Category: Law

By Joseph Jibueze

 

The Olayide Royal Family has urged the Lagos State Government to reverse the installation of Prince Elias Omoloro Ijelu as the Olota of Otta-Ikosi town in the Ikosi/Ejinrin Local Government Development Council Area (LCDA).

The family said the installation took place despite a pending suit before Justice Ajibola Lawal-Akapo of the Lagos High Court.

The suit, marked IKD/2/2014, was filed by Pa Rasaki Oseni (head of the family) and six others against the Commissioner for Local Government and Chieftaincy Affairs and nine others.

The Olayide Royal Family, in a statement by its Secretary Alhaji Moshood Balogun, said the July 1 installation cannot stand because it was done despite a pending suit.

The statement reads in part: “The main issue for determination amongst others is which Ruling House should produce the candidate for the Olota of Otta-Ikosi Town. The trial had commenced in the suit already.

“More worrisome is the fact the court had on the 30th March, 2015 ordered all parties to maintain the status quo pending the determination of the suit.

“Despite that, the Lagos State Government through the Office of the Commissioner for Local Government and Chieftaincy Affairs, still went ahead to install Prince Elias Omoloro Ijelu, the seventh defendant in the suit as the Olota of Otta-Ikosi.”

The family, through its lawyer Ahmed Adetola-Kazeem, had written Governor Babajide Sanwo-Olu on May 5, urging him not to approve the installation of Prince Ijelu or any other person as the Olota of Otta-Ikosi pending the determination of the suit.

The family informed the governor that the parties, including the Attorney General and Commissioner for Justice, had filed their statements of defence.

The family expressed concern that any installation despite the pending case would undermine the powers of the court, as the issues of the rightful person to be installed as the Olota of Otta-Ikosi were yet to be determined.

Besides, it claimed that the action could lead to serious unrest in the community and may result in a breach of peace.

Imposing a monarch on the community, the family added, “will be contrary to the long-standing culture of the people of Otta-Ikosi”.

The Olayide Royal Family said the state’s action in installing Prince Ijelu “is very provocative and antithetical to the democratic principles it swore to uphold.”

“We are hopeful the government will retrace its steps and undo this very disgraceful and contemptuous act which is capable of leading to a breakdown of law and order in our community,” the family added.

But, counsel for Prince Ijelu, Mr Lekan Ijelu, said he was not aware of any restraining order against the state.

“Whilst I agree that if a case is pending, parties should stay action, there was no formal injunction restraining anybody from doing anything, as far as I know.

“I know that before Lagos State government would go to that extent, it must have sought legal advice. The Attorney-General is well represented in the case.”

 

prince Usani Odum is the 28th child of the Paramount Ruler of Biase Local Government Area of Cross River State, Onun (Apostle) Nicholas Odum. Just five years after his call to bar, the 2015 University of Calabar alumnus has worked with the African Court on Human and Peoples’ Rights in Tanzania, the African Union Commission and is now a transitional justice consultant for the Centre for the Study of Violence and Reconciliation (CSVR) in Johannesburg, South Africa. Odum tells ROBERT EGBE how he overcame his challenges to become the first lawyer out of 35 siblings, the problems with the Nigerian legal system, why he petitioned the NBA against Kaduna State Governor Nasir el-Rufai, among others.

 

Please introduce yourself.

My name is Prince Usani Odum. I am from Agwagune in Biase Local Government Area of Cross River State.

My dad is HM, Onun (Apostle) Nicholas Odum, the Onun of Biase, and Paramount Ruler of Biase Local Government Area. I have 35 siblings, and I think I am 28 or so. Growing up was fun. When I see women cooking in large pots during ceremonies, it reminds me of growing up. That was how dinner was prepared at home. My father has two wives – my stepmom and mom, both of whom raised all of us.

My mom had four of us – three girls, and myself as the last. But this distinction is not really relevant to us at home, because we are all united and peaceful family. In fact, because stepmom had 10 biological children, it was usually difficult for her relatives to say which amongst us is not their sister’s biological child. My dad has children from many women too.

Before my dad ascended to the throne as a monarch, he was a very successful businessman. Both of our moms were full-time housewives. Raising us was a full-time job, and it was such a big sacrifice on their part.

What was primary and secondary schools like? Any memorable experiences? 

I attended the Saint Mary’s Primary School in Ugep. There was nothing memorable or special about my primary education, apart from one funny experience I had then. I took on the wrong kid, who gave me a thorough beating. Saint Mary’s Primary School is still a public school, for poor people, and we easily blended into the crowds like other kids.

For secondary school, I attended the Brotherhood Model College in Calabar but later completed my studies at the Presbyterian Seminary School in Yakurr. The latter was a boarding school, and I was traumatised watching senior students beat up juniors with machetes as corporal punishment for minor things like disobedience, fighting, etc. Although I was never a direct victim, I have never recovered from the trauma.

Tell us about your time at the Faculty of Law, University of Calabar and the Law School.

I attended the University of Calabar for my first degree and graduated in 2015 with a Second Class (upper division). I attended Law School in Kano State and graduated in 2016 with a Second Class (upper division) as well. I was called to the Nigerian Bar in 2016.

Studying Law was, of course, demanding. Although I came to the university fairly comfortable with a brand new car and good accommodation, these things nearly became a distraction and I had to work hard to stay up. Part of my challenge was how to cope on my own. Like most young people, I had to take responsibility. My best memories as an undergraduate were ‘night class’. I and some of my friends thought reading overnight on campus was the thing. But you know, most times, we used the time to do a lot of things our parents wouldn’t be so proud of.

For my Masters’ studies, I was privileged in 2018 to be selected from Nigeria to do the European Union-funded LL.M in Human Rights and Democratisation in Africa (HRDA), after a failed attempt in 2017. The HRDA programme is the most prestigious LLM on the continent and admits between 25 and 30 exceptional students each year. Successful candidates are selected from each African country, which implies that most times, some countries don’t even get a representation.

Are your parents or any member of your family lawyers? If yes, did you accompany them to court when you were younger?

I am the first lawyer in my entire family. Although my dad was obsessed with the late Chief Gani Fawehinmi (SAN), he nonetheless wanted me to take over from him in his own company. He was initially disappointed that I wasn’t impressed by the prospects in the business.

Luckily for all of us, one of my older siblings later took over the management upon my dad’s ascension to the throne and has since expanded its interests into oil and gas too, and my dad is fulfilled.

What inspired your choice of Law? What would you have studied instead?

I thought I had the best communication skills around. I am also very sensitive about the rights of the oppressed, so I felt I could use the platform of Law to advocate for them. I am happy I’m doing so already, maybe not on the scale I wished to, but I am satisfied anyway.

If I didn’t study law, I would still have studied law. Growing up, I was so empty-headed that all I had in my head was to become a lawyer.

Was Law School more or less difficult than you imagined? What was your formula for success?

First, I had issues with my posting to Kano, due to the security situation in the region. My parents also had this funny ability to sit back in Calabar and hear the sound of bombs going off in Kano, even before those of us in Kano. It added to the stress because he was always on the phone.

Otherwise, Law School was stressful on its own. I thought the classes were just too much and too invasive. Lecturers came upon us like a pack of wolves, and although we were nearly a thousand in the class, they could easily corner you with the microphone and put you on the spot. God bless you if you couldn’t answer their questions.

But I found a way around my personal studies. I made sure I read daily and kept to that routine religiously. I also made copious notes. In fact, by the time we came back from internship, I left all my textbooks at home, and during bar finals, I discovered I may have been overly prepared. I never made a First Class though.

How did your family or friends celebrate your Call to Bar? Did you have a party, etc.?

First of all, my dad was unavoidably absent, but my siblings attended. Expectedly, we celebrated at home, and slaughtered two goats or so. We also printed calendars and writing pads for our guests.

Very funny, I later discovered that my dad was more interested in having me around the house and accompanying him to all the local events in the area. I left home for Abuja.

Did you win any awards at the university or Law School

Yes. The Students Representative Council in Kano awarded me the Most Outspoken Student in the class. But upon graduation in South Africa, I won the Dean’s First Prize for the best essay in my class, and got both financial reward and an automatic opportunity at the African Court on Human and Peoples’ Rights, in Arusha, Tanzania.

Your first solo appearance in court, do you remember what that was like? 

It was at the Court of Appeal in Abuja, and I had barely resumed in that law firm when my superior asked me to go to court. At the court, I erroneously wrote my name on only one of the counsel lists, and the court sat and rose without calling my matter. Obviously, the list I had my name on wasn’t the judges’ copy. When the court prepared to rise, I sprang to my feet to announce my appearance, but the presiding judge said the court could not see me. It was funny.

Have you had any embarrassing experiences in court, especially with a judge or a member of the opposite sex? How did you cope? 

Yes. My most embarrassing day as a lawyer was at the Supreme Court. We had worked so late the night before at the office, with our senior partner Chief Anthony Idigbe (SAN), who gave me a handwritten document to type. I was a youth corps member, dripping wet behind the ears. I quickly gave the document to my immediate senior who was better at typing. When he printed it out, I took it carefully to Chief Idigbe, who flared up and got really mad. The fact is, when he wrote like that, he left out sections of the law he referred to, and it was the duty of counsel to decipher what law he meant and cite the sections in the spaces he left in the paper. I never knew this, because I was meeting him for the first time that day.

Embarrassed and scared, I came back to the general office, and we all put our heads together to do the needful. A very smart fellow corps member lawyer like myself quickly identified the section offhand, and without confirmation, we typed and returned it to Chief.

The following morning at the Supreme Court, Chief was making his submissions with all the grandeur most SANs are known for until the court stopped him and reprimanded him for deliberately misleading the court with the wrong sections of the law. In fact, the court retired for recess on that basis.

You know, on the day a monkey is destined to die, all the trees in the forest become very slippery. When the court sat again some 20 minutes later, not only did they give judgment against us, they also awarded cost against us. I felt I was carrying the sins of the country on my shoulders, including of the party who did the offence for which we came to court. When we came out, Chief was so angry, he could have beaten me up if he were a violent person. But, the mistake was not entirely mine.

You petitioned the Nigerian Bar Association (NBA) to remove Kaduna State Governor Nasir el-Rufai’s name as a keynote speaker in last year’s NBA Annual General Conference (AGC). Why?

I thought it was an aberration to have the governor talk to the NBA on security and governance, due to the human right situation in Southern Kaduna under his watch. It was purely an ethical issue for me.

It was rather shocking to read the arguments of most people opposed to the petition, including from supposed lawyers. I later read that I was paid by the Peoples’ Democratic Party (PDP) to embarrass the governor. I don’t even live or work in Nigeria. I was happy the right thing was done by the NBA. The entire events taught me a lesson though, that Nigeria’s problems are grossly underestimated. People would go to war because we demand accountability from our leaders, but would look the other way when hundreds of people are slaughtered daily.

What are your thoughts on the wig and gown? Do you think it should be scrapped?

What are the contributions of the wig and gown to the determination of issues before the court? None. Isn’t it a slavish mentality that while the colonial systems from where we copied the tradition have since done away with it, we still cling helplessly to it? I say scrap it.

SAN, Professor or a Judge, which would you choose and why? 

If I had my way, I would want to be a judge, and a professor like I see in South Africa. This is because I feel I have special writing and analytical skills which would be best utilised as a judge. Part of my duty at the African Court involved a lot of legal research and judgment writing behind the bench. I am working towards this dream.

You’ve been practising Law for a few years now. What are the things you don’t like about Law practice in Nigeria or the justice system, that need urgent reforms? 

Everything. From the time it takes to determine cases, to the practice of coming to court to adopt what is already before the judge in black and white, etc. Sometimes, the whole thing looks like a joke. See how long it took to convict (House of Representatives member) Farouk Lawan? Abdulrasheed Maina is still playing hide and seek with the court, while the notorious Evans is still not convicted to date. How does it take a judge eight months to hear an application that is not challenged? This is unacceptable.

I also think it is time Nigeria allows live media coverage of proceedings in court. It is done in Kenya, South Africa, and other places. What are we hiding? Nigeria must demystify and simplify legal proceedings.

You worked at the African Court on Human and Peoples’ Rights, until recently. How did that come about? What was the experience like?

I worked at the African Court as a human rights expert. It was a great but demanding experience, which required dedication and precision, because every single task you handled has real-life implications to human beings and member states to the court’s protocol, including Nigeria. The ambience of the court is very subdued, and there was no time for the international travels and flamboyance we enjoyed in Ethiopia, where I previously worked at the African Union Commission.

I’m currently working as a transitional justice consultant for the Centre for the Study of Violence and Reconciliation (CSVR), in Johannesburg, South Africa. I have expertise in transitional justice in the African context and have carried out research in Mauritius, Seychelles, Morocco, Liberia, Kenya, Sierra Leone, Mozambique, Maiduguri and Ogoni land in Nigeria.

Would you marry a lawyer? Why or why not? 

My dad said whoever wants to marry a doctor, lawyer, engineer, is simply not yet ready to marry. I’d rather marry a wife. But I wish my wife is also a lawyer. I fancy it so much.

What are your hobbies? If you had a second chance, would you still choose law or a career that’s based on your hobby? 

I love writing, and looking for trouble online. Recently, I had a party at my house and I enjoyed it. I think I’ve found a new hobby. If there’s an afterlife, I’d still want to be a lawyer.

Advice for young lawyers?

Young lawyers should find an area in law and specialise. It doesn’t take much. Specialisation does not also mean you can’t do general practice. A time is coming when lawyers without specialisation would become redundant.

In recent times, assets management and application in Nigeria has generated intense controversy in the public space. Nigeria can take advantage of perspectives from other climes on how this issue has been resolved. EFCC leading prosecutor, WAHAB SHITTU and OLUWAFEMI ADEOSUN share useful perspectives for the benefit of Nigeria.

 

 

Public funds are lost to corruption in Nigeria. According to Chatham House, an estimate of $582 billion was stolen from Nigeria since Independence in 1960, this estimate amount is greater than the total Gross Domestic Product of the country today which is put roughly at $518 billion. In 2015 when President Buhari visited the United States, he appealed to the United States Government to help with the recovery of $150 billion stolen from the country in the last decade as at 2015 and held in foreign bank accounts2.

One thing is clear; those who diverted public funds and assets were reckless and ruthless in their actions. The huge funds that were looted from Nigeria would have constituted great investments in infrastructure, health, education and poverty alleviation projects. In an estimate made by the World Bank and United Nations Office on Drugs and Crime, every $100 million lost could fund treatment of malaria for about 100 million people, 250,000 water connections for poor households or full immunisations for four million children.

It is almost impossible today to discuss stealing of public funds in Nigeria without special reference to General Sani Abacha who was the Head of State of Nigeria between 1993 and 1998. The exact amount looted by the late General may not be ascertained, however in a report by Transparency International, it is suspected that between $3 billion and $5 billion of public funds were looted. In a similar manner, a former governor of Delta State, James Ibori was convicted for embezzling about $70 million. A report by Premium Times revealed that about N47 billion and $482 million were traced to the former Minister of Petroleum Alison Madueke. The loss of these huge public funds is worrisome.

The fight against corruption has not been without some results, there have been efforts to recover some stolen funds and assets and even from foreign countries. It is a duty on States when requested to return embezzled public funds to the requesting state party as provided in Article 57 Paragraph 3 of the United Nations Convention against Corruption. In reality, several recoveries have been made. This is to say that stealing and corruption did not have the last laugh.

A number of recoveries have been made in respect to the ‘Abacha loot’. In 2oo5, $723 million was recovered from Switzerland and in 2018 another sum of $322 million was recovered and returned to the Nigerian Government from Switzerland. In 2014, $233 million was returned to Nigeria from Lichtenstein and another $160 million from Jersey. Locally, the sum of $800 million was recovered. All in respect to ‘Abacha loot’.

In a similar manner, recently, the United Kingdom returned to Nigeria, $5.8 billion stolen by the former governor of Delta State, James Ibori. Cases of recovery and return of stolen assets and funds have also been recorded locally. As at 2019, the former EFCC boss, Ibrahim Magu claimed that the Economic and Fianancial Crimes Commission has secured the conviction of 1900 suspects and has recovered about 794 billion Naira and also hundreds of properties have been forfeited to the Federal Government.

The news of recovery of stolen funds and assets both local and foreign is not hard to come by; it is also an indication that the efforts and institutional framework put in place to combat corruption are effective. However, there have been several controversies surrounding the management and use of recovered public funds and assets. There have been reports and allegations that the recovered funds and assets are mismanaged, unaccounted for or ‘relooted’. According to Olivier Longchamp, a finance and tax expert at a Swiss NGO, Public Eye expressed concerns on how over $723 million returned to Nigeria was spent, he claimed that a substantial part of the money disappeared, in his words, “That is not necessarily to say that it was stolen, but it was lost in the accounting system of the federal state.”

Longchamp also claimed that the money returned to Nigeria by Lichtenstein also disappeared. To say that all the recovered funds were not put into good use is not entirely correct; also to say that all the recovered funds and assets were stolen is not true, as Longchamp has opined the problem is more associated with strategic planning, management and accountability.

A case study by Ignasio Jimu of International Centre for Assets Recovery showed an overview of how the proceeds recovered from Switzerland in 2005 from ‘Abacha loot’ was managed and used. It was agreed that the proceeds should go into poverty alleviation projects with special regards to Nigeria’s National Economic Empowerment Development Strategy (NEEDS) priorities in education, health and basic infrastructure. In a report by the World Bank and the Federal Ministry of Finance in 2006, the repatriated funds were actually allocated into Power, Works, Health, Basic and Secondary Education and Water Sectors.

However, in that report, one major problem is that of appropriation and tracking the funds in the national budget. There were cases where the funds were used by agencies to pay for outstanding projects and projects that were already completed even before the repatriation. Reported were also cases of low quality work, abandoned projects and projects that never existed.

It is understandable that the ultimate decision of how the proceeds of recovered assets and funds are managed lies with the national authorities; it must be borne in mind that most of the recoveries that were made in the past generated a huge public attention followed by huge expectations. Therefore it is important that the government prioritises transparency and accountability in any method it may adopt for the management and use of the recovered funds and assets.

In Peru, the government has made several recoveries with respect to public funds alleged to be looted during the administration of President Alberto Fujimori. Vladimir Montesinos who was the head of Peru’s secret service was alleged to be involved in embezzlement, extortion and dealing in arms. Although the definite amount accumulated by him is not established, it is estimated that Peru has recovered over $185 million, about $33 million from Cayman Island in 2001, $77.5 million from Switzerland in 2002, $ 20 million from the United States in 2004, the remaining from Luxembourg, Mexico, Panama, Trinidad, Tobago and Uruguay.

Peru created a special fund to manage recovered assets called the Fondo Especial de Administracion del Dinero Obtenido Ilicitamente en perjuicio del Estado (FEDADOI).

 

According to Jimu there are not so many facts about how effective the special fund has been. It was reported by World Bank that a percentage of the money held in the fund went into funding public institutions that have members on the board of the fund, also there were disbursement that went into funding vacation for police officers and purchasing new uniforms for them. The concern is that there are no specific needs towards which the proceeds were to be applied even though there were procedures for the allocation of the funds.  14

The management of recovered assets in the case of Kazakhstan is worthy of mention. In Kazakhstan, more than $80 million was allegedly and corruptly paid into a Swiss Bank in favour of two senior Kazakh officials.15 In 2007, there was a trilateral agreement between the Republic of Kazakhstan, United States of America and Swiss Confederation. The objectives of the trilateral agreement is specifically to channel the repatriated funds into Child Welfare Programmes and the programmes are to be managed and executed by BOTA Foundation established pursuant to the trilateral agreement. The Board of Trustees of the BOTA Foundation is comprised of seven members, 5 of which are citizens of Kazahstan, the two other members are representatives of the Swiss Confederation and the United States respectively.16 The Welfare programmes and beneficiaries were actually defined; there was the Conditional Cash Transfer Program, Social Services Program and the Tuition Assistance Program. For instance the Tuition Assistance Program was to provide scholarships to indigent students who wish to pursue post secondary education.

How are recovered assets and funds best managed and used?

When assets and funds are recovered, it offers an opportunity to channel the proceeds into growth and development of the country. Therefore nations who are presented with that opportunity must ensure that the assets are put into good use and put mechanisms in place to ensure that they are properly managed and to prevent cases where the funds are ‘relooted’. When recovered funds are mismanaged it renders the efforts and resources put into the recovery process which sometimes can be unusually long an exercise in futility.

Therefore nations to whom assets are repatriated must be intentional and strategic in their approach. Although there is no impeccable model in the management of recovered assets, every arrangement has attracted one criticism or the other; nevertheless some arrangements have proved to be more effective than others.

The underlying principle should be that any model for management and use should be development focused, address poverty alleviation and must contain plans to compensate the victims of the crime if any can be identified.

The government should also prioritize accountability and a reasonable level of publicity on how the proceeds are utilized. Financial experts and international organisations such as the World Bank have shared views and expressed opinions on arrangements and strategies to manage of recovered assets, some of these strategies and arrangements have been adopted by Nations and proved effective.

1. Planning

Planning Asset Return is one of the key elements recognized by the World Bank in developing policies for recovered assets. Inadequate planning or lack of it may likely result in mismanagement. The best time to start planning asset return is when legal proceedings are ongoing that is before the assets are actually recovered.17

Planning will involve a lot of decision making; the authorities will have to decide the intended use of the proceeds, the projects, the sectors as well as the beneficiaries of the proceeds. There will also be a need to determine the management arrangement of the recovered asset, the stakeholders and institutions that will be involved; Specific decisions must be reached on whether a Non-Governmental Organization will be used or a fund will be created for the utilization of the proceeds or existing state system will be utilized.

2. Autonomous Funds

It has already been said that the state decides how the recovered assets and funds are managed and usually the assets are considered as government revenue. One of the problems associated with the repatriated Abacha funds in 2005 in the case of Nigeria was that the funds could not be easily tracked in the national budget, so it was difficult to determine how much was spent on what out of the recovered funds.

Autonomous funds are established by the law for a specific purpose and the source of finance is usually stated in the enabling law.18 The beauty of autonomous funds is that the funds cannot be used for any other purpose aside the purpose specified in the legislation. Civil Society Legislative Advocacy Centre (Transparency International’s chapter in Nigeria) has also called for the establishment of a trust fund to manage recovered assets in Nigeria.19

For instance an autonomous fund, Fondo Especial de Administracion del Dinero Obtenido Ilicitamente en perjuicio del Estado (FEDADOI) was created in Peru to manage the recovery made with respect to Vladimir Montesinos’ diversion of public funds. One shortcoming of that fund is that it was not channeled towards specific needs.20

Therefore it is important to note that when creating an autonomous fund to manage recovered funds and assets, the specific needs, projects and programmes must be defined.

3. Agreement with Requested State

When assets are to be recovered from foreign countries, there has been a practice that an agreement be made between the requested state and the requesting state so as to monitor the use of the proceeds and check mismanagement. In the case of the recovery in 2018 with respect to Abacha loot in Nigeria, the Swiss government insisted on an agreement on how the funds will be managed and used following the allegation of mismanagement in the previous repatriation. Also there was a tripartite between the government of Kazakhstan, United States and the Swiss government which led to the creation of the BOTA Foundation charged with the responsibility of the management and use of recovered funds.21

4. Non-Governmental Organizations

The use of Non-Governmental organizations has proved to be effective in the management and use of recovered assets and funds. Reference has been made to BOTA Foundation in Kazakhstan.

The use of Non-Governmental Organisation promotes accountability and transparency although it may not be cost effective except when huge funds are involved. 22 Africa Network for Environmental and Economic Justice was involved in overseeing how the recovered $322 million from Switzerland as part of the ‘Abacha loot’ in Nigeria were to be utilized.

5. Specific Project/Beneficiaries

Recovered assets and funds are better managed when their utilization is tied to specific projects and programmes, In Peru for instance where the specific projects were not clearly defined; it was difficult to track the effectiveness of the special fund that was created. When the funds and assets are tied to specific projects, follow up and monitoring becomes easier and effective. Also ascertaining the beneficiaries of the funds and assets is another point to note. When there are legitimate owners and direct victims, it is important that they are adequately compensated. Paragraph 3 (a), Article 57 of the United Nations Convention against Corruption provides that the requested state party give priority consideration to returning confiscated property to the requesting State Party, returning such property to its prior legitimate owners or compensating the victims of the crime. When the beneficiaries are easily ascertainable, it is easier to check whether the proceeds are well utilized or not.

It will also build public trust in the process.

6. Public Awareness/Approval

Public awareness is very vital in the management and use of recovered funds and assets. The Civil Society Legislative Advocacy Centre (CISLAC) has expressed concerns about the lack of legislative and public approval in the management of recovered funds and assets23

In the report by World Bank in 2007, there are principles which when followed can bring about a more transparent process in the management of recovered funds.24 There should be public recording of receipt of the assets, public declaration of intended use, Public or official reporting of actual expenditures, timely audit of financial statements and official response to material weaknesses identified in audit finding. 25

The Civil Society Legislative Advocacy Centre (CISLAC) has also expressed concerns about the lack of legislative and public approval in the management of recovered funds and assets.

Conclusion

The true victory against stealing of public funds and assets does not end with the recovery of the funds and assets, when recovered funds and assets are mismanaged or ‘relooted’, it doesn’t make any difference that those funds and assets were recovered in the first place because the rightful owners and beneficiaries are still deprived of the benefits. Perhaps the only benefit derived is the euphoria that their stolen billions have been recovered with nothing to show for it.

Therefore governments should be intentional and sincere in their approach, although the recovered funds and assets are seen as government revenue; they should be handled with special care and efforts with regards to international best practices and recommendations.

 

(Footnotes)

1 Chatham House: $582 billion stolen from Nigeria since Independence available at

https://www.thecable.ng/chatham-house-582bn-stolen-from-nigeria-since-independence

last accessed on 17th June, 2021

2 Nigeria Former Minister stole $6bn of Public Money available at

https://www.thecable.ng/chatham-house-582bn-stolen-from-nigeria-since-independence

last accessed on 17th June, 2021

3 The World Bank and United Nations Office on Drugs and Crime, Fact Sheet on Stolen Asset Recovery, available at

http://www.unodc.org/pdf/Star_FactSheet.pdf

, last accessed 17th June, 2021

4

StAR Corruption Cases Database, available at:

 https://star.worldbank.org/corruption-cases

;”

Nigeria: Experience on Asset Recovery. Nigeria CSO Country Report for Global Forum for Asset Recovery”, Aneej and SERAP, December 2017 last accessed 17th June, 2021.

5

ibid

6 James Ibori: UK returns $5.8 stolen by ex-governor to Nigeria available at

https://www.bbc.com/news/world-africa-57161645

last accessed 17th June, 2021.

7 Is Abacha Accord a Model For returning

‘dictator funds

’ available at

https://www.swissinfo.ch/eng/business/switzerland-and-nigeria_is-the-abacha-accord-a-model-for-returning—dictator-funds—/43938016

last accessed on 17th June, 2021

8 ibid

9

9 Ignasio Jimu- Managing Proceeds of Asset Recovery: the Case of Nigeria, Peru, the Philippines and Kazakhstan

10 Utilization of Repatriated Abacha Loot, Results of the Field Monitoring Exercise Report Prepared by the World Bank with Cooperation from the Federal Ministry of Finance December 2006, available at http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/ 0,,contentMDK:21169861~menuPK:258658~pagePK:2865106~piPK:2865128~theSitePK:25864 4,00.html

11 ibid

12

ibid

13

Basel Institute on Governance (BIG)/International Centre on Asset Recovery (ICAR)

‘Efforts to Recover Assets Looted by Vladimir Mo

ntesinos of Peru

’, available at

http://www.assetrecovery.org/kc/resources/org.apache.wicket.Application/repo?nid=1aafec73-

a345-11dc-bf1b-335d0754ba85.

Last accessed 20

th

June 2021

14 ibid

15

Alima Bissenova in an article titled

‘Swiss to Hand Over USD 84 Million in Blocked Assets to

 

Kazakhstan

’, Ref., available at http://www.cacianalyst.org/?q=taxonomy/term/4&page=5.

16

Stefan Howald,

‘Money from Corrupt Deals for Kazakh Children

’,

Finanzplatz Informationen 

3/2008, available at http://www.aktionfinanzplatz.ch/pdf/en/AFP_Kazakh_0908.pdf. Also

 

reported in The World Bank

’s News Release No. 2008/07/KZ (Kazakhstan BOTA Foundation

 

Established), available at http://siteresources.worldbank.org/INTKAZAKHSTAN/News%20

 

and%20Events/21790077/Bota_Establishment_June08_eng.pdf.

17Stolen Asset Recovery Initiative, Management of Returned Assets; Policy Considerations (2007)

18 ibid

19 Transparency International-Returning Nigerians Stolen Millions available at

https://www.transparency.org/en/news/returning-nigerians-stolen-millions#

last accessed 20

th

June, 2021

20 ibid

21 ibid

22 ibid

23 ibid

24 ibid

25 ibid

 

By John Austin Unachukwu

 

The Nigerian Bar Association Section on Legal Practice ( NBA-SLP) has called on the Federal Government to urgently develop and implement reforms that will set the nation on the path of development for the benefit of all Nigerians.

This is contained in a communiqué issued by the Section at the end of its four-day annual conference held at the Ibom Icon Hotel and Golf Resort Uyo, Akwa Ibom State, with the theme, “Law, Lawyers and the next generation”

The statement was signed by the chairman of the Section, Oluseun Abimbola (SAN), chairman of the conference planning committee, Ferdinand Orbih and Secretary of the Section, Mr Tonye Krukrubo.

It reads in part: “The conference unanimously agrees that Nigeria as currently structured, is dysfunctional; and the most obvious indication of this dysfunction is her regression from previous levels of performance and good governance, especially with respect to the quality of life of its people. It is therefore imperative to urgently implement fundamental and drastic reforms to redirect the nation on development paths to work for all.

“That the  poverty, mass unemployment and growing insecurity confronting Nigeria are the result of the inability or unwillingness of the leadership to make the effort and sacrifices required to build a nation out of our diverse ethnic and religious backgrounds.

“The NBA Section on Legal Practice (NBA-SLP) therefore stresses that it is imperative to subsume all regional identities under one Nigerian identity if democratic governance and nation-building are to succeed. The current security challenges currently bedeviling the Nation are as a result of pent-up and long-suppressed frustrations.

“The conference observes that the Nigerian crisis, at its core, breeds eruptions of long-suppressed frustrations of the poor against the political class and the high-income class of citizens in the society. Poverty is the most dangerous threat to the rule of law and the practice of democracy and therefore must be addressed head-on even if it means challenging the complacency of the rich on behalf of the poor.”

The conference urged the government to deploy policies which will bridge the gap between the rich and the poor and promote equality. It also canvassed that lives and property are sacrosanct and must be secured.

The statement added: “The Conference condemns the lack of an equal platform for diverse voices in the national discourse. It therefore calls for inclusive participation and equality in governance. Gender equality and increased participation of women and all ethnic groups in governance is one of the ways of making Nigeria work for all. This is a shared vision which must be sold to the people and practiced intentionally by Government.

“The present Constitution of the Nigerian nation is a key impediment to progress. It is therefore necessary for the  National Assembly to address the following as a matter of urgency: the reform of the Exclusive List toward decongesting same; restructuring and devolution of powers away from the centre; fiscal federalism; a more equitable revenue-sharing formula; electoral reforms; judicial independence and financial autonomy; gender parity and women’s participation in governance; a robust security architecture characterised by multi-level policing; and constitutional guarantees of social, economic and human rights.”

court processes to the delivery of judgment. A system should be technically evolved to the point where certain applications or court documents can be processed and obtained online without being physically present at the court premises.

“The Conference notes that the judiciary is grossly underfunded, and that arm of government still does not enjoy autonomy. Consequently, the Conference calls for adequate funding of the justice and full implementation of the constitutionally guaranteed financial autonomy of the Judiciary, as well as total independence of the Judiciary. The Judiciary is equally urged to adopt protocols and empower its constitutionally provided structures and processes, to assure their independence and insulation from external interference.

“Disobedience of court orders by the Executive is an issue of grave concern made worse by the fact that the enforcement of court orders is carried out by the Executive using the Police. As a remedy, a specialized force should be created under the direction and supervision of the heads of courts and this force/body will be charged with the sole responsibility of enforcing court orders and judgments rather than relying on the Police which is an arm of the Executive. This assures true independence of the Judiciary.

“The Conference also supports that the appointment of judges must be open and transparent such that meritocracy is enthroned on the Bench.

“ Members of the Bar are reminded that their relevance will not be measured by the impeccability of the lawyer’s advocacy or drafting skills, but by their ability to give practical solutions to emerging, technology-driven challenges.

To this end, the Conference urges members of the Bar to integrate the global, automated digital world with traditional legal structures in order to provide a framework within which these new technologies can be harnessed to enable members compete in a global economy. Young lawyers must acquire ICT-related skills to be technologically savvy and relevant in this emerging technological economy.

The Conference recognizes the need for lawyers to start a new conversation as rebuilders of our institutions and urges the older generation of lawyers to mentor, impart positive values of integrity, credibility, and professionalism of the profession to the next generation.

With the emergence of arbitration and conciliation as a force in dispute resolution, the Section recommends a repositioning, and encouragement of such solutions for effective dispute resolution and development of law firms in Nigeria for greater impact and efficiency.

The Conference frowns at the excesses of members of the Bar who have been provided with the opportunity of occupying public offices and recommends that such members be made to face the Disciplinary Committee wherever their actions have been found to be less than desirable as professional misconduct.

The Conference resolves that, as a way of improving the practice of law, the Bar and Bench should refocus on excellent justice delivery for clients rather than delaying or stalemating cases with unnecessary interlocutory applications based on procedural/technical issues.

The Conference recommends the appointment of more judges and the construction of more courtrooms to promote the speedy dispensation of justice and restore public confidence in the justice system, especially for speedy completion of litigation.

The Conference identified the recurrent development of police excesses and breach of existing laws in their quest for enforcing the law and urged law enforcement agencies in the country to always keep within the ambit of the law in their enforcement efforts.

 

By Eric Ikhilae, Abuja

 

The Chairperson of the Competition and Consumer Protection Tribunal (CCPT), Mrs. Saratu Mama Shaffi, has promised that her agency would ensure prompt resolution of complaints brought before it by aggrieved consumers.

Mrs. Shaffi, who noted that the tribunal was constituted with experienced members, said  everything needed for it to achieve its objectives had been provided

She promised a robust collaboration between the tribunal, the Federal Competition and Consumer Protection Commission (FCCPC) and other regulatory agencies, noting that competition and consumer protection index had become a global tool for assessing countries’ investment potentials.

The CCPT chief spoke in Abuja at a three-day retreat for the tribunal’s members, with the theme: “Laying the foundation for a successful Competition and Consumer Protection Tribunal in Nigeria.”

“The consumer protection index also determines the rate of foreign direct investment and accelerates the ease of doing business as all of these have implications for national economic growth and development,” she said.

She added that the retreat was intended for the tribunal’s members “to develop a vision and mission statement, establish core values and set goals to be achieved within the tribunal’s tenure of five years.”

The Executive Vice Chairman of FCCPC),  Babatunde Irukera, urged the CCPT members  to avoid the kind of technicalities associated with regular courts.

Irukera reminded the members that the tribunal was created to work around the bottleneck associated with the judicial system and noted that the worst they could do was to allow undue emphasis on technicalities to derail the objectives of the CCPT.

Irukera, who urged the CCPT members to work in unison and cooperate with the FCCPC for effective delivery of the objectives of both institutions, stressed the need for them to ensure the credibility of the tribunal, noting that perception was key.

He urged the tribunal members to be courageous, assertive and not to appear weak in order to give Nigerians confidence in the process.

He said:“If you institutionalise a good process, you will produce a good product.”

A member, representing the Southwest, Sola Salako-Ajulo,who assured of the tribunal’s readiness to work with other regulators, was optimistic that parties before the tribunal would get justice within the shortest possible time.

Salako-Ajulo said every decision of the tribunal was enforceable by being registered at the Federal High Court as its judgment.

The tribunal is a creation of  Section 39 of the FCCP Act 2019 with the mandate to adjudicate on complaints in relation to conduct prohibited under the Act.

By Adebisi Onanuga

 

The Chairman of Nigerian Bar Association Section on Public Interest and Development Law, (NBA-SPIDEL), Dr Monday Ubani, has kicked against what he described as the anti-democratic policies of President Muhammadu Buhari’s led administration.

Ubani said the recent practice direction issued by the Chief Judge of the Federal High Court and the plan by Nigerian Drug Law Enforcement Agency (NDLEA) to make drug test compulsory for intending couples is a violation of their rights as enshrined in the constitution.

He said in a statement  that while Buhari’s growing undemocratic policies including the recent ban on Twitter is been addressed through a lawsuit he filed, the Federal High Court practice direction which grants the Federal Inland Revenue Service, FIRS, the power and right to freeze the Bank account/s and forfeit the property of a prospective Taxpayer and the plan by NDLEA to make a drug test for intending couples, raises a serious cause of concern.

He pointed out that President Buhari and Buba Marwa need to be reminded that what we are presently operating in Nigeria is civilian democracy and not a military dictatorship where countless decrees and edicts are churned out without any logic.

Ubani also stated that the whims and caprices of officeholders have no place in a democracy, rather people are governed by laws, rules, and regulations adequately prescribed and in clear adherence to the protected rights of the citizens as prescribed by the constitution which is the grundnorm.

Part of the statement reads: “I am of the candid opinion that Nigerians are feeling suffocated and imperiled with several restrictive measures being churned out limiting their civic space by the current administration. I feel alarmed and forced to voice out my view on this before we are completely drowned by these retrogressive and anti-democratic policies and pronouncements of the officials of the government in Nigeria.

“The recent ban on Twitter, the threat to prosecute Nigerians and broadcasting media outfits who flout their lawless order not to use Twitter, and the announcement of the Minister of Information to license all social media platforms have received and are receiving proper and effective reactions through strident criticisms and invitation to judicial interventions by the aggrieved citizens.

However, two other pronouncements happened  that should be of great concern to human rights activists and the general members of the public.

He said the Federal High Court (Federal Inland Revenue Service) Practice Directions, 2021 issued by the Chief Judge of Federal High Court,  Justice  John Tsoho in favor of a prospective litigant, this time Federal Inland Revenue Service and the pronouncement of the Chairman of National Drugs Law Enforcement Agency, Retired Brig-Gen Buba Marwa suggesting drug test for prospective couples before marriage and even before any employment.

In a related development, NBA-SPIDEL has established two groups,  Public Interest Law Group and Development Law Group for effective and improved performance of the association.

Chairman NBA-SPIDEL, Ubani who stated this, said activist-lawyer Femi Falana (SAN) was appointed chairman of the Public Interest Law Group while the Development Law Group will be chaired by Dr Sam Amadi.

Ubani said other members of the two groups will be announced  soon.

He spoke during his maiden presentation of the NBA-SPIDEL’s report to the recent National Executive Council (NEC) meeting held in Abuja.

He informed the meeting of the intention of the NBA-SPIDEL to engage in aggressive membership drive across the entire branches of  the Federation.

Towards this end, he said they had laid out a plan to appoint Cordinators and Secretaries in all the branches of the NBA.The Cordinators and Secretaries will recruit and also maintain existing  membership of the Section in their various branches.

Their second task, he said, would be to help Spidel realise its objectives at the grassroots level in the pursuit of citizens’ rights.

According to him, “Membership of the Section is critical to its activities and a fulfilment of our mapped out objectives.

“Already, we have started with an aggressive gospel that every lawyer with conscience must first and foremost be a registered member of SPIDEL. We therefore solicit that every lawyer of conscience should without any further prompting from us register and join all the suitable committees to help actualise our dream country and legal practice.

“We need you and the nation needs you more as a lawyer with conscience,” he said.

He further informed NEC that the Section had set up an operational office in Abuja and had employed a Programme Officer to man the office.

The choice of office and programme officer, Ubani exlplained is to accelerate the institutionalisation process of the Section.

He added that the Section had two main objectives which are pursuit of public interest issues in the nation generally and development of legal framework for accelerated economic development.

Ubani further disclosed that the Section has also established SPIDEL Young Lawyers’ Forum as part of the institutionalisation process and mainstreaming objectives in the consciousness of young lawyers.

“We must consciously and strategically groom our young lawyers who will take the legal profession to the Next Level”, he said, adding that appointments into the forum  will soon be announced too.

The NBA-SPIDEL  Chairman also briefed NEC that SPIDEL will be engaging in strategic impact litigations by working closely with other NBA Sections and other Committees like Public Interest Litigation Committee to undertake in strategic impact litigations in certain critical areas that deserve judicial intervention.

According to him the  recent Practice Direction of the Federal High Court made in favour of a prospective litigant(FIRS) requires timely intervention by NBA as the only body that stands in vanguard against oppression by any  government in power.

On Twitter  ban, the Section is collaborating with the Committee to seek legal reliefs just as the chairman as a citizen of the country has already filed his personal action to protest the violation of his  right to free speech.

He said: “Niger Delta Development Project, Promoting the Rights of Internally Displaced Persons, Federalism Project, 2023 National General Election and other Thematic Issues over national development will be the engagement of the Section for the next two years of his administration and his Council Members. “

Finally the chairman informed the House that the President of the Bar,  Olumide Akpata launched A Human Rights App at the end of the Conference of the Section in Ibadan code named “SOROSOKE”.

He said the purpose of the App is to aid the members of the general public who are victims of human rights abuses in reporting and tracking the abuses adding that the various members of SPIDEL at the branch level will be utilised effectively to seek reliefs on behalf of victims of human rights’ abuses through out Nigeria.

He said the election of the Section was held  in Ibadan after a highly successful conference and which marked the end of the eventful regime of Prof Paul Ananaba, SAN.

He listed members of the council consists of: “Dr Monday Ubani as Chairman, Dr Princess Chukwuani as the Secretary, Mr Steve Abah as the Vice Chairman, Ms Funmi Adeogun as the Treasurer. Other Council Members are Dr Paul Ebiala,  Mr. Emeka Nwadioke, Ms Anne Agi, Chief Kunle Adegoke SAN, Mr Kunle Edun, Mr A.M. Karaye, Mrs Igbeaku Evulukwu, Mr Echo Godfrey, Mr Kola Omotinugbon and Prof Paul Ananaba SAN.

 

 

 

Whims and caprices of officeholders have no place in a democracy, rather people are governed by laws, rules, and regulations adequately prescribed and in clear adherence to the protected rights of the citizens as prescribed by the constitution which is the grundnorm.

The Bar was indeed asleep when Assets Management Corporation of Nigeria(AMCON)  laws were amended with the prescriptive rules that place a litigant above the adversary in any AMCON matter that deserves the attention of the judiciary.

He lamented that  the judiciary that a prospective litigant will run to for a remedy, was clandestinely used to enact rules that place AMCON on a higher pedestal against an adverse litigant in any matter that involves both parties.

“It is sacrilegious as we have seen the collateral damage the said rules and enactment have done on litigants in any case involving AMCON.

The side effect of the AMCON Rules is yet to abate before another more dangerous and more destructive Practice Direction was brought out by the Chief Judge of the Federal High Court giving FIRS the upper hand in any case involving her and any prospective litigant over tax issues.

”The summary of the  Practice Direction is that it gives FIRS(The Executive Arm of Government) the power and right to freeze the Bank account/s and forfeit the property of a prospective Tax Payer any time FIRS assesses a taxpayer whatever sum it deems fit

Having frozen the account/s and temporarily forfeited the property/ies of the taxpayer,  if the taxpayer desires to challenge the assessment and the process adopted by FIRS, he will have to deposit half of the sum assessed in an interest yielding account before an audience will be granted by the court.

The illegality of this Practice Direction he said would get any sane man in Nigeri thinking about the motive and rationale behind it.

“The Practice Direction is questionable  under the following parameters; ” It is an affront on the right of fair hearing to a citizen for a law to take away constitutionally guaranteed rights without any justification. S36(1) of 1999 Constitution as Amended guarantees every citizen in Nigeria the Right to Fair Hearing which has been taken away by this draconian Practice Direction that mandates anyone who is challenging the tax assessment to first pay half of the assessed sum before he or she can be heard by the court.

“It is a clear denial of Access to Justice for a litigant to be told to comply with what he or she is challenging in court before gaining access to the same judiciary that will determine his rights and liabilities. Practice Direction by ranking as laws is on the lowest ladder and cannot be used in whatever manner to wrestle the rights of the citizens that are guaranteed by the constitution.

”The arbitrary and abuse in the exercise of power by office public holders should have put the Chief Judge in check before issuing such a Practice Direction that makes a litigant like FIRS to have upper hand in any controversy between them and another litigant who has the right to challenge the exercise of their power in assessment.

“We are here and we know how abusive and arbitrary office public holders can be, especially against opponents and when pursuing their personal interests. Tax assessor can just arbitrarily assess a taxpayer,  say one billion naira. This has happened severally here. Going by that Practice Direction, the prospective tax payer will have to cough out 500 million naira and pay it into an interest-yielding account before such a body or person will have an audience in court.

If the body or person does not have much money, he loses his property forfeited and all the money in his frozen accounts to satisfy the bogus assessment. Where is this kind of thing allowed in any sane society?

“The truth of the matter is that this Practice Direction must not be allowed to stand. If the Chief Judge of the Federal High Court refuses, and, or fails to see the danger and illegality of issuing this Practice Direction, the court of the land should determine this issue simpliciter. We are prepared for the war ahead.

“On Buba Maruwa”s suggestion on the drug test before marriage and employment, I am sure that no legislator whether at the State level or Federal will take him serious on that. We all desire a drug-free society and will vote for whatever legal measures that should be used to reduce if not eradicate it completely but we will not support any policy or measures that infringe on the rights of law-abiding citizens.

We commend and appreciate the efforts of the current leadership of NDLEA in tackling drug problems in Nigeria, but admonished the Marwa leadership of the NDLEA  to operate within the law of the land as the country is not  under the military rule anymore.

Hesaid “Nigerians have made a choice for democracy and ed that they must enjoy all the ingredients of it especially on the aspect that pertains to fundamental rights as guaranteed by the constitution.  Every attempt to restrict the civic space either now or in the future will be decisively resisted by the Nigerian Bar Association members that are alert.”

 

 

Rev. Monday Michaelidiong & Ors V. The Incorporated Trustees Of The Divine Assemblies Of Christ Church Of Nigeria

CITATION: (2021) LPELR-54311(CA)

In the Court of Appeal

In the Calabar Judicial Division

Holden at Calabar

ON THURSDAY, 6TH MAY, 2021

Suit No: CA/C/87/2016

Before Their Lordships:

MOJEED ADEKUNLE OWOADE                JUSTICE, COURT OF APPEAL

JAMES SHEHU ABIRIYI               JUSTICE, COURT OF APPEAL

MUHAMMED LAWAL SHUAIBUJUSTICE, COURT OF APPEAL

Between

1. REV. MONDAY MICHAEL IDIONG
2. ELDER MONDAY ISAIAH UDO
3. ELDER IME EMMANUEL UMOH
4. ELDER EDET AKPAN ESSIEN – Appellant(s)

And

THE INCORPORATED TRUSTEES

OF THE DIVINE

ASSEMBLIES OF CHRIST CHURCH

OF NIGERIA.  – Respondent(s)

 

LEADING JUDGMENT DELIVERED BY MOJEED ADEKUNLE OWOADE, J.C.A.

 

Facts

 

The Respondent, by an originating summons, instituted an action at the Federal High Court, Uyo, contending that the takeover of the Church (the Divine Assemblies of Christ Church) by the Appellants was done in a manner not anticipated by either the Constitution of the Church or the Companies and Allied Matters Act. The Respondent sought for a declaration that upon a proper interpretation of the Constitution of the Church (the “Constitution”), the usurpation of the powers of the Respondents by the Appellants from the 17th of November, 2011 is unlawful, illegal and constitutes a gross breach of the Constitution of the Church and the provisions of the Companies and Allied Matters Act, 2004 among other reliefs.

At the close of filing and exchange of affidavit evidence, the learned trial judge entered judgment in favour of the Respondent holding that the subject matter of the suit relates to the control and operation of the Incorporated Trustee and so the Federal High Court is vested with jurisdiction; and that the trustees have a legal personality that is separate from the corporate body. The trial Court also held that any decisions taken by the Appellants outside their functions as the Elders Council in usurpation of the constitutional duties of the Board of Trustees in the administration of theaffairs and properties of the church is a nullity.

Dissatisfied, the Appellants filed an appeal at the Court of Appeal.

Issues for determination

The Court determined the appeal on the following issues:

1. Whether in view of the relief claimed by the Respondent in her originating summons before the trial Court, the trial Court had jurisdiction to hear and determine the Respondent’s case before the Court.
2. Whether the Respondent in view of the conflicting registration documents presented at the trial Court by the Respondent as Constitutions and Certificates of Registration of Divine Assemblies of Christ Church of Nigeria is registered with the Corporate Affairs Commission of Nigeria.
3. Whether the Respondent as presently constituted even if registered is competent to manage the affairs of the Divine Assemblies of Christ Church of Nigeria and or receive account from the Appellants.

Appelant’s submission

On issue one, Appellants’ Counsel submitted that the case of the Respondent at the trial Court bordered on the interpretation of the Constitution of the Church, and thus borders on the internal affairs of the Church and has nothing to do with the control or operation of a body under the Companies and Allied Matters Act (CAMA). He contended that by the combinedeffect of Section 691 (1) and 693 of the Companies and Allied Matters Act and Section 251 (1) (e) of the Constitution of the Federal Republic of Nigeria (as amended), Federal High Court has jurisdiction in the affairs of an Incorporated Trustees only when the issue relates to change of Trustees and winding up of the body. He referred to the case of Godwin & ORS. v. Okwey & ORS. (2010) 16 NWLR (Pt. 1219) 309 @ 322, 323 and 325.

Appellants’ Counsel argued that claims of the Respondent at the trial Court had nothing to do with the winding up of Trustees of the Church but on who should be the spiritual head of the church, i.e., the General Overseer, which office is different from the Trustees and the administrative head of the Respondent.

On issue two, Appellants’ Counsel submitted that the Respondent failed to prove her legal status as an incorporated body. He argued that purported certified true copy of Certificate of Incorporation tendered by the Respondent wasdifferent from the one the Respondent termed as photocopy of the original, and was also not signed by anybody. He submitted that in law, the effect of an unsigned document even if certified is that it has no value at all. He referred to the case of OFEM v. PRESBYTERIAN CHURCH OF NIGERIA (2012) ALL FWLR 647, at 801.Appellants’ Counsel argued that where the legal status of a party has been challenged and put in issue, it is the duty of the party to prove same by convincing evidence. He referred to the case of REPTICO S. A. GENEVA v. AFRIBANK (NIG.) PLC. (2013) 14 NWLR (Pt. 1373) 172 @ 211. 

On issue three, Appellants’ Counsel submitted that the trustees of the Respondent as presently constituted are not competent to manage the affairs of the Church as only one person is presently functioning as the Trustees of the Respondent. Thus, the Respondent cannot summon any meeting for the purpose of managing its affairs and or taking account if any from the Appellants.

RESPONDENT’S SUBMISSION

On issue one, Respondent’s Counsel submitted that it is the claim of the Plaintiff that determines jurisdiction of a Court. He submitted thatthe Respondent is challenging the takeover of the control of the Church by the Appellants in a manner not anticipated byeither the Constitution of the Church or the Companies and Allied Matters Act.That “forceful takeover”, Respondent’s Counsel contended, was a violent assault on Section 596 (1) and (2) of the Companies and Allied Matters Act Laws of the Federation, 2004. A community reading of Sections 596, 601 and 602 of the Companies and Allied Matters Act brings into view such matters as the corporate status of the association upon registration, its powers to acquire, hold and transfer property, the governing body of the association and the administrative and management functions thereof; matters the determination of which will call for interpretation of the Companies and Allied Matters Act. He referred to Gbagi & Anor v. Okpoko (2013) LPELR – 20167 (CA)

On issue two, Respondent’s Counsel submitted that the requirement of signature was met by the certified true copy of the Respondent’s Certificate of Incorporation, as it was signed by J. K. AHMADU-SUKA for Registrar General.He referred to the case of Micherah Int. Ltd. v. Nig. INT. Bank Ltd. (2015) LPELR – 25768.

On issue three, Respondent’s Counsel submitted thatthe death, incapacitation or unavailability of one or more of the trustees does not affect the legal personality or capacity of the association or as in this case, the Church, which is clothed with perpetual succession. This, Counsel submitted is because the laws recognise a difference between the individual persons who are trustees and the corporate body. He referred to the case of Okatta v. Registered Trustees of the Onitsha Sports Club (2008) 13 NWLR (Pt. 1105) 632 and concluded that nothing in this case has affected the competence of the Respondent to manage the affairs of the Church, or to receive account from members of or officers of the Church, including the Appellants.

Resolution of issues

The Court, in resolving issue one, held that the case of the Respondent fell within the jurisdiction of the Federal High Court, as it was a case that arose from the operation of CAMA. The Court cited Gbagi & Anor v. Okpoko (SUPRA) where it was held thatthe Federal High Court would be vested with the jurisdiction in an action involving regulating, running or management or control of companies; any matter that can be decided without recourse to either the Companies and Allied Matters Act or any enactment regulating operation of companies under the said Act belongs to a State High Court. See also the case of Bankole & ORS. v. Emir (2012) LPELR – 19719 (CA). The Court also held that the case of Godwin & ORS v. Okwey & ORS (Supra) was inapplicable as the issues had to do with the dissolution of a youth group in the Church, and could be decided and in fact was decided without recourse to Companies and Allied Matters Act or any enactment regulating operation of companies.

On issue two, the Court held that a signature is ”a person’s name or mark, written by that person or at that person’s direction. It is also any name, mark or writing used with the intention of authenticating a document.” See Michmerah Int. Ltd. v. Nig. Int. Bank Ltd. (2015) LPELR – 25768. Having tendered certified true copy of its Certificate of Incorporation, the Court held that the Respondent has discharged the evidential burden of proving incorporation and the burden of showing that said certificate may not be genuine or authentic lies with the Appellants.

On issue three, the Court held that by the provisions of Sections 596 and 602 of the Companies and Allied Matters Act, it is evident that the Act recognised the possibility or existence of a sole trustee in the event of demise or incapacitation of other trustees. Trustees have a separate legal personality from the corporate body, and the administration of the affairs of the body is not dependent on the personal status of the trustees but on the separate and distinct life of the incorporated body.Thus, the Court held that where one trustee survives the other appointed with him, he remains the sole trustee that is the sole corporate. The legal personality of the association or body lies in him; he becomes the sole determinant on all issues for which the Law reserves a decision or action for the trustee. See CHIEF James Egbuson & ORS v. Joseph Ikechukwu (1977) All NLR 194, 203; Okatta v. Registered Trustees of The Onitsha Sports Club (SUPRA). The Court thus held that the trial Court was right to have held that the Respondent as constituted is competent to manage the affairs of The Divine Assemblies of Christ Church, Nigeria, or receive account from the Appellants.

Held

The Court held that the appeal is devoid of merit and accordingly dismissed same.

 

Apperances:

Obong U. S. Udoh,            ESQ.        – For Appellant(s)

Aniekan Akpan, ESQ. – For Respondent

• Compiled by LawPavilion

By Robert Egbe

 

Lagos High Court at the Tafa Balewa Square (TBS) annex of Igbosere, has awarded N1million to Michael Ifekandu, an Assistant Financial Secretary of the Amuwo Odofin General Fitness Club, as damages for his unlawful expulsion from the club.

Justice E.O. Ashade held that the N1million is general damages jointly and severally against the respondents.

The judge also awarded 21 per cent post-judgment interest  yearly on the judgment sum from the date of judgment till the date of final liquidation of the judgment sum.

The respondents are the Incorporated Trustees of Amuwo Odofin General Fitness Club, Kingsley Anaege (President), Chuka Uzodike (Secretary), Okechukwu Jones (Assistant Team Manager), Chukwudi Iloeje (Welfare Officer), Ben Chibueze (Chief Team Manager), Uzochukwu Ike (Provost).

Others are Macgoshen Onwunzo (PRO), John Enekweizu (Treasurer), (The members of the executive committee of Amuwo- Odofin General Fitness Club), Frank Nwaka (Secretary Disciplinary Committee), Oke Orah (Chairman Disciplinary Committee), B.O.C. Egwuonwu (Member Disciplinary Committee), Samuel Okafor (Member Disciplinary Committee) and Umeh Joachim (Member Disciplinary Committee).

The judge also directed the respondents to appoint an independent auditor to audit the accounts and financial records of the Amuwo Odofin Fitness Club in accordance with article 11 of the Constitution of Amuwo Odofin General Fitness club dated October 29, 2014.

Ifekandu filed the suit through his counsel, Mr Maduka Onwukeme.