Category: Law

By Robert Egbe

An Enugu State High Court will on March 31, rule on the application filed by the state’s Attorney-General and Board of Internal Revenue against a consulting firm, Scientific Synergy Consult Ltd over an arbitration dispute.

The plaintiffs filed the action in suit marked E/572/2020 after being aggrieved by arbitration proceedings that the 1st defendant commenced against them.

They questioned the validity of a September 9, 2008 retainer agreement for tax recovery services that the first defendant signed with the second plaintiff.

The duo also argued that the defendant did not fulfill conditions precedent for the commencement of arbitration and the applicability of the time limitation to the retainer agreement.

They therefore asked the court to declare as a nullity, the commencement of the arbitral proceedings and amended their originating summons to join the arbitrator, Chief James Akingbola Akinola as second defendant in the suit, following a court order made on December 14, 2020.

The plaintiffs also obtained an injunction before Justice Kenneth Okpe, restraining the defendants from proceeding with the arbitration pending the hearing of the motion on notice dated 28 August 2020.

The defendants filed a counter-affidavit and further affidavit insisting that the first plaintiff even exceeded the conditions precedents for a valid arbitration.

In addition, the first defendant filed an application asking the court to stay its proceedings pending the hearing of the arbitration already commenced.

The 1st defendant also maintained that the second plaintiff had in 2008 engaged it in tax recovery and back duty services, for which it performed back duty audits on the University of Nigeria Nsukka (UNN) and it is entitled to N500million commission from the second plaintiff.

But the second plaintiff denied ever having any business relationship with the second defendant. To prove that they mutually enjoyed a fruitful business relationship, the second defendant presented to the court bank tellers and bank drafts, which the second plaintiff paid to it for other tax recovery devices it offered to it as well as cheques it received on its behalf and paid into banks.

In a 25-paragraph affidavit deposed to by one Charles Ezeh, on behalf of the first defendant, he averred that the interim order of the court elapsed on September 18, 2020 and that the defendant is willing and ready to continue acting in accordance with its obligation in the arbitration agreement.

At the last hearing, after listening to Mr. Augustine Okafor for the claimant and Mr. Osita Enwe, with Charles Ezeh for the defendants argued their respective applications, the court adjourned to 31 March for ruling.

Name of book:

The Nigerian Campaign Finance Law

Name of Author: Ayodele Babalola

Number of pages:

Name of reviewer:

Dr. Lawrence Azubuike

In the best of climes, campaign finance is a dull, unattractive subject. In Nigeria, it is a patchwork of incoherent rules devoid of clear structure and identity.The resultisthat researchers and writers have barely devoted time and attention to what some consider an abstruse issue. This lack of interest accounts for the absence of a comprehensive book on the subject. Such lacuna is not immaterial given that the country has now had a sustained and uninterrupted period of democratic rule, dating back to 1999. A corollary of this development is that it has also been witnessing regular, periodic and keenly contested elections. No wonder the electoral space has witnessed all kinds of chicanery and shenanigans in this context. Politicians and other actors carry on as if the sector is insulated from the law and is unregulated. “Money bags” dominate the political landscape and thus see politics and elections asanother avenue for their crude investments. The consequence is that leaders who emerge from such distorted processes loot public funds, first, to repay their nefarious sponsors (read godfathers) and, second, to become money bags themselves.

Mr. Babalola has not only blazed the trail in this area of the law but also fills a void in an important aspect of our political life. For a work that has no precedent or example to follow, he has done a remarkable job. The structure of the book is as impressive as its substance. It is divided into ten chapters. In the first he explores the definition of campaign finance and distinguishes it from related concepts and expenditures, such as administrative and political finance.

Chapter two is the pith and substance of the book. In it, Mr. Babalola does a masterful review of the myriad and scatter-shot rules that govern the obscure, but essential, subject of campaign finance in Nigeria. He notes that while the Constitution of the Federal Republic of Nigeria 1979 made provisions for grants to political parties, it was silent on disclosure of expenses.This practice of public funding, in the nature of grants,was continued into the so-called Third Republic. The book explores the contours of these statutory allowance to political parties. The Electoral Act of 2002 introduced the requirement that the parties make statutory disclosure of election expenses. The Act obligated them to file audited returns with the Independent National Electoral Commission (INEC) within three months after an election. The Electoral Act 2006 followed suit but was the first to introduce limits for election expenses. Perhaps, the proliferation of political parties owes its origin to the former practice of providing state funding to political parties. Many see the instrumentality of political parties as just another avenue for making money from the government. Unfortunately, the fundamental rationale for public financing of political parties is lost. Usually, public finance of election expenses is done to insulate candidates from the negative effects of accepting funds from unscrupulous elements. That is the reason acceptance of public funds for that purpose always comes with a limit on expenses. Mr. Babalola brilliantly analyses current constitutional strictures around election financing noting that parties are prohibited from receiving or holding funds abroad. If they receive such funds, they are to transfer them to INEC. What a salutary provision and what a laudable rule observed more in breach!He alludes to the constitutional provision to the effect that only political parties can sponsor a candidate for elections and that they are the only associations that can contribute money to candidates. He compares that restriction to the practice in some other jurisdictions. Here he draws a sharp contrast with the law in the United States where the court have held that corporations have the constitutional right to free speech and that such enabled them to participate in political speech. Therefore, they can advocate for or against a candidate or policy even if they cannot contribute directly to a candidate. The author’s treatment of this issue is very nuanced and impressive.

Similarly, Mr. Babalola notes that the Electoral Act bars political parties from receiving more than N100,000 from anonymous sources. As a measure of its comprehensiveness, the book did not limit its scope to the contents of the constitution and the Electoral Act, but scoured the Nigerian legislative landscape and found provisions that touch and concern campaign finance in myriad other statutes such as the Companies and Allied Matters Act,the National Tobacco Control Act and the Central Bank of Nigeria Regulation on the Scope of Banking and Ancillary Matters. It beautifully assays these provisions and shows how they affect campaign finance in the country. Mr. Babalola deserves enormous commendation for the breadth of coverage shown in the book.

The book contains a very good discussion on enforcement. The critique of the enforcement regime is its focus on criminal prosecution. Can INEC or other enforcement agencies be authorized to impose fines after administrative hearings? This does not eliminate the courts but gives the agencies the ability to prioritize and be efficient. Only egregious violations are taken to the court. However, anyone alleged to have broken the relevant rule will of course have the right to take the matter to court in order to challenge the administrative finesor other imposition.

The author notes that aspects of campaign finance violations can be argued in the context of election petitions under the ground of non-compliance with the provisions of the Electoral Act and under the ground of corrupt practices. The book contains ample suggestions to improve the enforcement regime.

Mr. Babalola delves into the proposed National Electoral Offences Commission Bill and rightly criticizes some of itsprovisions. Chief among such provisions is that which creates the offence of perversion of electoral justice. He forcefully argues that such provision is liable to be abused. Besides, existing rules on judicial conduct aresufficient to punish any conduct which would amount to perversion of electoral justice within the purview of the proposed bill. One cannot but agree with the author on this important point. To permit the proposed NEOC to arrest and prosecute judicial officers for their conduct of cases is a recipe for disaster. The Nigerian penchant for a fire brigade approach must be resisted. A new statute and a new agency must not be the only answer to every prevailing ill. Experience has shown that in most cases such approach backfire and the solution itself becomes a problem. There is no denying the fact that the system of electoral justice, if we must stick to that term, leaves much to be desired. Current practice, at best is muddled and confusing and at worst, distorts the democratic system. There is no clear delimitation of jurisdiction. The courts appear as eager as the litigants to aid the latter’s forum shopping. Multiple orders and rulings, often conflicting, are sometimes issued by different courts in different places in relation to the same elections.To compound the matter these orders are sometime made a few hours to elections for which preparation have been made six months or even one year. The election management body and the public are left confused and bewildered. Our courts seem to have abandoned all notions of judicial restraint and the rules of venue which caution that even though a court may have jurisdiction, convenience may require that a matter be heard in another place. The result is that public confidence in the judiciary is eroded and some wonder whether there isn’t more to it than meets the eye. Yet, the solution does not lie in duplicating agencies. Existing law enforcement and other administrative agencies can be strengthened to better address the perceived lapses in the electoral justice system. The author hits the nail in the head when he suggests that the shortcomings of INEC which currently has prosecutorial powers with respect to electoral offences and the courts can be identified and resources provided to them to address those.

Keeping to the almost encyclopedic nature of the book, Mr. Babalola treats the reader to international frameworks that pertain to campaign finance and corruption in the electoral process generally. Here he discusses such instruments as the African Union Convention on Preventing and Combating Corruption(Adopted 01 July, 2003), the Council of Europe’s Common Rules Against Corruption in the Funding of Political Parties and Electoral Campaigns(Adopted 8 April, 2003),the Bangkok Declaration on Free and Fair Elections(made 10 December, 2012), the Inter American Convention Against Corruption(Came into force 6 March, 1997)and the United Nations Convention Against Corruption(Signed 9 December, 2003). Similarly, he considers the practice in other jurisdictions. Nigeria can certainly benefit from the rules governing campaign finance in such countries as the United States and the United Kingdom as also from the experiences in many other states ably described in the book.

Mr. Babalola makes twenty-six specific suggestions that can improve the Nigerian campaign finance regulatory framework. These suggestions are an essential reading for our legislators and policy makers.

The book “the Nigerian Campaign Finance Law” by Mr. AyodeleBabalola is an important contribution to the legal literature in Nigeria. It synthesizes, into one comprehensive material, the myriad and varied rules that impact campaign finance and elections. It is written simple, clear and concise language, which makes it an interesting and enjoyable reading. Lawyers, politicians, journalists, students and, indeed, all lovers of books will find it engaging and engrossing. It is a collector’s item. I recommend it to all and sundry.

• Enquiries about the Book can be made vide email: ayodelebabalola84@gmail.com

AROCOM GLOBAL INVESTMENT LIMITED v. UNITED PARCEL SERVICE LIMITED

CITATION: (2021) LPELR-52891(CA)

In the Court of Appeal

In the Ibadan Judicial Division

Holden at Ibadan

ON MONDAY, 8TH FEBRUARY, 2021

Suit No: CA/IB/8/2017

Before Their Lordships:

JIMI OLUKAYODE BADA

Justice, Court of Appeal

HARUNA SIMON TSAMMANI

Justice, Court of Appeal

FOLASADE AYODEJI OJO

Justice, Court of Appeal

Between

AROCOM GLOBAL INVESTMENT LIMITED – Appellant(s)

And

UNITED PARCEL SERVICE LIMITED

– Respondent(s)

LEADING JUDGMENT DELIVERED BY FOLASADE AYODEJI OJO, J.C.A.

The Respondent was a corporate entity carrying on the business of courier services and warehousing of goods which services it renders to the Appellant regularly. The services were usually on credit for which payment was made monthly.Between February 2012 and January 2013, the Respondent, acting on the Appellant’s instruction, carried out on its behalf shipments of letters and document to various destinations in Nigeria. As usual, it was on credit for which invoices and waybills were sent to the Appellant monthly. The total cost for the shipments done on behalf of the Appellant by the Respondent for this period was a total sum of N13,750,468.75 (Thirteen million seven hundred and fifty thousand, four hundred sixty- eight Naira and seventy-five kobo) which the Appellant failed to pay despite repeated demand.

The Appellant admitted it had been a credit customer of the Respondent for about ten years and had always paid its bills for all services rendered to it by the Respondent. That the services of the Respondent were also extended to Arocom Foundation since 2011, which paid regularly for the services rendered to it. The Appellant denied receipt of the disputed invoices and waybills allegedly sent to her. The Appellant alleged fraud in the invoices relied upon by the Respondent and denied indebtedness.

The Respondent as Claimant before Ogun State High Court of Justice, Abeokuta Judicial Division instituted this action. After hearing the case, the trial Courtfound in favour of the Respondent. Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

1) Whether the bundle of Exhibits UPS 1-14, UPS A1 – 11, UPS B1 – 4, UPS C1 – 8, UPS D1 – 19, UPS AE 1 – 2, UPS F1 – 2, UPS G1, UPS H1, UPS 11, UPS J1 and UPS K1 were properly admitted in evidence by the trial Court.

2) Whether the trial Court was right in holding that Exhibits UPS L, UPS M, UPS N and UPS O amounted to an admission of liability for the sum of N13,750,468.75 by the Appellant.

3) Whether the trial Court was right to adjudge the Appellant as the rightful Defendant in the suit at the trial Court.

4) Whether failure to produce documents purportedly in the custody of the Respondent after service of notice to produce by the Appellant amounted to admission of fact stated in these documents.

APPELLANT’S SUBMISSIONS

Arguing issue 1, counsel to the Appellant submitted that the invoices submitted by the Respondent were computer generated documents under Section 84(1) of the Evidence Act 2011 and the conditions for their admissibility were not met. Therefore, the High Court erred in law when it admitted them in evidence. He cited the case of KUBOR VS. DICKSON (2013) 26 WRN 15 to support his submission.

He submitted further that the trial Court was wrong when it distinguished the case of KUBOR VS. DICKSON (2013) 26 WRN 15 from the case at hand and that by the combined provisions of Sections 84 and 258 of the Evidence Act 2011, the Exhibits in question are not admissible in law.

Arguing issue 2, counsel submitted that notwithstanding, Exhibits UPS L, UPS M, UPS N and UPS O (Letters of demand dated 17/12/2012, 11/02/2013 and 26/03/2013 as well as Appellant’s letter requesting for time to pay dated 22/08/2012), the Appellant’s consistent position was that she did not owe the Respondent. He stated Exhibit “UPS N” was written in errorand that Exhibit “UPS O” (the letter of demand dated 26/03/2013) was not served on the Appellant. He submitted that the trial Court was in error when it found that Exhibit “UPS N” (Appellant’s letter dated 22/08/2012 in which it requested for more time to pay) amounted to an admission and that Exhibits UPS L, UPS M and UPS O are letters of demand made to the Appellant. He relied on NDULUE VS. OJIAKOR (2013) 30 WRN 27 at 53 LINES 25 – 35, YUSUF VS. OMOKANYE (2013) 11 WRN 112 at lines 5 – 10 and ABDULGANIYU VS. ADEKEYE (2013) 6 WRN 107 at 127 line 40.He argued further that Exhibit UPS N did not disclose the outstanding debt and was not connected to the letters of demand. He submitted that the Respondent failed to prove the existence of the debt and did not prove his case but only relied on Appellant’s own weakness to establish its case. He cited OKAFOR VS. A.P. (NIG.) LTD. (1996) 5 NWLR (Pt. 45) 674 at 690 Paragraphs A – F andPEREVA VS. MOTOR AND GENERAL INSURANCE CO. LTD (1971) 2 ALL NLR 261.

On issue 3, counsel argued that all transactions with the Respondent between August, 2011 and March, 2013 were with AROCOM FOUNDATION and which services were duly paid for. He submitted that both the Appellant and AROCOM FOUNDATION know nothing about the letter and/or documents the subject of the pleaded invoices and waybills relied on by the Respondents. Appellant’s counsel further submitted that neither the Appellant nor AROCOM FOUNDATION is liable to the Respondent in the sum claimed or any sum at all. He argued that the facts contained in Exhibits D1, D2 and D4 were not denied or disputed by the Respondent. This he submitted is tantamount to admission. He cited the cases of NDULUE VS. OJIAKOR (2013) 30 WRN 27; YUSUF VS. OMOKANYE (2013) 11 WRN 112 and ABDULGANIYU VS. ADEKEYE (2013) 6 WRN 107.

On issue 4, counsel argued that the Respondent did not honour the notice to produce served on her and urged the Courtto invoke the provision of Section 167 (e) of the Evidence Act 2011 against her. He further urged us to hold that failure to comply with the Notice to produce entitled the Appellant to adduce secondary evidence. He cited Section 89 (a) (1) and 90 (1) (a) of the Evidence Act 2011,BUHARI VS. OBASANJO (2005) 13 NWLR (PT. 941) 1 AT 236 PARAS A-C, 262-263 PARAS H-A; UBN PLC VS. IDRISU (1999) 7 NWLR (PT. 609) 105 and GBADAMOSI VS. KABO TRAVELS LTD. (2000) 8 NWLR (PT. 668) 243.

RESPONDENT’S SUBMISSIONS

On issue 1, counsel to the Respondent arguedthat the bundle of invoices were counterpart copies earlier served on the Appellant and on which Section 84 of the Evidence Act does not apply. Counsel argued that the Respondent pleaded in the Amended Statement of Claim that she will rely on the copies of the invoices at the trial. Counsel submitted that the invoices were properly admitted in evidence by virtue of Section 86(2) & (4) of the Evidence Act. He cited JACOB VS. ATTORNEY-GENERAL OF AKWA IBOM STATE (2002) FWLR (PT. 86) 578, AKANO VS. ILORIN EMIRATE COUNCIL (2001) FWLR (PT. 42) 59 at 80; and AIYEAGBU VS.OZOR (1999) 4 NWLR (PT. 598) 184. 

On issue 2, counsel to the Respondent submitted that DW1 who testified on behalf of the Appellant did not deny the existence of the various letters of demand. He also did not deny the existence of Exhibit UPS N which is the Appellant’s letter acknowledging its indebtedness and request for more time to pay but only said it was written in error.Counsel also argued that Exhibits “UPS N” “UPS M” “UPS O” and “UPS P” clearly show that the outstanding debt was N13,750,468.75k. Counsel cited CAPPA & D’ALBERTO LTD. VS. AKINTILO (2003) NWLR (Pt. 824) 49 at 69, IFEANYI CHUKWU T.I.U LTD. VS. O.C.B. LTD. (2015) 17 NWLR 1487 and Section 20 of the Evidence Act 2011.

On issue 3, Counsel submitted that the Appellant did not prove that there was privity of contract between AROCOM FOUNDATION and the Respondent in respect of the debt and cited THOMAS CHUKWUMA MAKWE VS. CHIEF OBAMA NWUKOR (2001) 32 WRN 1 (SC) .

On issue 4, Respondent’s counsel submitted that the waybills are in tripartite copies with the original in the custody of the Appellant. That since the original was with the Appellant, there was nothing for the Respondent to produce at the trial. He cited YUSUF VS. OBASANJO (2001) FWLR(PT. 294) 387 & 476 PARAS B-F and UBN LTD. VS. IDRISU (1997) 7 NWLR (PT. 609) AT 118-119 PARAGRAPH H to submit that a person, on whom notice is served to produce documents is not obliged to produce same or tender the documents named in the notice. In such situation, the party that issued the notice, once satisfied that the opponent has failed to produce the document, may tender secondary evidence. He maintained the Appellant was entitled to tender secondary evidence if he wished. Counsel cited Section 89 of the Evidence Act 2011.

RESOLUTION OF ISSUES

On issue 1, the Court stated that there was nothing on the record to qualify the bundle of waybills and invoices in contention as computer–generated documents. Rather, they were counterpart copies of the documents which were served on the Appellant and by Section 86 of the Evidence Act, 2011, such counterparts are admissible as primary evidence. As such, the documents did not fall within the purview of Section 84 of the Evidence Act, 2011 but rather within the purview of Section 86 of the Evidence Act, 2011. Going further, the Court held that the case of KUBOR VS DICKSON did not apply to the instant case because in KUBOR VS DICKSON, what was in contention was online print-outs of a newspaper edition and some INEC documents requiring certification and compliance with Section 84 of the Evidence Act 2011. However, in the instant appeal, the documents in contention were original copies of invoices issued to the Appellant and as such, they were properly admitted in evidence under Section 86 (2) and (4) of the Evidence Act 2011.

On issue 2, the Court held that the Appellant had a duty to respond to the Respondent’s letter of demand if it had reason to dispute their content. The Appellant’s refusal to respond to the letter amounted to an admission of the debt of N13,749,628.75k stated in the letter. See NAGEBU& CO. NIG. LTD. VS. UNITY BANK PLC. (2014) 7 NWLR (Pt. 1405) 42 at 81, KARIMAT GLOBAL TRADE LINKS LTD. & ANOR VS. UNITY BANK PLC (2014) LPELR – 23986 (CA) and INTIME CONNECTION LTD. VS. ICHIE (2009) LPELR – 8772 at page 20 Paras D – G.

On issue 3, the Court stated that there was nothing on record to show that the contract of shipment was between the Respondent and AROCOM FOUNDATION. The Court then considered Exhibits D1 – D4 and held that they did not disclose any privity of contract involving the Respondent. They were communication between the Appellant and AROCOM FOUNDATION (the Appellant’s Subsidiary Company) and as such held no probative value.

On issue 4, the Court held that the circumstances of the case allowed the Appellant to tender secondary evidence of the waybills it requested the Respondent to produce. If the Appellant was interested in making use of the waybills and other documents, he had the option of tendering the secondary evidence which he failed to do. Failure of the Respondent to produce documents purportedly in its custody after service of notice to produce by the Appellants does not amount to admission of the facts contained in the documents. See BUHARI & ANOR. VS. OBASANJO & ORS. (2005) LPELR–815 (SC), EZEJIOBI VS. EBEGU (2016) LPELR–40507 (CA), Sections 89 (a) and 90 (1) (a) of the Evidence Act 2011.

HELD

The Court held that the appeal lacked merit and dismissed same.

Appearances:

OLAIDE ARO

For Appellant(s)

1. S. MAKINDE

For Respondent(s)

Compiled by LawPavilion

A member of the Council of Legal Education and former Vice-Chairman of the Nigerian Bar Association ( NBA) Onitsha branch Ada Obinna Edozie will bury her father, late Chief Samuel  Ikechukwu Okoye (Omeluora 1 of Ugboawka) on Friday, March 5, 2021 at   Ugboawka town  in Nkanu East Local Government Enugu State.

The late chief Samuel Ikechukwu Okoye  was a Businessman and a devout  Christian.

He was a community leader  very Liberal, accommodating, open minded and a positive thinker.

He will surely be remembered for his leadership role and impacting lives positively, wining and dining with all class of people regardless of their  status, He so much believed  in humanity, he  never discriminated . He was always contented with what he had  and was really  a jolly good fellow.

He attended  Our Lady of fatima parish Onitsha Anambra state. And  Holy trinity. Parish Ugboawka.