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There are law-reporting gaps in aviation and intellectual property, says Tunde-Olowu

Tunde-Olowu

Mr. Adedapo Tunde-Olowu is passionate about the development of Nigeria’s legal jurisprudence and is the head of the editorial team which has put together the Aviation Law Report in Nigeria (AVLRN), the first comprehensive law report of judgments of the Federal High Court, the Court of Appeal and the Supreme Court on aviation-related disputes. In this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, he shares his thoughts about the impact of COVID-19 on the legal profession and other topical issues in the industry.

In what ways, in your view would COVID-19 impact on the legal profession?
COVID-19 has literally brought life and business, as we know it to a grinding halt. The human race is battling to save itself from an existential threat of epic proportions. Various governments have taken drastic measures with a view to stanching the spread of the deadly virus. On March 29, 2020, in an address to the nation, President Muhammadu Buhari announced the cessation of all movements in Lagos State, Ogun State and the Federal Capital Territory (FCT), for an initial period of 14 days with effect from 11 pm on Monday, March 30, 2020.

The President also directed citizens in these areas to stay at home and directed that travels to the aforementioned states be postponed. He also directed that all businesses and offices within these locations should be closed during this period. As a result of the President’s announcement, many law firms have shut down their offices and are now working remotely. The courts are virtually shut. The pandemic and the resulting governmental response have adversely affected the operations of businesses. Production has been impacted adversely and supply chains and markets are in disarray. The global economy is receiving a severe battering. Lawyers are not immune to these effects. For some lawyers, this will result in unemployment. So, overall, COVID-19 is a monumental and unprecedented disruption to the global economy and we can only hope that this nightmare blows away soon.

Even though the government has ordered the gradual easing off of the lockdown, to what extent do you think the restoration of activities would prevent the economy from sliding into a recession, considering the damage already done to the economy by COVID-19?
Nigeria has a mono-economy, which is largely dependent on revenue realised from the sale of crude oil. The sharp fall in crude oil prices arising from the decline in demand by consumers, combined with the lockdown following the pandemic has significantly affected the country’s foreign exchange earnings. It is obvious that with declining revenues, the government will find it extremely difficult to finance the 2020 budget.

Government will have a huge challenge financing its capital projects and meeting its recurrent expenditure. The options open to government include digging into the already depleted excess crude account or borrowing from international or local lenders to meet its obligations.

In the past few weeks, we have seen the value of the Naira dip significantly against the Dollar. The consequence will be an increase in the rate of inflation. A recession is simply a period of negative economic growth for two consecutive quarters. The International Monetary Fund (IMF) has predicted that the Nigerian economy will shrink by 3.4 per cent this year.

Clearly, it will take more than just easing the lockdown to prevent a recession. Some economists have said that Nigeria sliding into a recession is not a question of if, but when. One can only hope that government will learn a valuable lesson from this development and diversify the economy. Government must begin to take a serious look at other sectors of the economy with a view to increasing its revenue base. Specifically, attention must be paid to manufacturing, agriculture, tourism, and solid minerals. In the 1960s, agriculture was Nigeria’s major revenue earner. The country used to produce and export agricultural products like palm oil, rubber, cocoa and groundnut. Nigeria once had a vibrant textile industry. All these have disappeared with the advent of crude oil. We must recognise that crude oil is non-renewable and will be exhausted one day. More importantly, with technological advancements in clean energy, reliance on fossil fuels will soon be a thing of the past.

Government must stop paying lip service to diversify the Nigerian economy, and the time to do that is now.

There are those who are protesting, though silently that government is supposed to sustain the lockdown until the COVID-19 threat is sufficiently curtailed. What is your view?
As we know, no cure has been found for COVID-19 as of today. We have seen governments in the countries hit by the pandemic take varying measures to curb the spread, including imposing lockdowns and banning large gatherings. These measures have greatly impacted lives, livelihoods and economies. As an example, the global economy is expected to shrink by three percent this year according to the International Monetary Fund (IMF) and millions of jobs have been lost due to the halt in business activities, which the lockdown essentially entails. As such, governments the world over has now begun to relax restrictions earlier imposed on movement, in the hope that some semblance of normalcy can be restored.

As it is unclear how long before we reach the end of the tunnel, it would be difficult for any government to continue to shut down its economy until all cases of COVID-19 are eliminated. So, the phased easing of the lockdown is government’s way of trying to ameliorate the shocks, which the economy has suffered because of the cessation of business activities, which sustain lives and livelihoods. It is a tough decision because the lifting of the lockdown could mean that more people may be exposed to the virus, and we could see a spike in the numbers. However, the government has managed to navigate through this challenge by putting in place clear guidelines and protocols to ensure physical distancing and personal hygiene are practised; and also restrict movement at various times of the day. The effect of these measures will be seen in the coming days or weeks, but it is my hope that if the protocols and guidelines are strictly observed, and if people only go out when they absolutely have to, we would not experience a second wave of the pandemic.

How would the closure of Nigeria’s domestic and international airports affect the aviation sector?
As you are aware, there is no domestic and international passenger traffic with the closure of the airports. Aircraft are lying idle on airport tarmacs. Pilots, cabin crews, ticketing, catering staff, air traffic controller have suddenly become redundant. Certainly, these disruptions will result in severe losses for domestic and international carriers. Globally, governments will also lose significant revenue that would have accrued from this critical sector. Expectedly, there will be direct and indirect job losses across the air transport value chain. There is a report in today’s edition of The Guardian that Nigeria may slide into a recession if this shutdown continues for another two months with a potential loss of “2.27 trillion worth of trade and significant unemployment across all sectors. The forecast for the global economy is grim.

The Federal Government had floated the idea of establishing a national carrier without any success. What are the benefits for Nigeria if it embarks on such a huge venture bearing in mind its present economic realities?
You will recall that in July 2018, the Federal Government unveiled “Nigeria Air” as the name of the proposed national carrier at the Farnborough International Public Air show in London. The initial take-off date of the airline was December 24, 2018. The airline was to be private sector-led and driven. I am in support of establishing a national carrier for many reasons.

Firstly, the establishment of a national airline will break the dominance of foreign airlines in Nigeria’s aviation sector and reduce capital flight. Secondly, a national airline is a very useful tool for boosting tourism. Thirdly, a national airline will generate employment for Nigerians. Fourthly, a national airline will enable Nigeria to fully utilise its bilateral air service agreements (BASA) with other countries. 

Fifthly, a national airline will inevitably lead to the setting up of aircraft maintenance, repair and overhaul (MRO) facilities within the country in Nigeria. An MRO will stem capital flight from MROs carried out abroad by local airlines. However, it is my view that government’s involvement in running an airline should be limited because government-run national carriers are inefficient and unsustainable. The reason is simple. Government does not have the resources, managerial and technical expertise to successfully run an airline. To attract investors and reputable technical partners, the government should provide an enabling environment for a private-sector driven aviation sector. This will ensure a steady flow of revenue for the government. Even if the government insists on participating in the establishment of a national carrier, its participation must be under a private-public partnership framework in which the government holds minority shares. Government must not be involved in running the business.

 
What are your thoughts about the future of the practice of aviation law in Nigeria?
According to a report by the International Air Transport Association (IATA), 7.2 billion passengers are expected to travel in 2035, a near doubling of the 3.8 billion air travelers in 2016. The prediction is based on a 3.7 percent annual Compound Average Growth Rate (CAGR) noted in the release of the latest update to the association’s 20-Year Air Passenger Forecast. Nigeria is a player in this global industry, and our population and market size place us in a vantage position. With the flurry of activities in this key sector comes a demand for the services of lawyers. Lawyers in this practice area will continue to play a key role in providing guidance to investors and government on the legal and regulatory aspects of aviation business.

Why have you chosen to publish Aviation Law Report of Nigeria (AVLRN)?
In the course of my over 30 years as a lawyer, I discovered gaps in law reporting of court decisions in certain practice areas, notable among which are aviation and intellectual property. This discovery and my passion to contribute my little quota to the development of Nigeria’s legal system motivated me to embark on this project, starting first with aviation. We are presently working on a report covering decisions in intellectual property. We decided to begin with aviation because it is one of the key sectors of the Nigerian economy. It is reported that the aviation sector contributes about USD10 billion to Nigeria’s GDP. Aviation provides an efficient and rapid worldwide transportation network, making it essential for global business. It generates economic growth, creates jobs, and facilitates international trade and tourism. As My Lord, the Honourable Chief Justice of Nigeria (CJN), Mr. Justice Tanko Muhammad, rightly stated in the foreword to the first edition of the AVLRN. “… the increase in air passenger and cargo traffic has resulted in a surge in claims arising from the carriage of passengers and cargo by air. It, therefore, becomes imperative to have the decisions of our courts in all aviation-related cases documented in a comprehensive law report to serve as a one-stop authoritative source for Nigerian case law on carriage of persons and goods by air.”

Why do you think AVLRN is unique bearing in mind the fact that there are several other law reports in circulation?
The AVLRN is remarkably different from the existing law reports. The format and print quality are unique. The report covers decisions of the superior courts of records in Nigeria (i.e. the Federal High Court, the Court of Appeal and the Supreme Court). This means we are able to provide all actors/stakeholders in the aviation sector (including the bar and the bench, academia and government agencies) with comprehensive and authoritative reference material. This makes the AVLRN unique. But beyond this, we are tech-minded and innovative. In this light, one of our plans is to roll out an e-version of the AVLRN in order to give our readers access to these decisions anywhere in the world.

Lawyers in Nigeria are increasingly becoming technological savvy. Do you intend to publish electronic versions of the report?
We understand the place of innovation in the growth of any human endeavor. In the wake of technological advancements, electronic reports have made complex and time-consuming research much simpler and time-efficient. Certainly, we will publish an online version so that users who prefer to use online libraries can have access to the electronic version of the reports.

Publishing is an expensive business in Nigeria. How do you intend to sustain this?
Our immediate goal is not profitability. In publishing, it takes some time to make a profit, particularly when you take into consideration the quality of the print of the report and the amount of time spent in producing it. Profit is a long-term goal. We plan to create awareness amongst the players in the aviation sector for whom the AVLRN is designed. Once this is achieved, we will continue to devise innovative strategies to sustain the interest of our readership. The AVLRN is different from most of the existing law reports. It contains decisions of all superior courts of records in Nigeria (i.e. the Federal High Court, the Court of Appeal and the Supreme Court. Readers will have the advantage of following the opinions of the various courts on different issues. In my view, the AVLRN is unique because it is comprehensive and authoritative reference material. We are grateful to the Honourable Chief Justice of the Federation, the President of the Court of Appeal and the Chief Judge of the Federal High Court, who graciously granted us permission to repost the judgments. Beyond this, we are technology-minded and innovative and one of our plans is to roll out an e-version of the AVLRN in order to give our readers access anywhere in the world. So, I would advise readers to watch this space! We plan to publish the AVLRN on a quarterly basis

What are your views on conflicting judgments of our courts? What are your suggestions for dealing with this issue?
We operate a common law system, where the principle of stare decisis applies. Stare decisis refers to the doctrine of precedent, which obliges judges to decide cases in accordance with previous decisions by a superior higher court in similar cases. The rationale for stare decisis is to ensure consistency and predictability in our jurisprudence. The task of a lawyer is made easier when the jurisprudence of the courts on a particular issue is consistent across appellate courts with co-ordinate jurisdiction. Similarly, the certainty of the law ensures that individuals and businesses can go about their endeavours knowing what to expect when disputes arises. Conflicting judgments present a challenge to the administration of justice because it introduces uncertainty. First, our courts must set up comprehensive databases of all their judgments.

For example, in the past, in Lagos State, we used to have the Cyclostyled Copies of the Judgment of the High Court (CCHCJ), which covered judgments of the High Court of Lagos State. We also used to have the Federal High Court of Nigeria Law Reports. With technological advancements, it is easier to set up these databases of judgments. With this in place, it will be easy for judges to leverage the technology necessary to keep track of new judgments. More importantly, lawyers are ministers in the temple of justice. Lawyers have a duty to the court and the administration of justice is paramount. A lawyer cannot under any circumstances misstate or misrepresent the law.  He has a duty to disclose all the decisions relevant to his case.  It does not matter if the decisions strengthen or weaken his case. It is irrelevant that opposing counsel is unaware of such decisions and has not relied on them. Judges are human and are neither omniscient nor infallible. Judges rely on the submissions of lawyers appearing before them.

What is your view about the adoption of the Stephen Oronsaye Report by the Federal Government, knowing full well that the report recommended merging of agencies and parastatals which may result in loss of jobs at these difficult times?
First, it is important to put things in their proper perspectives. The Stephen Oronsaye-led Presidential Committee on the Restructuring and Rationalization of Federal Government Parastatals, Commissions and Agencies was set up by President Goodluck Jonathan in 2011 to address the inefficiencies in the civil service sector and the humungous cost of running government parastatals, commissions and agencies (PCAs). This Committee identified over 500 PCAs, some if not most of which have overlapping functions and create little value to justify the cost of running them. We run an over-bloated public governance system, and this has resulted in an increase in the cost of governance.

To address this, the 800-page Steve Oronsaye Report, which was submitted in 2012, recommended the merger of 102 agencies and parastatals with overlapping functions and the scrapping of some others with no utilitarian value. Some may be wondering why the current administration of President Buhari has dug up the 8-year-old Steve Oronsaye Report at this time. The reason is not far-fetched. The economic crisis brought about by COVID-19 has seen government revenues dwindle to record lows, and it has become abundantly clear that our recurrent expenditure of about NGN 4.84 Trillion in the NGN 10.59 Trillion 2020 Budget is simply unsustainable. As such, implementing the recommendations of the Steve Oronsaye Report will enable the Federal Government maximise its revenue by doing away with inefficient and non-essential governmental bodies so that it can channel its limited resources to the critical ones. Unfortunately, the fall out of this exercise is structural unemployment/redundancies, as thousands of Nigerians will lose their livelihoods, at a time of extreme economic hardship. Expectedly, the labour unions have advised against the proposed exercise.

In my view, the recommendations in the Oronsaye Report are long overdue for implementation. However, given the timing of the proposed implementation, I would recommend that the Federal Government should apply caution to ensure the minimum possible impact on livelihoods. Government should where feasible, transfer suitably qualified affected members of staff to other sectors where their services will be needed. Where this is not feasible, safety nets should be put in place to cater for the welfare of workers who will lose their jobs during the process. For instance, the government may create a stimulus package or special intervention scheme that provides soft loans, grants, and conditional cash transfers to those affected. I understand that the Central Bank of Nigeria has already launched an N50 billion Targeted Credit Facility for households and SMEs. The government should consider the possibility of either expanding that scheme or creating another scheme to include a staff of parastatals, commissions and agencies, whose employment will be terminated. This measure would, of course, be an interim one, and last until the pandemic is behind us.

What do you think about the controversial infectious diseases bill before the House of Representatives?
The Infectious Disease Bill  (the Bill) has been the subject of controversy because of the perception of members of the public that it would bring about arbitrariness and fundamental rights breaches and cause hardship to Nigerians. This perception has been further strengthened by allegations to the effect that the Bill was going to be passed without any input from stakeholders. I have read the statement issued by Mr. Femi Gbajabiamila, the Speaker of the House of Representatives and I am glad that the Speaker has now stepped down the passage of the bill until a public hearing is conducted to give all stakeholders the opportunity to ventilate their concerns. This will make the law more robust and people-driven. Meanwhile, my understanding is that the bills seek, inter alia, to repeal the Quarantine Act of 1926 and further strengthen the capacity of the Nigeria Centre for Disease Control (NCDC) and other frontline bodies to prevent and deal with public health issues. I would recommend that the lawmakers take a holistic look at the extant legal regime on this issue, including the NCDC Act of 2018, to avoid creating conflicting legal provisions on similar issues.
 

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