A couple of years ago, in Lagos, Nigeria, there were two families – the Sanyas and the Okonkwos, who lived in the same neighbourhood.
Although both Alex and Yetunde Sanya held their loved ones in high regard, their approach to estate planning differed significantly, resulting in vastly different outcomes.
As a young family full of dreams and aspirations, they acknowledged the significance of estate planning but failed to prioritise it.
Like many people, they believed they were too young or did not have enough assets to be concerned about it.
One fateful day, tragedy struck. Alex passed away in a car accident.
His death left Yetunde and their children distraught. They also had to deal with a financial mess because Alex had no will.
Essentially, there were no clear instructions on how to manage his assets or provide for his family.
Consequently, settling his estate became a long and complex process, causing undue stress and family disputes.
On the contrary, the Okonkwos, their neighbours, opted for a different approach. Emeka and Amaka were diligent with their estate planning as they knew life was unpredictable and wanted to secure their children’s future.
Emeka often sat with Amaka to review their estate plan, discussing his will, their children’s trust, and their respective healthcare directives.
During the planning process, they made sure to consider unforeseen circumstances, chose guardians for their underage children, and designated beneficiaries for their assets.
They also consulted with experts to determine any potential tax obligations and ways to reduce them to safeguard their children’s inheritance.
After several years, Emeka passed away. Although his family was devastated by his death, they found solace in the fact that Emeka’s wishes were well-defined and accurately recorded.
Even though it was difficult to bear his loss, the estate planning process gave them the gift of security and readiness. Amaka was able to access his assets and continue to support their children’s education and overall welfare.
The story of the Sanyas and the Okonkwos underscores the importance of estate planning for every family, regardless of age or wealth.
The truth is estate planning is not just for the wealthy or elderly. It is a crucial process that ensures your wishes are honoured, and your loved ones cared for when you are no longer around.
Whether you have substantial assets or not, estate planning provides a roadmap for your asset distribution.
In this article, we will explore the essential aspects of estate planning, from wills and trusts to the importance of reviewing and updating your plan regularly.
Imagine a scenario where someone can no longer make decisions for themselves or pass away unexpectedly like Alex. Estate planning is the proactive measure that prepares them for such circumstances.
It involves creating legal documents that dictate how your assets should be managed and distributed, who will make decisions on your behalf, and your healthcare directives.
No matter your age or financial status, estate planning gives you peace of mind, knowing that your loved ones will be cared for according to your wishes. It prevents unnecessary family conflicts, reduces the burden of legal procedures, and ensures your legacy endures.
At the core of any estate plan is a will. It is a legal document that outlines how your assets should be distributed after your death. It also allows you to appoint guardians for minor children and an executor to oversee the process.
A trust, on the other hand, is a versatile tool that can serve various purposes, including avoiding probate, protecting assets, and providing for beneficiaries with special needs. Trusts can be revocable or irrevocable, depending on your goals and preferences.
Additionally, having advanced directives, such as a healthcare power of attorney, allows you to maintain control over medical decisions even when you are unable to communicate your preferences.
Let’s discuss beneficiaries – these are the people or organizations who will receive your assets after you pass away.
So, it is critical to select your beneficiaries carefully and regularly review these designations to ensure they align with your current wishes.
When planning your beneficiaries, it’s important to take their ages and situations into account. For example, if you have minor children, it would be wise to establish a trust or appoint a reliable guardian.
Additionally, if you’re naming adult beneficiaries, you should consider their financial experience and whether they would benefit from asset protection through a trust.
Another key aspect of your estate plan is taxes. Without proper advice, taxes can significantly impact the value of your estate, potentially leaving your heirs with a smaller inheritance.
So, it is important to understand the relevant tax laws and employ appropriate strategies to minimise tax liabilities.
For instance, in most jurisdictions, when you gift assets during your lifetime or utilise some types of trusts, you can take advantage of some tax exemptions and potentially reduce estate taxes.
Finally, we all know life is unpredictable, and our circumstances may change. Hence, major life events such as marriage, divorce, the birth of children, or the acquisition of significant assets should prompt you to revisit your estate plan.
Failing to do this can lead to unintended consequences, such as excluding new family members or leaving out critical assets.
Indeed, reviewing your plan ensures that it remains current and effective. Essentially, as your life evolves, so should your estate plan.
It is recommended that you review your plan every few years or after significant life events to make sure that it is up-to-date and reflects your current wishes.
In summary, estate planning is a critical step in ensuring the safety of your loved ones and the continuation of your legacy.
With wills, trusts, and advanced health care directives, choosing beneficiaries wisely, minimising tax liabilities, and regularly updating your plan, you can rest assured that your wishes will be honoured when the time comes.
Remember, it is never too early to start, but it can be too late if you procrastinate. Take control of your future today by taking the first step towards creating your estate plan.
• Seun-Oloruntuga, a lawyer who specialises in estate planning, is also a career and executive coach. She can be reached at bso@morecraftlaw.com
The Federal Government faces significant financial challenges and actively seeks revenue sources to fund operations, address outstanding loans, invest in infrastructure, and boost the economy.
The 2024 federal budget has a N9.18 trillion deficit, adding to the N87.38 trillion (US$113.42 billion) debt burden as of Q2 2023.
The government’s options include further borrowing – it plans to borrow N7.81 trillion in 2024 and N26.42 trillion between 2023-2026.
Several new taxes have also been introduced on items like alcoholic beverages, imported drinks, vehicles, and plastics, alongside efforts to improve existing tax collection.
However, one revenue option yet to be fully explored is asset monetisation.
Understanding asset monetisation
Asset monetisation refers to generating new government revenue by unlocking the economic potential of currently unutilised or underutilised public assets.
Public assets include properties owned by government entities, such as roads, airports, railways, stations, pipelines, mobile towers, transmission lines, and unused land.
Asset monetisation offers public infrastructure access to private-sector investors through structured agreements.
Asset monetisation has two key goals: First, it unlocks value from existing public infrastructure investments. Second, it utilises private-sector productivity.
Asset monetisation is not a new revenue generation strategy.
Several countries including the United Kingdom, the United States, Australia, Brazil, France, India, and China have successfully employed asset monetization to generate revenue and meet their financial obligations.
Nigeria’s vast untapped public assets
Nigeria is estimated to have around 50,000 abandoned federal projects valued at over N10 trillion. This is in addition to the federal government’s landed property across the country, estimated modestly at about N5 trillion.
The Ministry of Finance Incorporated (MOFI), a Federal Government investment agency, holds N30 trillion worth of Federal Government assets, even though some studies show that it could be more.
The Federal Secretariat in Ikoyi Lagos alone is estimated to be worth at least N120 billion and has been abandoned for over 40 years. Appropriate policy and legislative frameworks must be developed to turn these national assets into money-spinners.
Strategic approach to asset monetisation
To unlock the value of Nigeria’s vast dormant assets, the Federal Government should take a strategic approach. Firstly, it should clearly articulate its asset monetization goals and objectives. This will shape strategy and help identify which assets to focus on
Secondly, it should thoroughly catalogue and assess all assets to understand their potential value.
Accurate asset data will reveal possibilities, so the Bureau of Public Enterprises (BPE), Ministry of Finance (MOFI), and Infrastructure Concession Regulatory Commission (ICRC) must create a comprehensive federal asset registry.
Thirdly, the government should identify “low-hanging fruits” – assets that can be monetised through simple operational improvements without changing ownership. Examples include implementing performance metrics for management, adjusting pricing models, cutting unnecessary costs, and optimising capital expenditure.
Additionally, business models could be reinvented to generate new revenue streams, such as a state retailer shifting strategy to become a wholesaler, franchisor, or licensor.
Ownership can also be restructured through partial privatisation, strategic sales to partners, public listing, or long-term leases. Signalling privatisation intent alone can unlock value.
Finally, the execution must be prudent and sensitive, as reforms may face opposition from stakeholders like unions, local interests, or directors.
Hence, careful change management is essential. Legal and regulatory barriers may need addressing, too.
Environmental, pension and other legacy liabilities should also be handled appropriately.
Models of asset monetisation
There are two main types of asset monetization: Toll Operate Transfer (TOT) and Infrastructure Investment Trusts (InvITs).
TOT is a contract between a public authority and a private partner, usually via PPP concessions.
TOT involves transferring assets like toll roads to a private investor for a designated time frame in exchange for an upfront payment.
The investor assumes full operational control and is responsible for toll collection, maintenance, etc.
They bear all financial risks and rewards as if they owned the asset.
Brazil has utilised TOT for major toll road concessions, including a $9 billion 30-year commercial concession of the Rio de Janeiro-São Paulo Dutra toll road in 2021. This provided a significant revenue windfall.
InvITs is a business trust registered with regulators that owns, operates and manages revenue-generating infrastructure assets.
These assets generate cash flows that are periodically distributed to unit holders. InvITs are hybrids of debt and equity – they provide stable, predictable, and relatively low-risk cash flows like debt alongside growth potential like equity since returns aren’t fixed.
India pioneered the use of InvITs. Successful Indian InvITs include India Grid Trust (electric power transmission assets), IRB InvIT Fund (toll road assets), Power Grid Infrastructure Investment Trust (power transmission networks), and Oriental InfraTrust (road projects).
There are also other structured models like bonds, concessions and outright sales.
Friendly investment framework, institutional support
Aside from selecting appropriate monetisation models, successful asset monetisation depends on an investment framework offering clarity and predictability to investors.
This includes safeguards against expropriation plus provisions for dispute resolution and contract negotiation.
A supportive institutional environment is also necessary, with adequately staffed PPP units, procurement bodies, and privatisation authorities with well-defined responsibilities and coordination mechanisms to manage complex projects.
Conclusion
Nigeria has a prime opportunity to address its revenue shortfalls and infrastructure needs by unlocking the immense potential of its unused and underutilised assets, worth over $1 trillion.
Asset monetisation, done judiciously, attracts private investment to upgrade public assets and services while generating substantial income.
However, success requires selecting suitable models aligned to asset characteristics and policy goals, whether TOT, InvITs, concessions or other structures.
Effective monetisation also relies on fair partnerships between the state, private sector and other stakeholders to diligently execute complex, multi-year deals.
Furthermore, Nigeria must build investor confidence by establishing a clear, consistent, supportive regulatory system with safeguards and transparency.
• Okeke (Associate Partner) and Odunze (Associate) are with Olisa Agbakoba Legal (OAL).
A businesswoman, Sulihat Temitope Kasumu, has filed a suit at the Lagos State High Court in Ikeja over alleged trespass on her land at Iyana-Ipaja in Alimosho Local Government Area of Lagos State.
The suit is numbered ID/14687LMW/24.
The plaintiff said the land, measuring 3140.179 square meters, was sold to her by the late Jimoh Ishola Ejigbadero’s family.
According to her, the family’s title was registered as 23-23-1476 at the Lands Registry in Ikeja.
Madam Kasumu contended that the Ejigbadero family had always been in possession of land, having derived title from the Olubunmi family.
The plaintiff said a false allegation of malicious damage was made against her at the Gender Section of the Force Criminal Investigation Department (FCID), Abuja.
The police subsequently invited her and Alhaji Abiodun Jimoh Ishola, who is of the Ejigbadero family.
Madam Kasumu has now approached the court to decide the ownership and title of the land.
Alhaji Ishola said there had been many judicial confirmations of his family’s title to the land.
He claimed some land speculators have ganged up against his family.
However, he believes they would fail because his family title is duly registered with the Lagos State Government.
Counsel for Alhaji Ishola, Chief Adekunle Funmilayo, urged the Inspector-General of Police (IGP), Kayode Egbetokun, to caution FCID operatives over their alleged unholy fraternity with suspected land speculators.
The lawyer frowned at what he called “excessive interference” of the operatives on issues bordering purely on land matters and stressed that the IGP had often warned against such.
According to the lawyer, operatives of the Gender Section of FCID have turned themselves into an instrument of oppression and intimidation.
Chief Funmilayo claimed there was an attempt to force his client to part with 1,060 acres of land in Alimosho, which is his inheritance.
A woman, Folashade Olalude, has been arraigned by the police for alleged cyber-bullying and threatening to kill a businessman, Alhaji Lawal Abdullateef.
Olalude was arraigned before Chief Magistrate O. A Fowowe-Ersiafe, of Ebute-Metta, Chief Magistrate Court, on a four-count charge bordering on conspiracy, intent to steal, cyber-bullying and for threatening to kill the businessman.
The prosecutor, Henry Obiazi, told the court that the defendant and others now at large, between 2015 and 2022, conspired among themselves to commit the alleged offences.
He said Olalude, with an intent to steal, demanded over N5 million, at different occasions from Alhaji Lawal Abdullateef, with a threat to blackmail and defame him and his wife, Lizzy Anjorin, on the internet as a fraudster or using bloggers websites, if he failed to pay the money.
The prosecutor also told the court that the defendant, sometimes in October 2023, wrote a letter to the businessman, threatening to kill him.
He also told the court that the defendant equally sent the same threat message to Alhaji Lawal Abdullateef’s phone.
He told the court that offences committed by the defendant, contravened sections 411, 301 and 232 of the Criminal Law of Lagos State, 2015, and punishable under the same laws.
The defendant however, pleaded not guilty.
Following her not guilty plea, the prosecutor urged the court to remand her in the custody of the Nigerian Correctional Services (NCoS), pending the determination of the charges against her.
Defence counsel, S. Ijenkeri, pleaded with the court to admit the defendant to bail in the most liberal terms, saying that the charges against her are bailable ones.
Chief Magistrate Fowowe-Ersiafe, in her ruling, admitted the defendant to bail in the sum of N200, 000, 00 with two sureties in like sum.
The Chief Magistrate, however, ordered that the defendant be remanded at the Kirikiri female section of the NCoS’ facility, pending when she will meet the bail conditions.
Chief Magistrate Fowowe-Ersiafe subsequently adjourned the matter to March 14, for trial.
One of the charges against the defendant read: “That you, Folashade Olalude ‘F’ and others still at large, between 2015 and 2022 in Lagos within the jurisdiction of this Honourable Court did conspire amongst yourselves to commit felony to wit; demanding property with menace with intent to steal and thereby committed an offence punishable under Section 411 of the criminal law of Lagos State, 2015.
Another stated: “That you Folashade Olalude ‘F’ and others still at large within the same date, place and in the aforementioned magisterial district, did with intent to steal, demands the sum of N5milliomn at different occasions from One Alhaji Lawal Abdullateef ‘m’ with threats of injury or publishing his name on the internet as a fraudster or using bloggers websites to defame his character and reputations of his wife Lizzy Anjorin if the demands are not met and thereby committed an offence punishable under section 301 of the criminal law of Lagos state, 2015.
Dr. Chris Osoba Ebare is the first maritime lawyer in Nigeria to become a chartered shipbroker. A two-time Commissioner for Budget, Planning and Economic Development and Commissioner for Energy and Water Resources in Edo State, he has co-chaired various maritime meetings and conferences at the International Maritime Organisation (IMO) and International Bar Association (IBA). He is the Chairman of the Institute of Chartered Shipbrokers, Nigeria Chapter and former Vice Chairman West Africa branch in Accra, Ghana. In this interview with Deputy News Editor JOSEPH JIBUEZE, he stressed the need to amend cabotage laws and others to unleash the trapped huge revenue in the Maritime sector.
What legal reforms are needed to unlock the maritime sector’s full potential?
There are certain laws the Honourable Minister of Marine and Blue Economy must ask the National Assembly to amend. First is the cabotage law, particularly Section 1 (1-8), Section 2 (1-3) and sections 27 & 28 of the Cabotage Act 2003 and other provisions that hamper revenue generation, flexibility and innovation of the Nigerian shipping industry. Foreign investors and partners, as well as international corporate shipbroking firms such as Clarkson, Simpson Spence Young, Howe Robinson Partners, shipbrokers, charterers, financial institutions and other maritime services providers, have not seen the motivation and incentives to play a big role in the Nigerian shipping industry.
What steps should be taken now?
The government should as a matter of urgency liberalise Nigeria’s shipping industry by amending some sections in the Cabotage Act. This will attract more patronage and revenue. I advised Mr. President before he was sworn in in one of my interviews in your newspaper that experts should be appointed into the maritime sector. The resources in the sector are potentially billions of dollars, almost equal to that of the oil industry. We should look beyond the likes of the Nigerian Maritime Administration and Safety Agency (NIMASA), Nigerian Ports Authority (NPA) and Shippers Council. The Minister of Marine and Blue Economy and Mr. President should focus on the maritime sector for the much-needed revenue by injecting enough experts into the sectors like other countries. Presently, enough is not being done.
Are you saying the Federal Ministry of Marine and Blue Economy should not be anything goes?
Yes. The Honourable Minister needs to deploy more professionals to NIMASA, Shippers Council, National Inland Waterways Authority (NIWA) and NPA to make his job less stressful and give him the needed policy formulation and expert advice on a day-to-day basis. For instance, in maritime, nations such as Singapore, Norway, Netherlands, China, United Kingdom, Cyprus, USA even Ghana which are making it big and are successful, their key maritime sectors are headed by professional chartered shipbrokers. I challenge you to Google and see for yourself. Even in the International Maritime Organisation (IMO), if you are not a core shipping professional, you can’t be accorded all necessary status. As of today, Nigeria has been struggling to be in category C in the IMO rating. To date, we have not gotten there. We are ready to assist the Honourable Minister of Marine and Blue Economy. We are ready to talk to our members in IMO and other countries to vote for Nigeria when the time comes. These are people we meet all the time. Presently, we only have two professional shipbrokers as NIMASA staff members, one in the Shippers Council and none in NPA. Go to Ghana, Kenya, South Africa, the U.S.A. and other maritime countries, their maritime agencies and strategic sectors are headed by professional chartered shipbrokers.
What changes in trade policy do you think are needed?
Cost insurance and freight (CIF) is one of the international trade terms known as Incoterms. It represents a contract where the seller is 100 per cent in charge of the sales of her crude oil. The Federal Ministry of Marine and Blue Economy is going to generate substantial revenue if the Federal Government can amend the trade term from Free on Board (FOB) to CIF as it is practised in other oil-producing nations through international sales contract of crude oil, liquefied natural gas (LNG) and other goods. This will have a positive impact on the Federal Government revenue earnings and Gross Domestic Product (GDP). The Federal Government is presently losing a lot of revenue in the shipping sector to the buyers of Nigerian crude oil. OPEC nations such as Saudi Arabia, Kuwait, Iran, Libya, Angola etc operate CIF. This will create job opportunities for our insurance companies that will insure both the crude oil product and the vessel. I advise the Hon. Minister to tell the National Assembly to amend the law urgently.
Can you tell us other opportunities in the blue economy from where the Federal Government can generate revenue?
The structure of the marine and blue economy has changed over two decades ago in other countries such as Norway, Denmark, the Netherlands, the United Kingdom, Greece, Cyprus, Malta, Estonia, the United States of America, the Republic of China, Singapore and now Nigeria. Last year, it was welcomed to the marine & blue economy. I believe we can, with better innovation, commitment, transformation, leadership and best practices, do it better and generate greater revenue and wealth for Nigerians through the Ministry of Marine and Blue Economy in the following areas:
Shipping development
Our shipping development can be strengthened by relaxing some of the rules and laws to attract both local and foreign vessels and investors.I don’t see why Nigerians must take their vessels to Liberia to register and fly the Liberian flag. Our Registrar’s Office should be active so that we can generate more revenue. The shipping department should be able to measure up to international standards since it’s the first point of call by any foreign investor and local investors for appropriate information.
Transshipment
Transhipment allows for the efficient transfer of cargo from large vessels to smaller ones on the high sea with stipulated charges paid to the ports and it also enables cargo to get to their destinations on time and cost-effectively. It also reduces the problems of roll-over at transhipment i.e., the delay due to the mother vessel calling the hub Port with no space is minimised. The Federal Ministry of Marine and Blue Economy should look into providing transshipment ports within Apapa, Lekki deep sea port, Port-Harcourt, Warri, etc. This will contribute sufficiently to the revenue generation.
Our seaports can generate the much-needed billions of dollars if digitalised adequately in all aspects. Decarbonisation in the operation will improve efficiency; reduce costs, increase transparency, better cost allocation, customer experience, and real tracking and the ability to access information and services online. I don’t need to go to the port or spend days to clear my goods. I should do it right in my comfort zone and get my goods delivered to me. If it can work in other countries, it can work here.
Floating dry docking
The Federal Government can generate much revenue from floating dry dock marine facilities if it is well maintained and managed. This will have significant economic benefits for the Nigerian shipping industry, Africa and the world in general. I know NIMASA is on this project. I pray it is well-managed and sustained.
Fisheries
This is one of the most lucrative and money-spinning sectors.The ministry can develop and open an export desk on this to enhance foreign exchange earnings. For example, countries like Norway, Bangladesh, China, the United Kingdom, South Korea etc earn a lot of foreign revenue from fisheries. This will also create employment opportunities, increase income for fish farmers and promote agricultural technologies in Nigeria.
Marine tourism
Marine tourism is another hidden sector where the Marine and Blue Economy ministry can generate both local and foreign currency, if well developed and managed. For example, much revenue can be realised from Snake Island, Takwa Bay; Badagry, Elegushi and Eleko beaches, etc like Mexico, Miami and Brazilian beaches, etc.
Renewable wind energy
This sector of the marine and blue economy will have a positive impact on economic growth as the development will strengthen the energy system and lead to a decrease in the dependence on hydrocarbons. It will also reduce harmful emissions. The ministry can generate a lot of revenue from it.
The Supreme Court was unusually busy last week when it heard 21 governorship election appeals and delivered 10 judgments. Assistant Editor ERIC IKHILAE relives the proceedings.
Last week was arguably one of the busiest weeks at the Supreme Court in recent times.
Within the first four days, the court heard 21 appeals the outcome of the last governorship election held in nine states on March 18, 2023.
The states are Ebonyi, with three appeals; Benue, with two; Plateau, with three and Delta with three.
Also, Adamawa had two; Abia had two; Ogun had two; Cross River had one; while Akwa Ibom had three.
On Friday, the apex court did what many lawyers, who were present, described as unusual when it delivered 10 judgments.
The court’s session on that day was also unusual because eight Justices sat at the same time, with each delivering judgments on an appeal relating to each of the eight states.
Monday
The court commenced the week by hearing five appeals concerning Ebonyi and Benue states.
The Supreme Court first dismissed two appeals by the Peoples Democratic Party (PDP) governorship candidate in Benue State, Uba Titus, seeking to void the victory of Governor Hyacinth Alia of the All Progressives Congress (APC).
A five-member panel, presided over by Justice John Okoro, said issues raised in the appeals did not qualify as post-election matters.
Appellants’ lawyer, Sebastine Hon (SAN), attempted to explain the basis of the appeal.
He said the appellants challenged the sponsorship of Alia and his deputy, Samuel Ode.
According to him, while the APC failed to submit Ode’s name to the Independent National Electoral Commission (INEC) before the election, Alia’s name was submitted out of time.
Hon was still explaining his client’s case when a member of the court’s panel, Justice Emmanuel Agim, intervened.
Justice Agim said there were no post-election issues in the appeal, adding: “You are dealing with pre-election matters here.”
Another member, Justice Helen Ogunwumiju, noted that there were no serious issues of law raised in the appeal requiring the court’s intervention.
Justice Okoro added: “This is not the kind of case that should come here. On a very serious note. We have a lot of work to do. We are unanimous on this matter.”
The Justices then prevailed on Hon to withdraw the first appeal, which he did, following which the court dismissed it in the absence of objection from the respondents’ lawyers.
Earlier, the court heard three appeals seeking to void the election of Ebonyi State Governor Francis Nwifuru of the APC.
One of the appeals, marked: SC/CV/1156/2023 was filed by Odoh Benard of the All Progressives Grand Alliance (APGA), while two, marked: SC/CV/1212/2023 and SC/CV/1218/2023 were by Chukwuma Odii Ifeanyi of the PDP.
With the agreement of all parties, the court heard the one marked SC/CV/1212/2023 and said the judgment on the one heard would be applied to the other two.
Light moments
Upon the court’s pronouncement, Governor Alia, who sat close to his Deputy, Sam Ode, turned to him and asked: “Is that the end?” Ode said: “Yes”, following which both men shook hands and smiled broadly.
The proceedings of the day were not without some shared light moments as all sides occasionally exchanged banters.
When the Benue appeal was called, Governor Alia, dressed in a black suit, rose to his feet. And, upon sighting him, Justice Okoro asked if he was the Reverend Father, to which his lawyer, Mamman Usman (SAN) answered in the affirmative.
Justice Okoro then turned to lawyers in court and said: “Thank God the Reverend Father is here. You will not need to travel far to confess your sins.
“Once we are done with the cases, you can just go to him for your confessions.”
He then suggested that Hon, who withdrew his clients’ case against the governor be the first to approach him for confession, a remark that drew laughter from all in court.
Worrying moment
Shortly after the court rose and everyone was exiting the courtroom, a lawyer, who was in court in respect of the Benue case, slumped at the foot of the entrance door to the courtroom.
But, for the efforts of those around, he would not have survived the fall. For over 10 minutes, he lay motionless despite efforts to revive him.
Moments later, and with persistent pressure applied to his chest region, the lawyer suddenly jerked up, let out some pee and opened his eyes.
He was then taken from the floor and placed on a chair, where health officials attended to him by administering some first aid treatments and later evacuated him to their facility for further attention.
Tuesday
On Tuesday, five-member panel of the court, presided over by Justice Okoro, entertained six appeals -three relating to Plateau State while the other three were concerning Delta State.
Out of the three filed in respect of Plateau, the court heard the one filed by Governor Caleb Mutfwang of the PDP, marked: SC/CV/1190/2023, with an agreement by parties that the decision in the one heard shall be applied to the appeal filed by the governor’s party, marked: SC/CV/1191/2023.
The third appeal, marked: SC/CV/1192/2023 filed by INEC, was withdrawn by its lawyer, Samuel Atung (SAN) when the court made him realise that the other appeals were sufficient to resolve the dispute.
Wednesday
The court, on Wednesday, heard four appeals, two relating to Adamawa State, while the other two sought to unseat Abia State Governor, Alex Otti of the Labour Party (LP).
At the mention of the appeal filed by the candidate of the Social Democratic Party (SDP), Dr. Umar Ardo and his party, marked: SC/CV/1219/2023, members of the court’s five-member panel, observed that the appeal did not raise any novel issue, requiring the court’s consideration.
Ardo and the SDP had, in the appeal, prayed the court to among others, set aside the concurrent judgements of the election tribunal and the Court of Appeal, affirming Governor Ahmadu Fintiri’s election.
Appellants’ lawyer, Sylvester Imahnobe, argued that his clients, who scored over 6,000 votes in the said election, would have won had the election been free and fair, and not marred by corrupt practices and non-compliance with relevant laws.
Also on Wednesday, the apex court heard and reserved judgments in two appeals against Otti.
The first appeal, marked: SC/CV/1250/2023 was filed by Okechukwu Ahiwe and his party, the PDP.
The second marked: SC/CV/1252/2023 Ikechi Emenike and his party, APC.
Thursday
The court heard six appeals on Thursday. Two were in respect of Ogun State, one relating to Cross River State while the other three were directed against the election of Akwa Ibom State Governor, Umo Eno of the PDP.
Concerning Ogun, the court heard the appeal marked: SC/CV/1221/2023 filed by Oladipupo Adebutu and his party, the PDP, seeking to void the election of Governor Adedapo Abiodun of the APC.
The court said its judgment on the appeal heard shall be applied to the cross-appeal filed by Abiodun, marked: SC/CV/1222/2023.
Also on Thursday, the court dismissed the three appeals that sought to sack Akwa Ibom State Governor, Umo Eno of the PDP.
Friday’s elaborate security
arrangement
Given the volume of judgments scheduled for the day and the unusual interest generated by some of the cases, particularly those of Kano and Plateau states, the court’s management ensured an elaborate security arrangement.
Besides the usual private security guards present around the court, there was a heavy deployment of police personnel and officials of the State Security Service (SSS).
Movement in and out of the court premises was strictly restricted, while only those with the accreditation tags issued by the SSS were allowed in and around the courtroom.
As part of a crowd control measure, each party to the appeals had only five lawyers accredited, while few of the litigants were allowed into the court. Many journalists were also accredited and issued tags.
Besides possessing the accreditation tag, to be allowed into the court building, one was compelled by the SSS officials to go through the huge metal detector/scanner stationed right at the foot of the court’s main entrance.
Many lawyers, politicians, their supporters and other interested parties were denied access to the court.
Governors, top politicians storm court
Governors Bala Mohammed of Bauchi, Dauda Lawal of Zamfara, Francis Nwifuru of Ebonyi, Caleb Mutfwang of Plateau and Kabir Abba Yusuf of Kano were in court to witness proceedings.
Also, former Plateau State Governor and now a member of the Senate, Senator Simon Lalong; Secretary to the Lagos State Government, Mrs. Bimbola Salu-Hundeyin, and the state’s Attorney General and Commissioner for Justice, Lawal Pedro (SAN) were also in court.
The verdicts
At about 10 am, the traditional knock from behind the Justices’ entrance door was heard, following which a court official shouted, “Court!!!”
The door swung open. Eight Justices walked into the courtroom and took their seats on the Bench, signifying the commencement of the day’s proceedings.
Lagos
The first set of judgments to be delivered was on Lagos.
Justice Okoro, who presided, had announced that the court planned to begin from the nation’s commercial Capital.
When the appeal by Gbadebo Rhodes-Vivour, the candidate of the LP and his party, marked: SC/CV/1152/2023 was called, Justice Okoro announced that the lead judgment was prepared by Justice Mohammed Lawal Garba, who was available to read it.
Justice Garba reviewed the submissions by parties to the appeal and concluded that it was unmeritorious and dismissed it.
He faulted the appellant’s challenge of the qualification of Governor Babajide Sanwo-Olu and his Deputy Femi Hamzat.
Rhodes-Vivour had claimed that Hamzat renounced his Nigerian citizenship by acquiring the citizenship of the United States.
Justice Garba held that the acquisition of the citizenship of the US by Hamzat did not rob him of his Nigerian citizenship, being a citizen of Nigeria by birth.
The judge added that a person who is Nigerian citizen by birth, who acquires the citizenship of another country cannot be disqualified from contesting an elective position in Nigeria, except where the person renounces his Nigerian citizenship in a manner provided for under Section 29 of the Constitution.
He said: “There is no provision in the Constitution that takes away a citizen of Nigeria by birth. The acceptance of another country’s citizens by a Nigerian, who is a citizen by birth, does not take away his Nigerian citizenship.
“Renunciation of Nigerian citizenship must be done as provided for in Section 29 of the Constitution.
“I find that the court below was right in affirming the decision of the tribunal that the second and third respondents (Sanwo-Olu and Hamzat)were qualified to contest the election”
He proceeded to affirm the judgment of the Court of Appeal, which earlier upheld the election of Sanwo-Olu.
Justice Adamu Jauro read the lead judgment in the appeal marked: SC/CV/1155/2023, filed by Abdulazeez Adeniran, who was the candidate of the PDP and his party.
Adeniran, who came third in the election, and the PDP had, by their appeal, sought to disqualify Sanwo-Olu and Rhodes-Vivour, claiming they were not qualified.
They accused Sanwo-Olu of among others, submitting a forged WAEC certificate to INEC.
In dismissing the appeal, Justice Jauro found that the appellants did not establish the basis on which they had prayed the court to disqualify Sanwo-Olu and Rhodes-Vivour (who came second in the election)
The judge held that the appeals were a mere academic exercise that would yield no utilitarian value to the appellants, having failed to establish the basis for the disqualification of the two candidates, who came first and second in the election.
Bauchi
In affirming the election of Governor Bala Muhammed of Bauchi State, the apex court held that the appellant, Sadique Abubakar of the APC failed to prove his allegation of noncompliance with the Electoral Act and that the PDP candidate was not elected with a majority of lawful votes cast.
Justice Ibrahim Saulawa, who read the lead judgment, held among others, that while the appellant claimed that Forms EC 25B, EC40A, EC40B, and EC40C were either not filled or properly filled in polling units located in seven LGAs of Bauchi State, he was unable to show that the non-filing of the forms substantially affected the validity of the election.
Justice Saulawa said: “We do not agree that the non-proper filling of the forms in the required form is enough to cancel the election in the area affected.”
While resolving all the six issues, identified for determination, against the appellant, the judge held that contrary to Abubakar’s claim, the two lower courts properly evaluated his evidence.
He proceeded to dismiss the appeal and affirmed the judgment of the Court of Appeal delivered on November 17.
Kano
The apex court, in affirming the election of Governor Yusuf of Kano, faulted the November 17, 2023 judgment of the Court of Appeal, which sacked the governor.
The court allowed the appeal by Yusuf, marked: SC/CV/1179/2023, and set aside the judgment of the Court of Appeal describing it as perverse.
Justice Okoro, in the led judgment, held that the Court of Appeal was wrong to have affirmed the decision of the election tribunal to cancel and deduct 165616 votes from NNPP’s total votes because the ballot papers were not stamped, dated and signed by the polling units presiding officers.
Justice Okoro further held that the tribunal wrongly relied on Section 71 of the Electoral Act 2023 to declare the ballot papers invalid, when that section only talked about results forms and not ballot papers.
He noted that Section 63 of the same Electoral Act, which relates to ballot papers did not say that all ballot papers without the mark of the Independent National Electoral Commission (INEC) were totally invalid.
The judge held that it was wrong for the tribunal to have held that the ballot papers were invalid when the petitioners – the APC and its candidate, Nasiru Gawuna – did not prove that the ballot papers were not supplied by INEC and that it was the appellant that induced presiding officers not to sign, stamp and date the ballot papers as required.
Justice Okoro also faulted the Court of Appeal for holding that Yusuf was not qualified to have contested the election on the grounds that he was not a member of the NNPP at the time of the election.
He held that the issue of nomination and sponsorship were internal to a party, which could not be contested by another party or a person who is not a member of the party.
Justice Okoro noted that, as against the position of the Court of Appeal, “the tribunal never found that the appellant was not qualified to contest election as erroneously held by the lower court.”
He added that issues of nomination and sponsorship are exclusively within the prerogative of the party, provided the nomination is done under the law, is not justiciable, and as long the person participated in all the processes leading to his/her nomination.
Justice Okoro added that Section Section 177(c) of the Constitution, which the Court of Appeal relied on, did not provide an opportunity for any court to question the process of nomination and sponsorship of a candidate by a party.
The judge held Section 177(c) only frowns at the independent candidate, adding that the law does not concern itself with the issue of membership of a party.
“It does not matter if he is a foundation member or just joined before the election. It does not matter as long as he is nominated and sponsored by the party,” Justice Okoro said.
Zamfara
On Zamfara, the apex court allowed the appeal by Governor Dauda Lawal of the PDP and set aside the judgment of the Court of Appeal, which it equally found to be perverse.
Justice Agim, who delivered the lead judgment, held that the trial tribunal was right to have affirmed Lawal’s election and that the decision of the Court of Appeal was given without evidential foundation.
He noted that the petitioners at the tribunal – APC and its candidate, Bello Matawalle – relied on Forms EC8A of the disputed polling units in Maragun Local Government in support of their claim of overvoting, alteration of results, non-voting and related malpractices.
Justice Agim said: “What was needed to prove their case was the duplicate copies of the Forms EC8A, which the petitioners did not produce.
“The duplicate copies which the petitioners relied on to claim to have won the election, were not tendered.
“It was only the INEC copies which were disputed that were before the tribunal, but the INEC copies did not show over-voting. So the claim of over-voting failed.
“This court is of the view that the tribunal was right in holding that the petitioners did prove their claims of overvoting, non-holding of the election and cancellation of results,” he said.
Ebonyi
In the case of Ebonyi, the apex court’s panel of five Justices unanimously dismissed the appeal by the candidate of the Peoples Democratic Party (PDP) in the last governorship election, Ifeanyi Odii Chukwuma and his party on the grounds that it was without merit.
In the lead judgment, Justice Tijjani Abubakar held that the appellants failed to prove their case before the trial court that the election was marred by non-compliance with relevant laws and that Nwifuru was not a member of the All Progressives Congress (APC) at the time of the election.
On the appellants’ contention that Nwifuru was not qualified at the time of the election, Justice Abubakar said as against the argument by appellants, Section 177(c) of the Constitution did not contain a provision to inquire about how a party nominate or sponsor its candidate.
He noted that the section made sufficient provisions on the qualification requirements for contesting the post of governorship, while Section 182(1) of the Constitution contains factors that can make a person not qualified.
The judge held that “if a person meets the requirements of Section 177 and is not disqualified by Section 182 of the Constitution, the person is qualified to contest the election.”
Justice Abubakar affirmed the judgment of the Court of Appeal delivered on November 24, which upheld the tribunal judgment that allowed Nwifuru’s election.
Plateau
In affirming the election of Muftwang, the apex court also faulted the decision of the Court of Appeal, in which it was held that the governor was not qualified on the grounds that he was not properly nominated.
In the lead judgment, Justice Agim, was of the view that the Court of Appeal erred when it set aside the decision of the election tribunal that affirmed Muftwang’s election.
Justice Agim held that the election tribunal had no jurisdiction to determine the validity of the primary election conducted by the PDP and the nomination of Muftwang as its candidate because they were issues internal to the party, which APC and its candidate Nentawe Yilwatda could not question.
He said: “We have held consistently in a plethora of decisions over time that the validity of the primary election and nomination of a candidate by his party is not a valid ground for an election case.
“Once a person’s name is submitted by his party to INEC as its candidate, he is thereby sponsored by the party and therefore satisfies the requirement of sponsorship by a party under Section 177(c) of the Constitution as he is not an independent candidate,” the judge said.
He further held that the Court of Appeal lacked the jurisdiction to have questioned Muftwang’s nomination for whatever reason.
Justice Agim added that not only was it too late for anybody to query the primary of the PDP and Muftwang’s nomination, being pre-election issues, but the petitioners at the tribunal – the APC and its candidate – lacked the locus standi (the legal right) to raise such issues, not being members of the PDP.
He held that, as against the finding of the Court of Appeal, the judgment of the Plateau State High Court, which the lower court claimed was not complied with by the PDP, was actually complied with by the party when it conducted fresh congresses ordered by the court.
He added that even if the order was not complied with, it ought not to affect the primary that produced Muftwang, which was conducted by a committee set up by the National Executive Committee (NEC) of the PDP.
The judge said the order of the state High Court was directed at the state Executive of the PDP in Plateau State and not the national PDP, which conducted the primary under the party’s constitution and the Electoral Act.
He added: “I have looked at this case and I have continued to wonder why it came to the court at all.
“The legal profession should wake up or it would render itself irrelevant in society with these kinds of cases.”
In his contribution, Justice Okoro expressed concern about the manner the Court of Appeal treated the case.
He said: “My only worry is that a lot of people have suffered because of what happened there (at the Court of Appeal).
“The proper thing is that since it is the national executive of the party that conducted the primary, whatever order was made against the state executive does not bind the national Executive. Why did they not see it that way?”
Also, another member of the panel, Justice Ogunwumiju faulted the Court of Appeal for holding that the PDP did not comply with the order of the Plateau High Court when there was evidence of compliance.
She said the situation was worsened by the fact that it was outsiders who were querying the validity of the primary conducted by the PDP.
Abia
In affirming the election of Governor Alex Otti, the apex court dismissed the two appeals filed by PDP and its candidate, Okechukwu, Ahiwe PDP, and Ikechi Emenike of the APC.
In the lead judgment, Justice Uwani Abba-Aji held that the claim by the appellants that Otti was not a member of the LP at the time of the election and that his name was not in the party’s members register were issues that predated the election and ought to have been taken before a Federal High Court.
Justice Abba-Aji held that issues of membership and nomination are internal to every political party that an outsider cannot query.
“The issues raised are about events that predated the election. They ought to be challenged at the Federal High Court because they are pre-election issues that predated the election,” she said.
The judge noted that the case “was unnecessary and ought not to have got to this court.”
Justice Abba-Aji also held that the appellants did not prove their claim of non-compliance, adding that she did not discover any perverseness in the concurrent judgments of the tribunal and the Court of Appeal, which affirmed Otti’s election.
Cross River
The apex court also affirmed the election of Governor Bassey Otu of the APC by dismissing the appeal filed by Professor Sandy Onor of the PDP.
Justice Helen Ogunwumiju, who read the lead judgment, held that the appellants failed to prove their case that Otu and his Deputy were not qualified to have contested the election.
While the appellants claimed that Otu was not educated up to the school certificate level, they alleged that his Deputy was not a member of the APC at the time of the election.
Justice Ogunwumiju noted that there was evidence that Otu was a graduate, that he worked at the National Assembly for over 10 years, he was a member of the National Assembly for many years, and yet the appellants claimed he was not educated up to school certificate level.
She held that there was no merit in the allegation that Otu gave false information about the secondary school he attended and that he was not educated up to school certificate level
The judge also held that it was not the business of the appellant to challenge the validity of the Deputy Governor’s membership of the APC.
She held that the appeal “is without merit and it is a waste of judicial time and resources.”
Justice Ogunwumiju dismissed the appeal and affirmed the concurrent judgments of the two lower courts, which earlier upheld Otu’s election.
A bank chief has lamented that chronic debtors now view courts as havens: they dare creditors to go to court knowing an end will not be in sight anytime soon. Legal experts have warned that the much-needed investments to spur economic transformation will remain illusory if the court system is not revamped. They pointed the way forward, writes Deputy News Editor JOSEPH JIBUEZE.
Go to court! This is the language of those who know that the inefficient court system will work in their favour.
They know they can get away with impunity because cases, especially commercial ones, can drag on for ages.
Legal experts have, therefore, advised that the Federal Government’s efforts to attract foreign investment must be backed by urgent legal reforms.
According to them, the perception of Nigerian courts as a haven for contract violators must change, and fast.
A report last month by Marketforces Africa painted a picture of the problem.
It says: “Nigeria’s judicial system lacks speed, though many are still not sure about the accuracy of decisions either.
“What is clear is that when justice is served, it is served hot for one, and cold for another. Financial market cases and commercial cases take an eternity to resolve.”
The report adds: “A dirty financial market is one where investors don’t get justice due to a strapped legal system.
“In Nigeria, many of these cases take decades to resolve if they will ever be resolved.”
Such perception is certainly not good for a country that needs investments to transform its economy.
And the situation has been many years in the making.
Writing for britishcouncil.org in 2015, Dr Bob Arnot says: “Nigeria’s legal and judicial system is sluggish. In 2012, it took an average of 583 days to conclude a commercial case in a court in Lagos, the commercial capital.
“When a case goes on appeal, it takes even longer. Nigeria’s Supreme Court is still dealing with appeals filed in 2005. Such delays tie down capital and discourage businesses from investing.”
The situation has become so bad that according to Managing Director/Chief Executive Officer of Polaris Bank, Adekunle Sonola, chronic debtors now find the courts as a haven.
The inefficient system, he noted, also boosts impunity rather than the courts serving as a deterrent to criminality.
“The weaknesses of the legal/judicial system encourage illicit economic activities. There is a strong correlation between illicit economic activities and the effectiveness of the legal system across countries,” Sonola said.
He noted that even when a protracted case is eventually decided, the value of the recovered debt would have depreciated massively.
The consequence, according to him, is that the economy suffers, with many investors afraid of entering into contracts because their rights are not adequately protected and contracts are not effectively enforced.
“There is a general disregard for contract terms which makes the economy less investible.
“Many Nigerians reject direct investments when they will not be actively involved in operations and management, as contracts cannot be timely enforced.
“This makes capital inaccessible, and the economy suffers for it,” Sonola said.
The Polaris Bank chief spoke when he delivered the dinner lecture of the Nigerian Bar Association (NBA) Lagos Branch.
“An effective legal system must be designed to prevent opportunistic loan defaulters from exploiting vulnerabilities within the system,” he said.
How commercial cases are delayed
Joan Monye, Patience Obiagbaoso and Richard Obidegwu, in an article on Punuka.com, noted that the court rules and procedure contain loopholes that are easily abused to make adjudications long-drawn.
According to them, the judicial process is set up to work efficiently, but in reality, litigants and lawyers exploit loopholes to frustrate other parties and drag the matter for as long as possible by adopting different delay tactics.
The most common delay tactic is the preliminary objections challenging the jurisdiction of the court or on mere irregularity or based on some perceived defects (sometimes imaginary and illusory).
For preliminary objections, the trial court is obligated to deliver its ruling on the objection one way or the other.
Where the preliminary objection fails, another tactic which is sometimes executed to further delay proceedings is to appeal the ruling.
When interlocutory appeals are executed tactfully, it could end up stalling any real progress in the matter for many years, particularly where a stay of proceedings at the trial court is granted.
“It is, therefore, advocated that to avoid mischievous use of the court process to frustrate proceedings, the court considers each application before it on its merits and exercise its discretion judicially and judiciously by striking out/dismissing applications which do not aid substantial justice,” Monye, Obiagbaoso and Obidegwu recommended.
How to speed up commercial cases
Festus Ukwueze and Emmanuel Wingate of the University of Nigeria (UNN), noted in a study that the enthusiasm that greeted the adoption of a fast-track procedure to expedite certain classes of commercial and foreign investment disputes at the Lagos High Court and some other states over a decade ago, appears to have been dampened by poor results, as such cases continue to clutter up the courts’ dockets.
After analysing the rules for the fast-track procedure, the researchers concluded that to achieve the desired aim, there is a need for further reform to relieve fast-track courts of cases not suitable for the procedure and to allow judges of the court more flexibility in applying the rules.
Immediate-past Minister of State for Budget and National Planning, Prince Clem Agba, stressed the need to prioritise commercial cases as is done to election petitions.
According to him, development will be hampered without quick and efficient commercial dispute resolution mechanisms.
Speaking at an event in honour of the late Supreme Court Justice, Chukwunweike Idigbe, Agba said: “It is the extent to which we factor economics and commerce in our legal jurisprudence that determines our development.
“The bane of our development is the relegation of economics in our political ideas and commercial jurisprudence in our legal process.”
Agba faulted what he described as “the inordinate attention to politics in the nation’s legal jurisprudence instead of commerce or economics”.
He added: “No matter the investments that we make in infrastructure or other developmental facilities, sustainability is a function of our commercial jurisprudence.
“A legal system that facilitates prompt and timeous resolution of electoral disputes, while neglecting commercial disputants is prone to under-development or socio-economic stagnation.
“Whether local or foreign, investors are more keen on the state of the judicial organ and prevalent jurisprudence, in taking or making critical investment decisions.”
Sonola, at the NBA dinner lecture, stressed the need to restore faith in the legal system.
“The public confidence in the legal system must be rebuilt. This will positively impact businesses and investment.
“Timely and efficient delivery of justice is imperative for fostering a conducive business environment and instilling confidence in legal processes,” Sonola said.
He called for specialised courts or commercial tribunals with powers to determine commercial disputes faster.
Alternative Dispute Resolution (ADR) mechanisms, he said, must be a critical part of the system, while court processes should be digitalised.
The legal system, Sonola believes, must be end-to-end automated as much as practicable and be accessible to all. At the same time, reforms must keep up with the dynamic economic and social environment.
To him, the importance and criticality of an efficient legal system to businesses, investment and overall economic well-being have not enjoyed proportional public discourse attention, which must change.
He advised: “Ensure the adequate number of judges with equally adequate remuneration. Continuously review court rules to strengthen process efficiency.
“Lawyers are critical agents of reformation. They must prioritise justice delivery above playing the legal system
“Reformation will require support from the Ministry of Justice and the National Judicial Council
“Government, at all levels, must show commitment and provide the necessary funding.”
Arbitration to the rescue?
Arbitration clauses are inserted into many contracts, but sometimes awards are also challenged and some still end up in regular courts.
Uzoma Azikiwe and Olukayode Dada of Udo Udoma & Belo-Osagie still believe arbitration is a key way to deal with lengthy litigation procedures
They called for ADR to be strengthened as a key part of commercial litigation processes.
In a joint analysis published on the law firm’s website, they also called for stricter application of the rules of civil procedure of the high courts that enjoin parties to have recourse to ADR or the multi-door courthouse as an alternative for resolution of their disputes and then give the resultant terms of settlement a stamp of judicial authority.
They also want the Fast Track Procedure (FTP) under the Civil Procedure Rules to be revamped to offer investors and entrepreneurs another opportunity for a speedy resolution of commercial disputes.
Sanction lawyers who file frivolous cases
In the view of NBA Lagos Branch Chairman, Olabisi Makanjuola, lawyers who file frivolous cases or who manifestly frustrate commercial cases should lose their continuing professional development (CPD) points.
He called for a filtering system to reduce the number of cases filed in court or that end up on appeal.
This, he said, is a way to decongest the courts, reduce delays, and lessen the workload of judges and Justices.
Makanjuola, a partner at Olaniwun Ajayi LP, said: “There needs to be a filter on the types of cases that get into our court system. In Nigeria today, there is an automatic right of access to court.
“I can go to court to file a suit against you asking for a declaration that you’re a woman even though I know you’re a man, or that you’re a man when I know you’re a woman, and the court will accept such processes.
“So, until there is a filter, where litigants no longer have an automatic right to access the court; and until lawyers begin to lose CPD points for filing bad cases, the problem will persist.
“When these are done, only cases that have merit will end up in court, and only cases whose appeals have merit will be filed at the appellate courts. Those are ways we can bring sanity to the system.
“There has been a lot of debate on amending the constitution to limit what goes to court or on appeal, but until we put our mouth where our money is, these issues will not stop.”
Legal experts and practitioners shared their views on how to address commercial litigation challenges.
Ajibade: Courts must develop workable systems
Managing Partner of S. P. A. Ajibade & Co, a leading corporate and commercial law firm, Dr Babatunde Ajibade (SAN), said the problem identified by the CEO of Polaris Bank is symptomatic of the gross inefficiency of the system of administration of justice in Nigeria at present, which manifests in many ways.
He said: “The first is the inability/unwillingness of our courts to develop workable systems of dealing with matters that are time-bound and of significant economic impact and treating them with acceleration and dispatch, relative to other matters that do not have such characteristics.
“Matters such as bank debt recoveries, arbitration, shipping, etc, fall within this category and should not be queued along with disputes concerning title to land, chieftaincy, etc.
“Second, is the unwillingness of our heads of courts to recruit a sufficient number of seasoned commercial practitioners to the bench and create specialist divisions manned by such judges, who by virtue of their practice, possess the practical knowledge and experience to deal with commercial matters, with dispatch.
“We know what the challenges are, and we know what the solutions are. What we don’t yet know is whether there is the necessary political will to solve these problems.
“Until we do, our yearning for an improved economic climate and for an increase in foreign direct investment is unlikely to be satisfied.”
Principal Counsel at GMO Legal, George M. Oguntade (SAN), noted the trending catchphrase expressing the perception of the weakness of the system is “Go to Court”!
He said: “It is a very terrible indictment of our current judicial system where cases of all nature take inordinate lengths of time running into several years to hear and determine.
“The way things presently work, a bank debtor who has lost a recovery case brought by the bank after about five years or so in court, will simply file a frivolous appeal along with a motion for stay of execution at the Court of Appeal which will take at least another five years or more to be determined.
“Another defeat there, and the defendant simply heads to the Supreme Court where the case may spend another eight years or more to be determined.
“In the intervening period, rampant inflation would have significantly reduced the value of the judgment sum such that any victory the bank ultimately obtains at the Supreme Court is essentially pyrrhic in nature and tantamount to a loss in real terms.”
Oguntade identified the factors responsible for this.
He said: “The first and most important is the fact the recalcitrant defendants file all manner of frivolous applications specifically designed to waste judicial time without any serious sanction for such conduct. This should not be so.
“In more advanced jurisdictions, where an interlocutory application fails or is adjudged as frivolous, substantial costs are awarded against such defendants.
“This is the ultimate deterrent to any defendant and ensures that only serious interlocutory applications are filed.
“For some reason, there still appears to be a general reluctance on the part of our courts to utilise this judicial weapon in their armoury.
“Costs awarded by our courts are minimal and grossly inadequate. What this does is encourage a defendant who knows his case is weak and that the cost of delaying a case against him is next to nothing.
“There is also the issue of adjournment of cases for one reason or the other. Most times, it is a result of constant power outages which results in the courts being unable to sit.
“This perennial infrastructural problem affects not only the courts but the entire economy of the country.”
Oguntade also believes not every case should go on appeal.
The SAN added: “Another fundamental issue is that of the automatic right of appeal contained in the Constitution. This results in the appellate courts’ dockets being congested and overloaded with appeals that have no right to be there. This is a huge problem and will require a constitutional amendment to be remedied.
“Again in other advanced jurisdictions, the right of appeal is not automatic. Where the grounds of appeal are not substantial enough, leave to appeal will be denied and that is the end of the matter.
“Challenging that decision on weak grounds will only lead to more financial prejudice for a defendant and such a step will not be embarked upon lightly.
“I believe the starting point should be with the Magistrate Courts and High Courts where processes are regularly abused with impunity.
“Our judges can begin to change things by seriously applying the extant cost regime which will reduce frivolous applications and which in turn will ultimately reduce the time it takes to hear and conclude a matter.”
Enebeli: prohibit stay of proceedings, interlocutory appeals in commercial disputes
A Partner at Pinheiro LP, Chukwudi Enebeli, said there must be a judicial policy to prohibit the stay of proceedings and interlocutory appeals in commercial disputes which have an impact on the economy.
To him, the comfort debtors get from the courts today is borne out of the fact that our judicial process is slow, and despite the complaints about this problem, nothing has been done to date.
Enebeli said: “If we are serious about wooing or attracting foreign investments, we must do something about cases arising from commercial disputes.
“No serious investor will come into a country where there is uncertainty in the time frame to resolve a simple dispute.
“It is these commercial activities that drive the economy and unfortunately cases arising from these activities are not given priority in our courts.
“A typical insolvency case takes nothing less than 10 to 15 years to go through the hierarchy of courts.
“In some situations, several interlocutory appeals may be filed, all in a bid to frustrate the substantive suit.
“While we give election petitions priority, the time has come for us to make the necessary amendments in our law to create special courts where commercial cases especially insolvency cases will be given priority.
“If election petitions have a lifetime of approximately ten months to go through the judicial process, I see no reason why insolvency cases should take more than two years in the very complex ones.
“With the priority and attention we have given to election petitions, we have tacitly made it the driver of the economy while the commercial cases remain in the back seat in the court’s docket for such a long time. This should not be so.”
According to the lawyer, it is also common to find debtors sue the banks while they deliberately prolong the case in a manner that will prevent the financial institution from initiating recovery steps.
Enebeli said: “To address this, the courts should penalise both counsel and the parties by awarding such punitive costs which must be paid as a condition to appeal if the party intends to appeal.
“A few years ago, AMCON (Asset Management Corporation of Nigeria, an agency created to resolve the non-performing loan assets) released a report of a N5.4 trillion debt portfolio.
“With such a debt portfolio made up of bad, doubtful and lost facilities most of which are in various courts, I do not think foreign investors will take us seriously.
“I would have suggested banks adopt alternative dispute resolution through arbitration but again we are a litigious society and more often than not, upon the arbitral award which one party seeks to enforce, the other party seeks to have the award set aside and again parties are bugged down in court.
“While I recognise that the Court of Appeal has a Fast Track Rules for debt recovery actions, these Rules have not achieved much.
“In summary, there must be a judicial policy to prohibit stay of proceedings and interlocutory appeals in commercial disputes which have an impact on the economy.
“In addition, there should also be a policy to freeze the accounts or assets of debtors or companies linked to them once a recovery action is filed.
“The burden should then be shifted to these entities to show why such order(s) should be discharged. It becomes their duty to dissociate themselves from the debtor or debtor company.”
A Partner at Allen & Brooks, Mobolaji Oriola, said it was sad and quite embarrassing when people who have breached contracts, violated laws and laid down procedures, are the ones who often dare those whose rights have been violated to go to court.
According to him, the reason is simple, they believe that the matter may be in court for donkey years, during which the debtor is roaming around freely, while the creditor suffers.
Oriole noted that every successive government in Nigeria has promised to put in measures to attract foreign capital into the country.
He said: “I think we must all understand one very important issue, which is, when going into a contractual relationship, a foreign investor wants to be assured that the terms of the contract will be honoured.
“He also wants to be assured that if there is a breach of contract, there is an effective justice system that ensures the breach is remedied in a way and manner that is timely and efficient.
“I find it a bit worrisome when people lay the blame squarely at the feet of the judges. We must understand that while we ask for the best from our judicial officers, we must equally ensure that the conditions under which they operate are not only befitting but are good enough to attract the best of minds in our profession.
“Today, if you ask a Lawyer to choose between being a judge and a legislator, such person will rather be a Legislator, as that most assures of a better economic return.
“Judicial remuneration and welfare are critical. This is because the responsibilities of the judges are such that they must be well remunerated.
“Proper remuneration encourages people especially the very brilliant and diligent minds, to join the judiciary.
“It also motivates the current judges to be efficient, and reduces the probability of judges engaging in unconventional methods.”
Oriola said there must also be a way to incentivise excellence, reward performance and penalise unprofessional conduct.
This, he believes, will help stimulate efficiency in the system, adding that delay tactics must be abhorred and legislated against.
He added: “Another critical issue is the catastrophic delays in our judicial system. This issue isn’t also squarely at the feet of the judiciary, as lawyers often employ delay tactics as a strategy in litigation.
“Processes have been put in place to ensure that counsels who engage in such practice are penalised. This is a welcome development and we still have a long way to go.
“Our rules of court are much better, but still have a long way to go. The judges have a part to play also, as there is a need to implement continuous training which will enhance efficiency and effectiveness.
“Technological advancement has made the work of judges smoother in other climes. Some strides have been achieved in Nigeria, but there is still a lot more to do.
“There needs to be complete independence of the judiciary such that issues around fiscal policy, which has been a stumbling block in judicial independence, can be removed, as that will enhance efficiency in the judiciary.”
A partner at Punuka Attorneys & Solicitors, Adeyinka Abdulsalam, stressed that the challenge of bad debt in the Nigerian banking system and the slow recovery process cannot solely be placed at the foot of the court.
According to him, while it is conceded that the court is a major stakeholder in the loan recovery value chain and the slow judicial process indeed serves as a refuge for recalcitrant debtors, the banks also contribute greatly to the challenge.
He noted that most of the bad debts are without proper documentation and inadequate security.
Abdulsalam said: “A debtor that has something at stake in security advanced to secure a loan will also not be comfortable to have a matter stayed in Court for a long period.
For the court system, however, I think we need to change the perception and attitude of the judiciary to commercial matters.
“In Nigeria today, the order of priority given to hearing cases puts commercial disputes at the bottom of the ladder.
“Election petitions, criminal matters, revenue-related matters and AMCON matters amongst others are given priority and granted expeditious hearings over commercial matters that stimulate the economy.
“The challenge faced by banks in recovering bad loans through the Court system due to the slow pace of the judicial system is obvious.
“That is why the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, AMCON Act and the AMCON Practice Direction and other special legislations were introduced to ensure prompt recovery of bad debt.
“These legislations contain provisions that seek to remedy the mischief of debtors using the court as a refuge to avoid their repayment obligations. We need to extend most of these provisions if not all to the banks.
“We do not have to wait till the banks go under and their assets are acquired by AMCON before the debtors are made to pay their debts.
“While I do not subscribe to the idea of having a separate tribunal to deal with banks and debt-related matters, I am of the view that the High Courts can have special courts that will deal with debt recovery matters only.
”Attempts should also be made to have a unified practice direction that will regulate debt recovery proceedings and ensure expeditious determination of cases before the High Court.
“The Central Bank of Nigeria as the apex bank regulator should engage the National Judicial Council and the Attorney General of the Federation to see how this can be achieved.”
Abdulsalam suggested that the CBN, in partnership with banks, should make concerted investments that will ensure the special courts are adequately equipped to deliver on the tasks.
“There should be targeted investments in the courts’ infrastructure and training of judges on commercial disputes and debt recovery matters.
“At the appellate court, although the Court of Appeal practice direction applies to debt appeals, this is not given effect in practice.
“The Fast Track Practice Direction 2014 which ensures expeditious conclusion of appeals at the Court of Appeal mainly applied to Criminal Appeals and AMCON-related appeals.
“There is, therefore, the need to give effect to the Court of Appeal Fast Track Practice Direction in prosecuting debt-related appeals.
“As advocated by most people, there is a need to unclog the Supreme Court by limiting the number of cases that may travel to the Supreme Court.
“Debt recovery matters should also terminate at the Court of Appeal.”
Experts’ recommendations
· Specialised courts or tribunals to determine only commercial cases
· Set timelines for the determination of commercial cases
· The legal system must be end-to-end automated
· Ensure an adequate number of well-remunerated judges
· Continuously review court rules to strengthen process efficiency
· Lawyers must prioritise justice delivery above playing the legal system
· Political will needed through funding, amendment of laws, removal of bottlenecks
· Prioritise commercial cases as done in election petitions
· Introduce a filtering system to limit what goes on appeal
· Courts must award substantial punitive costs to deter frivolous applications, appeals
· The right of appeal should not be automatic, amend the constitution
· Introduce a policy to freeze debtors’ accounts until recovery cases are decided
· Give effect to the Court of Appeal Fast Track Practice Direction in prosecuting debt-related appeals.
· Heavily sanction lawyers who file frivolous motions designed to delay cases
Lawyer releases book on proceeds of corruption ownership
The recognition that corruption in all its forms is a major obstacle to the development and enjoyment of human rights is well and long documented.
Corruption in the public and the private sphere not only encourages the breach of rights to life and personal integrity but it also hinders the fulfilment of the right to justice, exacerbates inequality and discrimination, and ultimately, entrenches injustice and impunity.
This is according to the Professor of Human Rights Law in Residence, American University – Washington College of Law, Juan Mendez.
To him, a recognition of the problem is not necessarily followed by the development of effective legal rules and mechanisms.
That is why he is pleased that an anti-graft and human rights lawyer, Dr Kolawole Olaniyan, has contributed to the subject through his new book: “Ownership of Proceeds of Corruption in International Law.”
Olaniyan, in the book, identified how to strengthen the rights of citizens over their wealth.
He noted that the recovery of proceeds of corruption is now increasingly recognised as a principle of contemporary international law.
Olaniyan, however, stated that people’s sovereign and ownership rights over their wealth and natural resources have remained more theoretical than real, especially in the global fight against corruption.
As a result, the populations of victim states often cannot hold their governments accountable for misusing the proceeds of corruption.
He also noted that they do not benefit from the recovery, repatriation, management, and use of returned proceeds.
Olaniyan, therefore, embarked on the first comprehensive study on the issue.
In the book, which is available on Amazon, he challenged the conventional notion that sovereign and ownership rights over wealth and natural resources – and by extension, the proceeds of corruption – should be exclusively exercised by states.
The author, Legal Adviser at Amnesty International’s International Secretariat, London, said victim-states’ populations ought to be empowered to pursue grand corruption and asset recovery actions against their governments.
He called for the development of domestic laws on stolen wealth recovery.
Olaniyan also urged the international community to look to international human rights law to implement the growing consensus that corruption undermines the rule of law, hampers development efforts, stifles democracy, and harms the most vulnerable throughout the world.
Mendez adds: “Finally, Olaniyan, an astute scholar and experienced practitioner on anticorruption and human rights law issues, has come up with an excellent and important analysis of the understanding of the complex issues of corruption, asset recovery and human rights.
“Olaniyan’s book makes a significant contribution to the pursuit of access to justice and effective remedies for victims of corruption everywhere.
“The book is also a huge contribution to the global efforts to prevent corruption as a central objective of democratic public policy and business and commercial policy.”
The author, who was previously director of the Africa Programme, has been a researcher and visiting lecturer at universities in the United States and the United Kingdom.
He holds a doctorate in international law on corruption and economic crimes from the Law School of the University of Notre Dame.
Olaniyan is the author of a seminal book on Corruption and Human Rights Law in Africa. He has authored many other book chapters and articles on international law on corruption, economic crimes, and human rights law. He is a member of the Nigerian Bar Association.
Falana: tiny fraction of loot recovered
Activist-lawyer Femi Falana (SAN) said the book addresses lingering legal and practical challenges and discusses the complex interplay between the legal rules on corruption, asset recovery and human rights law.
Stressing the extent of the problem, he said: “Corrupt officials routinely use states’ institutions and coercive powers to steal people’s wealth with almost absolute impunity.
“Even though the value of the assets returned has varied over time, the total amount recovered since 2010 is reported to be just over $4 billion– a tiny fraction of the estimated staggering $3.6 trillion lost to international corruption every year.”
Falana noted that when the very institutions and officials charged with preventing and combating corruption and pursuing asset recovery cases are themselves corrupt, the victims are left with no recourse, and the resulting sense of powerlessness and betrayal often compounds the injury and makes redress more difficult.
“Through the analyses of theories, concepts, jurisprudence and case studies, the book makes a compelling case for people’s ownership rights of proceeds of corruption.
“It discusses contemporary doctrinal issues as well as the legal and practical challenges confronting asset recovery.
“By offering both a theoretical framework and an analysis of case studies in these fields, Kolawole seeks to advance the coherency, consistency and effective implementation and enforcement of both anticorruption and human rights standards.
“Kolawole’s extensive treatment of the rarely addressed private sector corruption is particularly welcome.
“The focus on private sector corruption is quite important, especially given the well-documented complicity of private actors such as banks and financial institutions in public sector corruption.
“Thorough and scholarly, yet eminently readable, the book addresses important and topical issues such as the sharing of proceeds of foreign bribery, universal jurisdiction, and international cooperation and assistance in asset recovery cases, including the proposed international anticorruption court.
“The book also discusses how the current legal rules and mechanisms on corruption and asset recovery still have very little to offer to victims. Kolawole’s focus throughout is on the rights of individuals and people to seek redress when states are either unwilling or unable to pursue asset recovery cases.”
In the preface, Dinah Shelton, Professor of International Law Emeritus at George Washington University Law School, says Olaniyan “combined theoretical and practical aspects of the struggle to recover the proceeds of corruption to create a masterful and comprehensive treatise”.
He adds: “Along the way, he presents case studies and jurisprudence that support his main thesis that criminal law and efforts to enforce it have been inefficient and largely unsuccessful in preventing or remedying corruption.
“He addresses the focus on public sector corruption and explains why limiting concern to this topic is misguided because private sector corruption is just as problematic.
“This will be a valuable resource for government officials, lawyers, practitioners, scholars, and students alike.”
The book has also received positive global reviews from legal experts and other stakeholders.
Judge Atoki: the people must become real beneficiaries of recovered assets
A Judge at the ECOWAS Court of Justice and former Chairperson of the African Commission on Human and Peoples’ Rights, Dupe Atoki, said the book presents a seamless read on the important nexus between corruption and human rights law.
“This illuminating and timely book therefore is a natural follow up. The global fight against corruption can only be effective when upon eventual recovery of its proceeds, the owners (the people) become real beneficiaries.
“In its absence, the fight will continue to be a rhetorical sing-song, rather deafening with no soothing sound to the victims.
“While identifying the complex legal and practical challenges to asset recovery, Dr Olaniyan characteristically proffers well-thought-out suggestions for reforms which if implemented will be a welcome relief to victims denied of their natural wealth and resources.
“Dr Olaniyan’s book is a seminar contribution to judicial and non-judicial approaches to issues of asset recovery and human rights. For this treatise, Dr. Olaniyan deserves our applause. All victims of corruption are indeed indebted,” Atoki said.
Executive Secretary of the African Union Advisory Board against Corruption, Arusha, Tanzania, Charity Hanene Nchimunya, comments: “Dr Olaniyan, a seasoned legal guru and anticorruption and human rights lawyer, has meticulously explored the important issues of ownership of proceeds of corruption and highlighted the inadequacies in the current legal rules and implementation mechanisms on asset recovery.
“Dr Olaniyan has further suggested ways in which these lacunae could be remedied, and the rules and mechanisms synchronised and strengthened to facilitate the recovery and repatriation of the proceeds of corruption to the rightful victims.
“Dr Olaniyan’s book makes a compelling case for why the global efforts to prevent and combat corruption and advance human rights must be reinvigorated, refreshed and revised to meet contemporary challenges.
“The book could not have arrived at a better time. This unique and important book is a great resource which should be embraced by all stakeholders; its scope is remarkable, and the suggested remedies could change the narrative in asset recovery.”
Director of the Human Rights Implementation Centre, University of Bristol Law School UK, Professor Rachel Murray, said the book offers an original academic but also practitioner perspective on the interplay between the legal rules on asset recovery and human rights law.
“Dr Olaniyan innovatively applies an international human rights law framework to issues of ownership of proceeds of corruption and in so doing advancing the idea of access of victims to effective remedies.
“I would highly recommend this very impressive work as a valuable resource for students, academics, and professionals alike,” he said.
Secretary General, African Development Bank Group. Professor Vincent Nmehielle, said Olaniyan raises provocative questions that entities and individuals in the space of preventing and combatting all forms of corruption in domestic and international jurisdictions need to think deeply about.
He added: “The place given to the victims of corruption in the international efforts on asset recovery needs to be rethought.
“Dr Olaniyan’s book provides compelling theoretical, philosophical and legal arguments to vindicate the basic rights of victims of corruption in the context of asset recovery.
“I commend Dr. Olaniyan for his foresight in adding yet another important monograph to the scholarly literature on the impact of corruption on the lives of citizens of countries.
“This timely book breaks new grounds and would be a very useful resource to scholars, private sector actors, and policymakers alike.”
The Electoral Committee of the Nigerian Bar Association (ECNBA) has issued the first notice for the NBA 2024 elections.
The notice was signed by the Chairman of the committee, Oluseun Abimbola (SAN) and Secretary, Huwaila Ibrahim.
The committee said the notice was issued in recognition of the critical responsibility it is tasked with, adding that its members “are committed to delivering for our association, a smooth transition via a transparent, credible, free and fair elections.”
The committee said the ECNBA Notice No.1 serves as commencement of the journey for preparation for the NBA elections holding this year.
It stated further: “As you are aware, payment of Bar Practicing fees for the year 2024 opens 1st January 2024 and runs till 31st March 2024.
“It is imperative that as members, we note the following information, to ensure your details as members of the NBA are fully captured.”
Members were advised to ensure that “proceed to the NBA Online Portal to register and/or update your details there. Visit https://portal.nigerianbar.org.ng
It advised: ”If you are using an Android mobile phone, you can update by downloading the mobile application link to the NBA DIGITAL APP from the Play store at https://play.google.com/store/apps/details?id=ng.org.nigerianbar
“If you are using an Apple mobile phone, you can update by downloading the mobile application link to the NBA DIGITAL APP on the Apple store at https:// apps.apple.com/us/app/nba-digital-app/id6464066248
Upon completion of their update of records, it advised lawyers to proceed to pay for their 2024 Bar Practicing fee (BPF) as may be due.
It emphasised the need for members to print out their automated receipts once received, for your records.
For a video guide to assist members in the process, it advised them to visit the YouTube page via the link: https://www.youtube.com/playlist? list=PL1wr7mGx9e9JkMl1Pvrpy_iAdZfBf9ct7
“Please note that in order to be captured in the voters’ list, payment of BPF can only be done through the NBA portal or the new NBA digital app and not by physical payment at the bank”, it stated.
The ECNBA said that in the coming weeks, it will be issuing further notices in furtherance of the process of elections, voter education, guidelines and regulations governing the NBA 2024 Elections.
According to the committee, “help lines, and an email enquiry desk shall be provided and details circulated to members to ensure quick communication, responses and actions on enquiries from members.”
The ECNBA assured members of the Bar of their commitment and dedication to the objectives with which they have been charged adding, “we covet the cooperation of all members of the Bar, in ensuring a smooth and successful election exercise.”
President of the International Law Association (ILA), Nigerian Branch and Senior Advocate of Nigeria (SAN), Prof. Damilola Olawuyi is a globally acclaimed professor of Energy and Environmental Law. He chairs the United Nations (UN) Working Group on Business and Human Rights. A Harvard and Oxford-trained scholar, Prof. Olawuyi has practised and taught international law in Africa, North America, Europe, Australia, Asia and the Middle East. He is the Deputy Vice Chancellor (Academic, Research and International Partnerships) at Afe Babalola University, Ado Ekiti. In this interview with ADEBISI ONANUGA, he spoke on legislative frameworks needed to advance creation of green jobs and need to reset Nigeria’s foreign policy agenda.
How can you assess Nigeria’s readiness to achieve the SDGs?
In 2015, Nigeria joined other countries of the world to commit to the attainment of the UNSDGs by the year 2030. The 17 SDGs reflect global aspirations to end hunger and poverty, and accelerate progress on energy security, health, education, gender equality, economic growth, conservation of water, biodiversity, natural resources, and tackling climate change amongst others. This is 2024, so we have exactly six years left to achieve all of these important targets and goals. While it may be difficult to make the same level of progress across all the SDGs, we need to focus on our core strengths and advance them well to globally competitive standards.
How can they be integrated into the key economic sectors?
It is about the proverbial ‘using one stone to aim for many birds.’ For example, rather than focusing on creating new jobs, we should instead aim to create more “green jobs.” This includes jobs relating to waste recovery and recycling, water conservation, green transportation, biodiversity, eco-entrepreneurship and environmental research and technology development, among others.
What is your assessment of the progress made so far in securing inflow of foreign direct investment?
The Tinubu administration took office with a vow to put international diplomacy at the centre of our development strategy. Most especially securing foreign deals and investments that will deliver rapid economic development, employment, and infrastructure financing needed to lift our people out of poverty. There have indeed been positive signs of such increased global engagements, with Nigeria playing key roles in landmark international summits such as the UN General Assembly in New York, and the most recent COP-28 in Dubai, United Arab Emirates.
How can Nigeria attain a robust foreign policy agenda?
Last year was generally a slow and underwhelming start in terms of clear and discernible foreign policy agenda. Early blunders such as the outrage and backlash that trailed the rushed recall of Nigerian Ambassadors is a preventable embarrassment for a country of Nigeria’s stature. Furthermore, more than six months after taking office, many of our diplomatic missions have no clear leadership structure in place, while uncertainties also surround our representation in UN bodies.This means that no matter the excellent progress the President makes when he embarks on foreign missions, there is little or no structure in place for clear and actionable follow up. No country will feel confident to engage with an ambassador whose future is hanging in the balance.
So, what is it that can be done in the circumstance?
There is therefore an urgent need to resolve the appointment of new and returning ambassadors as soon as possible, including Nigeria’s representation at UN bodies such as WTO, WIPO, UNESCO amongst others. Furthermore, government’s responses to the different coups d’etat in neighboring African countries were mostly rushed and inconsistent. There is a clear and urgent need to reset our foreign diplomacy and move away from what I call ‘knee-jerk diplomacy’ in which actions are announced without clear implementation framework.
We need to articulate a clear and investment-friendly foreign diplomacy framework that will bring about international development financing needed to grow our domestic economy. Nigeria has a huge financing gap. We have a lot of projects that need to be completed, good roads, education, healthcare but we simply don’t have the money. In this situation, what do other countries do? They try to secure the best deals that will deliver win-win outcomes in terms of international financing and development. Like I said earlier, in international law, you don’t get what you deserve, you get what you negotiate. So, it is imperative for us to send the best minds that can negotiate the best deals for us. Mobilising adequate international and domestic finance should therefore be the urgent focal point of our international diplomacy.
Speaking of win-win outcomes, one of the key issues for Nigeria is how to remain competitive in an era of reduced demand for oil and gas. What should be done?
I am a strong advocate of a just, inclusive and orderly energy transition that leaves no country, no person, or no sector behind. At the last UN General Assembly in New York, I delivered a report of our working group titled “Extractive Sector, Just Transition and Human Rights” in which I called for international solidarity to ensure that global efforts to transition to low carbon energy sources do not constrain progress on human rights and the United Nations Sustainable Development Goals, especially in developing countries such as Nigeria. The energy transition cannot replicate or create new forms of human rights abuses, including unemployment, social exclusions, land grabs, poverty, energy insecurity and conflict risks. Without adequate safeguards, developing countries may become the sacrificial lambs for net zero and decarbonisation.
What should be the focus of the country’s foreign diplomacy in this area?
Our foreign diplomacy framework in this area must therefore emphasise the need for a just and inclusive global decarbonisation agenda that balances the interests, priorities and needs of developing countries in accordance with international law. For example, this is 2024, and currently more than 1 billion people (13% of the world’s total population) still lack access to electricity, with about 600 million of those in Africa. Even in Nigeria, constant supply of electricity, reliability and affordability remain key issues. We need a fair and inclusive transition that does not compromise our ability to tackle the current energy poverty challenges facing the country. This will include significant financing, technology and development assistance that will enable us to deploy lower carbon economic models over the next years.
In this regard, our report recommends that “developed countries should mobilise financial and technical resources to assist resource-dependent countries as part of a common global effort and international solidarity to keep the energy transition ambition on track.” There is also a need to harness lower carbon and environmentally preferable transition fuels, such as natural gas, that will help combat the current energy poverty emergency facing our world.
How was green jobs created in US economy?
For example, as far back as in 2007, the United States passed the Green Jobs Act which authorised up to US$125 million in funding to establish national and state job training programmes to help accelerate green employment in key sectors and industries, such as energy efficient buildings and construction, renewable electric power, energy efficient vehicles, and biofuels development. To ensure effective implementation, the US Bureau of Labor Statistics actively collects information on the number of green jobs created across key sectors. This idea of greening the economy is urgently required to accelerate progress on all the SDGs. We need to develop national strategies and legislative frameworks to advance the creation of green jobs and net-zero workforce especially in energy-intensive industries. By devoting a significant chunk of economic recovery plans to finance green and climate resilient infrastructure development programs, Nigeria can record multi-sector progress in achieving net- zero emissions targets of the Paris Agreement, while also advancing the various SDG targets relating to job creation, poverty reduction, biodiversity, conservation, and low carbon transition in key sectors.
What is ILA Nigeria doing to promote knowledge and awareness on the green economy, just transition and investment-focused foreign diplomacy that you described?
Many times, African countries, including Nigeria, end up with lopsided international agreements and deals simply because they go there not with the best minds that understand the intricacies of international deal making. For example, we were all alarmed by the P&ID contract scam that almost cost the country a whopping $11 billion. In a country with several international law experts, this should never happen. We need people that understand the intricacies of international law to be able to go there and negotiate the best deals to bring home financing needed to eradicate poverty, address climate change, and to provide our societies and people the required modern energy sources and infrastructure to lead a decent life.
Our goal at the ILA is to prepare the next generation of international law experts and diplomats that can support Nigeria’s foreign diplomacy agenda. The ILA was established in 1873 in Brussels, with the objective of promoting the study and clarification of international law, both public and private.
At the local level, what is the ILA doing to bridge gaps on all aspects of international law as it affects commercial arbitration, contract negotiation, energy transition among others?
At the Nigerian Branch, we are at the forefront of providing world-class capacity development programs, workshops, and public dialogue to bridge the current knowledge gaps on all aspects of international law, including commercial arbitration, contract negotiation, environment and just energy transition. Just a few weeks ago, we had a much-publicised and highly successful end of year dinner on “Arbitration and Putting our House in Order” which provided insights on how to address fraud and corruption in the practice of arbitration. We are also now preparing for our next Annual Conference scheduled for April, 2024 which will address the role of international law in promoting public-private partnerships (PPPs) for infrastructure development financing. Amongst other important topics to be discussed, the conference will provide insights from leading international law experts on how we can leverage climate financing options such as concessional climate infrastructure loans, green bonds, climate guarantees, and debt for climate swaps from international sources to implement green development projects across different sectors in Nigeria. These are all urgent foreign policy issues of our time which Nigeria cannot afford to take the back seat on. We will continue to provide best practices on how Nigeria can leverage its comparative advantage as Africa’s largest economy to secure high-impact investments and once again take the lead role in international diplomacy. We welcome all international law enthusiasts to join us at the ILA in promoting Nigeria’s brand of international law and diplomacy to the world.
Can you tell us a bit about your career challenges?
Experiencing the practice of law in different jurisdictions has enabled me to gain a systemic understanding of deal-making in different world cultures and traditions and have enabled me to turn challenges to opportunities both in my practice and teaching of international law.
International law is a melting pot of different world traditions and legal cultures including common law, civil law and mixed jurisdictions. As arbitrators and sovereign counsel, we are often called upon to advise on matters that cut across these different legal traditions. Having been educated in Nigeria, Canada, United States and the United Kingdom which are common law jurisdictions, I have had the privilege of teaching and providing legal counsel in Qatar and China which are civil law jurisdictions. For example, this makes it possible for me to teach international energy and environmental law from a global perspective which contextualises the drafting, negotiation, and interpretation of contracts from the standpoint of how Nigerians see it, as well as how counterparts in China, Qatar, Canada, Italy, Switzerland, and other jurisdictions may view it. Furthermore, studying and working in multiple jurisdictions means I have friends in almost every country that I go to, which have greatly enhanced global networking and business development.
Having received so much support and mentoring from institutions abroad, my ultimate aim as an international lawyer is to be at the forefront of leveraging my training and experience to attract the best international investment opportunities that can spur sustainable development in the country, and to motivate and inspire the next generation. I am glad that my efforts in this regard have been recognised by the profession and beyond, and I look forward to doing more.
