Category: Law

An Abuja-based lawyer, Felix Ashimole, popularly known as Che Oyinatumba, has said he is weighing his options following the affirmation of his disqualification by the Appeals Committee of the Electoral Committee of the Nigerian Bar Association (ECNBA) for the 2022 national elections.

Ashimole was an aspirant for the post of Publicity Secretary.

The Committee, in a statement on June 12, affirmed his disqualification by the ECNBA.

It said, among others, that the inability of Ashimole’s nominator to provide certain documents required to qualify him as a candidate was fatal to his aspiration to join the NBA National Executive Council.

The appellant was disqualified by the ECNBA via a notice of disqualification dated May 20, 2022, on the ground that his nominator, Mr. Mohammed Iyorember Tsav, did not attach his Branch Dues receipt for 2021.

Dissatisfied, Ashimole appealed via a May 29, 2022 email.

Ashimole observed among others that the ECNBA disqualified him for a position he never applied for. He noted that its letter referred to him as a contestant for the office of Assistant Publicity Secretary instead of the position of Publicity Secretary.

But upholding the disqualification, the NBA Appeals Tribunal held that participation in NBA Election as a nominator is a privilege contingent on payment of branch dues, and a nomination cannot be valid in the absence of such.

It affirmed its positions in similar cases that the inability of the aspirant’s nominator to provide the required documents dealt a fatal blow to his aspiration to join the NBA National Executive Council.

The Appeals Committee decision, seen by The Nation, reads in part: “Since there was no evidence before this committee by the petitioner of attachment of payment receipt by Mr. Mohammed Iyorember Tsav of the 2021 Branch Dues, to the Appellant’s nomination form, which is a prerequisite for a valid nomination, the decision of the ECNBA to disqualify him was in order and validly made.”

It said Ashimole’s “attempt to make a heavy weather out of a correspondence exchanged between him and the ECNBA, wherein he was mistakenly referred to as a contestant for the office of Assistant Publicity Secretary instead of the position of Publicity Secretary he applied for, was a non issue” describing it as “a minor error, which did not affect the decision of the ECNBA to disqualify him.”

It added further: “Therefore, this appeal lacks merit and ought to be dismissed and it is accordingly dismissed.”

The decision was signed by Mrs. Olufunmilayo Roberts and Mr. Augustine Ajineh, the committee’s Chairman and Secretary respectively. Reaponding to the decision in a statement on his Facebook page, Ashimole hinted a law suit.

“I find this highly interesting and I am in consultation with my team and before the next working day, Tuesday (today) within hours acceptable by FCT Hight Court to accept fresh processes, I will make a statement,” he said.

A child rights activist, Mrs. Ronke  Oyelakin, has urged the people of Mushin in Lagos to stop blaming survivors of gender-based violence emphasising that this could discourage them from reporting incidents of violence.

Oyelakin, who is the Chairman of Child Protection Network, gave the advice  during a town hall meeting organised by the Lagos State Domestic and Sexual Violence Agency (DSVA) held at the Mushin Local Government Council Hall.

Rather she encouraged Mushin residents to be active bystanders and expose abusers.

She enlightened the people on the various forms of Sexual and Gender-based Violence (SGBV) while urging the people to be active and prepared to eradicate the vice within the community.

The town hall meeting is the fifth to be organised by the  DSVA and is intended  to address the rising cases of domestic and sexual violence across the state. The theme is “It’s on us to End Sexual and Gender-Based Violence.”

The event held as part of the state government’s resolve in heightening awareness about domestic and sexual violence amongst members of the community, informing them of the provisions of the laws and support services available for victims and survivors.

Addressing the gathering, the Executive Secretary of DSVA, Mrs Titilola Vivour-Adeniyi reeled out the statistics in the past years, highlighting the prevalence of SGBV in Mushin Local Government Area and the need for all participants present to join hands with Government in the fight  against Domestic and Sexual Violence.

The Chairman of Mushin Local Government,  Emmanuel Bamigboye who was represented by his Special Assistant, Babatunde  Kehinde encouraged residents of Mushin to speak up if they are subjected to violence in their relationships in order to curb the rate of violence in the society.

Dr. Adeola Obasanya of the Adolescent Focal Person of the Primary Health Care Board informed participants of the medical centres available to survivors of domestic and sexual violence in Mushin.

He listed the centres to include Ayantuga PHC, Mushin PHC and Palm Avenue PHC. Dr Obasanya charged sexual assault survivors to report immediately, within 72 hours, to any of these hospitals to seek medical attention for free.

She said the town hall meetings would be held in all the LGAs and LCDAs across the state.

Over 200 stakeholders drawn from Community Development Associations and Councils, Community Development Authorities, religious leaders notably the Chief Imam of Mushin, Chairman Christian Association of Nigeria, Mushin Branch, traditional rulers including market men and women, the National Youth Council of Nigeria, artisans, captains of industries as well as other relevant stakeholders were present at the meeting.

One of the highlights of the event was the presentation of plaques to the local governments in recognition of their commitment towards ending Sexual and Gender Based Violence in their LGAs and LCDAs.

The toll-free line for reporting domestic and sexual violence cases (08000333333) was inscribed on memorabilia which was distributed to all participants.

 

The National Association of Judiciary Correspondents (NAJUC) has urged the Inspector General of Police, Usman Alkali Baba, to probe the alleged illegal unlawful detention of the Publisher of Royal Times Magazine, Ranti Thomas, by the Lagos Command of Nigeria Police Force.

Mr. Thomas, now released, was reportedly kept in detention for four days  from June 3 after allegedly being whisked away at gunpoint by cops.

The association, in a statement jointly signed by chairmen of Lagos and Ikeja chapters, Peter Fowoyo and Wahab Akinlade, said the information at its disposal suggested that the confinement was unconstitutional and violated Thomas’ rights to freedom of movement and expression guaranteed under the 1999 Constitution (as amended).

The statement said the publisher’s families and friends were thrown into confusion on June 3, 2022, when he was whisked away by the policemen and kept incommunicado for 72 hours

The statement alleged that the men immediately took away his cellphone and removed the sim card, making it difficult for sister security agencies to track him.

According to information the NAJUC gathered from family sources, Thomas left his office on Friday on an invitation to meet someone who called him on his cellphone but never returned until Monday.

His colleagues reached out to relevant security agencies, and were told that his phone had been switched off, and was last active on Friday when he was “abducted”.

It stated that journalists had a constitutional obligation to report issues of interest to the public without hindrance or molestation.

While charging security and government officials on respect for democratic principles, NAJUC urged the IGP to intervene.

Arbitration as the preferred form of alternative dispute resolution (ADR) mechanism is growing on the continent. In Nigeria, the available stats suggest that interest in arbitration is higher than it has ever been. Surveys conducted last year by various institutions showed that more enterprises were embracing this ADR form in resolving commercial disputes, with the use of arbitration increasing in some cases by as much as 25 per cent compared to previous years.

For instance, an Abuja-based dispute resolution law firm, Broderick Bozimo & Company (BBaC), published the result of its analysis of arbitration-related court decisions. The study reviewed the outcome of court decisions concerning the enforcement of arbitral awards, the challenge of arbitral awards, the challenge of arbitration agreements, and the challenges to arbitrator appointments. In total, it reviewed 165 cases decided at the High Court, Court of Appeal, and the Supreme Court of Nigeria.

The report, apart from confirming Nigerians’ comfortability with arbitration, also found that commercial and state parties were increasingly more open to including arbitration clauses in their contracts, and resort to arbitration when disputes arise.

It is not hard to see why.

Joseph Siyaidon of Olisa Agbakoba Legal (OAL) explained in his article “Arbitration Process in Nigeria: A Step by Step Guide” that Arbitration is particularly suitable for the resolution of commercial disputes because “unlike the traditional courts’ system, arbitration is fast, effective, flexible, and confidential. Additionally, parties to the arbitration are free to choose arbitrators who are experts in the subject matter of their dispute.”

Similarly, Babajimi Ayorinde, of a commercially-oriented law firm, The New Practice (TNP), highlighted some of the other benefits of arbitration in his paper titled “Dealing with the setbacks and challenges encountered in ADR”, at the Virtual National Workshop for Judges on ADR in Abuja last June.

Ayorinde noted that arbitration, and ADR in general, “Reduces your workload, decongests the court’s docket – fewer cases to handle, increases the speed with which court cases are dealt with – cases move faster and respects the wishes of parties.”

He also pointed out two other key points: “It makes Nigeria a more-attractive investment destination and promotes Nigeria as a seat for international arbitration – improves forex inflow.”

Ayorinde’s reference to investment and forex were also highlighted last week at the Sixth Africa Conference on International Arbitration, organised by the International Chamber of Commerce (ICC) in Lagos, in partnership with the Nigerian Bar Association (NBA).

The conference had the theme: “African Arbitration: Consolidation and Transformation”.

It featured experts, including Secretary-General, African Continental Free Trade Area (AfCFTA), Mr. Wamkele Mene; President, Nigerian Bar Association (NBA), Olumide Akpata; President, ICC International Court of Arbitration, Claudia Salomon; Chairman, ICC Nigeria, Babatunde Savage; Director for Africa, ICC Arbitration and ADR, Paris, Diamana Diawara; Chairperson, ICCN Commission on Arbitration & ADR, Dorothy Ufot (Senior Advocate of Nigeria, SAN) and Gbolahan Elias, SAN, among many others from across the world.

Domestic arbitration

One of the speakers at the event, Mrs. Adedoyin Rhodes-Vivour, SAN, noted that domestically, arbitration was basically regulated by the Arbitration and Conciliation Act (ACA) Laws of the Federation of Nigeria 2004, which incorporates the 1985 United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Arbitration.

Nevertheless, any of the 36 states is permitted to enact its arbitration laws and a few of them, such as Lagos and Rivers, have done so.

The country has also signed and ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). By the provisions of the Convention, Nigerian courts ought to recognise and enforce arbitration awards as binding and enforceable. They are also mandated by the New York Convention to uphold arbitration agreements by parties.

Arbitration and Nigerian economy

In January, the Nigerian Investment Promotion Council (NIPC), relying on, among others, data from the National Bureau of Statistics (NBS), said Nigeria was attracting an average of $2 billion Foreign Direct Investment (FDI) annually,

Much of the investment goes to Nigeria’s commercial nerve centre Lagos State, which, with its thriving ADR infrastructure, is recognised as one of Africa’s leading arbitration centres.

A 2020 research on Arbitration in Africa by International Commercial Law expert, Prof. Emilia Onyema, and sponsored by the University of London, ALSF and Broderick Bozimo & Company, listed Lagos and Abuja among Africa’s five top arbitral centres.

According to the survey, the top five arbitral centres in Africa as chosen by the respondents are the Arbitration Foundation of Southern Africa (AFSA); Cairo Regional Centre for International Commercial Arbitration (CRCICA); Kigali International Arbitration Centre (KIAC), Lagos Court of Arbitration (LCA), and Nairobi Centre for International Arbitration (NCIA).

The top arbitral centre in Africa as determined by the caseload is the International Centre for Arbitration and Mediation Abuja (ICAMA).

The top five arbitral centres with the best support facilities as chosen by the respondents are AFSA, CRCICA LCA, NCIA, and OHADA Common Court of Justice and Arbitration Centre (CCJA).

The top five African cities that host arbitration as chosen by the respondents are Johannesburg, Lagos, Cairo, Cape Town and Durban.

The top five African countries that act as seats of arbitration are South Africa, Nigeria, Egypt, Rwanda, and Cote d’Ivoire

The place of Lagos

Much of the FDI and other local and international investments and businesses coming to Nigeria are, more often than not, destined for Lagos. Lagos also stands out in arbitration in Nigeria and it was no surprise that its Governor, Mr. Babajide Sanwo-Olu canvassed the case for domestic arbitration at the conference.

Sanwo-Olu, who was represented by the state’s Attorney-General and Commissioner for Justice, Mr. Moyosore Onigbanjo (SAN), praised Nigeria’s arbitration community for the Arbitration and Mediation Bill awaiting assent by President Muhammadu Buhari.

“Apart from this bill, Lagos State is an arbitration-friendly destination.

“In addition to enhancing the Arbitration Law (Laws of Lagos State), the state established Lagos Court of Arbitration (LCA), National Centre for Arbitration and ADR, as a dispute resolution hub to promote and service domestic, regional, continental and international commercial dispute industry, with a full complement of ADR services,” he said.

He explained that the state’s judiciary had partnered with the LCA in helping to ensure prompt out-of-court resolution of disputes.

“LCA is an integral part of our promise to promote the rule of law built as a pillar for economic development not just in Lagos but in Nigeria and Africa in general,” he said.

Sanwo-Olu provided data showing that Lagos alone holds about 65 per cent of Nigeria’s total industrial investment and foreign trade, noting that such a volume of commercial activities was bound to generate arbitration activities.

“With over 3,000 manufacturing industries and more than 400 financial institutions, Lagos currently holds about 65 per cent of the federation’s total industrial investment and foreign trade while also attracting 70 per cent of Nigeria’s commercial activities.

“Africa is currently an attractive investment destination, and an influx of foreign investors who insist on arbitration as their preferred dispute settlement mechanism has increased international commercial arbitration,” he said.

 AfCFTA and African trade

One organisation pushing Nigeria to step up arbitral transactions in resolving cross-country commercial disputes, considering the large number of Nigerian firms spreading their businesses across Africa, is the African Continental Free Trade Area (AfCFTA), which came into force in January 2021.

On April 27, 2022, Prof. Landry Signé testified before the United State House Foreign Affairs Committee during a hearing on “Understanding the African Continental Free Trade Area and How the U.S. Can Promote its Success.”

Signé, a Cameroonian, is a Senior Fellow – Global Economy and Development, Africa Growth Initiative Professor and Managing Director – Thunderbird School of Global Management, Arizona State University.

He said: “The significance of the AfCFTA cannot be overstated. It is the world’s largest new free trade area since the establishment of the World Trade Organisation (WTO) in 1994. It promises to increase intra-African trade through deeper levels of trade liberalisation and enhanced regulatory harmonisation and coordination. Moreover, it is expected to improve the competitiveness of African industry and enterprises through increased market access, the exploitation of economies of scale, and more effective resource allocation.

“The AfCFTA—and its accompanying increased market access—can significantly grow manufacturing and industrial development, tourism, intra-African cooperation, economic transformation, and the relationship between Africa and the rest of the world. In fact, under a successfully implemented AfCFTA, Africa will have a combined consumer and business spending of $6.7 trillion by 2030 and $16.12 trillion by 2050, creating a unique opportunity for people and businesses —and meaning the region can be the next big market for American goods and services.

“UNECA has predicted that by 2040 implementation of the AfCFTA will raise intra-African trade by 15 to 25 per cent, or $50 billion to $70 billion. The World Bank estimates that the AfCFTA will lift 30 million people out of extreme poverty and substantially increase the income of 68 million people who are just slightly above the poverty line.

“The International Monetary Fund (IMF) similarly projects that, under the AfCFTA, Africa’s expanded and more efficient goods and labour markets will significantly increase the continent’s overall ranking on the Global Competitiveness Index.”

AfCFTA’s new ADR mechanism

Mene disclosed that the organisation was in the process of setting up an ADR mechanism to handle the expected huge volume of commercial disputes, with an enforcement capacity, like the WTO, across the continent.

He explained that it would comprise a court of first instance, a court of final instance and a dispute settlement body comprising all state parties to the AfCFTA.

The Secretary-General noted further that arbitration was one of the avenues that is in the protocol which provides, among others, mediation, conciliation, the good offices of the Secretary-General, and informal consultations, through which disputes will be resolved where they may arise to the extent that the treaty has the jurisdiction over those matters.

Mene said: “Disputes will always arise whether in commerce, investment and certainly in our case, in the context of a free trade agreement which essentially is a contract, among, in the case, 43 countries who have ratified and deposited their instruments of ratification.

“Until the establishment and entry into force of the AfCFTA on our continent, there was not a single regional economic community of free trade area whether ECOWAS, SADEC or East African Community; not a single one of these regional economic communities had a dispute resolution mechanism embedded in the treaty with an enforcement capacity.

“So in the African Continental Free Trade Area for the very first time, we have negotiated an instrument for the development of trade and investment disputes that includes an enforcement capacity that will require governments to bring their measures into conformity with outcomes of a ruling of a panel.

“This is truly a transformative moment in the economic and trade history of our continent.”

 Can AfCFTA enforce arbitral awards?

Levels of compliance with court judgments and arbitral awards differ from state to state in Nigeria, and country to country in Africa, depending on how entrenched democracy is in the country.

The BBac research showed a high compliance rate with arbitral awards in Nigeria. Concerning challenge and enforcement of arbitration awards, data from the analysis showed that 74 per cent of challenges to domestic awards were unsuccessful. There were also no successful challenges in the international arbitration cases analysed by the study. It also showed that Nigerian courts enforced domestic arbitral awards 79 per cent of the time and refused enforcement in 21 per cent of cases. For international awards, the enforcement rate rose to 88 per cent.

Nevertheless, Mene observed that some African governments, 43 of which voluntarily ratified the AfCFTA protocol, might view the AfCFTA’s new ADR mechanism’s enforcement ability as a challenge to their power.

He said: “What many governments had feared was an enforcement capacity of a tribunal and in this case a tribunal that is established by a treaty.

“About 20 years ago when I started as a trade expert in the Ministry of Trade, South Africa, we were in a regional meeting and the Heads of State were discussing enforcement of sanctions by the regional tribunal which was tasked to resolve some of the trade disputes. This was 20 years ago. There was a Head of State who said ‘This tribunal that you are instituting, you think it shall have the temerity to tell my country what to do? It shall never happen!’ Of course, the tribunal collapsed.”

He noted that this example is not unique to Southern Africa.

“Now, 20 years later, we have a dispute settlement mechanism embedded in trade law with enforcement capacity that will adjudicate on disputes that arise, to the extent that they are covered by the scope of the agreement, it is not to be taken lightly.”

How AfCFTA’s new ADR mechanism will work

An important part of the AfCFTA’s ADR mechanism framework is dispute settlement. It will be an oversight body on all disputes that may arise under the AfCFTA. Its scope covers trade facilitation, investment, importation, competition policy, digital trade, trading groups, and trading services.

Mene said: “All of these different protocols of the AfCFTA are subject to the scope of dispute settlement protocol which is also one of the pillars. It’s an ambitious objective to seek to establish a dispute settlement mechanism over all of these different areas of Africa’s economy. It is, of course, going to be incredibly difficult, but that does not mean that we should not forge ahead.”

The second area that is created also by the AfCFTA treaty is the panel that will adjudicate disputes, which will comprise international experts, lawyers and courts, trade law, economic and international economics law, and the panel is expected to be impartial, fair, to be technically competent and not to put politics ahead of resolving disputes. The panel has the authority to issue a ruling.

Benefits for Nigeria, others

The Secretary-General explained the AfCFTA is in the process of appointing appellate body members for the ADR mechanism. Mene said: “They will have tenure, not subject to political whims, the wishes of the Secretary-General because they are protected in their positions by the treaty so that they can provide impartial rulings that will advance the implementation of the AfCFTA.

“So, we did foresee, by introducing arbitration as one of the avenues, that some countries may not want to go to litigation, maybe because of cost, but also because we think it is in everybody’s interest that where there is an opportunity to resolve legal disputes by mediation, arbitration, or conciliation, that opportunity may be taken.

“It will be up to the parties to the dispute to select the mode of resolution of dispute that they wish. We cannot compel them to select this route over another. In other words, the avoidance of dispute is the object that all our members should strive for.”

Concurring with Mene on the need for African arbitrators develop themselves to enjoy the benefits of the AfCFTA arbitral panel, NBA President reality charged Nigerian lawyers to get the required competence. “It’s important for us to gain that knowhow for us to effectively participate in that process. So, I encourage the ICC to make trade arbityration part of the corriculum so that we can develop the required competence,” Akpata said.

 

The Lagos State Domestic and Sexual Violence Agency (DSVA) and the Lagos State Waterways Authority (LASWA) have commenced awareness campaign against sexual and gender-based violence (SGBV) in the riverine areas of the state.

The campaign kicked off on Monday with a walk against domestic and sexual violence.

The exercise saw officials of DSVA and LASWA walk from Military Hospital, Lagos to Falomo sensitizing the public on the dangers of SGBV.

DSVA Executive Secretary Mrs. Titilola Vivour-Adeniyi said her agency is determined to eradicate the vice.

Vivour-Adeniyi said her agency has remained relentless in its fight against sexual and gender-based violence (SGBV) and is keen on eradicating it in the state.

She urged residents of Lagos State to see themselves as mandated reporters who have a duty to “say and do something when they see something”.

She urged those in the riverine areas including residents of Lagos State that make use of the jetties as a means of transportation.

She also thanked LASWA for its collaboration with the agency in it’s fight against SGBV, restating the state government’s zero-tolerance for domestic and sexual violence.

The General Manager of Lagos State Waterways Authority, Mr Oluwadamilola Emmanuel, ìn his remarks appealed to all participants to spread the message across and become ambassadors against Domestic and sexual violence in Lagos State.

The LASWA boss further emphasised the importance of inter-agency collaboration, explaining that a large number of Lagos residents make use of LASWA jetties and terminals daily, hence the reason for the joint sensitization between LASWA and DSVA.

In furtherance of the awareness campaign, fliers, posters and other informative materials would be placed at all the ferry terminals including, Apapa ( Liverpool terminal), Ikorodu Baiyeku

Ikorodu, Badore – Tarzan terminal Ebutte Erro, Ijegun, Ebutte Ojo and

Falomo- 5 cowries. There will also be ongoing sensitisation exercises which will involve engaging members of the respective communities.

DSVA has continued to call on anyone experiencing any form of abuse to speak up and call its toll free line;08000-333-333.

 

Energy law expert and global Vice Chair of the International Law Association (ILA) Prof. Damilola Olawuyi has said new legal guidelines are needed to meet the projected exponential growth in demand for natural gas in the emerging trend in energy transition.

He said failure to understand and comply with such emerging standards could pose significant legal, business and transition risks for clients, and their lawyers alike, and may result in complex litigation.

Olawuyi, who is also the vice chancellor, Afe Babalola University, Ado Ekiti (ABUAD),  stated this while virtually unveiling his new book titled:  “The Palgrave Handbook of Natural Gas and Global Energy Transitions”.

He said: “Like Nigeria, many natural gas-rich countries across the world are introducing new legal requirements, contractual mechanisms, and industry guidelines in order to meet the projected exponential growth in demand for natural gas in light of the energy transition, in a safe, reliable, and environmentally responsible manner.

He noted that the  new book outlines “the risk mitigation strategies and contractual techniques,  focusing on resilience planning, low-carbon business models, green procurement, climate-smart infrastructure development, transparent climate disclosures and reporting, gender justice, and other sustainability safeguards – that are required to maximize the full value of natural gas as a catalyst for a just and equitable energy transition and for energy security across the world.”

Olawuyi explained that the book was written out of the need to provide in-depth knowledge of the transformative implications of the ongoing global energy transitions for natural gas markets across the world.

He said the book highlights the important roles of natural gas in the global energy transition, and how gas rich countries such as Nigeria can leverage their comparative advantages as safe, reliable, and environmentally sustainable suppliers of this transition fuel.

Published by Palgrave Macmillan, United Kingdom, the 619-page book, apart from Prof Olawuyi, is co-edited by  Eduardo Pereira, a Brazilian energy law expert with case studies from Africa, Asia, Europe, North America, Latin America, South America, Australia, and the Middle East, the book introduces worldwide readers to the latest legal, policy, technological, fiscal, contractual and sustainability innovations in natural gas markets in response to ongoing global energy transitions.

On the book, the Executive Chairman of the African Energy Chamber and Chief Executive Officer of Centurion Law Group, N. J. Ayuk,  said the book makes a powerful case on the role of natural gas in pursuing just energy transitions.

He commended the authors for providing such “a thorough look at the regulatory, financial, and business measures necessary for gas-producing nations to capitalize on their natural resources.

They give us success stories to consider and rightly challenge us to consider the part women play in our evolving energy industry.  The result is a compelling read that, I believe, makes a powerful case for pursuing just energy transitions.”

Prof. Kim Talus, who is the McCulloch Chair in Energy Law and Director of Tulane Center for Energy Law and Professor of European Energy Law at the University of Helsinki, Finland, noted that this book could not come at a better time.

He noted that “In-depth studies on the gas sector transition in various parts of the world will provide guidance for market actors, governments, and experts.

Clearly, this book is what can be called must read.”

Similarly, André Giserman, an Advisor, Office of the Director General, Brazilian National Agency of Petroleum, Natural Gas and Biofuels stated that the book provides timely, comprehensive, cross-country, and cross-disciplinary direction that will be especially useful for policymakers, regulators, industry professionals and scholars in natural gas markets worldwide.

Senior Advocate of Nigeria (SAN) Mr. George Babalola alerts the Independent National Electoral Commission (INEC)], political parties and candidates that the Constitution and Electoral Act, 2022 provide two categories of pre-election matters with differences in the locus standi to institute the actions for either category.

 

Meaning of Pre-election matters

Election litigation is bound to occur in an electoral process. This is because, before every general election is conducted in Nigeria, the political parties are required by law to conduct internal primary elections to nominate candidates that would represent them at the general election. Disputes often arise from issues of qualification, disqualification, nomination, substitution, conduct of primaries and sponsorship of candidates for the general election. These are pre-election matters.

Thus, pre-election matters occur from preparations towards the  general election. In other words, pre-election matters are, as the name implies, matters that occurred before the general election itself. “They are live issues that must be heard and a judgment delivered. Litigations arising from party primaries, e.g., substitution of candidates. Complaints about the conduct of primaries are pre-election matters.” Per Rhodes-Vivour J.S.C. in A.P.C. V. LERE (2020) 1 NWLR (PT. 1705) 254 @ 279.

Therefore, matters arising from disputes which arise before the general election are referred to as pre-election matters.

The following matters have been classified by the courts as pre-election matters: (1) nomination of candidate (2) double nomination of a candidate (3) disqualification of a candidate (4) wrongful substitution of a successful candidate’s name by the electoral body (5) wrongful omission of a successful candidate’s name by the electoral body (6) complaints about the conduct of primaries (7) false declaration on oath about particulars of a candidate.

See A.P.C. V. LERE (SUPRA), MODIBO V USMAN (2020) 3 NWLR (PT 1712) 470 @ 500 – 515, GBILEVE V ADDINGI (2014) 16 NWLR (PT 1433) 394.

Importance of Pre-Election Matters

The importance of pre-election matters cannot be over-emphasised as they are live issues which must be determined by the court and judgment delivered even after the general election has been conducted and a candidate has been sworn in to occupy an exalted position such as a Senator, member of the Federal House of Representatives or Governor. This is corroborated by what transpired after the 2019 General Elections, when a governor was ousted before the swearing-in ceremony, some senators and members of House of Representatives were ousted by the Supreme Court on account of pre-election matters after taking oath of allegiance and after the inauguration ceremony. See P.D.P. v DEGI-EREYMIENYO & ORS (2020) 1 -2 SC (PT. 1), A.P.C V. LERE (supra) and MODIBO V. USMAN (supra).

Constitutional Provisions for Pre-election matters

The 1999 Constitution of the Federal Republic of Nigeria (as amended) makes provisions for pre-election matters and gives its definition. Please see section 285 (14) of the Constitution of the Federal Republic of Nigeria,1999 (as amended) hereinafter referred to as (CFRN).

The said provision of section 285(14) of the CFRN has been judicially considered by the Supreme Court in the cases of A.P.C. V. UMAR (2019) 8 NWLR (PT. 1675) 564, KUSAMOTU V.A.P.C (2019) 7NWLR (PT.1670) 51,

Please see also, the Supreme Court decision of APC v DELE MOSES & Ors, (2021) 14 NWLR (PT 1796) 278 @ 319 PARAS E-G, Per Augie J.S.C., where the Apex court summarised the meaning of pre-election matters under section 285(14)(a) -(c) of the CFRN.

Analysis of the Constitutional Provision of Section 285(14) of the CFRN

By the said provision of section 285 (14) of the CFRN, the sub-section recognises three (3) different types of pre-election matters under paragraphs (a) – (c).

(1): Paragraph (a): deals with the complaint by an aspirant (directed at his political party), that there has been failure to comply with the Electoral Act, party constitution or party guidelines in the conduct of the party’s primary election in respect of selection and nomination of candidates for the said primary election.

The Court has held that in the conduct of its primaries, it will never allow a political party to act arbitrarily. A party must obey its own constitution. See UZODINMA V IZUNASO (NO.2) (2011) 17 NWLR (PT. 1275) 30, A.P.C V. LERE (supra).

(2): Paragraph (b): deals with the complaint by an aspirant, [directed at the Independent National Electoral Commission, (INEC)], that actions, decisions or activities of INEC did not comply with the Electoral Act, or complaint that the provisions of the Electoral Act or any Act of the National Assembly, pertaining to selection or nomination of candidates and participation in an election have not been complied with by INEC.

In other words, this covers complaints about INEC not complying with the provisions of the CFRN and the Electoral Act pertaining to selection or nomination of candidates and participation in an election.

It deals with aspirants who challenge actions, decisions or activities of INEC in respect of their participation in an election. Please see APC v DELE MOSES & ORS (supra).

Thus, an aspirant can rightfully seek redress in court for any of the above infractions by INEC. Typical examples are registration of voters, delineation of constituencies, formation of political parties, updating of voters’ register, regulation of the conduct of political parties etc.

(3): Paragraph (c): deals with cases by a political party (directed at INEC) for its administrative decisions or actions regarding a party’s candidate’s nomination or disqualification.

It includes suits by a political party in connection with an election time table, registration of voters and other activities of INEC regarding preparation for an election.

In other words, paragraph (c), deals with political parties that challenge actions, decisions or activities of INEC in respect of nominations of candidates for an election, timetable for an election, registration of voters and other activities in respect of preparation for an election. Please see APC v DELE MOSES & ORS (supra).

Analysis  of the provisions of  the Electoral Act 2 O22  in  pre-election matters.

The provisions of section 285 (14) of the CFRN in defining a pre-election matter is not exhaustive. Thus, it preceded the definition of pre-election matter with this phrase – “for the purpose of this” – See OKOLI V. DURU & ORS (2006) LPELR 12601 (CA) @ 21-22.

Thus, it is humbly submitted that pre-election matters can emanate from other sources in law. This is now contained in section 29(5) of the new Electoral Act 2022 which provides thus:

“Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted given by that candidate in relation to his constitutional requirements to contest the election is false may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false.”

The order that the court will make is provided for in section 29 (6) of the Electoral Act, 2022 thus:

‘(6) Where the Court determines that any of the information contained in the affidavit is false only as it relates to constitutional requirements of eligibility, the Court shall issue an order disqualifying the candidate and the sponsoring political party and then declare the candidate with the second highest number of votes and who satisfies the constitutional requirements as the winner of the election.’

Similarly, section 84 (14) of the Electoral Act, 2022 provides thus:

“(14) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”

Accordingly, the above provisions create another species of a pre-election matter which now only clothes any aspirant who participated in the primaries of his political party with the requisite locus standi (capacity to sue) to challenge the information supplied by a candidate of his political party and to challenge the conduct of the primary election of his political party before the General Election.

By the current position of the law, only aspirants are conferred with the requisite locus standi to institute pre-election matters in court under sections 29 (5) and 84(14) of the new Electoral Act, 2022. In other words, it should be noted that the new Electoral Act 2022 has now limited this pre-election suit to only (1) An aspirant who participated in the primaries of his political party. (2) The aspirant can only sue his political party’s candidate. (3) The aspirant can only sue his political party’s candidate regarding his constitutional requirements in connection to the subject matter of this suit. (4) This suit can only be instituted at the Federal High Court.

Thus, any aspirant who participated in the primaries of his political party and believes that his political party’s candidate has furnished false information in his affidavit on oath or any document, inclusive of his nomination form to INEC, may institute an action against him only in the Federal High Court. Please note that the Electoral Act 2022 has limited institution of such pre-election matters only to the Federal High Court.

Constitutional Provision on limitation of time for commencement of Pre-election matters in court

It is pertinent to note that the CFRN provides for limitation of time for the commencement of pre-election matters under section 285 (9) thereof. It provides thus:

“9) Notwithstanding anything to the contrary in this Constitution, any pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained in the suit.”

This provision has come up for consideration before the Supreme Court in a plethora of cases. See GARBA V. A.P.C (2020) 2 NWLR (PT.1708) 345 @ 360.

The application of the above Constitutional provision has resulted in the dismissal or striking out of many cases in court for being statute barred, (even though there is a reasonable, genuine and compassionate cause of action), where the matters are filed outside the prescribed time limit of 14 days.

Hence, it is very critical for pre-election matters to be filed within 14 days of the accrual of the cause of action, otherwise no matter how compelling or compassionate the case of the litigant is, the matter will be statute barred and struck out or dismissed by the Court.

Constitutional Provision on limitation of time for hearing and determination of Pre-election matters

There is a Constitutional provision for the time limit within which to hear and determine a pre-election matter. That is the time within which the case must be heard and judgment delivered. This is because in election related matters, time is of the essence. Thus, section 285 (10) of the CFRN stipulates thus:

“A court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit”

The importance of this provision cannot be over-emphasised as cases (even though compelling) have also been struck out or dismissed by the appellate courts as the case was heard and determined outside the prescribed time limit of 180 days. See USMAN ABUBAKAR TUGGAR v ADAMU MUHAMMAD BULICA CHUWA & ORS (2019) LPELR 47883

Constitutional provisions on limitation of time for filing, hearing and determination of appeals in pre-election matters

Finally, there are also Constitutional provisions on limitation of time for filing, hearing and determination of appeals in pre-election matters.

Hence, section 285(11) of the CFRN provides:

“An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.”

Also, the provision of section 285 (12) of the CFRN provides:

“An appeal from a decision of a court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal”

Hence, the above two constitutional provisions govern limitation of time regarding filing, hearing and determination of appeals in pre-election matters.

Accordingly, pre-election matters have been struck out by the appellate courts on the ground that the appeal was not filed within the stipulated period of 14 days or was not heard and determined within 60 days. See TOYIN v MUSA (2019) 9 NWLR (PT 1676) 22.

 

Conclusion

In view of the foregoing, it is pertinent to note that there are two categories of pre-election matters, namely (1) pre-election matters as provided for by the CFRN and (2) pre-election matters as provided for in the Electoral Act, 2022.

One fundamental observation and difference is the locus standi to institute the actions for the two categories. As for the provision of section 285 (14) (c) of the CFRN, it appears that locus standi to file a pre-election matter thereunder is not for aspirants but for political parties that are aggrieved by INEC’s actions etc. It gives room to political parties to challenge actions, decisions or activities of INEC in respect of nominations of candidates for an election, timetable for an election, registration of voters and other activities in respect of preparation for an election. It is posited that this can be explored by a political party to challenge the nomination of candidates of another political party.

Whereas, the second category as enshrined under sections 29 (5) and 84 (14) of the Electoral Act, 2022 confers locus standi on aspirants only.

Therefore, it is crystal clear that pre-election matters occupy a very sensitive and significant position in the Nigerian Electoral Law. Therefore, the political parties, candidates and the electoral umpire INEC must ensure that they follow the rules and regulations under the laws. Their watchword must be fairness, justice and adherence to the provisions of the electoral laws.

 

• Babalola is a Partner at Afe Babalola & Co., Emmanuel Chambers, Abuja.

Chairman, Senate Committee on Media and Publicity, Dr. Surajudeen Basiru  has said that  lawyers are integral to credible elections in the country.

Basiru argued that by their calling, they are the vanguards of the rights of the people.

According to him, where lawyers fail to live up to that “sacred” responsibilities, such rights are bound to be infringed, be in contention with others rights or out rightly jettisoned.

“We are an indispensable and integral part of the electoral process and we need to play decisive roles in ensuring the stability and consolidation of democratic governance through free, fair and credible elections,” Basiru said.

He spoke on the topic, “Lawyers, Administration of Justice and Imperative of Credible Elections in 2023 for Nigeria’s Political and Economic Stability” at the 11th Babatunde Olusola Benson (SAN) annual lecture held at the Ikorodu Town Hall as part of activities of the Nigerian Bar Association (NBA) Ikorodu Branch Law Week. The theme wasNation Building: Our Collective Responsibility.

Others who spoke included Mrs. Funke Adekoya (SAN), Yakubu Maikyau (SAN), and a former NBA National Secretary, Jonathan Taidi.

Dr Basiru, who also represents Osun South in the Senate, said in order for democratic governance to thrive, there must exist an atmosphere where the citizenry collectively subscribe to rules, universal obedience to those rules and uniform and fair enforcement mechanisms, adding that lawyers are critical to the maintenance of this atmosphere.

He noted that lawyers cannot deepen democracy without simultaneously helping to strengthen democratic institutions, stressing that democracy works best when the institutions function effectively and efficiently.

“Lawyers’ efforts to deepen democracy will amount to nought until judicial corruption is stamped out or brought to the barest minimum. The rot in the judiciary gives impetus to politicians to be more reckless and brazen. This cripples lawyers and prevents them from acting as effective counterweights against tyranny and injustice, exposes citizens to abuses and predations by tyrannical governments and powerful private citizens, and ultimately destroys public confidence so vital to the integrity of the judiciary,”  Basiru added.

Adekoya noted that lawyers have obligations to uphold the rule of law, pointing out that where they fail to do this, it would have negative impact on the country’s political and economic situation.

Accirding to her, the solution is for lawyers, particularly those handling political matters, to uphold professional ethics and be disciplined.

 

Funda Wazi Foundation, a non-governmental organisation, has honoured its late founder, Pastor Nomthi Odukoya with a collection of poems and drawings by school children in Lagos.

The collection, entitled: A Fight against Child Abuse, was  launched on May 30, to commemorate  her posthumous birthday  at Fountain of Life Church, Ilupeju, Lagos.

Speaking at the event, First Lady  of Ogun State, Mrs Bamidele Abiodun paid tribute to the late Odukoya for touching the lives of many children and adults, providing resources that are critical to their lives and wellbeing.

Abiodun described the deceased as a shining light,seasoned educator and life coach,who was dedicated to victims of any form of abuse.

“She always found ways to engage on issues around child abuse, especially with the victims who were afraid or unable to speak out,” she said.

The First Lady, who  hailed the the deceased’s husband, Pastor Taiwo Odukoya for supporting her vision, described the book as a timely text and advocacy tool for helping survivors of every form of abuse.

She also praised the leadership of the foundation and children who  contributed to the collection.

Executive Director and Chairperson of  Association of Private Educators in Nigeria (APEN), Mrs Lai Koiki, said the book was a timely intervention at a time when abuse in all  forms had become a daily reality for the Nigerian child.

She urged everyone to build on the legacies of the late Odukoya towards the development of the nation.

“Pastor Nomthi’s intervention in form of her books came way before the public outcry on child abuse. Her intention was to break the code of silence and empower the children with the tools needed for self-preservation,” she said.

Earlier, Chairman of the Foundation, Dr Tobi Odukoya-Enuha, underscored the importance of children’s voices in combating abuse of all kinds.

“Pastor Nomthi dedicated herself to educating, equipping and empowering children as well as adults through many initiatives like project F.A.P.E which focuses on art and poetry writing, project T.E.M which is the Teacher Mentorship Programme, and book distribution event,” she said.

She noted  that the deceased’s  legacy, which has found expression  through her books and the foundation, would continue to  impact more children of all social classes as well as community stakeholders.

 

New members have been elected into the executive committee of the Chartered Institute of Arbitrators (CIARB), Nigeria Branch.

The election followed  the retirement of some members of the Branch Executive Committee at its inaugural meeting held on April 21, 2022.

The newly elected members were inaugurated at the 2022 Annual General Meeting of the branch which held at its headquarters in Lekki, Lagos.

Those elected into the executive committee included a council member of the Nigerian Bar Association  Section on Public Interest and Development Law (NBA-SPIDEL),  Emeka Nwadioke,  a Securities and Exchange Commission (SEC) registered capital market expert, Kamar Raji; former NBA Lagos Branch Legal Adviser,  Harry Ukaejiofor and, a chartered secretary, Mrs. Olushola Adeniran.

Meanwhile, following their  services to the branch, Mrs. Josephine Akinwunmi (FCIArb) returned to the Executive Committee as the Branch Secretary while Dr. Adeyemi Agbelusi (FCIArb) retained his position as the Public Relations Officer. Nwadioke was elected the Branch Treasurer while Adeniran is the new Assistant Secretary.

Other members of the executive committee of the branch for the year 2022-2023 are Chief J. Akingbola Akinola, SAN, C.Arb (Chairman); Mr. Olatunde Busari, SAN C.Arb (immediate past Chairman); Mrs. Olusola Adegbonmire, C.Arb (1st Vice Chairman); Prof. Paul Idornigie, SAN, C.Arb (2nd Vice Chairman); Mrs. Obosa Akpata, C.Arb (3rd Vice Chairman/Chair, Membership Sub-Committee); Mr. Seyilayo Ojo C.Arb (Chairman, Training Sub-Committee) and Mr. Olumide Sofowora SAN, C.Arb (Regional Representative).

Others are Mrs. Miannaya Essien SAN, C.Arb; Mr. Charles Musa, FCIArb; Mr. Omoyemi Akangbe, FCIArb; Prince Lateef Fagbemi, SAN, FCIArb (Chairman, Ibadan Chapter); Hon. Olusola Ephraim-Oluwanuga, mni C.Arb (Chairman, Abuja Chapter); Mr. Tonye Krukrubo, MCIArb (Chairman, Port Harcourt), and Mr. Emoubonivie Majemite, ACIArb (Chair, YMG Nigeria Branch).

CIArb is the recognised global thought leader on Alternative Dispute Resolution (ADR), operating in over 40 countries. Spread across the globe and supported by an international network of 42 branches, the institute supports members’ career development, enabling them to compete in an ever-changing market. Its network of worldwide branches provides members with the knowledge, skills, and resources to develop their expertise and to be at the forefront of practice excellence by attending, sharing, and engaging on a global level.