Dr Biodun Layonu is a Senior Advocate of Nigeria and a Fellow of the Chartered Institute of Arbitrators of Nigeria. The former President of the Business Recovery & Insolvency Practitioners of Nigeria (BRIPAN) spoke on solvency practice, legal framework needed to overcome recession and the CJN’s appointment in acting capacity. Here is an interview he had

“The prevailing impression is that insolvency law in Nigeria is comatose due to lack of reforms. What is the true status of the law in the country?
I won’t say comatose but outdated. We have not brought our laws up to date to be able to meet modern challenges especially when we compare ourselves to other jurisdictions. We are long overdue for reform. But currently that is already being done. There are bills that are going through the process of becoming laws which the insolvency regime will be modified, modernised and updated. As it is, we have an insolvency regime in place that we are using, and though it is outdated, it is not comatose.
Over four years ago, Business Recovery and Insolvency Practitioners Association of Nigeria (BRIPAN) produced a draft General Insolvency Bill. What happened to it and what is the way forward?
We all know that the best way of accelerating a bill to become a law an act of the National Assembly is for it to be an executive bill. We’ve been on it for quite a while and at a time towards the end of the 7th Assembly, it was being considered but it couldn’t go through, hence we have to start the process again at the resumption of this new assembly. But very soon, it will be done as this is part of the body of reforms being carried out. It is not only in the insolvency field but in several other fields that have to do with business and commerce. We believe very soon, we will have it.
Are there legal frameworks or policies that should be put in place to get the country out of this economic recession?
There is what we call the ease of doing business. In the ranking of ease of doing business, Nigeria ranks far below even in Africa. This is what we need to work on because we keep saying we want foreign and domestic investors. It is not just in terms of infrastructure but also in terms of the legal frame work. Talk about enforcement of contracts, arbitration, incorporation of companies, getting approvals and licensing issues; all these are very difficult to achieve in Nigeria. All the unnecessary impediments should be removed. Not that impunity should be encouraged, but some of the policies should be relaxed. When you make a procedure too difficult legally, it breeds corruption and abuse of power.
 Do you agree with the call for special courts/tribunals to attend specifically to insolvency matters just as is obtainable in some other places?
I have never subscribed to the idea of special courts. Some are calling for special courts for insolvency, banking, etc. Recently, I heard Prof. Sagay, SAN, the chairman of the Presidential Advisory Committee Against Corruption (PACAC) also calling for special courts to try corruption cases. We don’t need all these. How many special courts are we going to have? What is needed is to correct the system in such a way that the wheels of justice will turn quicker. If we don’t do that, even if we set up special courts for every area we will still be getting the same results. The courts as we have them today, if they are given the necessary resources, they will perform creditably.
One of the factors debilitating against the system is this issue of taking down proceedings in long hand judges. Lagos State, a couple of years back introduced the electronic or stenographic recording into its judicial system and we were all happy at the improvement recorded through this. The Federal High Court also followed. But go around the courts today, and we are back to where we were. The major challenge of our court system is that of infrastructure. So how does creation of special courts address this?
Why is it proving difficult for Nigeria’s court system to move away from this long hand style of taking proceedings?
Sometimes I think some people feel insecure that with electronic recording or stenographic system, virtually everything will be captured. Maybe these people think it is too revealing because no one can say it is the cost involved. It is more expensive for judges to have to write in long hand than to have electronic recording or stenographers in court. If it is because of power, most courts now have inverters that can ensure that there won’t be stoppage when there is a power outage.
 Arbitration and Alternative Dispute Resolution (ADR) has long been given constitutional backing as a means of settling disputes, yet courts are still littered with cases ADR could have handled. What do you think is responsible for this?
ADR as opposed to arbitration is relatively new in Nigeria. Some have argued that it is because we Africans sometimes don’t appreciate what we have because essentially and traditionally, ADR is our own but the Western society took it from us, furnished it and brought it back and we are now lapping it up. If anyone should be at the forefront of ADR, it should be us Africans. In the case of arbitration, sometimes, it is more expensive than litigation because as parties you have to pay for everything. Mediation and ADR should be encouraged more than arbitration.
The new Chief Justice of Nigeria was appointed in acting capacity and some are of the opinion that this is a coup against the judiciary as the Nigerian Judicial Council (NJC) has put everything in place for his substantive appointment. What is your view?
Personally, I do not like to speculate and I do not want to read any meaning where I do not have any evidence of any ulterior motive in the appointment of the CJN in acting capacity. Looking at it from what is legal or constitutional; we know that it is the responsibility of the president to appoint the CJN following the recommendation of the NJC. Since NJC has made its recommendation, it is the prerogative of the president to decide when he wishes to formalise that appointment whether in an acting or in full capacity before the appointee will go for confirmation before the Senate. Considering the present scenario, I do not think there is anything irregular playing out.
Legally, there is nothing wrong with the appointment in an acting capacity. The president can, within the period allowed, decide to appoint the CJN in full capacity and the rest of the process will follow. One thing is clear; there is no way any appointment of the CJN would be made without the active involvement of the NJC; it is a constitutional issue. Therefore, I don’t think there is any need for speculation. The fact that the CJN was appointed in an acting capacity does not stop him from exercising fully his constitutional and other statutory powers.
Recently, former President Olusegun Obasanjo said the crackdown on some judges the Department of State Service (DSS) is the beginning of the process to save the judiciary. What is your take on this?
I do not agree that saving the judiciary is raiding the abodes of judges. I think the vast majority of Nigerians, not just in the legal profession, have condemned the conduct of the DSS. It is my view, as it has always been the view of the Nigerian Bar Association (NBA) that what was done was unconstitutional, unlawful and irregular. However, I also agree that the judiciary is part of a sick Nigerian state. There is a lot that is wrong and to be corrected, and the judiciary too is a part of the country. But I believe, given the chance and opportunity, the judiciary will engage in self-cleansing. When I was called to the Bar in 1982, things were certainly not like this. There has been a degeneration over time. Specifically, my view is that the approach engaged the DSS was wrong, but the war against corruption in the judiciary is on track.”