I opposed Cabotage Act from the start …it is defective, ineffective

Mr. Louis Nnamdi Mbanefo, a maritime lawyer, is the President of the Nigerian Maritime Law Association. He is a graduate of Queens’ College, Cambridge and a Barrister of the Middle Temple; a Notary Public and Senior Advocate of Nigeria (SAN).
The son of late Sir Louis Mbanefo, a former Chief Justice of Eastern Nigeria and Justice of the Nigerian Supreme Court, Louis Nnamdi Mbanefo is one of the most respected lawyers in the country. He is the first African to be elected into the executive council of the International Maritime Law Association.

In this interview, he shares his thoughts on the Coastal and Inland Shipping Act otherwise known as the Cabotage Law and the contentious admiralty jurisdiction in the country. Excerpts.
Recently, the Minister of Transport, Senator Idris Umar, expressed displeasure over the unfavourable impact of the Cabotage Law on the businesses of indigenous ship owners in the country. What is your take on this issue?
Everybody in the maritime industry knows that I was opposed to the Cabotage Act right from the start. As far as I am concerned, the conceptualisation is wrong. The way the legislation was presented is totally wrong. You make a law stating that for vessels to operate on Nigerian waters, they have to be first of all made in Nigeria, owned by Nigerians and crewed by Nigerians; and you know that you don’t have such vessels. The number of indigenous vessels is just a mere handful, meaning that we just have to rely on foreigners to provide the necessary vessels.
So, what happens under this circumstance, you create a clause granting foreigners waiver to operate on Nigerian waters. If you make a law, which operation is carried out by waiver, then there is no point making such a law. Until you have enough capacity; until you have enough people with vessels that you need to protect, there is no need putting stringent conditions that are unrealistic with the current situation here. How many vessels are manufactured in Nigeria? So, if you don’t have the capacity, why making a law preventing others from doing it? That has been my objection from the beginning.
Are you then calling for a reform of the Act?
Well, if you have something that is defective from the start, I don’t know what kind of reform you can make to it. The concept of the Cabotage is a good one so far you want local industries to flourish. But, you have to go about it in a right way. You have to make the right kind of legislation, not to put up a policy statement on something that we should aim towards over a period of years, but you turn around to put it up as law, it would not be effective. So that is my attitude to the Cabotage law. It has not worked and everybody knows that. The Act is set out to encourage Nigerians to own vessels. It is also aimed at putting enabling environment for Nigerians to operate in the system and setting out the motion for Nigeria Maritime Administration and Safety Agency (NIMASA) to lend money to people to buy ships. That is very commendable. But again, it requires very careful modification.
The Nigerian Maritime Law Association boasts of 10 Senior Advocates of Nigeria, as well as senior lawyers who are experienced in maritime practice. Yet many of them are not willing to go to the Bench to enrich the quality of judgments from this sector. How do you see this trend?
Well, there are two reasons why senior and experienced lawyers don’t go on the Bench. One is that the Bench is not everybody’s cup of tea. Not everybody enjoys the life of a judge. It is meant for a special kind of people who love details, who love reading and who have the patience to sit down for hours listening to arguments, not everybody has that capacity. I wouldn’t have enjoyed that. But, more important, many people have financial reasons for not accepting position on the Bench. In my case for example, way back in 1984 the late Justice Fred Anyaegbunam was eager to recommend me for the Bench but I declined on the ground that my children were about to school in England. So there is no way I could afford that with the salary of a judge, therefore I declined.
What I think should have happened is that when the position of Senior Advocate of Nigeria was introduced, they should have made a stipulation that once you have been a senior advocate for 10 years, you cannot refuse an appointment to the Bench. In England, 95 percent of High Court Judges were Queen’s Counsel before they went on Bench and that is how they get the best quality on that Bench. But, in Nigeria, once you appointed someone as a senior advocate, he doesn’t feel obliged to go on the Bench at all. I think this is something that should have been considered, that you become a senior advocate on the condition that you will agree eventually to go on the Bench. Fortunately, these days the age of appointing senior advocates is getting younger and younger. The time I became a senior advocate, some 26 years ago, I was in my early forties, then the average age of a senior advocate was about 60 and above. But, now you have people of 35 being appointed as senior advocates, so if they made a stipulation that if you’re appointed at 35 years of age, after 10 years you go on the Bench, I think that will be a good step forward.

Do you think the current remuneration of judges is enough to attract senior lawyers to the Bench?
It is not so much a matter of remuneration, the salaries of judges cannot be compared with the mega salaries that some senior advocates command. But, if you made a condition that they will only become senior advocates on the condition that they become judges eventually, they then have no choice. They have 10 years to make their money and thereafter go on the Bench.

 

Should the Federal High Court continue to exercise exclusive admiralty jurisdiction?

The original idea in setting up the Federal High Court was to create a court with jurisdiction in specialist areas of law such as taxation, companies, banking and admiralty (shipping). The idea was good but gave rise to unnecessary litigation of the preliminary issue of the dividing line between the jurisdiction of the State High Court and the Federal High Court.
If a case was brought in the wrong court, it was bound to fail. In an attempt to stem the tide of cases which were being frustrated, the Supreme Court in the Bronik Motors’s case held that the State High Courts had a concurrent jurisdiction with the Federal High Court. Unfortunately, the problem has continued to the present day. Cases are still being challenged on jurisdictional grounds. I am aware that a number of senior judges opposed the setting up of the Federal High Court at the time.
In England, they avoided the problem by creating specialist divisions within the High Court of Justice. Shipping disputes would be adjudicated in the Commercial Court. However, though there is no doubt that a specialist court for shipping cases is necessary, I am not convinced that the way the Federal High Court operates is ideal. Any judge of the Federal High Court can be called upon to adjudicate admiralty matters and the vast majority of them come to the bench with no prior experience of that very complex area of law.
By way of contrast, those who adjudicate shipping cases in England are appointed from a few sets of Chambers. The majority start off with first class degrees from Oxbridge and then practice intensively in the field for 20 or 30 years before they are elevated to the High Court Bench. They can see their way through complicated documents and transactions in minutes and often deliver judgments off the cuff. When Justice Babatunde Belgore was Chief Judge, he appointed Justices Emmanuel Sanyaolu and Rose Ukeje as specialist admiralty judges. They made very useful contributions to the development of admiralty litigation.

 

How knowledgeable are Nigerian judges in handling maritime cases?

I believe the quality has, with some exceptions declined very considerably over the years. In the 1970s judges realised that this was a new area of law which demanded serious concentration. Before the jurisdiction of the Federal High Court was extended beyond all measures in 1990, judges had time to write well-researched judgments. In a number of cases I appeared in, judgment was delivered within three months of the filing of the Writ of Summons.
Going down memory lane, I would mention specifically Justice Adolphus Karibite whose judgments were particularly well-researched and erudite. His elevation to the Supreme Court just as we were beginning to appreciate his scholarship was a blow. Justice Belgore also was painstaking and wrote a number of pioneering judgments, courageously delving into uncharted territory.
In the Lagos Division of the Court of Appeal in the 1980s, where I appeared often, there were a number of brilliant judges who wrote very sound judgments. One of the judgments of Justice Eso was favourably reviewed in the Harvard Law Journal – the only Nigerian judgment I am aware of which has been so reviewed.

 

In all areas of legal practice, you have reached the peak of your career, what will you say is the secret of your success?
Point number one is the need to keep your faith in God because briefs come from God. Point number two, when these briefs come, you have to work extremely hard and make sure you do your best. This is because most of your practice depends on recommendations. It will get to a stage when you will have enough contacts and you sit in your office and cases will be tumbling in, but it doesn’t happen automatically. Young ones these day tends to be impatience, they expect success to happen overnight.
Aside from your law practice, what do you do for leisure?
Playing piano has been my hobby from childhood and besides my law practice, I maintain my keen interest in music. I have been performing in this country as a pianist since I came back, some 40 years ago. My biggest contribution was in the formation of the Musical Society of Nigeria, MUSON. I was one of the founders, together with Mr. Akintola Williams, Chief Ayo Rosiji, Chief Rasheed Gbadamosi and others. I was chairman of MUSON for six years, before then I was vice- chairman for eight years but I am now back as vice- chairman to Mr. Akintola Williams. MUSON is there to promote the interest of Nigerians in classical music and that has been my passion. I have performed in over 100 concerts and the biggest focus now is on the school of music which now awards diploma in music. Some of our graduates are earning accolades in Europe and America.

 



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