The Nation Newspaper

Category: Law

  • ‘ACJA has restored dignity to justice system’

    Prof Yemi Akinseye-George (SAN) was one of those who conceived and pursued the passage of the Administration of Criminal Justice Act (ACJA) 2015 into law. In this interview with Legal Editor JOHN AUSTIN UNACHUKWU, he shares his views on the impact of the Act, its challenges and the way forward.

    You were very involved in the conception and passage of the Administration of Criminal Justice Act (ACJA) 2015. Would you say that the Act has achieved it objectives in criminal justice administration in the country today?

    Thanks for your kind words and appreciation of my role in coordinating the various processes which led to the passage of the ACJA at the Federal level. The Act will be three years old on 14 May, 2018. It has restored agility and dignity to the Nigerian criminal justice system. The Supreme Court has endorsed the Act in the case of Saraki v. FRN where the Chief Justice of the Federation, Justice Walter Nkanu Onnoghen (JSC) (as then was) held that the ACJA applies to the Code of Conduct Tribunal and that it has replaced the old criminal procedure laws. Similarly, with the endorsement by the Supreme Court of the constitutionality of the ACJA prohibition of Stay of Proceedings in Criminal trials, the Act has become the single most revolutionary reform in criminal procedure law of the country since Independence.

    Why do you say this?

    It has compelled the introduction of specialised courts to handle high profile corruption cases and the issuance of new guidelines and practice directions for speedy trial on day to day basis. The ACJA has brought about tremendous changes in the criminal justice system.

    Similarly, the ACJA has brought about the establishment of the Administration of Criminal Justice Monitoring Committee (ACJMC) at the Federal level. The ACJA has been domesticated in about 14 states of the Federation.

    Can we say that the Act has realized its objectives?

    Well, the Act has not yet fully realized its objectives of speedy trial. The necessary resources needed to ensure proper implementation of the ACJA have not been provided by the government. Several of its laudable innovative provisions have not been given effect. Investigators and prosecutors need to strengthened and challenged to give full effect to the Act. Relevant data mandated by the Act are not yet being collated. So there is still a large room for improvement.

    The Nigerian Bar Association (NBA) led by Abubakar Mahmoud (SAN) is pushing for the adoption and implementation of the Act in all the States of the Federation including the Federal Capital Territory (FCT). What is your appraisal of these efforts and how do we improve same?

    The NBA president, A.B Mahmud is a social reformer and gentleman. He and the Secretary, Aare Olagunju and other members of the NBA Executive have done a lot to advance the domestication of the ACJA all over the country. The collaboration between the NBA and the MacArthur Foundation is highly commendable. Mr Mahmoud is a law reformer and a progressive (SAN) with broad outlook. He has introduced far-reaching reforms. However, the NBA and the body of SANs and indeed all lawyers must do more to protect the judiciary. The welfare of judges must be looked into urgently.

    Why do you say so?

    Several of them have been on the same salary scale for decades. New judges are paid the same salary as the senior judges. That’s highly demoralising. The NBA should set up a strong committee to advocate and push for significant improvement in the welfare of judges. The politicians will not do it because they fear a strong, independent and incorruptible judiciary which cannot be easily compromised. The ACJA has now been domesticated in about 14 states. Several other states are in the process of passing the law. We salute the NBA President and his able team for this remarkable achievement.

    How best can ACJA be fast-tracked to actualise its objectives?

    There is need to strengthen and monitor the work of investigators and prosecutors.  They should only take water tight cases with solid evidence and witnesses to court for prosecution. There should be proper coordination between the Office of the AG of the Federation and the the prosecutorial agencies. Then a solid witness support and protection system should be put in place especially in regard to High Profile Cases. Electronic recording of proceedings should be introduced urgently beginning with the specialized courts such that the practice of starting part-heard Cases de novo should cease. The new judges can watch the previous proceedings and continue from there. Judges too should be well motivated. Their salary should be increased and their working conditions transformed. Ten per cent of funds and assets recovered should be channelled toward improving the justice system. A sound justice system will strengthen the economy and the political system.

    How can this feat be achieved?

    President Muhammadu Buhari should set up a high powered national committee under the Vice President and give the committee the mandate and resources to turn around the Justice sector. The Vice President is the foremost justice reformer in the country. The country should take advantage of his being in government to turn around the sector. The Attorney-General of the Federation must be part of the Presidential Committee to turn around the justice sector.

  • Lagos courts get uniform sentencing guidelines

    The Chief Judge of Lagos State, Justice Opeyemi Oke, has introduced a new sentencing guidelines for use of the courts in the state.

    The new sentencing guidelines would also serve as practice direction for magistrates and high court judges as part of justice sector reform.

    The sentencing guidelines are intended to ensure uniformity in sentence and fines imposed for certain offences by magistrates in particular and forestall prison congestion.

    Addressing the inaugural meeting of Justice Sector Reform Committee, Justice Oke pointed out that the vision of the Lagos State Judiciary under the present administration is to make speedy dispensation of justice a hallmark of the judiciary and to improve on its reputation as a pace setter.

    The chief judge noted that this can only be achieved through inter agency collaboration and cooperation of stakeholders.

    She disclosed that a committee has also been set up to proffer practice direction for the use of the Administration of Criminal Law of Lagos State for the purpose of making the law more explicit for judges, magistrates and prosecutors.

    She said the committee, aside from  interventions in the pipeline, will evaluate initiatives such as adopting Alternative Dispute Resolution (ADR) mechanisms in criminal trials, increased use of plea bargain to drastically reduce the number of inmates awaiting trial, front loading of evidence and restorative justice.

    Oke emphasised the importance of an effective criminal justice system to the smooth running of the society, saying that it is fundamental to the maintenance of law and order.

    According to her, “Any society with a sound criminal justice system enjoys rapid economic growth.

    “Going forward, the Lagos State government is working towards building a citizen-centric criminal justice system for the purpose of ensuring efficient and effective justice delivery,“ she said.

    Attorney General and Commissioner for Justice, Adeniji Kazeem, explained that the essence of the inter-agency meeting is to ensure that they discuss periodically the challenges facing the criminal justice system and find practical solutions with a view of implementing same.

    Kazeem said judges in the criminal division, magistracy, the Police, Prisons, Ministry of Justice among others would participate in the discussion at the sub-committee level.

  • NBA inaugurates conference team

    Nigerian Bar Association (NBA) President Abubakar Mahmoud (SAN) has inaugurated the Technical Committee for Conference Planning (TCCP) for this year’s NBA Annual General Conference (AGC).

    The 30-member committee is chaired by Prof. Koyinsola Ajayi (SAN).

    Former Defence Minister Prince Adetokunbo Kayode (SAN) is the Alternate Chairman; Ramatu Umar Bako is the Secretary.

    Mahmoud urged the committee to lift this year’s conference above the landmark standard  of last year’s edition held in Lagos.

    He reminded the committee that the world was watching, and that the only way to go was to take NBA AGC to greater heights.

    He said:  “This year’s theme will focus on institution-building, relating more to challenges facing the country. We want to face the theme of institution building which we feel is more germane and critical to the challenges facing the country.

    “The committee will be working on thematic areas of the conference, to attract resource persons all over the globe.

    “It is well to known that American Bar Association has indicated interest to work with us for the Conference as well as the British/Nigeria Bar Forum.”

    Prof Ajayi thanked Mahmoud for giving the committee members the privilege to serve and assured him that they would justify the confidence reposed in them.

    Other members of the committee are: Chief Ogwo James  Onaja (SAN),  Bisi Soyebeo (SAN),  Olasupo Shasore (SAN), A. A. Akinkunmi, Muritala Abdul-Rasheed, Hafsat Lawal, Yusuf Abdullah AbdulKadir,   Mrs. Funmi Roberts, Akin Ajibola, Bello Aminu Abdullah, Mrs. Mfon Usoro, Emeka Obegolu, Steve Emelize, Sagir Gezawa, Princess Frank-Chuwuani, Mohammad Tsav , Aisha Ado Abdullah, Adesina Adegbite, Ummahani Amin, Wada S. Wada, Anulika Osuigwe, Paulyn Abuleme, Hauwa Yakubu,  Mohammed Wahab, Inna Ali Member and Dolapo Okunniga.

    On his expectation, Mahmoud said: “The expectation is that we will build on the successes of last years’ conference which has been acknowledged to be one of the best in the history of the association.

    “So, we will give them all the necessary assistance to make sure they deliver another world class conference.”

    Prof Ajayi said there would be improvements in this year’s conference.

    “I feel very happy because it is the beginning of a greater future, for not just for NBA but for the re-emergence of Nigeria as the true leader of the black world,” he said.

    On the improvements to expect this year, he said: “The improvements will be outstanding and will be for the sight to behold.”

    On his advice to lawyers, the Senior Advocate said:”We must remember that we are privileged members of the society with a lot of rights under the law. We are the oldest profession in the country, the foremost profession in the country.

    “So, there is great responsibility upon us and we must take our profession with all sense of responsibility to make sure that there is rule of law in Nigeria in all its ramifications.”

  • Freeing power from Fed Govt’s exclusive grip

    Legal experts and others have met in Lagos to discuss how to make the power sector work by strengthening its legal and regulatory framework. To them, for Nigeria to meet its energy needs, power must be on the Concurrent Legislative List to free it from the Federal Government’s exclusive right. JOSEPH JIBUEZE was there.

    Nigeria’s energy requirements are enormous. The country’s energy output is far below the needs of its population, according to a professor of Energy Law, Yinka Omorogbe.

    “There is still a long way to go,” she said.

    Highlighting the gap, Omorogbe said South Africa, with a population of 55 million, has an installed electricity capacity of 44,175 megawatts.

    Brazil, with a population of 211million, generates 137,000 megawatts of electricity, she said.

    But, Nigeria, with a population of over 150 million, has a power generation capacity of about 7,000 megawatts. To Omorogbe, that is far below what Nigeria needs.

    “Surely, Nigeria, with a population of about 170 million, must need at least 100,000 megawatts, which is, in fact, the figure given by the Energy Commission of Nigeria,” she said.

    Omorogbe was one of the speakers at the second Lawyers in oil and gas conference, which was held last week at the Eko Hotels and Suites in Victoria Island, Lagos for two days. Its theme was: Gas to power: The role of the 21st century lawyer.

    Decentralise sector control

    Omorogbe, who is the Edo State Attorney-General and Commissioner for Justice, said the regulatory framework for the energy sector needs reform.

    “If you build on bad laws, you’ll have a faulty building,” she said.

    According to her, the energy industry must be considered from the perspective of how much it impact it has on the quality of lives, emphasising that petroleum does not equal energy.

    “Until we fully comprehend that fact, the energy sector in Nigeria – the downstream, electricity, modern energy for the rural poor – will continue to be epileptic and fraught by problems,” she said.

    She said the regulatory framework was not treated as a whole, nor is it driven by Nigeria’s energy needs.

    The framework, she said, is driven by the Ministries of Petroleum and Works, Power and Housing, and does not cover renewables (such as wind, wave and tidal energy, geothermal energy, hydropower, biomass).

    Omorogbe said while the Petroleum Industry Governance Bill (PIGB) awaits assent, the Petroleum Act of 1969 remains the energy industry’s primary law.

    “If the other laws that will, together with the PIGB, change the legal landscape of petroleum in Nigeria are not passed, there will be no real structural change,” she said.

    Omorogbe, an energy consultant and former research professor at the Nigerian Institute of Advanced Legal Studies (NIALS), called for more reforms in the gas sector, especially as electricity industry runs on natural gas.

    “How can there be light when Nigeria’s electricity sector is premised on natural gas?” she wondered, adding that natural gas suffers poor infrastructure and “insufficient and ineffective legal framework.”

    “The natural gas legal/administrative framework and infrastructure is defective. In the absence of industry reform, the problem of natural gas will never be resolved. It cannot be separated from the reform of the entire industry,” Omorogbe said.

    The professor of law regretted that for nearly 50 years, Nigeria has largely been operating on the same legal framework, such as the Nigerian National Petroleum Act of 1969, Petroleum Profits Tax Act of 1959 and other laws on industry subsectors. “We still have a long way to go,” she said.

    She backed calls to get more states more involved, saying there was the need to decentralise federal control of the sector.

    “Energy matters should be in the concurrent list. The centre has always wanted to control as much as possible. If energy matters are in the concurrent list, we’ll be a lot better.

    “It’s the states and local governments that wear the shoes. Considering that energy is a critical component of development, continued energy starvation cannot bode well. Why then are we planning to fail?” she said.

    Tackling transmission, environmental challenges

    Lagos State Law Reform Commission, Prof Gbolahan Elias (SAN) Chairman, decried what he called “wrong policy foundations” which are evident in the lack of an integrated energy sector master plan, and absence of a unified regulator.

    In his paper entitled: Untangling the challenges of generation and transmission for sustainable power, he said there was “no further government investment” in generation and transmission, even as he accused the government of indecision, prevarication, and high-handedness.

    Discussing the challenges of power generation and transmission, he said the government was slow in granting partial risk, sovereign and other guarantees; slow to grant liquidity support and funding; and slow to grant “put and call options for termination”.

    Other challenges, he said, are inadequate gas; arrears of terminal compensation payments; prices of power and gas not being cost-reflective; poor enforcement machinery for debtor-consumers and power thieves; weak infrastructure; weak borrowing power; lack of private sector funding and discipline; premature withdrawal of capital and lack of true technical partners.

    On the way out, Elias called for more government credit support. He urged the government to spend on buying out equity investors in power generation and on transmission infrastructure, and called for law reform on pricing, private sector participation and sanctions.

    A partner at Aelex, a commercial and dispute resolution law firm, Mr Soji Awogbade, said Nigeria consumes 24.57 billion kilowatt hour (kWh) of energy per year, adding that while fossil fuels contribute over 80 per cent of the energy consumed, renewable energy sources contribute only 0.2 per cent.

    Highlighting environmental challenges faced by Nigeria, he said there were 9,343 oil spills between 2006 and 2015, with 5,000 spill sites in the same period.

    According to him, 400,000 tons of oil spilled into creeks, with 1,150 oil spill sites abandoned by various oil companies within the Niger-Delta.

    He recalled that in 2010, Nigeria was named the “World oil pollution capital” by the BBC, while in January alone, Shell reported 10 oil spills, with another five reported in February.

    There are no fewer than 178 gas flare sites in the country, he said.

    The effects, he said, are blood disorders, cataracts, problems with the central nervous system, lung cancer, kidney effects, loss of livelihood for communities, arrested development, loss of professions and vocations, malnutrition and stunted growth in children.

    Awogbade said there was the need to strike a balance, by, among others, improving coordination between different government agencies towards better planning, monitoring, evaluation and reporting of environmental issues.

    Other required synergies and solutions, he said, are as follows: “Develop partnerships between national and international development partners towards producing statistics for development indicators and improving statistical capacity and other reporting issues; develop strong partnerships between government and the private sector, civil society and academic institutions;

    “Promote environmental awareness among operators and the public; promote gas utilisation; promote use of clean fuels, through the introduction of compressed natural gas for vehicles as a substitute for petrol, and increase tax incentives for the production and utilisation of cleaner fuels.”

    Awogbade called for more public participation in law and policy development.

    He advocated the adoption of international best practices, enforcement of flare prohibitions and award of penalties for violations.

    He suggested the revocation of licenses of operators who fail to provide environmental safety measures, noting that the Associated Gas Reinjection Act provides for revocation of Oil Mining License for flaring gas without permission.

    “Tackle facility sabotage and improve funding to agencies,” he added.

    Need for tax incentives

    A partner at the law firm of Olaniwun Ajayi, Mr Edem Andah, who spoke on Gas supply for power generation through taxation: necessary action on incentives and taxation, said a gas to power (GTP) value chain development must address gas supply, tariff, generation, distribution and transmission constraints.

    “Clarity and certainty in policy and the taxation terms are a pre-requisite for an efficient and sustained development of the value chain,” he said.

    According to him, natural gas is the cheapest available fuel source when compared with alternatives such as petrol, diesel, Low Pour Fuel Oil (LPFO) and Liquefied Liquefied Petroleum Gas (LPG).

    Andah believes that a lack of a cost reflective tariff has a negative impact across the power chain, while the non-implementation of the gas supply obligations under the various industry gas supply agreements with the successor Gencos was a also a constraint.

    “The current regulatory framework provides very little for exploitation of gas resources. Existing policy instruments like the Gas Master Plan and the National Gas Policy do not adequately provide a clear legal framework required to attract investment in the gas sector,” he said.

    Andah highlighted the tax provisions in Petroleum Profit Tax Act, Companies Income Tax, the National Petroleum Fiscal Policy, among others.

    Some of the incentives, he said, are VAT exemption for plant, machinery and equipment purchased for utilisation of gas in down-stream petroleum operations; and custom duties exemption on machinery, equipment or spare part imported into Nigeria by an industrial establishment engaged in the exploration, processing or power generation through the utilisation of Nigerian gas.

    Andah urged policymakers to continually examine the energy mix in light of emerging trends.

    He said they should amend and develop regulations to support new gas to power projects, and look for opportunities for regional cooperation.

    He added: “Incentives are required for the entire value chain; i.e. gas supply to GTP, power generation, transmission, and distribution. Be responsive to market demands in terms of tariffs and pricing. Tax terms must be certain and clear and avoid distortionary measures.”

    Andah said global gas consumption is projected to grow by 33 percent by 2025, adding that there would be more investment in GTP options to displace high cost and environmentally-unfriendly oil-fired peaking generators.

    “Brazil, Ghana, Chile, Egypt, Indonesia, and South Africa are all examples of countries that are actively exploring GTP options,” he said.

    He called for consistency by the government, saying: “Tariffing must be smart and pricing must be flexible and appropriate. Policy somersaults must be avoided and dispute resolution should be prompt.”

     Need for effective dispute resolution mechanisms

    Nigerian Bar Association Section on Business Law pioneer chairman, George Etomi, gave an overview of legal issues arising from power sector privatisation.

    He highlighted issues facing the electricity market, such as obsolete infrastructure, absence of specialised courts, bid documents mismatch, labour issues, among others.

    On the judiciary’s role, Etomi said the courts must ensure sanctity of private contracts, design fast-track procedure for energy-related cases, and create special courts with requisite expertise to effectively resolve disputes.

    Wole Olanipekun & Co Managing Partner, Mr Olabode Olanipekun, said disputes in the energy sector were inevitable and can be resolved quickly through arbitration.

    He spoke on: Suitability of arbitration as a dispute resolution mechanism in energy disputes.

    Olanipekun said Nigeria, being the largest producer of crude oil in the region and having the ninth largest gas reserves in the world, is a virile hub of energy transactions and activities, adding that the power deficit also makes the country a prime spot for investment in the power sector.

    “Thus, with these foreign direct investments and participatory interest of International Oil Companies (IOCs) in the Nigerian energy space, and no doubt, with globally falling crude prices, the market for energy disputes is wide.

    “Yet, the investor, before he deploys his business assets (which in an oil and gas activity, whether upstream, midstream or downstream, is usually a lot), wants to be assured that when disputes arise, the systems for resolution and quick, responsive and reliable,” he said.

    Olanipekun called for the passage of the Arbitration and Conciliation Bill which is currently before the National Assembly.

    The Arbitration and Conciliation Act (ACA), he said, dates back to 1988, a period of 30 years, while adjudicatory processes have moved on, and the sphere of international commercial arbitration has developed globally.

    “Hence, the ACA provision that subjects interim awards, which are for the purpose of preserving the res, to the overriding veto of the court process, defeats the objective of making Nigeria a prime arbitration spot. This is especially compounded when we consider the unhurried nature of the judicial system,” he said.

    Amending the law, he said, would help reduce the demand to take arbitral hearings abroad.

    “The benefits of having the Bill before the House of Representative passed cannot be overstated.

    “The practice often with IOC‘s is to, in drafting their farm-out agreements, or Power Purchase Agreements  or even Joint Ventures and Production Sharing Contracts, to situate the arbitral proceedings in London, Singapore or anywhere else but Nigeria, even when the arbitrator(s) and lawyers on both sides are Nigerians with their practice in Nigeria.

    “Essentially, the country loses millions of dollars in revenue every year from arbitration which causes of action are generated within the country. We cannot, however, bring parties back by any dint of force, the best we can do is to bring our laws in consonance with global best practices,” Olanipekun said.

    The lawyer believes that having globally compliant laws would make Nigeria more investor-friendly.

    “With particular respect to energy industry, which unarguably forms the main stay of the country‘s economy, the sophistication of the framework for the resolution of disputes must be styled to measure up with the global best practices and requirements.

    “This will go a long way in not only making the country an investor friendly destination, it equally promises to impact positively on the economy and by direct implication, the Gross Domestic Product (GDP) of the nation.

    “This has become more imperative in light of the incumbent administration‘s efforts at enhancing ease of doing business within the country,” Olanipekun added.

    Respect agreements, strictly enforce laws

    Gas Planning and Integration Manager at the Shell Petroleum Development Company of Nigeria Limited (SPDC), Mr. Vincent Chukwueke, noted that commercial agreements play critical roles in sustaining the gas value chain.

    “Lack of vested (effective) commercial agreements are limiting growth of the sector,” he said.

    For instance, he said gas sales agreements lack payment security; sovereign payment guarantees are not honoured; partial risk payments guarantees are not available; bank guarantees have non-standard terms; while letters of credit Rrquire cash-backing.

    He regretted that terms of PPAs, transmission agreements, Grid Ancillary Services Agreements, Asset Sale Agreements, and Engineering, Procurement and Construction Agreements are usually not honoured.

    On the way forward, he said continuous development of local commercial expertise in the industry was imperative.

    “Contracts must be drafted to reflect Nigeria’s peculiar risks and operating challenges. Entrench respect for the sanctity of contracts on all sides, especially government. Have legal and commercial paths for enforcement of contract violations.

    “There must be legal protection for investors and investments. Operation of free market system (business entry and exit) should be respected. Genuine consultation with industry is required for legislation/regulations, market rules.

    “The government must honour its commitments and limit role to be enabler of commercial agreements and deals. Good faith in negotiation of sustainable deals is required by all,” Chukwueke said.

    According to him, there exists a huge power supply/demand gap that has to be closed to spur further economic development.

    He said the various initiatives of government should continually be fine-tuned to provide bankability and stability to the chain.

    Company Secretary/Director, Legal Services Abuja Electricity Distribution PLC, Mrs. Olajumoke Delano, called for strict enforcement of extant laws on energy theft and vandalism in order to deter people from stealing energy and vandalising electricity installations.

    “This requires collaborative efforts with the law enforcement agencies,” she said.

    She also called for an end to litigations to ensure that major commercial customers pay their outstanding indebtedness to the Discos.

    According to her, huge debt owed by some major customers “is really weighing down the Discos, preventing them from meeting their obligations across the value chain.”

    Senior Attorney at Mobil Producing Nigeria Ultd, an ExxonMobil subsidiary, Mrs Busola Odusanya, called for the passage of the PIGB, which she said addresses the problem of multiplicity of regulators by providing for a one-stop shop. Removing regulatory bottlenecks, she said, would make it easier to attract investors.

    Odusanya also spoke of the need to reduce the contracting and tender cycle time, which she said is usually “very long and protracted”.

    “The reformatory process seems to be unending, and investors are jittery. It is a huge disincentive to investment,” she said.

    Gas framework needed

    A lawyer, Raqeebah Oloko, said Nigeria needs a strong legal framework for the gas sub-sector. To her, PIGB does not adequately address the need.

    “The PIGB doesn’t provide much on transforming gas to power. There is need for a legal framework for the sector. A lot of investors want a solid framework in place to guide their investment,” she said.

    Oloko, Managing Director/Chief Executive Officer of Bromshy Communications, which organised the conference, said the time has come for government to limit its control of the sector.

    Fully privatising the sector, she believes, would result in more investments, remove bottlenecks, and end corruption.

    She also wants central control of gas transmission removed and decentralised, adding that it would encourage healthy competition, which she thinks would benefit Nigerians and the economy in the long run.

    On the essence of the conference, Oloko said: “We felt that one person cannot make an impact. We had to come together. That’s why we brought lawyers in oil and gas together to discuss issues affecting the industry and proffer solutions to them from the perspectives of the legal and regulatory frameworks.

    “The buck still stops on our desks. We sign the contracts. We advise clients on whether or not to invest in the sector. When there are disputes, we go to court or arbitration. So, we felt we needed to come together to brainstorm and contribute to the sector. That’s why we started this project,” she said.

    Oloko said the theme was chosen to highlight the need to transform gas to power as a means of solving Nigeria’s energy challenge.

  • Can police recover debts?

    If you reside at Ajegunle in Lagos State or any apartment which Nigerians popularly call “face me I face you” or “face me I slap you”, you must have witnessed one or two occasions where men of the Nigerian Police were “employed” to arrest a citizen because he owes some amount of money. This is also the case amongst some wealthy Nigerians.

    Briefly, debt can be defined as a sum of money that is owed or due. In law, debts fall under civil contracts.

    Will I be right to say the Police are not right in any way to arrest or interfere in matters of civil contracts?

    So, what then are the duties of the Nigerian Police force?

    Section 4 of the Police Act, Cap. 19, Laws of the Federation of Nigeria, 2004 clearly states the general duties of the Police. I will reproduce the said section for easy reference and proper understanding.

    “The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of the law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged and shall perform such military duties within or without Nigeria as may be required by them by, or under the authority of, this or any other Act.”

    From the foregoing, it is clear that the duties of the Police is strictly meant for the prevention and detection of crime, to preserve the laws of our land and others stated above.

    What has been the attitude of the court to this issue?

    Ita George Mbaba of the  Court of Appeal, Ilorin division  in the case of Ibiyeye & Anor. V. Gold & Ors, Appeal No: CA/IL/M.95/2010 had cause to say: “I have to add that the resort to the Police by parties for the recovery of debts outstanding under contractual relationship has been repeatedly depreciated by the Court.

    “The Police have also been condemned and rebuked several times for abandoning its primary duties of crime detection, prevention and control to dabbling in enforcement or settlement of debts and contracts between quarrelling parties and for using its coercive powers to breach citizens rights and/or promote illegalities and oppression.

    “Unfortunately, despite all the decided cases on this issue, the problem persists and the unholy alliance between aggrieved contractors/creditors with Police remains at the root of many fundamental rights breaches in our courts”.

    My Lord, Mbaba JCA in OSIL V. Balogun (2012) 38 (P.p 173-174) lines 30-5  W.R.N  said:  “The Police has no business in enforcement of debt settlements or recovering of civil debts for banks or anybody.”

    What can one do when the Police arrest for debts?

    As soon as the Police arrest you, the first step to take is to contact a lawyer. Never be intimidated or coerced to make a statement.

    Secondly, the lawyer will file an application for the enforcement of fundamental rights of the person arrested. (That is a way to make money out of the Police).

    “As the laws of this country stand, the Police have no power to detain a person for breach of contractual obligations. Any such detention is a violation of the persons right to freedom of movement,” according to McLaren V. Jennings (2003) FWLR (Pt. 154) 528

    What happens to the person who employed the Police to interfere in a civil matter?

    My Lord, Ita George Mbaba of the Court of Appeal, Owerri Division in Anogwie & Ors V. Odom & Ors (2016) LPELR-40214 (CA) had the following to say: “The position is and has always been that the private individual who uses the Police to settle a private score, would himself be liable for the wrongful act of the Police.”

    What then is the right thing to do when you are being owed?

    There are basically two legal ways to get your money paid as the creditor.

    First, employ the Alternative Dispute Resolution mechanism (ADR). By this method, both parties will be called to settle and draw out a visible plan on how the debtor will redeem the debt owed.

    Secondly, if ADR doesn’t work out, you should employ the services of a legal practitioner to institute an action in court against the debtor.

    Conclusion

    Don’t be deceived. The Police are fully aware that they don’t have the power or duty to arrest a citizen or even an alien that is indebted to a Nigerian.

    Hence, no Police has no right or duty to arrest you because you are owing some amount of money.

    However, this should not be seen as a shield against creditors.

    • Sanya is an Ibadan lawyer.

  • National Assembly ‘lacks power to fix election dates’

    Lagos lawyer Femi Falana (SAN) argues that going by the provisions of the Constitution, only the Independent National Electoral Commission (INEC) can fix election dates.

    Since the return to democratic rule in 1999, the Independent National Electoral Commission (INEC) has conducted the general elections on a two-tier or three-tier basis. Even though the national assembly had attempted in the past to use the Electoral Act to alter the sequence of elections fixed by the INEC it did not succeed. In spite of the ongoing controversy surrounding the sequence of elections our recent experience as a nation has shown that there is nothing sacrosanct about it. In 1999 and 2007 the presidential election came up last while it came up first in 2015.  In influencing the order of elections in 2015 the ruling party had thought that holding the presidential election first would have bandwagon effect on the outcome of the other elections. But the result was a disaster for the ruling party.

    It has equally been confirmed that when elections into the legislative houses were held before other election in the past majority of sitting legislators lost their seats.  So, there is no indication that President Mohammadu Buhari stands to benefit electorally from the decision of the INEC to retain the 2015 sequence of elections. But notwithstanding the reactions of the presidency and the national assembly to the sequence of elections announced by the INEC it is pertinent to review the relevant provisions of the Constitution, the Electoral Act and judicial authorities on the vexed issue.

    In preparations for the 2019 general elections the INEC recently released a timetable for party primaries and the elections into the various offices in exercise of its powers under Sections 76, 116, 132 and 178 as well as paragraph 15 of Part 1 of the Third Schedule made pursuant to section 153 (1) of the Constitution. Under the arrangement the presidential and national assembly elections will be held on February 16, 2019 while the governorship and house of assembly elections will take place on March 2, 2019.  But in the Electoral Bill 2018 recently passed by the national assembly the sequence of the general elections has been altered. The sequence of proposed by the new amendment is A. National Assembly Election, B. Governorship and State Assembly Elections and C. Presidential Election.

    No doubt, the matter has generated a needless controversy to the extent that little or no attention is paid to the other provisions of the Electoral Bill which have the capacity to promote internal democracy and enhance the credibility of the electoral process. Perhaps not aware of the state of the law the INEC has announced its intention to approach the Supreme Court to test the constitutional validity of the Electoral Bill 2018 if it is eventually signed into law by the President. Since there are indications that the President may withhold his assent in the circumstance, the national assembly has threatened to override his veto.

    Having watched the trend of the debate it is regrettable to note that the parties involved in the dispute have not studied the decision of the Court of Appeal in the case of National Assembly v. President (2003) 9 NWLR (PT 824) 104 at 143-144. In that case, President Obasanjo had refused to assent to the Electoral Bill 2002 which had been passed by both Chambers of the National Assembly and transmitted to him June 24, 2002. Subsequently, by a motion of veto-override the national assembly passed the bill into law. In an originating summons filed at the Federal High Court the INEC challenged the validity of the passage of the Bill into law and the constitutionality of Section 15 of the Act which had provided that general elections shall be held in one day.

    The trial court held that the Bill was properly passed into law but that Section 15 thereof was inconsistent with Sections 76, 116, 132 and 178 of the Constitution. Dissatisfied with the annulment of Section 15 of the Electoral Act, the national assembly filed an appeal at the Court of Appeal. On his own part, the Attorney-General of the Federation filed a cross appeal to challenge the passage of the Bill into law. In its judgment the Court of Appeal held that the manner of passing the bill into was unconstitutional but declined to set it aside on ground of public policy as the 2003 general elections were being conducted under the law. However, the Court of Appeal affirmed the decision of the Federal High Court on the illegality of Section 15 of the Electoral Act.

    In his contribution to the judgment of the Court, Oduyemi J.C.A (as he then was) stated that ”in so far as Section 15 of the Electoral Act, 2002 seeks to fetter that discretion and limit the 3rdDefendant to only one day in the year for all elections to the offices concerned, that provision of the Act is inconsistent with the provisions of the Constitution above referred to and is to that extent a nullity. Section 1(3) of the Constitution… All in all, I agree with the reasoning in the judgment of the lower court and with the conclusion in the judgment that Section 15 of the Electoral Act, 2002 is inconsistent with the specific provisions of the Constitution of the Federal Republic of Nigeria, 1999 in Section 132(1), 76(1), 178(1), 116(1), 78, 118 and Item 15(a) of the 3rd Schedule: that it infringes upon the absolute discretion vested by the Constitution on the 3rdRespondent with regard to the fixing of dates for election into the various offices concerned.”

    However, the national assembly took advantage of the 2010 Alteration of the Constitution to attempt to overrule the judgment of the Court of Appeal in the case of the National Assembly v. The President (supra). Thus, in the first alteration made to the Constitution, the national assembly amended sections 132(1), 76(1), 178(1), 116(1), 118 and 178 of the Constitution by adding the phrase ”in accordance with the Electoral Act”. Although the power of the INEC to ”organize, undertake and supervise” the general elections conferred on it by paragraph 15 of part 1 of the third schedule made pursuant to section 153 of the Constitution was left intact, the national assembly members erroneously believed that they had conferred on themselves the power to fix the dates for general elections in Nigeria. Hence, in the 2018 Electoral Bill, the national assembly is alleged to have tampered with the discretion of the INEC to fix the dates for the 2019 general elections.

    Apart from the illegality of subjecting the provisions of the Constitution to the Electoral Act, the Alteration of the Constitution did not confer on the national assembly the power of fix dates for holding the general election in Nigeria. To that extent, the national assembly cannot use the Electoral Act to usurp the powers exclusively conferred on the INEC to appoint dates for holding the general elections in the country. Indeed, the Supreme Court has had cause, after the first 2010 Alteration of the Constitution, to confirm the discretionary power of the INEC to fix the dates for holding the general elections.

    In PDP V. SYLVA (2012) 13 NWLR (PT 1316) 85 the respondent challenged the decision of the INEC to cancel and reschedule the 2012 governorship election in Bayelsa State. In dismissing the contention the Supreme Court (per Rhodes Vivour JSC) held that ‘’INEC has the sole responsibility to fix dates for election and to my mind if INEC fixes a date for elections and for whatever reason, be it logistic, I do not think anyone has a cause of action against INEC for canceling an election (not held) and rescheduling elections for another day’’.

    Similarly, in NDP V INEC (2013) 20 WRN 1 at 45 the Supreme Court (per Ariwoola J.S.C.) held that ”It is not in doubt that the Independent National Electoral Commission (INEC) that is, the respondent, has the sole responsibility to decide when elections are to hold. See Peoples Democratic Party v Timipre Sylva & Ors (2012) 13 NWLR (Pt 1316) 85 at 122. The respondent also reserves the prerogative to decide what Timetable to of Activities to publish for a General Election.”   Furthermore, in Hon. James Abiodun Faleke v INEC (2016) 50 WRN 1 the Supreme Court reiterated the view that by virtue of paragraph 15 of Part 1 of the Third Schedule made pursuant to section 153 (1) (f) and (i) of the Constitution, the Independent National Electoral Commission has power to organize, undertake and supervise all elections to the offices of the President, Vice President, the Governor and Deputy Governor of a State and the membership of the Senate, the House of Representatives and the House of Assembly of each state of the Federation.

    No doubt, the national assembly would have achieved its objective if it had incorporated the sequence of the general elections in the Constitution. But by providing that the INEC shall fix election dates ”in accordance with the Electoral Act” the interference in the exercise of the discretionary power of INEC’s constitutional power to fix the dates for the elections cannot be justified in law. As far as the Constitution is concerned, the power of the INEC to organize, undertake and supervise the elections which has been interpreted to include the power to fix the dates for the general elections or determine the sequence of the elections has not been altered in any material particular.

    It is the height of legislative absurdity to say that the power donated to the INEC by the Constitution shall be exercised in accordance with the provision of an inferior legislation. InAttorney-General, Abia State v. Attorney-General of the Federation (2002) 1 WRN 1 at 45 Kutigi CJN (as he then was) held that ”where the provision in the Act is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provision, then the new provision will be regarded as invalid for duplication and/or inconsistency and therefore inoperative. The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provision or provisions will be treated as unconstitutional and therefore null and void.”

    From the foregoing, it is submitted that the interference in the exercise of the powers of the INEC to appoint dates for holding the general election in Nigeria is illegal as the provision of the Electoral Bill, 2018 is inconsistent with Sections 76,116,132 and 178 of the Constitution. To the extent of such inconsistency, the provision of the Electoral Bill is illegal, null and void as stipulated by section 1 (3) of the Constitution. In other words, since the INEC has been empowered to organise, undertake and supervise all elections the National Assembly cannot rely on the provision of the Electoral Act to usurp the powers of the INEC to fix the dates for the elections. In view of the settled position of the law the INEC should not waste public funds by rushing to the Supreme Court to contest its own constitutional duty to organise, undertake and supervise the 2019 general elections.

  • Lawyer seeks to stop MTN’s listing on Stock Exchange

    alAGOS lawyer, Dr. Charles Mekwunye, has urged the Court of Appeal to restrain MTN from listing its shares on the Nigerian Stock Exchange (NSE), pending the determination of a suit involving him, the telecom giant and four other firms.

    In the appeal marked CA/L/1349/16, Mekwunye is praying for an interlocutory injunction restraining MTN from listing its shares on THE NSE or any globally recognised stock exchange.

    Other prayers include an injunction restraining MTN from putting up signs, advert or notice which may suggest the listing of its shares.

    An order of interlocutory injunction restraining MTN from inviting the public to buy or purchase its shares in any public offer pending the determination of the appeal.

    The appellant is also asking the court to reverse the alleged interference of IHS Holding and INT Tower in the agreement among him, MTN, Lotus Capital and Stanbic IBTC Management Limited.

    Mekwunye sued MTN at the Federal High Court, Lagos for alleged breach of an agreement by firms representing the company in a privately placed share units offer.

    Joined in the suit as co-defendants were Lotus Capital Limited, Stanbic IBTC Asset Management Limited, IHS Holding Limited and INT Towers Llmited.

    Mekwunye contended at the Federal High Court that after buying about 5,000 MTN Linked Units share through MTN’s nominee, Stanbic IBTC Asset Management Limited via a private placement memorandum, the firm failed to fulfill its obligation of converting the share units into MTN Nigeria shares.

    But ruling on a preliminary objection raised by MTN on the competence of the suit, Justice Mojisola Olateru asked parties to explore the arbitration clause embedded in the disputes contract.

    Dissatisfied with the ruling of the lower court, Mekwunye through a motion on notice filed on February 26, approached the Court of Appeal.

    He insisted in the appeal papers that the crux of the matter is the failure of the respondents to list MTN shares in NSE in 2013 as agreed by parties and that until the suit or appeal is properly determined, MTN ought not be allowed to list its shares at the stock market.

    In an affidavit in support of the motion on notice, the appellant averred that sometime in February, 2008, Lotus Capital and Stanbic IBTC Asset Management via a private placement memorandum, represented that MTN International was offering to allocate shares of MTN Nigeria to the Nigerian public as investors through private placement arrangement.

    According to the deposition, Stanbic IBTC Asset Management which was appointed as nominee for the  MTN linked offer, subsequently engaged Lotus Capital Limited to procure investors.

    Mekwunye bought 5,000 units of the shares at the rate of $122,800 (N18, 376, 800,00).

    The appellant averred that the nominee structure as spelt out in the agreement papers was to last for three months after which the shares will be transferred to an exit special purpose vehicle (SPV) which will then be exchanged for MTN Nigeria shares.

    According to the appellant, at the end of three years, the respondents failed to create the agreed exit SPVon the ground that MTN International is already quoted on the Johannesburg Stock Exchange.

    He further averred that the respondents opted to create an alternative exit mechanism which is not listed on NSE without his consent or knowledge.

    Mekwunye claimed that series of deductions were made on his share units by the respondents in the new agreement which he never gave his consent.

    No date has been fixed for the hearing.

  • ‘Why all lawyers are activists’

    Being a paper by Lagos lawyer Ebun-Olu Adegboruwa at a symposium in honour of Pa Tunji Gomez at 90.

    I will first like to make reference to Mr. Christopher Alexander Sapara Williams, the first indigenous Nigerian lawyer, called to the English Bar on 17th November, 1879. He defined the appropriate role of lawyers in these golden words: “The legal practitioner lives for the direction of his people and the advancement of the cause of his country.”

    This reference is informed by the life and times of the person for whom we have gathered today, Pa Tunji Gomez, as they both share a lot in common, for the advancement of the cause of humanity.

    But perhaps both Sapara Williams and Pa Gomez share more in common with another icon. On January 30, 1948, on the very day he was assassinated, Mahatma Ghandi spoke to his grandson about the Seven Blunders of the World, which he stated to be wealth without work, pleasure without conscience, knowledge without character, business without ethics, science without humanity, religion without sacrifice and politics without principle.

    To all the above, I will add: Law without justice. And this is why we have all gathered here today to talk about Pa Gomez, whose principle in life is: It is a matter of conscience.

    As an advocate, Sapara-Williams clearly distinguished himself in many areas of law and was greatly concerned for the society at large. He was actively involved in the struggle for independence, along with Sir Herbert Macaulay and other nationalists.

    Sapara Williams died on the 15th of March, 1915 and was buried at the Ajele Stadium (which was then used as a burial ground, other people buried there include Bishop Ajayi Crowther). Then something strange happened long after his burial. There was a case against the military governor of the state over Ajele Stadium and the government decided to exhume the bodies of those buried there to make way for other constructions.

    No one was willing to challenge the khaki boys until Pa Gomez took up the challenge with the late lawyer’s daughter, Madam Sapara, who was around 70 years at the time and feared for Gomez’s life. They were successful in getting an injunction restraining the Lagos State government from exhuming the bodies. So, we gather here today to celebrate Pa Gomez, a true activist and a rare breed.

    What Pa Gomez has done and he is still doing, is nothing new to his generation at all, given that the Chairman of this occasion himself, Alhaji Femi Okunnu (SAN), had travelled that route quite very often. At the height of military adventurism in Nigeria, the Babangida regime promulgated The Land (Title Vesting) Decree of 1992, by which all land within 100 metres of any national waterway became property of the federal government. Alhaji Okunnu challenged this law at the Federal High Court and secured a judgment which nullified the decree.

    As we can all very well remember, the Abacha junta had concluded plans to sell the land hosting the Nigerian Law School, in Victoria Island, Lagos. Mrs. Hariat Balogun and Mr. Femi Falana (SAN), took an action in court and secured an injunction to stop the sale. This is our motivation today, to keep up the good work of Pa Gomez and many other activists of the noble profession.

    Pa Gomez’s life should be an inspiration to all lawyers, on ethics, love for the profession and the common good. There is no way we can separate law and its practice, from the society. In this regard, therefore, a true legal practitioner is the one who deploys knowledge for the advancement of the cause of his society, as Sapara Williams, Pa Gomez and indeed Pa Femi Okunnu, SAN, have all done, admirably.

    It is my firm belief that all lawyers are by nature and profession, activists. The NBA motto and Constitution are very clear on this issue by stating clearly that all lawyers must promote: the Rule of Law; the integrity and independence of the Bar and the Judiciary; the right of access to court at reasonably affordable cost; and the promotion and protection of the principle of the rule of law, respect for the enforcement of fundamental rights, human rights and people’s rights.

    So, I urge all lawyers to x-ray all contestants to the various offices in the NBA by their pedigree and vote in genuine activists, remembering the times of Chief Alao Aka-Bashorun, Chief Wole Olanipekun (SAN), Olisa Agbakoba (SAN), Chief Priscilla Kuye, Augustine Alegeh (SAN), etc.

    And this is why I commend the Chairman and members of the NBA, Ikeja Branch, for the courageous protest embarked upon on. We need more of such from lawyers, to speak truth to power.

    The Bench too should embrace judicial activism, as was done by the Honourable Justice Bairaman in the landmark case of Madukolu v Nkemdilim, where he laid down the golden principles guiding jurisdiction, without citing a single authority and precedence.

    So too our noble Lords and judicial officers must be pro-active to interpret our laws in favour of the rights of the people, as was done by Lord Denning, Honourable Justices Kayode Eso, Chukwudifu Oputa, Samson Uwaifo, etc.

    There is no better way to better way to honour Pa Gomez than the gathering of his own constituency, acknowledging him as such a great Bar man or great Bar activist, whilst he is still alive and kicking.

    So, I join the Premier Bar and indeed all lawyers across Nigeria, to salute Pa Gomez and to urge all lawyers to emulate him as a worthy ambassador.

  • Agency seeks laws on occupational safety

    Lagos State Safety Commission (LSSC) Director-General, Mr Hakeem Dickson, has called for stronger laws to protect workers.

    He said there was the need for employers and workers to be consulted when preparing safety laws ans regulations.

    Dickson spoke at a colloquium on Adherence to occupational safety standards in a mega city.

    It was organised by the commission for stakeholders in the sector and was held in Ikej, Lagos.

    At the event were the Nigeria Employers Consultative Association (NECA), Certified Institute of Professional Managers (CIPM), International Labour Organisation (ILO), Trade Union Congress (TUC), Nigeria Labour Congrss (NLC) and safety experts.

    Dickson said they were brought together to shed light on issues that hinder adherence to safety compliance.

    According to him, occupational health in developing countries was neglected, pointing out that it has affected productivity.

    He said better ccupational health was one of the tools that could help break the cycle of poverty and improve productivity.

    Most developing countries still perceive occupational health as a luxury, he said.

    “This should not be so. If public safety is jeopardised, almost all will be lost,” Dickson said.

    He said the well-being of Lagos workers was of absolute importance in reducing accidents and thereby increasing productivity and per capital income.

    He emphasised the need for all hands to be on deck to make this a reality.

    Lagos Attorney-General and Commissioner for Justice, Mr Adeniji Kazeem, said  without a legal framework, establishing and enforcing safety would be impossible.

    “Most companies and people have little or no awareness about the impact of safety standards or the process by which they are produced despite that safety standards affectevery aspects of our lives,” he said.

    He noted that the United Nations (UN) acknowledges citizens’ rights to public safety and calls on states to take measures to ensure progressive achievement through transparency in planning and implementation.

    “For a fast growing mega city like Lagos, what we want is a safe environment which will encourage the minds and talents of our citizens to be put to good use.

    “Occupational safety standards are indispensable to the proper function of economics and societies. They create the ‘rules of the game’ for citizens, business, government and civil society.

    “They fortify markets, protect the rights and safety of citizens and ensure the safe delivery of public goods and services,” he said.

    The Commissioner for Special Duties and Inter-Government Relations, Mr Oluseye Oladejo, said there was the need to put in place standards and guidelines in place to protect workers.

    He said the welfare of workers was paramount to the government.

  • NBA, institute partner on pro bono services

    The Nigerian Bar Association (NBA) has partnered with the Justice Research Institute (JRI) to promote access to pro bono services.

    It signed a Memorandum of Understanding (MoU) with the institute in Abuja.

    NBA President Abubakar Mahmoud (SAN) said  promoting pro bono services was a strategy in building confidence in the courts.

    He said: “We have in the last year and a half pursued aggressive public interest engagements in a number of areas and  this entirely falls within that broad framework.

    “We have prioritised the Northeast and the Niger Delta regions,  but we are mindful of other regions because we are interested in access to justice, human rights protection and provision of pro bono legal services.

    “We recognise that there is serious demand for these services and we are very delighted to encourage lawyers to show interest and commitment to these services to members of the public,” he said.

    The MoU signed with the institute, Mahmoud said, was one of many by the association.

    “The NBA entered into some MoUs with some partners, some of which are related to training for our members while others were on the provision of pro bono services.

    “I believe that this partnership would wax strong and translate to putting smiles on the face of Nigerians who benefit from the services,” Mahmoud said.

    JRI Executive Director Mr Ikem Isiekwene,who signed for his organisation, said the MoU was borne out of the realisation that societal structures were full of inequalities and that many Nigerians were ignorant of their rights.

    He said: “We live in demanding times with an increasing population and a significant number of the populace impoverished, who also do not know their rights or how to access these rights.

    “So, we can only expect that the interaction within this space will lead to the need to protect rights were there are obvious violations.

    ‘’The objective is to deepen pro bono practice within the legal profession across Nigeria by establishing a system that leveraged private sector resources to help increase access to legal resources for more disadvantaged individuals and groups.’’

    He said the institute and the NBA, with the support of the Open Society For West Africa (OSIWA), intended to institutionalise a pro bono initiative that connected demand and supply for free legal services.