me a total lackadaisical attitude to a serious issue. To underscore the way we are unfair to ourselves in this country. I do not come from Lagos state but if the Constitution changes to allow me by reason of the length of time I have stayed in Lagos, I will claim Lagos state. I felt passionate enough about the project. A meeting was arranged between the French companies and the government and of course the government never showed up. Instead, they had the passports of the French nationals seized. They were not thrown into detention, but they made sure they did not leave the country. It took a lot of lobbying between the French Embassy and ourselves before they could leave, six weeks after.

That, for me, was a most despicable way to treat people who had come to work on the MetroLine. We must expect the judgment of people out there. Needless to say, after that action, the project was dead even before it started. The French government at that time still held on to the credit because of the vast criticisms it had undergone. It wanted to see the credit through. But after Mitterrand was gone, the credit was no longer available. As soon as those gentlemen left Nigeria they sued. As I speak to you today, the Lagos State government is paying back because it breached the contract. We are paying back because the federal government guaranteed the loan. It's part of our Paris debt portfolio. So we are paying back the MetroLine we do not have!

Q: That is terrible!

A: That is the tragedy!

Q: You were consultant to the House of Representatives on the Telecommunications Act. That Act is still being viewed by skeptics as inadequate given our tendency to circumvent regulations and statutes. Would you say there are provisions in that Act that make it fool-proof to abuses?

A: What I would say is that yes, my firm consulted for the House of Representatives. Paul Usoro and co. Consulted for the Senate. We worked together to harmonize the positions to come out with a composite Bill on telecommunications.

There is never a fool-proof Act anywhere. The Act that they look for is a way to soften and cushion the impact of a law. But by and large it is a significant step in the right direction towards liberalizing the telecommunications sector. The main thrust is that enough of the control of the sector has actually moved away from the main stream to the NCC. So the NCC becomes truly not which was on paper but truly the main actor with regard to regulating the activities of telecommunications companies.

But because it's still in its infancy and because the entire liberalization aspect of it is new, it is only when these disputes go to some form of arbitration that we will begin to know whether or not it is adequate for the purpose for which it is set up.

I can tell you that in coming together to draft this Bill, I know a lot of recourse was made to existing obligations both within the subcontinent and abroad. If you recall, Hon. Nduka Irabor, the then House Chairman on Telecommunications organised a public forum to harmonize the views of not only the operators but other industry participants. We also brought in our experience in dealing with a private telecommunications firm. I am sure you know the story of why MTS was shut down. So a lot of these weighed in our minds when we were looking at the Bill.

The challenge was how do we prevent a situation where one dominant carrier could simply shut down the operation of a private sector competitor? So all these weighed in our minds. But by and large, I think we have an Act that would fulfill our aspirations. Full proof? That is a different ball game, but it requires to be tested and then we'll know.

Q: Let's take a brief look at the state of the nation. The Anambra State coup saga is the issue of the moment. Since every political office holder in Nigeria is guilty of godfatherism, do you see the Anambra Scenario playing itself out in other parts of the country and what does it portend for the Nigerian polity generally?

A: For the good of our infant democracy and for the overall good of this country and the generations coming behind, we have not truly disposed of this matter. I hope the Anambra scenario does not repeat itself anywhere else. I am not deep into politics on what could have gone wrong. But if the sum total of what I understand in Anambra is what it is, then I'll say I do not even see why there is anything to discuss except in the political realm.

This is because in the legal realm, two parties cannot go into a contract to do something that is illegal. So whether it's Uba or whoever decided to come together for whatever reasons to undermine the Constitution, that piece of paper is not more than what it is. It's just a piece of paper. It should be consigned to the dustbin. There may be other recriminations, like the method employed by Uba to enforce it or the moral effect of the Governor subjecting himself to whether he went to a shrine to swear and all that, these are other areas that are new to the issue. But I think the overall concern is that those who present themselves for leadership in this country should begin to look at these things more seriously than they did hitherto.

My attitude is that we shall begin to look seriously at election campaigns funding. I have been very critical from the moment I saw huge amounts of money in campaign funding running into billions. Fund raisings here and there. That is not the way it is done.

There has to be a limit to the amount of money people can donate to campaign funding. Have you ever stopped to ask yourself where all this money goes. If somebody raises 3 or 4 billion Naira, at the end where is that money?

In the United States, the tax man will come after you if you donate horrendous amounts of money! There are other agencies that will look at exactly what you do that can enable non to shell out $2 million just like that! So, the intended Kings should know what they are letting themselves into by allowing this overwhelming presence of the so called godfathers. We may never totally eliminate the phenomenon but the case of Anambra should be a lesson for others and we pray that it does not repeat itself in the entire body polity of this country.

Q: Analysts have observed that the Niger-Delta is a keg of gun powder for Nigeria. Given the increasing unrest, the level of arms and kidnappings of foreign nationals recently witnessed in that area, what would you say is the way out of imminent danger? You are from a producing area. Does the crisis have the potential to degenerate?

A: I have always said this at various public fora. All Nigerians share a collective guilt for the way they have treated the people of the Niger-Delta.

I grew up in Okrika. I went to school there. I was in the choir. I speak the language. I swam those waters. So, it is not a question of being alarmist when say that, "what I see today, words fail me" I will think twice today to even go back there. The physical environment has degenerated.

Those waters under which we use to swim if you drop into them today, you'll be picked up dead because of the level of toxicity.

What bothers me by far, more than the physical environment, is that they are killing the people psychologically. Oil is not the issue. But the question is that if oil had been found in other areas, would the people have allowed what has been happening for over 40 years?

The people of the Niger are completely misrepresented as lazy, as trouble makers and so on. You just wonder, after 40 years before somebody start complaining, what else should he do? They can't go to the village anymore because the fishing ponds are no longer there. They have been polluted. The people lived on fishing. It was their livelihood. Today they have nothing because of gas flaring, oil exploration activities pipeline burstages, blasting and so on. You take a vital means of livelihood away from them and you do not prepare them for any other way to make a living. Everybody thought it was a joke that will just go away. But these men have grown up.

Another thing is that the pride of the Niger-Delta man is his woman. A lot of these men died in the Nigerian civil war. Now, the women because their bread winners are dead and they are not trained in other skills, how they make ends meet is better imagined than understood.

It hurts deeply. Go to Rivers State, go to Bonny. AIDS crisis! There is a natural explosion of a mulatto population there. Most of them fatherless. How do you begin to heal those wounds? These are fear beyond your roads, your interest, your water and what have you. These are mind problems.

This administration should come up with a Marshall Plan. They should open up these areas. It is access that these people want. It is the feeling that they are part of this country that is most important.

Today, we have built the Abuja Stadium. It's nice, it's wonderful. It was important to have budget for it. But I want similar urgency to attend to the problem of the Niger-Delta.

Q: The Bola Ige murder trial has suffered yet another set back with the sudden withdrawal of Justice Moshood Abass from the case, the third to do so. Is it that it is impossible to get justice in Nigeria or has our Judiciary suddenly lost its courage and independence?

A: Let me quickly say that Uncle Bola Ige was somebody I knew personally. I was very fond of him. It hurts me personally that the number one law official of this country cannot get justice even in death!

The Bola Ige saga goes beyond our Judiciary. We need to strengthen our democratic institutions. If you exercise power without responsibility, this is the sort of thing you get. We are telling the entire world that we do not support those institutions that make democracy work. Look at your law enforcement agencies, the police. They have simply not got their act together. Yet, the police needs to be strong for democracy to survive. The Judiciary should get out of the shadows.

See what is happening in Britain, in spite of the Prime Minster's desire not to set up judicial enquiry over the death Kelly Mass destruction investigation team, the moment life was involved, he was far away in the far East when he gave his word that an enquiry should be set up.

Some things go beyond you. Some things must happen whether or not the politicians like it.

So we must look beyond the Bola Ige murder trial. Those who enjoy power because they have won the ballot box must understand that beyond them, there is a notion that needs to be great. They must be selfless enough to think beyond today. If there is a murder, there is a murder! The circle of justice must be complete.