Category: Law

TITLE:
Fundamental Rights(Enforcement Procedure) Rules, 2009:
Practice, Procedure, Forms and Precedents.

AUTHOR:
CHIEF OGWU J. ONOJA, SAN.

PUBLISHER:
BAR & BENCH PUBLISHERS LIMITED.

VOLUMES:  1 AND 11

PAGES:  1,046 PAGES.

COVER PRICE:    N50,000.00

YEAR OF PUBLICATION:    2020.

DATE OF PUBLIC PRESENTATION:  MARCH 19, 2021.

ISBN NO: 978-978-985-403-5.

REVIEWER:       
PROF. OFFORNZE D. AMUCHEAZI, (SAN).

INTRODUCTION

It is indeed a great honour and privilege to be invited to review the book written by my learned colleague and an outstanding leading legal practitioner, Chief Ogwu J. Onoja, SAN. The book titled “Fundamental Rights (Enforcement Procedure Rules), 2009″ which we gather to witness its public presentation is largely unrivalled by any work on human rights in Nigeria.

The book analyses and simplifies fundamental issues relating to procedures, proceedings, jurisdiction and enforcement of fundamental rights in Nigeria and applicability of international instruments on human rights in Nigeria. It is remarkable for its clarity, rigorous analysis and examination of complex issues involved in human rights.

His writing style is simple and easy to comprehend.

Chief Onoja is a fine legal mind. He has the inestimable advantages of a committed scholar – fine and brilliant legal mind, the facility of language and the ability to raise and explore fundamental issues that other writers often fail to consider.

He examines issues with a combination of sophistication and dexterity rare to find among lawyers in litigation.

Clearly evident all through the book is the resourcefulness, vitality, and enthusiasm of an enquiring scholar deeply committed to the task of using the law to make society better.

The book, Fundamental Rights (Enforcement Procedure) Rules, Practice, Procedure, Forms and Precedents, is an assemblage of a richly researched work and I commend the author for the painstaking and diligent research he has put into this work. As the Chief Justice of Nigeria, Hon. Dr.  Justice Ibrahim Tanko Muhammad, CFR,  stated in his foreword:

“This book is both engrossing and handy. The book in its experimental and expository sense is a model text on the subject of procedure for the enforcement of human rights. It is recommended as a reference material and ready companion for practising lawyers, the law enforcement agents, academics, law students and persons interested in advancing the course of human rights”

The book is divided into two volumes of three parts.

DISCUSSIONS

Part 1 contains in-depth discussions on the Preamble and fifteen (15) Orders of the FREP Rules, 2009.

 

PREAMBLE

The inclusion of Preamble in the FREP Rules, 2009 is the first major difference with the 1979 Rules. The preamble, though not forming part of the Rules, encapsulates the principles and general intendment of the fundamental rights enforcement rules. It urges the courts (and equally admonishes parties and their representatives to assist the courts) in giving full effect to the overriding objectives of the Rules. Part of the overriding objective of the Rule is an expansive and purposeful interpretation of Chapter 4 of the 1999 Constitution and the African Charter on Human Rights. The objective also includes respecting municipal, regional and international instruments on human rights.

This preamble established the essence of the Fundamental Rights Enforcement Procedure (FREP) and x-rays the duties of stakeholders (the court, practitioners and the parties) in realising the objectives of the FREP. The author painstakingly examines the duties of the lawyer to the court, as ministers in the temple of justice, using the provisions of the Rules of Professional Conduct, 2007, particularly, section 30 & 32 to drive home his point.

 

ORDER I – Application &Interpretation

The author in analysing Order 1 of the FREP Rules, 2009 reminded

Lawyers and courts on the use of rules of interpretation and the need to always resort to case laws, in interpreting its provisions where the need arises in FREP application.

 

ORDER II – Commencement of Action

The author brought his legal prowess to bear in his expository of the provisions of Order II of FREP. The book enumerated with the help of case laws what amounts to cause of action by FREP and what ought not to be included as a cause of action.

The book focuses more on the inclusion and applicability of the provisions of the  African Charter on Human and Peoples’ Rights (Ratification &Enforcement) Act, Universal Declaration on Human Rights and a host of other international instruments on human rights. The author explicitly outlines what constitutes a cause of action and stated thus; P. 59, paragraph 2. –

“thus, it is respectfully submitted that the right of action available under the FREP rules, 2009 are as sanctioned by the provisions of Chapter IV of the 1999 Constitution, the African Charter on Human and Peoples’ Rights… the various international protocols on human rights of which Nigeria is a signatory and the case laws which are the decisions of superior courts on cases on fundamental rights in Nigeria”.

He went on to enumerate rights protected under the 1999 Constitution, rights protected under the African Charter, etc using the appropriate sections and articles for easy reference.

 

ORDER III – Limitation of Action

The book highlights a major difference between the FREP Rules, 1979 and FREP Rules, 2009 which is the expulsion of time limitation for instituting an action under the  FREP Rules, 2009.

The author notes that “under Order II Rule I of the annulled 1979 FREP rules, time was a limitation period of 12 months from the occurrence of the breach complained of within which an applicant could bring an application for leave to enforce his fundamental rights, except the delay could be explained to the satisfaction of the court, the right to institute and action would be extinguished”.

 

ORDER V – Service of Court Process

The author elucidated on the issue of service of court process and application for substituted service of court processes as provided by the FREP Rules, 2009. Even though the FREP, Rules, 2009 does not provide for electronic service of court process, the author makes a compelling analogy on the use of electronic means of service using the provision of various court Rules.

 

ORDER VI- Deals with Amendment of Statement & Affidavits.

 

ORDER VII – Consolidation of several applications relating to the same Infringement.

This order deals with procedures for making an application for consolidation. The author examines the conditions that must be met by the applicant before an order for consolidation may be made or granted. This part of the book is a compelling manual for any applicant or respondent rooting for consolidation. It is a guide to lawyers and saves the time of the court, lawyers and litigants.

 

ORDER VIII – Notice of Preliminary Objections Disputing the Courts Jurisdiction.

In discussing   Order VIII of FREP, 2009, the author examines the conditions that have to be fulfilled before a preliminary objection is granted or refused.

 

ORDER IX – Effect of Non-Compliance

Order ix is at variance with the provisions of the 1979 FREP rules which allowed technicalities to be used to strike out an application based on non-conformity with the rules. Under the 2009 rules, non-conformity does not go to the root of the application as it is seen as a mere irregularity

 

ORDER X – Application to Quash Proceedings

The book, with the help of decided cases, explains and expatiates on the essence and meaning of order X and the rule therein.

ORDER XI –Order which the Court May Make.

The orders which a court may make are discussed here. These include an order of injunction, Habeas Corpus, Mandamus etc.

 

ORDER XII – Hearing of the Application.

The Order dealt extensively on written address, adoption of same, oral arguments and content of written addresses. It is a comprehensive guide for lawyers before and after filing a fundamental right application.

ORDER XIII – Right of any Person or Body to be Heard

This Order is a class departure from the provisions of FREP rules, 1979. The FREP rules, 2009 expanded the category of persons and bodies that can be heard whether they filed processes or not. The capacity to appear on behalf of a person, group/class is also energised by this order.This includes provisions for the appearance or presentation of Amici Curiae in fundamental right cases.

ORDER XIV – Committed for contempt

ORDER XV – Transitional provisions.

 

PART II

This part deals with contemporary issues of enforcement of fundamental rights. It provided materials and guides on the use of Garnishee Proceedings in the enforcement of FREP Rules, 2009. It further discussed issues such as:

-Derogation and limitation of fundamental rights under the 1999 constitution.

– Power of the Police, EFCC and other law enforcement agencies to investigate and prosecute crimes.

– Virtual or remote proceedings

– COVID-19 practice directions and guidelines

– Ruling on mock virtual court proceedings.

Part two of the book depicts the entire book as a compendium on application and adjudication of Fundamental Human Rights applications with the inclusion of the following:

–  a complete sample of FREP application,

– Chapter IV of the 1999 Constitution as amended

– Fundamental Rights (Enforcement Procedure) Rules, 2009

-African Charter on Human and Peoples’ Rights

-Universal Declaration of Human Rights.

 

PART III

Part three of the book presents us with the opportunity of reading the mind of the court through a replication of Federal and State High Courts judgements/rulings on FREP applications.

 

CONCLUSION

The learned author has presented before us with a series of in-depth analysis and a working manual for both lawyers and the court on Fundamental Rights Enforcement in Nigeria. The end product, of course, is a timely, innovative and insightful work of very high academic quality that is conceptually and empirically rich and well researched. It is my hope that this book will prove to be of great significance to the legal community. It is therefore for this reason that I recommend this book to academics, judges and legal practitioners with an interest in human rights.

 

By John Austin Unachukwu

The Institute of Chartered Mediators and Conciliators ( ICMC) has declared  its  readiness to work with stakeholders for the promotion and mainstreaming of mediation in international commercial disputes.

ICMC President Dr. Agada Elachi stated this in a goodwill massage  sent to the signing of a  Memorandum of Understanding between Guangzhou Arbitration Commission (GAC),  Swiss Chinese Lawyers Association (SCLA) and Geneva International Disputes Institute ( GIDI).

Elachi said the MoU was momentous, and an expression of economic expansion and growth between nations, notwithstanding the COVID-19 pandemic and allied matters.

He noted that a corollary of such economic progress is commercial dispute particularly on an international scale.

Elachi said: “As a practising mediator and arbitrator, I wish to emphasise the very important role that Alternative Dispute Resolution mechanisms such as Mediation and Arbitration play in ensuring that commercial disputes are resolved in a timely, efficient, and effective manner. The same can be said for international commercial disputes.

“With regards to global economic growth and expansion, I commend the increased economic relations and collaboration between Nigeria and China. Whilst I have never visited China, I have seen quite a lot of the industry and resilience of the Chinese in the role that they currently play in the economic space in Nigeria.”

He added that it is natural that there will be disputes in the course of such engagements.

Elachi noted that the Nigeria-China Bilateral Investment Treaty provides for arbitration as a dispute resolution mechanism.

He reasoned that the time had come to mainstream mediation in such engagements particularly in the light of the Singapore Convention on enforcement of settlement agreements reached via mediation and the development of the ICSID Mediation Rules as it relates to Investor-State Disputes.

“As the largest body of mediators in Africa, ICMC is a strategic partner and is available to work with other stakeholders like the signatories today for the promotion and mainstreaming of mediation and other processes for the resolution of international commercial disputes’’, he said.

Elachi added: “On behalf of the 10,000 plus members of the Institute of Chartered Mediators and Conciliators (ICMC, Nigeria), I congratulate the Guangzhou Arbitration Commission, Swiss Chinese Lawyers Association, and the Geneva International Dispute Institute on this auspicious occasion of the signing of the MoU, signifying a willingness to collaborate between all signatories.”

 

By Adebisi Onanuga

The Nigerian Bar Association (NBA) has concluded a Memorandum of Understanding (MoU) with Leadway Assurance Plc which enhanced the insurance products and benefits for all financial members of the association.

The development is  part of the efforts of the leadership of the NBA to ensure improved welfare of members of the association.

The association has also opened negotiation with National Health Insurance Scheme (NHIS) to provide insurance cover for members.

No fewer than 1,000 of its members will benefit in the pilot  health insurance scheme.

NBA National Publicity Secretary, Dr Rapulu Nduka gave details of the deals in a statement.

Under the MoU, all lawyers who paid their Bar Practice Fee (BPF) on or before  March 31, 2021 will, at no extra cost, have access to  N2 million as Life Insurance cover representing a 100 per cent increase from what obtained in the past.

The details of the MoU also provided that lawyers who suffer any ailment that qualifies as critical Illness under the policy will get N1 million as benefit and a further N1millon payable if the member unfortunately passes on.

The MoU between the two parties also provided for “ N1million for accidental permanent disability, with a further N1millon if the member unfortunately passes on; N60,000 to cover any medical expenses related to accidents; and free telemedicine access for lawyers with medical doctors approved by Leadway.

Similarly, the NBA is in advanced its negotiations with the NHIS to provide insurance cover at discounted rates, for members of the association who subscribe to the scheme.

To kick-start the NBA-NHIS Health Insurance Scheme, the NBA will, as a part of the pilot phase, be paying the health insurance premium for 1,000 lawyers selected from all branches of the NBA by a team led by the Chairperson of each Branch.

A statement by the Welfare Secretary, Kunle Edun, said the scheme was introduced in line with Section 3(12) and (13) of the NBA Constitution and further to the NBA President’s agenda to improve access to healthcare for its members.

Edun explained that the scheme seeks to provide free health insurance to 1,000 financial members of the association, for a period of one year, as a prelude to the subsequent enrolment of all members into the NHIS at concessionary rates.

He said all branches of the NBA are to nominate four  members, who meet the eligibility criteria prescribed by the NBA, to participate in the pilot scheme.

Of these four beneficiaries, two  shall be young lawyers between one to seven years post call and shall not be over 30 years of age) while two  shall be senior lawyers who are 60 years of age and above.

All branches, he explained, are required to constitute a branch selection committee comprising of the the Chairman (Chair of the Committee);  Welfare Secretary (Secretary of the Committee) and a nominee of the NBA President.

According to Edun, the branch selection committee shall be responsible for nominating beneficiaries under the scheme who meet the eligibility criteria prescribed.

The eligibility criteria included payment of BPF and branch dues for the year 2021; he or she must be acknowledged by the branch as a member who is unable to afford medical insurance; must  be in good standing with the association; and must furnish the branch with his/her blood group and genotype.

He said branches with membership strength of 500, 1,000, 1,500,  2,000, 2,500, 3,000, 3,500,4,000, 4,500, 5,000 and above are entitled to nominate additional beneficiaries of 2, 4 , 6, 8, 10, 12, 14, 16, 18 and 20 respectively.

The NBA fixed May 4 as deadline for the submission of list beneficiaries and all supporting documents  at ezekiel.david@nigerianbar.org.ng.

He said disqualification of a nominated beneficiary from the scheme will be as a result of failure by the member to meet the eligibility criteria as specified;  failure by the branch selection committee to submit the branch nominee form on or before the stipulated deadline; and failure by the branch selection committee to properly execute the branch nominee submission form.

“In the event of a disqualification as a result of the occurrence of any or all of the aforementioned events, the affected Branch shall lose the opportunity of selecting any other beneficiary and the national Secretariat shall nominate a beneficiary to fill the resultant vacancy”, he stated.

 

Cryptocurrency (also known as crypto), a digital currency, has created a headache for regulators. Widely embraced by youths, its potential for money laundering and terrorist financing has led to a ban. But is crypto all bad? What are the pros and cons and regulatory prospects? Legal, financial and anti-corruption experts examined these and more at a virtual conference organised by the Presidential Advisory Committee Against Corruption (PACAC). Deputy News Editor JOSEPH JIBUEZE reports.

The older generation may struggle to comprehend the concept of an artificial means of exchange that cryptocurrency is.

The idea of a virtual currency, or virtual money, which is issued and controlled by its developers and used among the members of a specific virtual community, may appear far-fetched.

But, cryptocurrency has come to stay. Nigerians have embraced it.

Cryptocurrency is a digital currency in which transactions are verified and records maintained by a decentralised system using cryptography, rather than by a centralised authority.

Decentralised cryptocurrencies, such as bitcoin (a type of digital currency), provide an outlet for wealth that is beyond restriction and confiscation.

Cryptocurrencies work using a technology called blockchain – a decentralised technology spread across many computers that manages and records transactions.

Simply put, a cryptocurrency is a type of currency that uses digital (invisible) files as money.

Usually, the files are created using the same methods as cryptography (the science of hiding information).

Part of the appeal of this technology are its security and anonymity. But these are the sources of worry for regulators and anti-corruption agencies.

Last October, a UsefulTulips report stated that $32.3 million worth of bitcoin was traded in Nigeria.

According to Paxful, a leading peer-to-peer bitcoin marketplace, Nigeria has the world’s second-largest Bitcoin trading volume.

It says Nigerians have traded 60,215 Bitcoins in the last five years, or more than $566 million.

While its potential is huge, there are associated dangers. These were highlighted by speakers at a virtual conference organised by the Presidential Advisory Committee Against Corruption (PACAC).

The event, with the theme: Global trends in cryptocurrency: opportunities and risks, featured legal, financial and anti-corruption experts drawn from the Senate, Ministry of Finance, Ministry of Justice, Central Bank of Nigeria (CBN), the anti-corruption agencies, regulatory agencies and the private sector.

 

Sagay: We have enough problems

PACAC Chairman Prof Itse Sagay (SAN) believes Nigeria already has enough problems to contemplate sanctioning the official use of cryptocurrency.

He said: “From its name crypto, it is not available to those who are not directly concerned with it. We have a currency that exists only notionally, that is, in the mind or on the internet.

“Cryptocurrencies are merely notional, perpetually invisible. They are creatures of the computers and the mind, which can be used as objects of crime, including money laundering.

“Why are we tolerating the operation of that type of system in our country? We have enough problems already with our highly regulated currency, the naira.

“Why tolerate an unregulated, secret, abstract digital-only currency so susceptive to criminal and illegal usage? Don’t we have enough problems already?”

Sagay called for a multi-pronged approach to ensuring that an appropriate legal and regulatory framework is designed and adopted to mitigate the associated risks.

Sagay got the backing of the National Assembly in that regard.

Chairman, Senate Committee on Anti-Corruption and Financial Crimes, Suleiman Kwari, said the National Assembly “would drive any needed legislation that will help regulate the use of cryptocurrency”.

Represented by his aide Mr Ashley Emenike, the Senator said: “The National Assembly is well aware of the dangers and potentials in the use of cryptocurrency.

“The areas of money laundering/disposal of the proceeds of crime, the financing of terrorism and the application of blockchain, cryptocurrency and distributed ledger technologies where all these transactions can take place without a trace, are of concern to the committee.

“The Financial Action Taskforce has mandated its members to implement a programme where sharing of cryptocurrency business-related transactions and other financial intelligence units will be made possible in our region.

“Knowing that up to $4billion was transacted in Europe alone, the Euro report says that 40 per cent of illicit/corrupt transactions in the EU were carried out using cryptocurrency.

“We welcomed the CBN directive that naira and kobo are the symbols of our sovereignty and the issuance of the directive that all banks and other financial institutions do not use, trade or transact in digital or virtual currencies.”

Kwari said there was a need “to urgently develop a national framework for robust regulation of the use of cryptocurrency”.

He said there was also the need to look at “the possible legislation to grant the anti-corruption agencies oversight on its spreading applications.

“We’re urging law enforcement agencies and the CBN to work in partnership in the formulation of a joint operation strategy that would mitigate any adverse effect of the criminal deployment of these digital technologies that can harm our national interests.

“No time will be wasted in putting legislative frameworks in place to enable the regulation and application of these cryptocurrencies,” Kwari said.

 

‘A double-edged sword’

Head of Cybercrime at the Economic and Financial Crimes Commission (EFCC), Lagos, Mr Dein White, said law enforcers globally are faced with the “geometric nature” of crime evolution driven by information technology.

“We find ourselves as law enforcement agents always playing the catch-up game. Virtually every facet of a crime seeks to have as its main objective a pecuniary gain through the laundering of the proceeds. Cryptocurrency has presented a unique opportunity for this to happen,” he said.

White likened the cryptocurrency to a kitchen knife, which can be deployed for useful and sinister purposes.

“The purpose for which cryptocurrency is used is what characterises it as good or bad. We cannot talk about potentials without risks within those potentials. So, it presents itself as a double-edged sword,” he said.

Highlighting the potential, he also pointed to its merits such as speed, anonymity, and low transaction cost.

The cybercrime expert explained that cryptocurrency transactions are peer-to-peer. In effect, no transaction charges go to intermediaries (banks).

He said: “Someone recently exited the cryptocurrency market with $1.3billion worth of cryptocurrency in 47 seconds. The processing charge only cost $80.

“Place that side by side with regular bank transactions. It will cost a lot more for that transaction to happen.

“The regulatory bottlenecks that will be faced from the originating point of that transaction to the end will not make it impossible to conclude it in such a record time. This also provides convenience for the person using it.”

But the potential for secrecy means stolen funds can easily be hidden.

White said: “At the same time, cryptocurrency poses a risk where the intention is to launder proceeds of crime. Cryptocurrency has opportunities that create risk in themselves.”

According to him, the mandatory regulatory requirements that ought to address money laundering, terrorist financing, tax evasion and different forms of fraud are largely not applicable to cryptocurrency.

On the risks of the obscure nature of crypto, White continued: “One of the major components is anonymity.

“Within the classes of tokens, there is the privacy coin, one of which is the monero (a privacy-focused cryptocurrency released in 2014).

“When a transaction has gone through, and it becomes part of an investigation, during audit and review, if you try to trace the trail of a transaction, which of course has different levels of anonymity within the value chain, you will see the public addresses of where it is coming from and where it is going to.

“But for privacy coins, it makes it almost bulletproof. You can hardly get even the least detail when queried.

“This anonymity is a threat because people seeking to launder or move large proceeds of fraud would not mind cutting their losses based on the current coin value of this particular coin, knowing that it provides a high level of privacy.”

The EFCC investigator said cryptocurrency also makes it easier to hide funds.

“There are coins you can purchase and the value will remain constant for as long as you let them be.

“Someone trying to hide funds can leave them there in a suspended animation state for as long as he wants till he decides to either trade or exchanges it for any other purposes.

“There is no recall option where money is wrongly transferred. In cryptocurrency, once a transaction has been consummated, it cannot be recalled. Such transactions are irrevocable at the point of transaction,” he said.

 

Fraud in the cryptocurrency realm

White said the Ponzi schemes can also occur in the world of cryptocurrency.

One of such scams, he said, is the pump and dump.

Scammers hype fake investment with huge returns. Victims invest, driving the price up. The scammers quickly sell their shares at a huge profit, causing the price to plummet (to fall very suddenly), leaving victims with worthless stock.

“They bring up new coins, they do social engineering to inflate the values of commodities and where people invest in them, when it gets to an all-time high, the owners pull out completely, leaving everyone in complete chaos,” he said.

White’s point that cryptocurrency markets remain a scammers paradise accords with current findings.

Academics at the University of Technology Sydney and the Stockholm School of Economics in Riga found 355 incidents of price manipulation across several cryptocurrency exchanges over a period of just seven months.

About $350m (£267m) of suspicious trading activity was linked to “pump and dump” scams that reaped an estimated profit of $6million for organisers.

The paper, published last August, concluded that the level of price manipulation in cryptocurrency is “unprecedented in modern markets.”

Another dangerous potential, according to White, is the ability to completely hide the nature of ill-gotten proceeds.

“There is a serious conversation on the need to balance the legitimacy and opportunities that cryptocurrency and blockchain hold and the regulation of their activities,” he said.

 

Way forward

Though the CBN has officially stopped banks from facilitating crypto trading, White believes more needs to be done.

He said: “The CBN has tried within its purview to stop financial institutions from dealing with ‘exchangers’ of cryptocurrency. It’s a laudable move.

“But as we saw during the #EndSARS protests, most people traded person-to-person in a Halala-style transaction format.

“They nominate where cryptocurrency would be converted to physical currency without going through any exchange other than just transferring the value between the cryptocurrency wallets and deciding where physical cash equivalent or service commodity of equal value will be delivered.

“There is a need to work around the framework of this regulation to beam more light on the person to person transactions within our jurisdiction.

“It is not an easy task because there are servers all over the world that play a critical role within the value chain of the consummation of transactions.

“It will take a lot but there might be some light at the end of the tunnel following what the UK and Canada are doing now.

“If we can look at some of these existing laws and policies that are slowly coming into the light, and try to tailor them to what we have here, as time goes on, we’ll be able to come up with something to reduce the excesses that cryptocurrency and blockchain present.”

 

‘Regulation needs innovation’

Mr Soji Apampa, the co-founder of the Convention on Business Integrity, which promotes ethical business practices, transparency and fair competition, noted that Nigerian youths now prefer to deal in cryptocurrency “and with good reasons”.

Quoting statista.com, he said Nigeria is the third-largest bitcoin trader by volume after the USA and Russia.

“Whether we regulate or not, agree with it or not, Nigeria is a top player. Nigeria is the eighth largest market by crypto adoption in the world after Ukraine, Russia, Venezuela, China, Kenya, the USA and South Africa.

“I agree with my brother from the EFCC that typically, regulation lacks innovation globally. Oftentimes, things spin faster than regulatory agencies can keep track of.”

Apampa underscored some of the factors that push youths towards cryptocurrency, such as disaffection with a banking system that creates few opportunities for them.

So, they would rather go for something that offers them returns.

“The inefficiency in the economy is also a factor. I think we need to look at those fundamentals because those are really what drive the adoption rate of cryptocurrency in the country,” Apampa added.

He emphasised that even if crypto is officially banned, it will only be driven underground.

Apampa added: “And it will become even harder to regulate and it will become even more attractive to the dark side of the web.

“So, we have to balance all of this to ensure we have some intermediate wins that help us to keep pace with the industry before we’re left behind.

“Most trades are notional and abstract. Even the notion of sovereignty is changing in the world today.

“I agree with the analogy of the knife, that it is at best neutral, and that it depends on whose hands it is.

“Therefore, it is imperative that we catch up on the regulatory side and in the understanding of the technology.

“I predict that governance systems, in the near future, will be underlaid with blockchain technology to hold public officers to account, which is one of the good potentials of blockchain technology, one of which application is cryptocurrency.

“The sooner we understand how to utilise it, the better for us because it is a global trend, and it was designed from the beginning to be out of the reach of the government.”

 

A legal expert, Tochukwu Onyiuke, examines the Voluntary Offshore Assets Regularisation Scheme and how to bring it in line with extant tax laws.

On October 8, 2018, President Muhammadu Buhari, via his verified Twitter handle, announced the introduction of the Voluntary Offshore Assets Regularisation Scheme (VOARS) through the Presidential Executive Order 8.

The Federal Government’s continuous drive to boost non-oil revenue largely motivated the launch of this tax amnesty scheme.

Taxpayers who have defaulted in the payment of their taxes for a period of years are encouraged to embrace this scheme and voluntarily declare all offshore assets and foreign-sourced income relating to the preceding 30 years of assessments and pay a onetime levy of 35 per cent on all offshore assets in lieu of payment of outstanding taxes, amongst other benefits.

A benefit is that there is a permanent waiver of criminal prosecution for those who have been in default. Also, there is immunity from tax audit of the declared and regularised assets.

This scheme had a life span of 12 months and is targeted at all persons, entities and their intermediaries, who are holding offshore assets and are in default of their tax liabilities in any way whatsoever.

In June 2019, an Executive Order amending the Executive Order 008 of 2018 on the Voluntary Offshore Assets Regularisation Scheme (VOARS) was issued.

The Amendment Order is officially known as the Voluntary Offshore Assets Regularisation Scheme Amendments 2019 (the Amendment Order).

This sought to further elongate the lifespan of the 2018 VOARS and added some further provisions including prescribing punishments for domestic or foreign banks, asset managers or intermediaries that cooperate with defaulters and enable them to conceal offshore assets and income.

These financial institutions that aid and abet tax defaulters shall be liable to pay to Federal Government a penalty on the total of such offshore assets, in addition to other penalties provided for under Nigerian laws or laws of foreign countries from which Nigeria can benefit. The amendment is however silent on the longevity of the scheme.

Further to the above, the Order does not specify the taxes covered under Scheme, and it generally refers to tax defaults under relevant statutes in its recital.

Therefore, it is assumed that VOARS covers all tax defaults under Nigerian tax laws including Personal Income Tax (PIT), Companies Income Tax (CIT), Capital Gains Tax (CGT) etc.

Having enunciated the intention and purpose of the Voluntary Offshore Assets Regularisation Scheme, this article is set on looking at the various angles of the scheme and how it would fare side by side with different positions of our extant tax laws; including the legality and general perception.

Many stakeholders have described the methodology of this Order as unsystematic and a haphazard measure to achieving the intending aim. The VOARS Order has generated varied opinions as different camps are unclear about the modality of its operation and whether it is of any advantage to the average taxpayer in and outside the country.

The Order in defining offshore assets (tax base), includes liquid assets (bank balances), stocks and bonds held in portfolios, insurance policies, shares in listed or unlisted offshore companies, property assets and all manners of assets held directly or indirectly through corporate entities, trust structure and non-Nigerian resident companies and intermediaries.

Having it at the forefront of our minds that various laws of our land have explicitly specified and clearly defined who and when to pay taxes, the VOARS has set up something unprecedented.

Looking at the stands of our extant laws, the Personal Income Tax Act for instance in Section 1 provides for the imposition of taxes in Nigeria. Section 2 of the Act states the categories of persons on whom income tax is to be imposed upon to include individuals, communities, families and trustees.

A careful look at the provisions of Section 11 of the Act which bothers on Tax credit allowable against tax payable on income derived from outside Nigeria will reveal that where a resident derives income from a foreign source outside Nigeria and the income is brought into Nigeria through Government approved channels, he shall be allowed a tax credit against tax payable by him.

The focus of the draftsman in the afore-cited section as regards foreign-sourced income is strictly upon foreign income earners that are bringing their foreign earnings into Nigeria through the right channels. There is no provision for taxing foreign-sourced or offshore assets that are abroad and have no intention to be brought back into the country.

What this means is that the modalities of VOARS is susceptible as it has no legal backing from the extant laws. The provision of Section 13 of the Personal Income Tax Act 2011 gives further clarity to this assertion.

Foreign-sourced incomes are not liable to Personal Income Tax in Nigeria unless and until they are brought into or received in Nigeria.

In essence, it is not illegal for Nigerian-resident individuals to earn legitimate foreign incomes or elect to retain such incomes abroad.

A similar scheme termed the Voluntary Assets and Income Declaration Scheme (VAIDS) was previously embarked upon and concluded in 2017.

The VAIDS was applauded by various stakeholders, including taxpayers and tax authorities because it focused mainly on the declaration of assets in the country, the recently introduced Voluntary Offshore Assets Regularisation Scheme (VOARS) has not received similar accolades and have been met with unfavourable reviews from experts and stakeholders alike.

The Order provides that the people targeted in the Scheme includes “all persons, entities and their intermediaries, who are holding offshore assets and are in default of their tax liabilities in any way whatsoever”, including persons who:

• are not already under investigation by law enforcement agencies for theft of public funds or obtaining offshore assets through corrupt practices;
• own offshore assets but are yet to declare them with the relevant authorities;
• earn income on offshore assets but are yet to declare such income to relevant tax authorities;
• are registered taxpayers but have not been filing returns or have additional disclosures to make;
• have been underpaying or under remitting tax;
• are under a process of tax audit, investigation or dispute and are prepared to settle out of court;
• have applied for and received a Special Clearance from the Federal Government to participate in the Scheme;
• have been determined to be innocent after investigations or legal proceedings.

Flowing from the above-stated position of the Order, it further states that the declaration of the offshore assets to be in respect of all assets and income amassed within the past 30 years.

Several eyebrows are raised regarding the availability and accessibility of general information and data required by the VOARS for full efficiency.

By way of an instance, challenges may arise in accessing account balances for the past 30 years given that the guidelines for Deposit Money Banks in Nigeria require banks to retain their transaction records for a maximum period of 5 years save for special instances.

Similarly, some other foreign climes like Switzerland have a limitation period of 10 years to retain bank records for individuals.

Thus, a taxpayer may be faced with a shortage of information on their offshore assets should he eventually volunteer to participate in the tax amnesty scheme.

In addition to the aforementioned facts, the PIT Act and the CIT Act state that a taxable person is to be taxed based on his/her income received inside or outside Nigeria, it is enlightening to note that both Acts expressly exempt income derived from dividend, interest, rent and royalties, brought into Nigeria through government-approved channels, from payment of tax. 

Though VOARS identified income earned from the stock market abroad as one that is subject to tax, the provisions of the PIT Act exempt such incomes earned from the stock market.

To further add to the point, an executive order cannot cure a perceived lacuna of an extant law in view of the PIT Act. If there is a need to capture the targeted persons of interest as stated by the VOARS, an amendment to the P.I.T.A should be considered should an amendment be thought necessary.

Specifically, the PIT Act goes further to exempt fees and commission, received by a taxable person abroad, from tax, provided such fees and commission are brought into Nigeria through government-approved channels. Section 13 of the P.I.T.A was emphatic on this position.

It is the position of the writer that money earned on the stock market offshore and not declared under VOARS cannot form the basis of criminal prosecution because it is not a crime in any of the extant laws.

The Voluntary Offshore Assets Regularisation Scheme works closely with the Nigeria Financial Intelligence Unit (NFIU) which has worldwide access to relevant financial information, to ensure seamless exchange of information.

The Nigerian Financial Intelligence Unit is the Central National Agency, being an autonomous unit that is responsible for the receipt of disclosures from different reporting organisations on any financial discrepancies.

The analysis of this disclosure and the production of intelligence are disseminated to competent authorities for further investigation.

The NFIU however lacks the degree of popularity it ought to have on the national front to work with VOARS, it cannot also boast of the availability of data on persons with offshore assets and income.

Also, by way of addition, there are several levels of protection offered by the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act as regards non-disclosure of sources of imported foreign currency.

Section 3 (1) of the Act states: Except as required under any enactment or law, a person executing a transaction in the Market shall not be required and, if required, shall not be obliged, to disclose the source of any foreign currency to be sold in the market. 

(2) No foreign currency imported pursuant to this Act shall be liable to seizure or forfeiture or to suffer any form of expropriation by the Federal or a State Government except as provided under this Act.

While VOARS has mandated individuals to disclose monies earned abroad for the purposes of paying tax, the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act places no obligation to disclose. All these without a doubt reinforce the inconsistency of VOARS in view of the provisions of the extant tax laws.

The writer understands that the Federal Government’s rudimentary aim in commencing the VOARS is to promote voluntary tax compliance, expand Nigeria’s tax base, boost government revenue, cut tax evasion, corruption, halt illegal financial network, and imbibe the norms of national responsibility, accountability, and honesty in citizens.

It has to be in line with the extant tax laws to clothe it with the needed validity capable of being enforced in the event of default.

• Onyiuke is a Partner in Accendolaw Law Firm, Lagos.

By Joseph Jibueze

Pro-bono work is often linked with the legal profession, and for retired Justice of the Supreme Court George Oguntade, there is no better way to give back to  the  society.

When he retired on May 10, 2010, he set up the Wiseview Legal Consultancy to put his wealth of legal knowledge to use.

He was supported by two lawyers, a secretary and a few administrative staff, but the firm, which marked its 11th anniversary, now has 20 lawyers who offer a range of legal services.

The Senior Consultant and Head of Practice, Abosede Oguntade-Oworu, who represented Oguntade, said while lawyers in the firm work to meet clients’ needs, they also contribute to social causes.

“Our pro-bono involvements include the resolution of several cases involving communities such as Odoragushin in Epe Area of Lagos.

“The settlement will see to the placement and comfort of over 250 persons hitherto displaced by actions of organs seen to be greater than them.

“We have resolved a lot of disputes, particularly as they relate to land and property cases in all the states of the Southwest amongst families, state governments and corporate organisations,” she said.

Eleven years on, the firm’s corporate social responsibility engagements have cemented its bond with its immediate communities, corporate and individual clients as well as the have-nots in Nigeria and abroad, especially in the United States and the United Kingdom.

Oguntade-Oworu said the firm encourages clients to explore settlement, with litigation often a last resort.

“We do a lot of mediation, arbitration and other alternative dispute resolution practices.

“When clients approach us with certain disputes, we first invite parties to see how best we can mediate,” she said.

Justice Oguntade, a certified arbitrator and fellow of the Chartered Institute of Arbitration UK, has proved to be an asset to the firm.

He has sat on numerous arbitral panels and as a sole arbitrator and has chaired standing tribunals of the institutes of stockbrokers, insurance and bankers.

The firm felt Justice Oguntade’s absence when he served as High Commissioner to the United Kingdom from 2017 to 2020 and is happy to welcome back the 81-year-old jurist, who still has a lot to offer.

By Ebun-Olu Adegboruwa, SAN

 

 

It is very unusual to see lawyers down their tools, drop those scary wigs and dreaded gowns and become like the ordinary folks, seeking employment and placement. I have since read very funny articles on social media about the kind of trade or business that lawyers can take up during the period the courts are locked up due to the current JUSUN strike action. The Judiciary Staff Union of Nigeria, JUSUN, commenced what initially appeared to be an inconsequential strike action on April 6, 2021, to press home their demand for financial independence and autonomy for the judiciary and indeed the legislative arms of government across the nation. The thinking of most lawyers and judges at the commencement of the strike action was that it would fizzle out in the course of time, given that past attempts by JUSUN did not yield anything meaningful. But it has been two weeks now and as each day passes by, the strike action seems to be getting stronger and biting harder.

There are reports of overcrowded police cells, agitated inmates awaiting trial in the correctional centres and indeed a general collapse of law and order in the entire body polity. Coming in the wake of the coronavirus pandemic, the EndSARS protests and the desecration of the courts, the JUSUN strike action has totally paralyzed all judicial activities nationwide. It has never lasted this long, for all courts across the nation to be locked up at the same time. The question then is this: how did we get here? Over the years, lawyers and judges have paid lip service to the issue of financial autonomy and independence for the judiciary. This was left for individual activists and non-governmental organisations to take up on behalf of the legal community. To make matters worse, it would seem that these selfless entities did not get the desired cooperation from the judiciary, when it mattered most. It is surprising indeed, that the issue of locus standi is still a major setback for the battle against dictatorship and impunity in Nigeria, after the landmark decision of the Supreme Court in the celebrated case of Fawehinmi v Akilu. It says a lot about our commitment to the rule of law and good governance, when judicial workers take up what ordinarily should be the struggle of lawyers. Thank God that this particular NBA leadership has taken up the challenge, with all the actions that the executive has taken since the strike action began.

Having gone this far and so good, JUSUN should be encouraged to continue the strike action until concrete actions are taken to end the captivity of the judiciary by the executive. At its last executive council meeting, JUSUN directed all its branches to take up peaceful street protests all over Nigeria, as a way of drawing public attention to the issues that led to the strike action. Lawyers have shown tremendous support for the JUSUN strike action. For instance, the NBA National, Ikeja, Bayelsa, Ota and other branches of the NBA have staged peaceful protests in solidarity with JUSUN. This should continue until the judiciary is free indeed.

There were high hopes initially that the issues would be resolved, but the meeting slated with the Governors for Wednesday, April 14, 2021 did not hold, as there was no feedback from the Governors’ Forum. It just simply shows that the governors have their own priorities, election related cases having been concluded and decided. It was in the light of this stalemate that the NBA President declared as follows:

“… the Chairmen of all the branches of NBA are hereby requested to effectively mobilize their members and pay visits to their respective State Governors at the Government Houses on Monday, 19th April, 2021 to press home the demand for implementation of financial autonomy for the Judiciary. At the visit, NBA Branches in each State are to present a joint written demand to their State Governors requesting full compliance with existing legislative instruments and court judgments on the financial autonomy of the Judiciary.

The Chairmen of the NBA Branches are further requested to ensure that these visits are embarked upon, every subsequent Monday, until there is full compliance with this demand that is aimed at strengthening democracy and the dispensation of justice. We trust that our members will give the leadership of their respective branches all the support that they require to achieve this much needed victory for our justice system.”

Read Also: Buhari tasks Gambari, Ngige to resolve JUSUN strike soon

 

From all the foregoing, it would appear that the governors hold the key to ending this strike action, one way or the other. The federal government has substantially complied with the requirements of the Constitution in making payments directly to the heads of the Courts. This much has been confirmed by JUSUN itself, which is why some have called on JUSUN to unlock all federal courts, but for the issue of collective solidarity. The other question is this: who are the governors? Arakunrin Oluwarotimi Akeredolu, SAN, is one of them. He is a Bar leader per excellence, a Senior Advocate of Nigeria and a former President of the Nigerian Bar Association. He is the Chairman of the South-West Governors’ Forum and a member of the ruling All Progressive Congress. He has influence, access to power and commands great respect amongst his colleagues, being the only SAN, in their midst. How can we have Governor Akeredolu in the midst of governors and the Courts are locked up in order to get them to obey the Constitution? The same man who has advocated for the rule of law all his life as a legal practitioner? Wonders shall never end.

What of Governor Ezenwo Nyesom Wike? A senior lawyer, married to a judge and himself a member of the very influential Body of Benchers. How can we have Governor Wike in power in Nigeria and judges are suffering? He is a leading figure in the opposition Peoples Democratic Party, so he is not suffering from power fatigue or intimidation. What of Governor Aminu Tambuwal, a senior lawyer and a one-time Speaker of the House of Representatives? How can Governor Tambuwal be amongst the set of people who are caging the judiciary? What has His Excellency got to hide? Do I mention Governor Hope Uzodima of Imo State, who was restored to his exalted position by the Courts? How can this same man turn around to bite the fingers that fed him so sumptuously? What about Governor Duoye Diri of Bayelsa State? Is he also among the lot? The man who was rejected flatly at the polls but still managed to climb to power through the judiciary? Is he also among those holding the courts captive? What else does His Excellency want?

Wait a minute! Is Governor Bello Matawalle of Zamfara State also among the governors holding lawyers and judges to ransom? Does anyone still remember the history of His Excellency’s ascension to power? As a beneficiary of the internal crisis within the APC in Zamfara State, the governor did not so much as campaign or spend money on electioneering activities, but he still got all the votes that he did not labour for, all through the courts. He has turned out to be amongst the lords that we have to plead with to obey the same Constitution that brought him into power. I can go on and on, as there is hardly any governor in Nigeria today, who has not benefited from the judicial system. As we say it within the Bar, if you fight for the rule of law, the rule of law will fight for you too. Not long ago, a governor of a State was the subject of a probe panel by the powers that be, through the house of assembly of that State. You could predict where the game would end; a final report that would indict him for corruption and a ban on him from active participation in politics for a number of years and to stop him from holding public office. He ran to the Courts, seeking for an order of injunction to stop the probe. That is how it works, as the governor today may turn out a plaintiff or a defendant tomorrow.

What then is the solution? Very simple indeed. The Constitution in its section 1 says that it is supreme and every other law, action or policy should be subordinate to the authority of the Constitution. If we want peace, justice and progress in our land, then we must all join hands to persuade the governors to do the needful. They all swore to defend the Constitution, on the day they were taking the mantle of leadership. It is not fair to us all, that after they have climbed upon the ladder of the Constitution to attain power, they should turn around to violate the same document. The President and the National Assembly have set the good example to follow through the 4th Alteration to the Constitution. This document went through all the houses of assembly of all the States of the Federation, which means the governors were well aware of it before it was passed into law. They should allow the full implementation of the 4thAlteration, by granting total autonomy to the Courts and the legislative houses of the States. We cannot get the country moving if the judiciary is perpetually under the influence and control of the executive arm of government, as then it will cease to be the last hope of the common man and woman.

I therefore suggest that the NBA should spearhead the efforts towards getting all relevant parties to the roundtable to discuss and to agree. It is an urgent matter that should concern all of us, because one way or the other, we all have common issues to deal with in the courts. So, we should make the judiciary work, so that the Courts would become functional and effective, to deliver justice to all manner of people, without ill will, favour or affection. This was the dream of our founding fathers, which should not be aborted by those who claim to be running with their visions but are daily working to distort them. For as long as it takes to get the courts working, so long the JUSUN strike should continue, even till year 2023 and beyond. There is nothing we gain from a judiciary that is groaning under captivity. Lawyers must go beyond rhetorics and match their words with actions that can end impunity in our national life once and for all.  Enough is enough.