A Justice of the Supreme Court of Nigeria, Justice Bode Rhodes-Vivour will retire from the bench of the apex court on Monday, March 22.
A special Valedictory Court Session to be led by the Chief Justice of Nigeria (CJN) Dr Ibrahim Tanko Muhammad, will hold in his honour at the Supreme Court Complex, Abuja on Monday, March 22 at 10.00 am.
Justice Olabode Rhodes-Vivour was born to the family of Mr and Mrs Akinwunmi Rhodes-vivour in 1951, in Lagos Island. He obtained his First School Leaving Certificate in 1963.
He attended St. Gregory’s College, Obalende, Lagos, where he obtained his West African Examination Council (WAEC) Certificate in 1968, and the Higher School Certificate (HSC) in 1970, before proceeding to University of Lagos where he graduated in 1974 with an LLB. Hons.
Olabode Rhodes-Vivour attended the Lagos Law School and was called to the Nigerian Bar in 1975. He started his career as a Pupil State Counsel in 1976 and in 1978 he became a State Counsel and rose to become a Senior state Counsel by 1982. He was promoted to the position of Principal State Counsel in 1984, and by 1989 his hard work and career progression had earned him the position of Director of Public Prosecution (DPP) Lagos State, a position which he held until 1994.
Justice Olabode Rhodes-Vivour was appointed to the bench as a Judge of the High Court of Justice, Lagos State, on February 18, 1994. His distinct attributes of service led to his elevation to the Appeal Court on April 25, 2005.
In 2008, he was posted on Secondment by the Government of the Federal Republic of Nigeria, to Sierra Leone Judiciary as Justice of the Supreme Court of Sierra Leone.
On his return in September, 2010, he was appointed as a Justice of the Supreme Court of the Federal Republic of Nigeria.
Justice Olabode Rhodes-Vivour has attended various International and Professional conferences within and outside the country.
He is a recipient of many notable awards amongst which are Lagos State Judiciary Merit Awards in recognition of invaluable service to the High Court of Lagos state (2003). Commander of the Federal Republic of Nigeria (CFR 2012).
A former Dean of the Faculty of Law, Obafemi Awolowo University Ile-Ife, Prof. Margaret Okorodudu Fubara is retiring from the services of the university.
Consequently, a valedictory lecture will hold in her honour on April 6, 2021 in the university. The title of the lecture is Education for sustainability …Pedagogies and Odessy of my Ivory Tower Years at IfeLaw”
Prof. Fubara is a seasoned environmental Law Professor and Consultant.
After obtaining her LL.B in 1972, she was called to the Nigerian Bar in 1973 and then proceeded to get her first Master of Laws (LL.M) Degree from the University of London, UK in 1975. She also obtained an LLM and SJD degree in 1977 and 1980 respectively from Harvard Law School, Cabridge, Massachusetts, USA.
A former Dean of the Faculty of Law, Obafemi Awolowo University, Professor Fubara is widely published in various national and international journals and is the author of the first Nigerian textbook on environmental law, widely circulated nationally and abroad. In the early 90s she was granted the Senior Fubright Scholar award and the Robert S. McNamara (World Bank) Fellow, to undertake overseas abbatial as visiting scholar at the St. Mary’s School of Law, San Anthonio, Texas, USA. She was also a visiting professor of Law at the University of Oregon, Eugene, Oregun, USA, as well as Consultant to the United National Environment Programme.
Nairobi, Kenya. She is the first woman professor of Law in Nigeria’s first generation/Federal University. She is also the first professor of Environmental Law in the ECOWAS sub-region and second professor of Environmental law in sub-|Saharan Africa, as well as the first Nigerian Women Law Doctorate (SJD) from Harvard Law School.
Professor Fubara is also a member of the International Union for the conservation of Nature (UCN) and an Associate member of the IUCN Academy of Environmental Law. She is a consultant to several international organizations such as the UNEP, UNDP, and the World Bank, Aside all of these, she was also appointed a member of the Nigerian Universities Commission in 2009, and the Federal Inland Revenue Service (FIRS) as a Professor of Taxation (professorial Chair) in 2012.
A solid legal framework for FinTech will boost investors’ confidence in the industry and increase the ease of doing business. But the framework must be flexible enough to accommodate further growth and not inimical to the financial inclusion goal it is meant to address, writes Oyetola Muyiwa Atoyebi, SAN.
INTRODUCTION
A youthful population, increasing smartphone penetration, and a focused regulatory drive to increase financial inclusion and cashless payments, are merging to create the perfect recipe for a thriving Fintech Sector in an electronic age where everyday financial transactions are conducted on electronic platforms.”
The 2008 financial crisis, also known as the great recession period, witnessed the collapse of many renowned world banks, businesses and world economies. Following this event, some banking reforms were made to increase the resilience of the Financial Sector and maintain stability in the financial service delivery. Some of the effects of technology on the Financial Sector include; the closure of the gap between the financially excluded and financially included, through innovations and the use of blockchain for data management and optimization of internal processes.
What is FinTech?
FinTech has become a buzzword of the decade. The term, which is a portmanteau for ‘Financial Technology’ refers to the synergy between finance and technology, which is used to enhance business operations and delivery of financial services. It also captures all manner of technological innovation in personal and commercial finance. FinTech can take the form of software, a service, or a business that provides technologically advanced ways to make financial processes more efficient by disrupting traditional methods. The financial products offered by FinTech include money transfer, investing, lending, crowdfunding, cryptocurrency, smart contract, peer-to-peer payments, amongst others.
FinTech in Nigeria is said to have been birthed in 2007, when the Central Bank of Nigeria (CBN), launched the Payments System Vision 2020 (PSV2020). Through the implementation of the PSV2020 and subsequent activities of CBN and the Financial Services Sector, Nigeria has witnessed an impressive growth of electronic payments and a move from the dominance of cash as a means of payment. In 2013, CBN initiated a further formal assessment of the payments market, resulting in the issuing of PSV2020 Release 2.0. The goal of the PSV2020 is “to facilitate economic activities by providing safe and efficient mechanisms for making and receiving payments with minimum risks to the Central Bank, payment service providers and end-users, extending the availability and usage to all sectors and geographies, banked and unbanked, and conforming to internationally accepted regulatory, technical and operational standards.”
In furtherance of its vision, the CBN made policies that laid the foundation for the growth of the FinTech ecosystem in Nigeria.
Legal and regulatory framework in Nigeria
There is an absence of a direct and unified regulation on FinTech in Nigeria, however; presently, there are Bills before the National Assembly capable of expanding the FinTech Sector in Nigeria. The Bills are the Payments System Management Bill, 2009 (PSMB) and the Electronic Transaction Bill, 2015 (ETB). The PSMB provides for the management, administration, operation, regulation, oversight and supervision of payments, clearing and settlement systems in Nigeria.
The ETB Bill provides for the legal recognition of electronic commercial transactions where parties have, either expressly or by conduct, accepted to contract through electronic means.
Central Bank of Nigeria
The Central Bank of Nigeria has over the years issued several guidelines and regulations which impacts various aspects of the FinTech industry.
Regulations issued by the CBN include:
i CBN Guidelines on International Money Transfer Services in Nigeria, 2014;
CBN Regulatory Framework for Licensing Super-Agents in Nigeria, 2015;
iii. CBN Guidelines on Mobile Money Services in Nigeria, 2015;
CBN Guidelines on Transactions Switching in Nigeria, 2016;
CBN Guidelines on Operations of Electronic Payment Channels, 2016.
CBN Guidelines on Licensing and Regulation of Payment Service Banks in Nigeria, 2018;
vii. CBN Regulatory Framework for Use of Unstructured Supplementary Service Data (USSD) Financial Services in Nigeria, 2018;
viii. CBN Regulation on Electronic Payments and Collections for Public and Private Sectors in Nigeria 2019;
Risk-Based Cyber-Security Framework and Guidelines for Deposit Money Banks and Payment Service Providers, 2019
Regulatory Framework for Sandbox Operation, 2021
Framework for Quick Response (QR) Code Payments in Nigeria, 2021
CBN Guidelines on International Money Transfer Services in Nigeria, 2014
The Guidelines are directed at International Money Transfer Service Operators (IMTSOs) that offer digital international money transfer services. Person/Institution in this business must be licensed by the CBN. Deposit money banks are prohibited from operating as international money transfer service operators, although they may act as agents.
For the purpose of licensing requirements, the Guideline makes provisions for four categories of international money transfer providers, to wit: Foreign International Money Transfer Operators, Indigenous International Money Transfer Operators, Foreign Technical Partners and Local Agents. The objectives of the guidelines are to:
Provide minimum standards and requirements for International money transfer services operations in Nigeria;
Ii. Specify delivery channels for offering international money transfer services (inbound/outbound), in a cost-effective manner;
Iii. Provide an enabling environment for international money transfer services in the Nigerian economy;
Iv. Specify minimum technical and business requirements for various participants in the international money transfer services industry in Nigeria; and
Provide broad guidelines for the implementation of processes and flows of international money transfer services, from initiation to completion.
CBN Regulatory Framework for Licensing Super-Agents in Nigeria
Super-Agents are companies licensed by the CBN to recruit agents for the purpose of agency banking (i.e, provision of financial services within the communities on behalf of banks). The minimum requirements for Super-Agents are clearly stated in the Regulation.
CBN Guidelines on Mobile Money Services in Nigeria, 2015
This regulatory framework addresses business rules governing the operation of mobile payment services and specifies the basic functionalities expected of any mobile payment service and solution in Nigeria. It identifies the participants and defines their expected roles and responsibilities in providing mobile payment services in the system. In addition, it sets the basis for the regulation of services offered at different levels by the participants.
CBN Guidelines on Transactions Switching in Nigeria, 2016
The Guidelines set out the procedures for the operation of switching services in Nigeria, including the rights and obligations of the parties to the switching contract. It also compels the switching companies to meet minimum standards for switching, as approved by the CBN.
CBN Guidelines on Operations of Electronic Payment Channels, 2016
These Guidelines supersede an earlier guideline on Standards and Guidelines on ATM Operations in Nigeria and Guidelines on POS Card Acceptance Services, issued by the CBN. It provides among others that all ATM deployers/acquirers shall comply with Payment Card Industry Data Security Standards (PCI DSS) and the following:
All ATMs shall be able to dispense all denominations of Naira.
For deposit-taking ATMs, acceptable denominations shall be displayed by the deployer.
All ATM systems shall have audit trail and logs capabilities, comprehensive enough to facilitate investigations, reconciliation and dispute resolution.
CBN Guidelines on Licensing and Regulation of Payment Service Banks in Nigeria, 2018
The key objective of setting up PSBs is to enhance financial inclusion by increasing access to deposit products and payment/remittance services to small businesses, low-income households and other financially excluded entities through high-volume low-value transactions in a secured technology-driven environment.
CBN Regulatory Framework for Use of Unstructured Supplementary Service Data (USSD) Financial Services in Nigeria, 2018
The Guideline seeks to reduce the risks associated with the implementation and use of USSD technology for offering financial services in Nigeria. Only Mobile Network Operators (MNOs) and CBN licensed entities with a letter of no objection or letter of introduction from the CBN are eligible for the issuance of USSD shortcodes by the Nigerian Communications Commission (NCC).
CBN Regulation on Electronic Payments and Collections for Public and Private Sectors in Nigeria, 2019
The Regulation is a revision of the Guidelines on Electronic Payment of Salaries, Pensions, Suppliers and Taxes in Nigeria (2014), and is intended to guide the end-to-end electronic payment of salaries, pensions and other remittances, suppliers and revenue collections in Nigeria.
Risk-Based Cyber-Security Framework and Guidelines for Deposit Money Banks and Payment Service Providers, 2019
The CBN Cybersecurity Guideline is divided into five main parts covering: Cybersecurity Governance and Oversight, Cybersecurity Risk Management System, Cybersecurity Operational Resilience, Metrics, Monitoring & Reporting and Compliance with Statutory and Regulatory Requirements. The issuance of the Guideline gave effect to the National Cybersecurity Policy, which designates the Financial Services Sector as a National Critical Information Infrastructure (NCII)[5]
Regulatory Framework for Sandbox Operation, 2021
In view of increasing consumers’ appetite for payment solutions and emerging disruptive technology in the Financial Services space, the Central Bank of Nigeria (CBN) has deemed it pertinent to ensure new, more flexible ways of engaging with the industry.
One of the options being the use of a Regulatory Sandbox which is a formal process for firms to conduct live tests of new, innovative products, services, delivery channels, or business models in a controlled environment, with regulatory oversight, subject to appropriate conditions and safeguards. This would enable the bank to stay abreast of innovations while promoting a safe, reliable and efficient Payments System to foster innovation without compromising on the delivery of its mandate.
This Framework, therefore, defines the establishment, rules and operations of a Regulatory Sandbox for the Nigerian Payments System in order to promote effective competition, embrace new technology, encourage financial inclusion and improve customer experience, with a view to engendering public confidence in the Financial System.[6]
Framework for Quick Response (QR) Code Payments in Nigeria,2021
This framework provides regulatory guidance for the operation of QR Code payment services in Nigeria. It aims to ensure the adoption of appropriate QR code standards for safe and efficient payments services in Nigeria. The framework therefore stipulates:
Acceptable QR Code Standards for implementing QR Payments in Nigeria;
Interoperability of QR Payments in Nigeria;
iii. Roles and Responsibilities of Participants in QR Payments in Nigeria;
Risk management principles for QR code Payments in Nigeria
National Information Technology Development Agency
Data protection and cybersecurity are governed by the Nigerian Data Protection Regulations, 2019 (NDPR) issued by the National Information Technology Development Agency (NITDA) pursuant to the National Information Technology Development Agency Act, 2007, which impacts the use, transfer, and processing of data of Nigerian citizens.
The Regulation applies to all transactions intended for the processing of personal data of natural persons residing in Nigeria or Nigerian citizens residing in foreign jurisdictions. Pursuant to the NDPR, all public and private organisations in Nigeria that control the data of natural persons are required to adhere strictly to the requirements under the NDPR regarding the protection of data and privacy of persons.
The Electronic Transactions Bill, when enacted, will have far-reaching consequences for organizations that process personal data, including fintech companies. For example, data controllers and processors (including Fintech companies) will be restricted from transferring personal data of individuals to a country outside Nigeria, unless such country has adequate provisions for the protection of data. The Electronic Transactions Bill will also give individuals the right to request their personal data from a data processor or controller, and to claim compensation against such data processors and data controllers for any data breaches.
Federal Competition and Consumer Protection Commission
Another regulatory body for FinTech organisations is the Federal Competition and Consumer Protection Commission. This body established by the Federal Competition and Consumer Protection Act, 2018 (FCCPA), among other reasons was established in order to develop and promote fair, efficient and competitive markets in the Nigerian economy, facilitate access by all citizens to save products, and secure the protection of rights for all consumers in Nigeria.
The FCCPA which is applicable to all entities carrying on business in Nigeria, including fintech companies, prohibits anti-competitive practices, including price-fixing, market sharing, collusive tendering, or entering into any arrangement which might cause a restraint on competition.
National Communication Commission (NCC)
FinTech companies offering services that involve the use of mobile networks or mobile phones are subject to NCC’s regulatory purview and must obtain requisite operating licenses from the NCC.
National Insurance Commission
National Insurance Commission (NAICOM) was established by the NAICOM Act, 1997, with the responsibility of ensuring the control and regulation of insurance business in Nigeria. Thus, where an Insurtech Company carries on business, it will require a license from NAICOM.
Securities and Exchange Commission (SEC)
The SEC is the Securities and Capital Market Regulator in Nigeria, pursuant to Investment and Securities Act, 2007(ISA). FinTech companies desirous of raising capital from the Capital Market must register their securities with the SEC and comply with the ISA.
Other generally applicable laws and regulations include the:
Companies and Allied Matters Act, 2020 (as amended);
Innovation and regulation are often seen as rivals. Hence, posing a difficult task for the body saddled with the responsibility of regulating the industry on how to regulate such industry without putting a peg on innovation.
The importance of a solid legal framework for FinTech in Nigeria cannot be overemphasized, as this will boost investors’ confidence in the industry and increase the ease of doing business. It is crucial that the framework must be flexible enough to accommodate further growth and not inimical to the financial inclusion goal, it is meant to address.
Mr. Oyetola Muyiwa Atoyebi, SAN is Abuja based legal practitioner
Last Tuesday, the Chief Judge of Lagos State, Justice Kazeem Alogba hosted members of the National Association of Judiciary Correspondents (NAJUC), Ikeja Chapter. ADEBISI ONANUGA reports that the Chief Judge used the platform to talk on some of the issues facing the judiciary.
The Chief Judge of Lagos State, Justice Kazeem Alogba, last Tuesday hosted members of the National Association of Judicial Correspondents, NAJUC, Ikeja Chapter.
The event took place in his office at the High Court, Ikeja complex.
Need for collaboration, objectivity
He charged all journalists covering court proceedings in Lagos State to see objectivity and thoroughness in the investigation of stories as a virtue. Justice Alogba also implored them to be upright in discharging their duties, while covering court proceedings.
The Lagos CJ said: “In so far as we have something to do with each other, it is absolutely necessary that we collaborate. To my mind, that’s the best way we can both serve the public more effectively because you (journalists) would want to disseminate information about what we are doing.
A publicity shy bench
“I want to start by saying that, traditionally, the bench is a publicity-shy institution. Publicity-shy in the sense that the kind of business that we do isn’t such that we want to tell the whole world except where it’s in the public interest.
“This is because, in most cases, except for criminal matters, what we do relates to personal relationships; be it chieftaincy, land, fundamental human rights, probate or divorce matters. These things mainly arise from interpersonal relationships which have gone sour in one way or the other.
“So naturally, it is not in our place to begin to bring these dirty linen to the public domain freely as some would expect. Except where it becomes very necessary that the public should be aware.
“But even in such cases, the court have to consider so many interests that would be involved. For example, if there are sexual offences being tried and you might think that it is not necessary to protect the alleged offender. But until someone is found guilty, you cannot ascribe guilt to him. So rather, we call him the alleged offender’’.
Why rape victims are protected
“Taking protection of rate victims for an example, if someone is being tried for such an offence and then we allow everyone to prowl on such information, what if, at the end of the day, the man is set free? Everything that has gone out of the public how much can you recall it?
Because now he comes back to the society as a free person but he would have lost a lot about his reputation which could affect so many aspects of his life as well.
“So the court is placed in such a position where it must balance the need for the society to know and also the equal need for those involved in litigations, not just the defendants. It might even be the claimant.
“Take a typical case of rape for example, it might be in the interest of the victim not to have too much publicity, especially in this kind of our country; where initially it would be sympathy but thereafter aspersions.
“So I want you to put that at the back of your minds that when the court isn’t being too free to grant audience in certain cases, it is not out of wanting to cover anything but it is within its inherent jurisdiction to ensure that justice is served to everyone concerned’’.
Court won’t withhold information
“Where it is absolutely necessary for the public to know, the court won’t withhold such neither will journalists be denied access.
“But again, where there is need to protect the interest of the persons involved, in certain cases, we cannot allow journalists to cover or witness it. Especially security matters, or even cybercrime, because a lot of dangerous information would come in. You cannot just throw that to the public. So it’s a balance we must hold delicate considering what is involved.
“But immediately the cases are decided, it becomes public information. Because a judgement is one of the classes of public information that anyone, even aside the litigants, is entitled to have a copy of. ”
Justice Alogba assured that under his watch, information would not be denied any journalist “because I don’t think my predecessors have been doing that and neither would my administration.
“But my promise is that as much information that is allowed by the dictates of our work and the peculiarities of each particular case, then you would definitely have the opportunity to have information”.
Training programme for court reporters
The Lagos CJ also reaffirmed the willingness and readiness of the judiciary to support and collaborate with the association in its trainings and annual lectures.
“ Regarding your request to conduct quarterly meetings, I think we could have this kind of parley twice annually and discuss more. And where you need collaboration of the judiciary in terms of your annual lectures, trainings and conference, we would be very willing to be of assistance or participate.
Truth as a watchword
“But one thing I would like to request of you and what every journalist must take as his watch word is ‘Truth’.
“I will never ask the media to manipulate any information, no matter how bad or good it may appear. This is because any attempt to adjust the truth either by adding or subtraction of information gives it an entirely different effect,” the CJ said.
In this article, Dele Adesina, SAN, writes on 40 years anniversary of conferment of Senior Advocate of Nigeria (SAN) on Chief Folake Solanke, making her the first woman to be conferred with the prestigious award.
It is a great honour for me to write this short tribute to a great woman of value and virtue, a trailblazer and a pace-setter, who was conferred with the prestigious rank of Senior Advocate of Nigeria 40 years ago.
This makes her the very first woman to wear the silk and sit at the Inner Bar. Success does not come by chance. Nobody ever succeeds by accident. Chief Folake Solanke SAN planned to succeed and she has succeeded. Her success story validates the statement that “you think of where you are going to be tomorrow today, otherwise you don’t get there.” Of course, like I say quite often, your picture determines your future.
Let me say with all sense of responsibility that the Honouree’s autobiography titled “Reaching for the Stars” is an eloquent testimony that once you are determined to succeed, you are unstoppable.
From the beginning of the beginning, to be a Star was her goal. To be a pace-setter was her ambition. Today, it is beyond any controversy that she has not only reached the stars, she has become one of the stars, not only in the legal profession but in life generally. Also, the book “The Trailblazer”, a selection of essays in her honour, is another evidence of her identity.
Indeed, Chief Mrs. Folake Solanke is a trailblazer, a legal icon and an astute, erudite, well-groomed personality.
Always well spoken and impeccably dressed. You want to know what is the regulation dress at any legal function, just look for her. A quintessential legal practitioner. Chief Folake Solanke SAN is strikingly a role model, not just in the profession but also in life. She wears the ethics of the profession like a garment. She is a personification of nobility, honour and integrity.
She carries herself with visible and demonstrable grace, candour, radiance and self-confidence. I can never exhaust the desire to speak about this graceful lady of profound stature and immense moral and ethical standards. These among other things, were responsible for ensuring that I succeeded in making her the chairperson of my three-in-one events in February 2018 in Lagos.
Learned Chief, 40 years at the Inner Bar, the 1st Lady Senior Advocate of Nigeria, and 89 years (few days to come), you keep increasing because of the value you are adding to people. You are a great value addition and a patriot to the profession and to the nation. Patriots are custodians of nations, custodians of conscience and guardians of civilisation. You remain a Patriot, a Star, a Pace-setter and a Trailblazer.
Dele Adesina SAN, FCIArb, Past General Secretary, NBA, and Life Member, Body of Benchers, wrote this tribute to celebrateChief Mrs Solanke’s 40 years at the inner bar, and 89th birthday
GABRIEL GBENOBA, ESQ v. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE& ANOR
CITATION: (2021) LPELR-53064(SC)
In the Supreme Court of Nigeria
ON FRIDAY, 5TH FEBRUARY, 2021
Suit No: SC.536/2015
Before Their Lordships:
OLABODE RHODES-VIVOUR
Justice of the Supreme Court
MUSA DATTIJO MUHAMMAD
Justice of the Supreme Court
HELEN MORONKEJI OGUNWUMIJU
Justice of the Supreme Court
ABDU ABOKI
Justice of the Supreme Court
EMMANUEL AKOMAYE AGIM
Justice of the Supreme Court
Between
GABRIEL GBENOBA, ESQ
– Appellant(s)
And
LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE
NIGERIAN BAR ASSOCIATION
– Respondent(s)
LEADING JUDGMENT DELIVERED BY HELEN MORONKEJI OGUNWUMIJU, J.S.C.
FACTS
The Petitioner on the 23rd of June 2008 sought the legal services of the Appellant in respect of the purchase of property at No. 38 Raymond Njoku Street, Ikoyi, Lagos. The Appellant advised against the purchase but the Petitioner went ahead to purchase the property. Thereafter, the Petitioner paid the Appellant to perfect the documents relating to the property after it was purchased through another legal practitioner.
On 2nd July 2008, the Appellant brought a quote of N7,500,000.00 for obtaining Governor’s consent, registration of the property and professional fees which the Petitioner agreed to pay. The money was paid by the Petitioner to the Appellant. In the course of processing the consent, there was a delay beyond the expected time for perfecting the documents. Apart from that, litigation ensued in respect of the property.
The Petitioner and Appellant fell out over the inability of the Appellant to obtain Governor’s consent and problems encountered in the course of the litigation. The Petitioner asked for return of the money paid to regularize the proper documentation of the property. The Appellant insisted he was still owed money and the Petitioner refused to pay. Not satisfied with the claim of the Appellant, the Petitioner wrote a petition to the Nigerian Bar Association (2nd Respondent) alleging professional misconduct. The NBA sent the petition for Appellant’s comments and he responded to the petition. The NBA concluded that a prima facie case had been made against the Appellant. The NBA drafted charges and referred the charges to the Legal Practitioners Disciplinary Committee. The Appellant was charged before the Legal Practitioners Disciplinary Committee (1st Respondent) on a three- count complaint by the Nigerian Bar Associationfor engaging in conduct unbecoming of a legal practitioner contrary to Rules 1, 14, 16, and 21 of the Rules of Professional Conduct for Legal Practitioners (RPC) and was found guilty. The Legal Practitioners Disciplinary Committee directed the Appellant to refund the disputed money to the Petitioner, and also ordered that the name of the Appellant be struck out from the Roll of Legal Practitioners. Dissatisfied, the Appellant appealed to the Supreme Court.
ISSUES FOR DETERMINATION.
(1) Whether the Decision/Directions of the committee can be sustained when the petition of Mrs. Olatimbo Ayinde against the Appellant to the 2nd Respondent was without prior investigation by an investigative panel before reference to the 1st Respondent.
2) Having regard to the Constitution/Composition of the Committee, whether its Decisions/Directions dated 6th May, 2014 are not totally in breach of the Appellant’s right to fair hearing, and all together, null and void?
3) Whether the Decisions/Directions of the Committee are supported by credible and admissible evidence?
APPELLANT’S SUBMISSIONS
On issue 1, Counsel argued that where a statute provides for the manner in doing an act, such act must be done in accordance with the stipulation of the statute. Counsel cited FRN v. Senator Adolphus N. Wabara &Ors (2013) LPELR-20083 (SC) at Pg 17-18, paras. F-A. Counsel submitted that the 2nd Respondent did not set up any panel to investigate the complaint of professional misconduct against the Appellant before forwarding the case to the 1st Respondent for trial which was a clear violation of the procedure laid down. Counsel argued that it is when the 2nd Respondent had previously investigated the case against a legal practitioner that it will refer the findings by way of a report to the LPDC indicating that a prima facie case has been made out against the Legal Practitioner and charges are then drafted to support the case and presented to the LPDC.
On issue 2, Counsel argued that the composition of the committee fluctuated throughout the proceedings and rendering of the directions. Counsel argued that many members of the committee who did not hear any witness or participate at all stages of the proceedings surfaced to deliver the directions of the committee whereas the committee is one of first instance charged with evaluating and ascribing probative value to the evidence of witnesses after watching the demeanor of such witnesses before coming to a Decision. Counsel cited Obiajulu Nwalutu v. NBA & Anor (2019) LPELR -46916 SC; Gwarzo v. C.O.P.(2014) LPELR 23470 (SC) 22-2014 15 NWLR, Ihekwoba v. The State (2004) 15 NWLR (PT.896) 296 at 309- 2004.
Counsel also submitted that Mr. J. B. Daudu SAN’s participation as head of both the 1st & 2nd Respondents led to denial of the Appellant’s right to fair hearing in the circumstances. Counsel citedLPDC V. Fawehinmi (1985) 2 NWLR Pt.7 Pg.300 atPg.383-384, Kalejaiye v. LPDC (2019) 8 NWLR Pt.1674 Pg.365 at Pg. 382.
On issue 3, Learned Appellant’s Counsel argued that the two letters consisting of the Petition to the 2nd Respondent written by Ayinde Olatimbo on 26/9/2008 and Letter of Petition of one Victoria Folakemi Akinlabi also written same day with its Exhibits were tendered by PW1, an Assistant Secretary of the 1st Respondent. Neither of the Petitioner came to speak to the petitions, the basis of which the directions of the 1st Respondent were pronounced. PW1 admitted that he had no knowledge of the details nor was he a party to the transaction between the parties.Counsel argued that the relevant persons who made the statements and documents tendered by P.W.1. were alive and their failure to come before the Committee to give evidence rendered theevidence of PW1 inadmissible and documentary hearsay under Section 39 of the Evidence Act. Counsel cited Andrew v. INEC (2018) 9 NWLR (Pt. 1625)507 at Pg.557-558, paras. H-A.Counsel also submitted that no one was called to speak to those documents and they were thus deemed to have been dumped on the Committee contrary to all known Laws. Counsel cited Dickson v. Sylva (2017) 8 NWLR Pt. 1567 Pg. 167 at 234, Paras. F-G.
RESPONDENTS’ SUBMISSIONS
On issue 1, Counsel argued that the complaint is baseless as the Appellant was served with a copy of the petition by the 2nd Respondent and he responded to it. Counsel argued that the NBA Investigation Committee is an internal organ of the NBA. The NBA having considered the Petition against the Appellant and his response thereof, was satisfied that a prima facie case of professional misconduct was made out against the Appellant before referring the matter to the LPDC. Counsel argued that Charles Okike v. LPDC No.2 (2005) 7 SC Pt. 111 Pg. 75 has settled the issue that there is no specific mode of investigating any petition so long as it was investigated.
On issue 2, Counsel argued that the variation in the members of the Committee at various sittings did not affect the legality of the proceedings of the 1st Respondent. Counsel submitted that the quorum of the 1st Respondent at any sitting shall be five (5) pursuant to S. 11(2) of item 1 of the Supplementary Provision and S. 11(2) of the Legal Practitioners Act. Counsel submitted that a mere variation in the composition of the panel which does not affect the judgment or decision of the panel. Counsel cited Ndukwe v. LPDC & Anor (2007) LPELR- 1978 (SC).
Counsel further submitted that S.28 of the Interpretation Act makes it only mandatory for the Chairman and one other member to be present throughout the proceedings. Learned Counsel argued that from the records, the chairman signed and delivered the Directions with four other consistent members of the committee, hence there was no miscarriage of justice.
On issue 3, Learned 1st Respondent’s Counsel argued that the effect of S. 175 (1) of the Evidence Act is that every person is qualified to give evidence in a proceeding except where such a witness falls under the exception stipulated by Section 175(2) of the Evidence Act. He cited Elabanjo v. Alhaja A. O Tijani (1986) LPELR 1107 (SC). Counsel submitted further that from the printed record, PW 1 was obviously not within the exception and that what PW1 did was to give evidence, being the custodian of documents to be relied upon by parties in prosecuting and defending the complaint.Counsel argued that the nominal complainants need not give evidence to prove the complaints. Counsel argued that it is too late in the day to contend against the admission of the bulk document admitted by the committee through the P.W.1 and that Appellant’s failure to object during the trial amounted to a waiver of his opposition to the document. Counsel cited Nasir v. CSC Kano &Ors (2010) LPELR -1943(SC).
RESOLUTION OF THE ISSUES
On issue 1, the Court considered Rules 3 and 4 of the Legal Practitioners (Disciplinary Committee) Rules on the modalities for the submission of a complaint. The Court, agreeing with the Respondents, held that “there is no provision in the Rules that the NBA must inform the Appellant how it went about its investigation, so long as the Appellant was given an opportunity to defend the accusations made against him.” See Charles Okike v. Legal Practitioners Disciplinary Committee No.2 (2005) 7 SC Pt. 111, Pg. 75.
On the first leg of issue 2, the Court stated that the position of the law is that where a Court is not properly constituted to ensure its full awareness and impartiality in that the Court was differently constituted during the hearing of a case or on various occasions when they met, or where one member did not hear the whole evidence, or a member had an interest in the matter, the effect on the proceedings was to render same null and void. See Egba N.A v. Adeyanju (1936) 13 NLR 77; Tawlah III v. Ewudzi 3 WACA 52; Otwiwa v. Kwaseko 3 WACA 230. Applying the above to the case,the Court held that the LPDC, not being an appellate body but a quasi-judicial body and an adjudicator at first instance, all the members who delivered the Directions must have participated in the full trial after utilizing the opportunity of seeing the demeanor of witnesses, etc. See Nwalutuv.NBA& Anor (2019) 8 NWLR Pt.1673 Pg.174 at Pg.195.
On the 2nd leg of issue 2, the Court agreed with the reasoning of the Committee that the participation of Mr. J. B. Daudu SAN’s as head of both the 1st & 2nd Respondents did not amount to breach of right to fair hearing as Mr. J. B. Daudu SAN participated in the 1st and 2nd Respondents in different capacities and as such there was no likelihood of bias.
On issue 3, the Court held that the documents tendered by the staff of the 1st Respondent had no probative value because, without a witness adopting the said documents and speaking to the petition to prove the truth of their contents, they amounted to documentary hearsay and inadmissible as credible evidence. Going further, the Court held that the failure of the Petitioner to be represented as a party either personally or by Counsel was fatal to the case. In the absence of the Petitioner, there was no opportunity for the Appellant to cross examine the Petitioner and the Committee could not witness the demeanor of the Petitioner to judge her credibility.
HELD
The Court allowed the appeal and set aside the decision of the Legal Practitioners Disciplinary Committee.
Appearances:
Adamson Adeboro with him, Teslim Dauda
–For Appellant
Adedayo Adedeji with him, Abdukareem Audu and M.C Ezeobidi
The Body of Benchers is seeking to check the legal profession’s declining standards by replacing the Legal Practitioner Act, 2004 with an improved Legal Practitioners Bill 2020. But the Justice Reform Project (JRP) believes the bill is a self-serving and retrogressive attempt by senior lawyers to give the power of control and regulation of the profession to senior lawyers.
The Justice Reform Project is a coalition of Nigerians across the legal profession, civil society and the general public who are stakeholders in a justice system which works efficiently, effectively and equitably. JRP’s mission is to activate actors and stakeholders (including the public users of legal services and the system of justice as well as legal practitioners) to transform the culture, values, ethics and quality of justice delivery in Nigeria.
We are deeply concerned at a Bill proposed by the body known as the Body of Benchers to replace the Legal Practitioner Act CAP L11, Laws of the Federation of Nigeria, 2004 and to re-enact a new Legal Practitioners Act “…to provide for reforms and regulate the legal profession…”.
Our concern is two-fold. The first is that the legal profession and its stakeholders are widely ignorant of this far-reaching piece of legislation which has not been ventilated or discussed even by branches of the Nigeria Bar Association.
Secondly, because in our estimation the Bill is replete with self-serving and retrogressive provisions which will prejudice the public interest in a strong, effective and independent legal profession.
Analysis
The effect of the Bill is to give the power of control and regulation of the legal profession to the Body of Benchers through its various Committees (as identified in the First Schedule of the proposed Bill). It further states that the Body of Benchers ‘shall determine the terms of reference, regulations and mode of appointment, tenure, quorum and manner of meetings of each Committee.
The proposed powers of the Body of Benchers are set out in section 1(2) of the Bill and include:
(a) Call to the Bar of eligible candidates.
(b) Taking all measures which appear to it to be necessary or expedient for maintaining at all times the traditional values and wellbeing of the legal profession.
(c) The exercise of disciplinary jurisdiction over members of the legal profession.
The proposed membership of the Body of Benchers under section 1(3) of the Bill is to now also include:
(i) President of the National Industrial Court
(ii) Life Benchers
(iii) The President of the Senate (if a lawyer)
(iv) The Speaker of the House of Representatives (if a lawyer)
(v) Chairmen of the National Assembly Committees on Judiciary (if they
are lawyers).
(vi) 20 Legal practitioners nominated by NEC of NBA with a minimum of 15 years’ post call and 5 may be Law Teachers (reduction of 10 from the current position).
Section 1(9) of the Bill gives power to the Body of Benchers to create a Caretaker Committee of the NBA where any of the scenarios in section 1(8) of the Bill come into play including where there is a dispute among members of the NEC of the Nigeria Bar Association and it is impossible or impractical for the NEC to undertake or continue the function of managing the affairs of the NBA.
By Section 4 of the Bill – the Body of Benchers is funded by the Federal Government through the National Judicial Council.
Section 5(1) of the Bill sets out the composition of the Bar Council and includes:
(i) The Chairman is the Attorney General of the Federation
(ii) Two Past Presidents of Nigeria Bar Association
(iii) Six Attorneys-General of States
(iv) Six eminent members of the Bar
(v) A retired Justice of the Court of Appeal
(vi) Six Senior Advocates of Nigeria
Section 11 of the Bill prescribes Pupillages
(i) From commencement of Act every person has to undertake a 2-year pupillage in the offices of an experienced legal practitioner.
(ii) Any person not undertaking two-year pupillage shall not be entitled to commence practice as a sole practitioner or set up alone, in partnership or other arrangements with other legal practitioners.
(iii) Body of Benchers shall make rules and set up criteria for the conduct of pupillage for new entrants to the Bar.
(iv) Body of Benchers shall develop and maintain a Pupillage Handbook dealing
with structure and duration of programme, fair treatment and selection of pupils, duties, training and responsibility of pupil supervisors, support and advice for pupils, complaints procedure and remuneration of the pupil.
(v) Division set up to be responsible for pupillage programme and qualify legal practitioners as pupil supervisors.
Section 12 of the Bill gives responsibility of the Body of Benchers to set standards, inspect, accredit and approve law offices of legal practitioners
Section 15 of the Bill – Rules to allow foreign lawyers to practice in Nigeria under regulations to be made by the Chief Justice of Nigeria after consultation with the Body of Benchers. The Section refers to and defines “friendly jurisdictions”.
Section 17 of the Bill repeals the LPA 1975 as amended. Other highlights are outlined below:
First Schedule
Adds the General Council of the Bar to its list of Committees
Legal Practitioners Disciplinary Committee – changes the numbers of those on the committee and adds that the Body of Benchers has the power to add additional members as it sees fit. The Chief Justice of Nigeria will make the rules of proceedings and the procedure to be followed.
It prescribes penalties for unprofessional conduct;
Affirms, disciplinary jurisdiction of Supreme Court
And Restoration of names to Roll
Second Schedule
Legal Practitioners Privileges Committee, is to include Life Benchers as appointed by Chairman, Body of Benchers
Adds a Legal Practitioners Remuneration Committee – appointments made by the Attorney General of the Federation
Clients’ Accounts added
Deals with unauthorised practice of law.
Problem with the Bill
The Justice Reform Project views this Bill as an urgent threat to a profession that is already failing in professional output, structure and ethics.
The proposed Bill gives overall regulatory authority over the legal profession to the Body of Benchers. The Bill makes no reference to what its regulatory objectives are but rather usurps the role of both the Nigerian Bar Association and the Bar Council. What is extraordinary about the Bill is that it decreases the numbers of legal practitioners eligible for membership of the Body of Benchers down to 20 from 30 but allows the legislative arm of Government to become members of the Body if they are lawyers i.e., the Senate President, the Speaker of the House and the Chairmen of the National Assembly Committees on Judiciary. The Speaker of the House of the House of Representatives, the Chairman of Senate Committee on Judiciary, Human Rights and Legal matters and the Chairman of the Federal Judicial Committee (House of Representatives) would be eligible to take their place on the Body of Benchers.
This has far-reaching consequences on the issue of independence, for example, should member(s) of the legal profession do or say anything the Government perceives as being a challenge to its authority or that they just do not like it can use its influence within the Body of Benchers to take action against that / those legal practitioners!!
There are other extremely concerning features of the Bill.
a) Firstly, the power of the Body of Benchers to take over the functions of the Nigerian Bar Association by the formation of a Caretaker Committee in the circumstances outlined in section 1(8) of the proposed Bill. Section 1(9)(b) gives the Body of Benchers the sole power to decide who will be appointed to the Caretaker Committee.
b) Secondly, it is proposed that the Body of Benchers as a regulator is to be funded by the Federal Government through the National Judicial Council. This in itself is of grave concern and begs the question of how it can act as a regulator of the legal profession when its paymaster is the Federal Government (this has implications for independence and transparency). If members of the legal profession do or say anything the Government perceives as being a challenge to its authority or that they just do not like it can use its influence within the Body of Benchers to take action against that legal practitioner!!
c) Thirdly, the composition of the Bar Council is of real concern for a number
of reasons but by far the most concerning is that the Body of Benchers will be in total control of who is appointed to the Council – there is absolutely no transparency of the criteria for appointments e.g., what is meant by ‘eminent’ members of the Bar?
Regulation of the legal profession is extremely important and as such the regulatory authority must set out and abide by regulatory objectives i.e.
(a) to maintain public confidence in the provision of legal services;
(b) to promote and protect public and consumers interest;
(c) to promote the rule of law and improve access to justice;
(d) to recognize and preserve the status of the legal profession;
(e) to ensure the independence, integrity and honour of members of the legal
profession;
(f) to increase public understanding of the citizen’s legal rights and duties;
(g) to encourage an independent, strong, diverse and effective legal profession;
(h) to establish and maintain standards for the continued education, competence and responsibility of members of the legal profession and notaries public; and
(i) to promote transparency, proportionality and efficiency in the regulation of the legal profession.
The Body of Benchers in its current format is a relic of its colonial past. It should not be the gatekeeper of the legal profession when it comes to reform or regulation of the profession. Its role can be as no more than a stakeholder in any discussions. The whole concept of the Benchers system comes from the Inns of Court in England (Gray’s Inn, Lincoln’s Inn, Inner Temple and Middle Temple). Each Inn has Benchers who make up the governing body and appoints new Benchers (on a nomination basis) from its existing Barrister members. The Inns do have Honorary Bencher appointments for persons who are not members of the Inn but have achieved distinction in any area of public or professional life relevant to the interests of members of the Inn. The Inns have supervisory and disciplinary functions over its members each Inn also provides libraries, dining facilities, professional accommodation, education and training to its student and junior barrister members.
Nigeria does not have the system of the Inns of Court and it is, therefore, right to question the whole concept of the Body of Benchers. In the perception of students studying at the Law Schools it represents no more than an opportunity for the Benchers to dress up and show the level of elitism that exists in the profession in Nigeria. By contrast Benchers in the four Inns, sit on various committees for the administration of the respective Inn, including scholarship award panels, discipline, advocacy training and of course call ceremonies for successful students. In its current form, it is totally not fit for the purpose and there ought to be a reform of the Body of Benchers.
In 2018 a draft Bill was prepared with wholesale reform of the legal profession including the establishment of the “Legal Profession Regulation Council of Nigeria” setting out its function and composition – the composition was inclusive of all stakeholders in the legal profession and included lay members on the basis of selflessness, integrity, objectivity, accountability, openness, honesty and leadership (7 principles of public life).
Proposals were set out for funding the Council that did not involve funding from the Federal Government and the Council would be run by a Chief Executive through its Secretariat. It was proposed that a number of Committees would be set up within the Council of which the Body of Benchers would be one of them – its role was to be responsible for formal Call to the Bar of persons seeking to become legal practitioners including all measures which appear to it to be necessary for maintaining the traditional values of the legal profession.
Appointment to the Body and any of the other 10 committees would be on the basis of the 7 principles of public life.
The 2018 draft bill was extremely keen on transparency and the concept of independence which are totally lacking in the Bill proposed by the Body of Benchers which has all the hallmarks of wanting the opposite of transparency and independence! – keeping control of the legal profession to the political and judicial elite.
The Nigerian Bar Association (NBA) Owerri Branch has urged Imo State Governor Hope Uzodinma to deploy modern gadgets for early detection of crimes and criminals in the state.
Its chairman, J.I. Ogamba, who spoke during a recent courtesy call on Uzodinma lamented the murder of former Owerri branch chairman Mr N.H. Nwankwor.
Nwankwor was killed in his Owerri office last month in broad daylight.
Ogamba said: “On February 6, 2021, N. H. Nwankwo, the former Chairman of NBA Owerri Branch, was gruesomely murdered in his office situated on one of the busiest streets in Owerri. Earlier in the month, a lawyer escaped the claws of kidnappers along Bank Road in broad daylight.
“It is no longer news that the (Auxiliary Bishop of the Catholic Archdiocese of Owerri) Bishop Moses Chikwe was kidnapped beside his residence. Many other similar incidents in Imo State especially during the yuletide underscore the frightening rate of insecurity in our state. The Bar is not unmindful of your sincere efforts in combating crimes and criminality in the State.
“We, therefore, urge you to deploy modern facilities and gadgets to quicken the detection of crimes and arrest of criminals.”
He commended the governor for his “mature handling” of the Covid-19 pandemic and the #EndSARS protests “which would have engulfed the entire state”, adding that the timely imposition of curfew and other security measures impacted positively in quelling the recent Orlu crisis.
Ogamba added: “The Bar, as the watchdog of the society, has the responsibility among others to defend the independence of the judiciary in Nigeria as well as see to, the improvement of the administration of justice sector and the promotion/protection of the principles of the rule of law and respect for the enforcement of fundamental rights, human rights, peoples right and rights of access to courts of citizens.
“In the light of the foregoing, the Bar implores you to initiate the appointment of more judges in line with the High Court Law of Imo State which prescribes a full complement of 31 Judges. As of today, the High Court bench has 22 judges and some are on the verge of retirement. We urge you to also facilitate the establishment of more courts, particularly customary courts which are closest to the grassroots. It is saddening that in some customary courts, particularly Nwaorieubi and Uratta, the Courts have on average about forty cases per day. It is also heartbreaking that some Customary Courts operate in facilities not befitting to be Court halls.”
He thanked the Uzodinma for the vehicles recently presented to High Court Judges but implored him to do the same for magistrates, law officers and customary courts chairmen.
“It is painful to see some Magistrates and Chairmen of Customary Courts struggling for space in public buses with litigants who have cases before them. This should not be so,” Ogamba said.
He added: “In the same token, the Bar urges that the emoluments of legal officers attached to Local Governments be harmonized in line with the emoluments of Lawyers in the Ministry of Justice. There is also the need to train Lawyers in Government employ as prosecutors in line with the provisions of Section 182 of the Administration of Criminal Justice Law (ACJL) of Imo State.
“The Bar commends you for restoring 75 per cent of the salaries of the law officers in the Ministry of Justice and pray Your Excellency to graciously direct that the arrears be paid.
“In the same token, we implore that the same gesture be extended to legal officers attached to Local Governments who also suffered the same fate. Also, the Bar requests you to equip the offices of the Law officers in order to discharge their duties effectively. It is not in the interest of Government for Law officers to take sensitive Government documents outside the premises of their offices to public business centres.”
Responding, Uzodinma described Nwankwo’s assassination as “evidence of human wickedness”.
He also pledged to partner with NBA Owerri in its quest to immortalise the late Nigerian Ambassador to the United States, former Justice Sylvester Nsofor.
Uzodimma also promised to critically look at the other demands made of him by the lawyers, adding that he would not disappoint their “reasonable expectations.”
The federal and Delta State governments are at loggerheads following the former’s decision to use the £4.2 million James Ibori-linked loot for infrastructural developments outside his state. But lawyers are divided on the matter, writes ADEBISI ONANUGA.
Last Tuesday, the United Kingdom (UK) agreed to return £4.2 million (about N2.2 billion) to Nigeria being funds recovered from friends and associates of former Delta State Governor James Ibori. The decision followed the Federal Government’s assurance that the funds would be spent on key infrastructure.
The fund was retrieved through UK law enforcement agencies, led by the Metropolitan Police Service, National Crime Agency (NCA), Crown Prosecution Service (CPS), supported by the Foreign Commonwealth and Development Office (FCDO) and Home Office, who, following investigations, discovered assets bought in the UK with the illicit funds.
Ibori, in February 2012, pleaded guilty to the offence of money laundering, conspiracy to defraud, and forgery, and was sentenced to 13 years imprisonment by a UK court. Some of his associates and family members were also jailed for related offences.
Representatives of the UK and Nigerian governments signed an agreement for the return of the money to Nigeria in Abuja on March 9.
The signing of the agreement, which took place at the Federal Ministry of Justice, Abuja, was done under the auspices of the U.K.-Nigeria Memorandum of Understanding (MoU), which came into force in 2016.
UK High Commissioner Catriona Laing and Attorney-General of the Federation and Minister for Justice Abubakar Malami (SAN) represented their respective countries
When the money arrives, probably this week, it will be the first time that ill-gotten assets and money will be returned to the country by UK under the 2016 agreement.
Nigeria/UK MoU 2016 on recovered assets, funds
The UK/Nigeria 2016 MoU provides that criminal assets stolen in Nigeria and seized in the UK are to be returned to Nigeria. The MoU was signed by the UK Immigration Minister Robert Goodwill and Malami during Goodwill’s two-day visit to Nigeria on August 30 and 31, 2016. It reinforced the countries’ commitments to continued co-operation and mutual support in returning seized proceeds of bribery or corruption in a responsible and transparent way.
The MoU provides the framework for returning stolen assets to Nigeria. It also makes provision for transparency and monitoring of the return of any assets.
The MoU also made it clear that both countries are committed to ensuring that returned money should not be allowed to get back into the hands of criminals. As part of the agreement, the Nigerian government also pledged to use any returned funds for projects that would benefit the poorest members of society and improve access to justice for all Nigerians.
How the £4.2m will be spent
In line with the MoU, Malami, on behalf of the Nigerian government, last Tuesday, pledged to use the funds for projects that will benefit and improve the country and this includes substantial building work for the Lagos to Ibadan Expressway, the Abuja to Kano Road and the second Niger Bridge.
The projects will be administered by the Nigeria Sovereign Investment Authority and independently audited. Nigeria has also established a monitoring team to oversee the implementation of the projects and to report regularly on progress. The Cleen Foundation, which has expertise in substantial infrastructure projects, civil engineering, anti-corruption compliance, anti-human trafficking compliance, and procurement, will provide additional monitoring and oversight.
Row trails Fed Govt’s decision
However, the Federal Government decision’s to exclude Delta State from the £4.2m did not go down well with the state government. Legislators, lawyers, rights groups and other stakeholders also faulted the government’s plan.
‘An act of injustice’
Delta State described the decision as an act of injustice. Its Commissioner for Information Charles Aniagwu, while speaking on Arise Television last Tuesday, said rather than use the funds for projects in other states, it should be deployed for projects in Delta. Aniagwu listed roads in the state needing attention to include Sapele-Benin Road, Agbor-Osubi Road, and Agbor-Eku Road. among others.
Sagay: Delta can seek judicial pronouncement
Chairman, Presidential Advisory Committee on Anti-Corruption, Prof Itse Sagay, agreed with Aniagwu on how the fund should be utilised, insisting the money was taken from the coffers of Delta State.
He said: “The money is Delta State money and must be returned to Delta State. The Federal Government cannot appropriate it for any reason whatsoever. Delta State should officially demand for it, failing which the court can be activated for judicial pronouncement on it.”
House of Reps kick
The House of Representatives also opposed the Federal Government. Last Thursday, it asked it to halt the appropriation of the £4.2m. The resolution followed a unanimous adoption of a motion by Minority Leader Ndudi Elumelu (PDP Delta), at a plenary of the Green Chamber. The motion was co-sponsored by nine other lawmakers from Delta Sate.
Elumelu insisted that the money belonged to the people of Delta and should be returned to the state government’s coffers for developmental purposes.
Deputy Speaker Ahmed Wase mandated the committees to conclude investigations and report back to the House within two weeks.
Rights groups fault Fed Govt
Also on Thursday, a non-governmental organisation (NGO), the Nigeria Voters Assembly (NVA), condemned the Federal Government’s plan.
In a statement by its President, Mashood Erubami, the pro-democracy, human rights and anti-corruption group said the funds should be released to the Delta State Government and its people, stressing “diverting the fund from Delta State to other regions will be an open conversion of what rightly and legally belong to Delta State”.
‘Reverse decision on £4.2 million Ibori loot or face court action’
The League of Ndokwa Professionals on Sunday gave the Federal Government seven days to reverse its decision to use the £4.2m for infrastructural developments.
Addressing a news conference in Lagos, its President, Chief Tony Amechi and Publicity Secretary, Evans Ufeli said the Federal Executive Council (FEC) and AGF Malami have no authority over the fund and cannot take a decision on it when the Delta State Government had not decided how it would be used to develop the state.
They insisted that the money should be returned to Delta State once received by government, stressing that they shall monitor the fund with the state government and ensure it is deployed for the benefit of Deltans.
According to Amechi: “the aforementioned funds belong to the people of Delta state and same cannot be appropriated or misappropriated by the federal government to funds project already appropriated for in 2021 budget.
“The £4.2 million was earned by the Delta State government through her Internally Generated Revenue (IGR) scheme, 13 per cent derivation funds from the federal government’s sale of Crude Oil and loans and other lawful means before the said funds were laundered by former Governor James Ibori.
“It is the law that state funds are meant for the development of the state and her people, but if by any means, such funds are diverted for personal use, the said fund if recovered, must be returned to the state account from where it was looted or diverted,” he insisted,
Amechi argued: “Nigeria is administered by the principle of federalism where fiscal autonomy is driven through financial autonomy wherein the Federal Government’s revenue is clearly separated from state finances.
“it is the intention of the law that state revenue remains their exclusive preserve, therefore state revenue recovered anywhere in the world should be returned to the state from where it was stolen.”
GFAR principles for asset recovery
The Principles for Disposition and Transfer of Confiscated Stolen Assets in Corruption Cases, cited by Ugolor, were agreed at the first GFAR Conference held in Washington DC on December 4 and 6, 2017 and they include Partnership, Mutual Interests, Early Dialogue, Transparency .and Accountability; Beneficiaries; Strengthening Anti-Corruption and Development; Case-Specific Treatment; Consider Using an Agreement under UNCAC Article 57(5); Preclusion of Benefit to Offenders and Inclusion of Non-Government Stakeholders.
UN prescription for asset recovery
The United Nations (UN) Convention Against Corruption (UNCAC) prescribes the process by which the proceeds of corruption transferred abroad are recovered and repatriated to the country from which they were taken or to their rightful owners.
Chapter V of the Convention listed three stages in the confiscation and return process of looted assets: identifying and tracing assets; freezing and confiscating assets; and recovering and returning assets.
Recovering, returning assets
UNCAC Article 57 stipulates that once corrupt assets have been identified and legally confiscated, they must be returned to their “prior legitimate owners”. It also already envisaged that “this final step in the asset recovery process can be complex, as it entails considering how to ensure the process is both transparent and accountable.
“The whole asset recovery process relies mainly on effective cooperation between jurisdictions. Mutual legal assistance is covered in UNCAC (Articles 46; 54-57), and states are required to “afford one another the widest measure of legal mutual assistance in investigations, prosecutions and judicial proceedings”.
Global Forum on Asset Recovery
The first Global Forum on Asset Recovery (GFAR) was held in Washington, DC, between December 4 and 6, 2017, hosted by the United Kingdom and the United States with support from the Stolen Asset Recovery Initiative (StAR). The meeting focused on assistance to four priority countries: Nigeria, Sri Lanka, Tunisia and Ukraine. GFAR was established as an outcome of the 2016 Anti-Corruption Summit, hosted by the United Kingdom. The results of the GFAR, such as an MoU between Nigeria, Switzerland and the World Bank which sets out the return of $321m of recovered assets, were concluded in the final communiqué.
Observers within and outside government are worried about the uproar that trailed the federal government’s decision to use the expected funds for infrastructural development outside the state. What should guide the government in the deployment of the fund, the March 9 UK-Nigeria agreement, international conventions or precedents?
Lawyers divided
Legal practitioners within the bench and the bar shared their thoughts on the thorny issue. They include a former judge of the Lagos Judiciary, Justice Ebenezer Adebajo, Babatunde Ajibade (SAN), Emeka Etiaba (SAN), Femi Falana (SAN), Louis Alozie (SAN), Kunle Adegoke (SAN) and a lecturer of law in the Faculty of Law, University of Lagos (UNILAG), Akoka, Wahab Shittu.
‘Delta State can’t lay claim to money’
Justice Adebajo said the British Government would not have any direct discussion on the matter without the invitation of the federal government. He noted that the money was recovered by a foreign government.
That notwithstanding, he argued that the federal government ought to have invited the Delta State government to join in the negotiations for the repatriation of the money.
He reasoned that the federal government must have worked against a background of information including the refutal by Delta State government that its money was missing/stolen.
Justice Adebajo however maintained: “It is a trite principle of Law that a person cannot approbate and reprobate on an issue. Once Delta State government had earlier refuted any claim to the funds, it cannot turn around to lay a claim to the funds.”
‘Why take from Peter to give to Paul?’
Ajibade reasoned that common sense and precedent, if it existed, would require that Delta should be entitled to the money.
“It is not an area that I have done any research in, but common sense says to me that if the money that was found to have been stolen by the former governor was stolen from the state, then, of course, it should be returned to the state. I don’t see any justification for the Federal Government claiming it and that is aside from, as you say, it appears that there is a precedent where other repatriated monies have been returned to the states from which it was stolen,” he told The Nation.
‘Recovered fund not national cake’
Etiaba said it was wrong for the federal government to assume ownership of the money because, according to him, it was obviously taken from the coffers of the Delta State government. It was also morally wrong, he added, to deprive the state of the use of the money.
Citing Bayelsa in the case of Dipreye Alamieyesigha, Etiaba recalled that when similar recovery happened in times past, the funds were returned to states whose funds were looted.
“The case of Delta State shouldn’t be different. This is a federation and every state enjoys its autonomy. The money that belongs to Delta State is not our money; it is not a national cake. The issue here is that if the federal government is serious about taking the money, Delta state should approach the Supreme Court to enforce its right over the money,” Etiaba said.
‘Needless controversy’
Falana said the controversy surrounding the disbursement of the fund was totally unnecessary having regards to the precedent that has been established in the country.
He argued that the federal government’s decision could not be justified under local and international law.
“From 1999-2003, the Delta State Government collected statutory allocations from the Federation Account pursuant to section 162 of the Constitution. Part of the money was diverted from the account of the Delta State Government by Chief James Ibori. The fund was confiscated during the trial of Chief Ibori, his banker and lawyer in the United Kingdom. Since the confiscated fund has been recovered it has to be remitted to the Account of the Delta State Government,” Falana said.
He said in AG Lagos State v AGF, it was held that the Federal Government lacks the vires to confiscate or seize the fund payable to the local governments in Lagos State from the Federation Account.
“Since it is not in doubt that the £4.2 million belongs to Delta State, the federal government cannot, under any law, seize the fund and use it to fix the Kano-Abuja Road and Lagos-Ibadan Road. Why not Warri-Asaba Road?
“It is on record that the money confiscated from Governor Joshua Dariye in the United Kingdom, recovered by the Federal Government and repatriated to Nigeria, was returned to the account of the Plateau State Government. The money confiscated from Governor Diepreye Alamieyeseigha in the United Kingdom, recovered by the Federal Government and repatriated to Nigeria, was remitted to the account of Bayelsa State Government,” Falana said.
He argued further that the MoU signed by the representatives of the British Government and the Federal Government on the disbursement of the recovered funds “cannot supersede the Constitution which has prohibited any form of discrimination in the country.
“In other words, by virtue of Section 42 of the Constitution, the governments and peoples of Plateau, Bayelsa and Delta states are entitled to equal rights and opportunities. Since what is sauce for the goose is sauce for the gander, the sum of £4.2 million confiscated from Governor James Ibori in the United Kingdom and recovered by the Federal Government has to be repatriated and remitted to the account of the Delta State Government.
“Indeed, it is trite law that no treaty or agreement between Nigeria and another shall have the force of law in any part of the country unless it is enacted into law by the National Assembly in accordance with Section 12 of the Constitution.
“Since the agreement on the £4.2m has not been domesticated by the National Assembly it is of no legal effect whatsoever.
ibori loot
“As far as international law is concerned the recovered fund has to be paid to the victims of the corrupt practice in Delta State in accordance with Article 35 of the United Nations Convention Against Corruption…
“Some concerned citizens and the Delta State Government have decided to join issues with the Federal Government over the seized fund. Otherwise, another sum of £100 million which will soon be recovered and repatriated from the confiscated fund will also be claimed by the Federal Government on very shaky legal grounds.”
‘Forfeiture of stolen asset is restitution for victim’
Alozie also contended that the arbitrary allocation of the returned James Ibori loot to fund federal projects by the Federal Government of Nigeria was wrong, adding that the money belonged to Delta State.
“It is more like conversion of Delta State property to federal use. After he was caught, tried and convicted, the money ought to be forfeited to the victim of the crime, as a sort of restitution. It ought not to be hijacked by the Federal Government.
“The money must have been part of Delta State’s own share from Federation allocation or internally generated revenue or loans.
“I don’t think it is fair and proper for the Federal Government to hold on to the returned loot and use the same to fund its own projects.
“This money was not confiscated or forfeited to the federal government as is usually done in EFCC trials where looted assets are at the end of trial forfeited to d federal government as provided for under d EFCC Act.
“The forfeiture and return of Ibori loot stemmed from his trial and conviction In Britain. It is the same place the late Dipreye Alamiesiagha of Bayelsa State was tried and convicted. At the end of the day, the assets confiscated from him were returned to the government and people of Bayelsa State.
”To my knowledge, forfeiture of stolen monies/assets is meant for restitution or compensation of the victim of the crime and not to further enrich the Federal Government of Nigeria”, he stated.
‘Why Delta Govt shouldn’t get the money’
But Adegoke differed.
He recalled that Delta State consistently insisted that its money was not lost. To him, that explained why the state did not take steps to recover the money while the Federal Government did.
Adegoke said: “It is not in dispute that the money was looted from Nigeria. Nigeria then is in the position of a finder. I don’t support that the money be given to Delta State as the tendency is that it may end up in the hands of James Ibori or the money be re-looted.
”In such circumstance, the federal government can retain the money but ensure that it is not re-looted. It must be spent to provide infrastructure for the people of the country”, he argued.
‘Delta State failed to make representation’
Shittu viewed the issue from legal and moral perspectives. He pointed to the fact the funds were repatriated to Nigeria legally in pursuance of bilateral treaty obligations between Nigeria and the UK. The treaty would have spelt out conditionalities for the utilisation of the funds to which parties are bound
He however argued that under international law, all agreements must be respected. The principle is ‘pacta sunt servanda’ meaning agreements are sacred.
Shittu said: “The application of the £4.2m repatriated loot will depend on the terms of the treaty to which Nigeria is bound. l have followed arguments for and against those entitled to the funds. The argument that the funds were stolen from Delta state and ought to be returned back to Delta state for its development is compelling largely on moral considerations, but l doubt whether that line of reasoning is sustainable on legal grounds.
“The bilateral treaty pursuant to which the funds were released is one between Nigeria and UK as sovereign states. The funds were released to Nigeria and not to Delta state and it is Nigeria and not Delta state that is bound by obligations under the treaty. Undoubtedly the UK had nominated projects to which the funds ought to be applied, a breach of which necessarily will occasion legal consequences.
“My view is that prior to the release of the funds and at the outset of negotiations, Delta State ought to have made representation to the Federal Government so that its interests could be factored into the equation in nominating projects that would be incorporated into the treaty obligations. Unfortunately, at the outset the attitude of successive administrations in Delta State had been the standpoint that no Delta State funds was missing. The question will now be, what has changed?”.
Daphne Ekpe’s love for debating meant Law was a natural choice of study. But a close friend’s death in 2010 strengthened her resolve to help victims of crime get justice. Ekpe, a 2016 alumna of the University of Ibadan and a First Class graduate of the Nigerian Law School, shares her story with ROBERT EGBE.
My name is Daphne Mercy Ekpe. I’m from Odukpani Local Government Area of Cross River State. I was born and brought up in Lagos State. I work as an Associate Lawyer at the law firm of Sofunde, Osakwe, Ogundipe & Belgore (SOOB Law). I am passionate about Intellectual Property Law, Entertainment Law and Arbitration.
Family
I belong to a family of five with two siblings. I am proud to be the last born. My dad is a businessman and is into consultancy. My mum was a primary school teacher for years before she retired. I love my family because they complete me.
Writing exam in the sun
I attended Royal Choice Primary School and Sunbeam Secondary School in Lagos State. Both were private schools close to home because my mum wanted her children close to her. One memorable experience I can never forget was the general punishment during the mock exam organised by my school in preparation for the West African Examination Council (WAEC) exam. Some of my classmates back then were reluctant to do the test but they gave the wrong impression that it was the entire class’ uniform decision. Our principal decided to punish us in a way we would not forget. He told us to move our tables and chairs to the field and we wrote the mock exam under the scorching sun. I was so pained then because I was never a part of the people who revolted against the mock exam but I suffered the consequences.
Choice of Law
My choice of law was initially inspired by my debating skills as a child. An unfortunate incident further deepened my interest in law and the justice system. My classmate and friend was murdered but nothing was done to bring her killer to book. The suspect walked away freely simply because she was an orphan. I was convinced that it had to be law.
Suicide or murder?
The incident happened in November 2010 when we were seeking university admission. She was an orphan and in an abusive relationship. That evening, they found her body hanging in her boyfriend’s house, looking like she committed suicide. She was naked, (her neck) hanging from a rope tied to the ceiling. The door was locked from inside. But the house had a ceiling and the police found an opening in the ceiling through which someone could have escaped. Her body also had marks suggestive of beatings. But the police and the people around said from the way her tongue stuck out, it didn’t look like someone that was murdered. The story all over the media was that she committed suicide after a disagreement with her boyfriend. But someone later came out to confess that the suspect told him she was killed after a disagreement, that the killer beat her up until she was unconscious. When he realised that she was no longer breathing, the suspect ran to his house – there was a canal nearby and the suspect asked him whether he could assist her to carry the body and throw it in the canal. But he refused; he said he could not partake in it. So, it appeared that the suspect hung her body to make it appear as if she committed suicide. The case remains unsolved. Mat her soul rest in peace.
Challenge of cramming
I attended the prestigious University of Ibadan, the first and the best and I obtained my LL.B in 2016. Studying law had always been my passion since I liked debating as a child. However, I got to realise that Law is not just about the advocacy part. The challenge I had initially was that I had to cram lots of laws and cases but I got used to it in the long run. My best memory was the What Next programme organised for my set after we were done with our final law exams. It remains my happy day because the hard work of five years in the University was crowned with success. I was finally becoming a lawyer, dream come true!
Call to Bar party
My family is my best support system and they wanted nothing but the best for me. After I bagged a First Class, their joy knew no bounds and they threw me a grand party in Lagos where we reside. My friends were also present to celebrate with me. Shout out to my family and friends for being amazing!
Conquering fear at Law School
I heard so many scary stories about law school especially the grading system. Honestly, I didn’t find it difficult because Law School was more of practice than just theory. It was a different approach from university and I eased into it. The only issue was that the curriculum was bulky and we had a short time to learn all. In dealing with my fear, I learnt to trust God. I am a Christian and my guiding scripture was Jeremiah 29:11 which gave me peace of mind all through the process. “For I know the thoughts that I think toward you, saith the LORD, thoughts of peace, and not of evil, to give you an expected end.” – Jeremiah 29:11
Making First Class
The day I saw my law school grade – a First Class – I screamed for joy! The feeling is unexplainable, I shed tears of joy. Law school was one year of intensity and the First Class grade made it worth it. I also received the Director-General’s award for attaining a First Class. All glory to God! Nothing really changed except that it gave me the platform to keep pushing and aiming for the best.
First court appearance
My first day in a courtroom is different from my first appearance. I had been going to court as an intern, so the first time I wore the wig and gown in court was with a senior, I was happy. But my first appearance happened in a funny way. I went to the Federal High Court to watch brief not to handle the case. The counsel handling the matter stepped out briefly to settle some mix-up and because the matter was called, I had to announce my appearance. I did that confidently and had to move a housekeeping motion. I felt so proud of myself.
Law school grading system unfair
The grading system is not a fair one because your performance is determined by your lowest grade as opposed to the cumulative grade system. My advice is that law school students should focus on achieving excellent grades in the five courses rather than worry about the grading system that they cannot change. We can only hope that the system is changed for the better.
I love the wig and gown
I am indifferent about whether it should be scrapped or not. Funny thing is that I love the wig and gown because it makes us stand out even though it can be uncomfortable.
Judge, Professor or SAN?
I am not really eager to have any. I just want to establish my Intellectual Property Practice and Arbitration. However, if I have to pick one, it will be SAN because of the prestige associated with the office and the privileges as well. Nobody likes to spend the entire day in court, so becoming a SAN would mean that I can call my matter out of turn and leave the court on time!
Advice to students eyeing First Class
I will like to encourage every law school student to keep pushing and working hard because better is the end of a matter than the beginning thereof. I wish them the very best in their forthcoming bar finals exams and may God crown their efforts with success.
