Category: Law

  • Towards strengthening legislative drafting practice

    Towards strengthening legislative drafting practice

    There can hardly be a reasoned, rational legislative output in terms of enactments, without a competent knowledgeable and clearheaded team or office of legislative drafters. It is to be understood that so much go into the making of legislation. The unseen hands of the legislative drafters, most arduously, Chisel out statutes from a bush of proposals. This, by any means, is not a child’s play, as any piece of intelligible, compact codes of law would have cost some pounds of brains.

    What then is legislative drafting? Legislative drafting is often used interchangeably with such general terms as legal drafting or legal writing. Much as this may not be entirely incorrect, Legal drafting or Legal writing refers, generically, to all aspects of the Solicitor’s job, whilst legislative drafting as a kernel of the nut, specifically, has to do with those aspects of legal drafting or writing, involved in the preparation of a proposed legislation, whether principal or subsidiary. It has to be noted that although the Black’s Law Dictionary defines the term ‘drafting’ as ‘the practice, technique, or skill involved in preparing legal documents (Bryan A Garner, Blacks Law Dictionary, Thompson West, US (Eight Edition) 2004, page 531),that dictionary, has no definition for legislative drafting.The term legislative drafting has been taken to be about composing proposed legislation. H.N. Onwe, in his book;‘Groundwork of Legislative Drafting’, SNAAP Press Limited, Enugu, (2009) page 1, defines legislative drafting,‘‘as the art of writing legislation, which includes subsidiary or secondary legislation; administrative orders, notices, rules, warrants and similar instruments’’.Legislative drafting is both an art and a science. The legislative drafter, more like a design architect, has to sketch out a plan for the proposed legislation carefully, to enable a formidable structure that can stand in the legal environment. In addition to having the passion of a designer, to ensure a structural layout and formatting that is consistent with the typo graphic approach to drafting styles, the drafter should have a good working knowledge of the gamut of laws in the legal system. Good legislative drafting identifies the legal objectives of a proposed legislation and meets them fully. This is achievable by expressing the necessary legal rights and obligations in an accurate clear manner, while ensuring that the draft complies with acceptable norms and relates harmoniously to existing legal order.

    Legislative drafting is not an entirely academic affair neither is it entirely a ‘chisel and hammer’ business. It is an enterprise that requires both good academic standing and some creative ingenuity. This explains the utter consternation one feels, when heavy emphasis is placed only on academic qualifications by authorities and institutions in our clime, during considerations for engagements in legislative drafting assignments. Legislative drafting, as any other design effort, has some inspirational basis. Any great legislative drafter, as a musical artist or composer, would affirm that inspiration for naughty drafting solutions, come either in dreams or relaxed moods during leisure activities.

    The quality of legislative instruments in a jurisdiction is only a reflection of the quality of legislative drafters available in that jurisdiction. When for instance, we hear of harmony and concord in the workings and application of statutes in the United Kingdom, it is only a reflection of an efficient, inspired, well trained Office of the Parliamentary Counsel, properly trained, insulated from partisan politics,which is focused on nothing but legislative clarity. In the United States and Canada, the story is not different, there is clarity and harmony in the regime of statutes, owing to well laid out drafting offices with experienced, knowledgeable and motivated legislative drafters.Can we say the same for Nigeria? Your guess is as good as mine. With the wobbly staccato of legislation, swimming in conflicts, each pleading not to be mowed down by the courts; with the lacunas in our laws, even in the Constitution, which is the grund norm, leaves us at the mercy of the ‘doctrine of necessity’, from time to time; with the jungle of regulations, notices, orders, etc; in the gazettes, is it yet time to talk of clarity, concord and harmony in the Nigerian Corpus of Laws?

    •To be continued

  • Falana to igp: stop police  harassment of the poor

    Falana to igp: stop police harassment of the poor

    Acivist-lawyer Femi Falana (SAN) has written the Inspector-General of Police over alleged harassment of citizens under a repealed Vagrancy Law.

    As you are no doubt aware, the vagrancy law was introduced to Nigeria by the former British colonial regime for the sole purpose of harassing and humiliating poor people who were said to have had no means of livelihood. The anti people’s law was retained for the same purpose by the indigenous ruling class who took over power from the alien administrators in 1960. Thus, in a display of class bias whenever rich people were found on the street taking a walk it was said that they were exercising their fundamental right to freedom of movement. But whenever the poor exercise such fundamental right to freedom of movement they were usually arrested by the police who accused them of wandering or loitering.

    However, the human rights movement in Nigeria mounted a vigorous campaign in the 1980s for the repeal of the vagrancy law. Happily, the campaign succeeded in 1989 when the then military junta promulgated the Minor Offences (Miscellaneous Provisions) Act (CAP M16) Laws of the Federation of Nigeria 2004 which abolished the vagrancy law in the criminal and penal codes. Specifically, Section 1 of the Act stipulates that:

    “(a). A person shall not be accused of or charged with-

    (i)         The offence of wandering (by whatever name called); or

    (ii)       Any other offence by reason only of his being found wandering (by whatever name called),

    And, accordingly, any person accused of or charged with such offence shall be released or discharged, as the case may be, forthwith;

    (b) a person who is accused of a simple offence shall not, by reason only of being accused of such offence, be detained in police or prison custody.”

    It is sad to note that notwithstanding the abolition of the offence of wandering throughout the country the Nigeria Police Force has engaged in the indiscriminate arrest and prosecution of many poor people for loitering. We have confirmed that under the pretext of ridding the Federal Capital Territory of criminals and other undesirable elements the Police recently arrested scores of young people around Asokoro and other high brow areas in Abuja. The suspects were illegally prosecuted, convicted and jailed by magistrates based on the allegation that they have no means of livelihood. The explanation of some of convicts that they had recently lost jobs was not taken into consideration by the trial Magistrates.

    Although our law firm has decided to challenge such brazen violation of the fundamental right to personal liberty and fair hearing of those who have been illegally tried and convicted under the repealed vagrancy law in the Federal Capital Territory, we hereby request you to use your good offices to direct all police commands in the country to desist from further arresting and prosecuting poor citizens for loitering or wandering.

    Take notice that if you fail to accede to our request within one week of the receipt of this letter we shall pray the Federal High Court to compel the Nigeria Police Force to comply with the Minor Offences (Miscellaneous Provisions) Act forthwith.

  • Magu, Senate and ‘Ichabod’ Presidency

    Magu, Senate and ‘Ichabod’ Presidency

    “Then she named the child Ichabod, saying, ‘The glory has departed from Israel’ because the ark of God had been captured and because of her (woebegone) father-in-law and her husband.”-1 Samuel 4:21, The Holy Bible NKJV.

    The audience of the theatre of the absurd always suffer the peculiar dilemma of not knowing whether to laugh or cry at the spectacle before their eyes. So it is with the Nigerian public which has been forced to witness the farce that was the two unsuccessful attempts by President Buhari to get the statutorily mandatory Senate confirmation for his anti-corruption czar Ibrahim Magu. In the discordant din of whether or not Mr. Magu was a ‘performer’ and/or whether or not the Senate was right in its decision, what appears lost on the vast majority of Nigerians is the true purport of the event: a most egregious example of a disorientated, indecisive and indeed probably irredeemably disabled Presidency.

    The United States President Donald Trump famously dismissed Jeb Bush and some of his other opponents for the U.S. Presidency last year as being of ‘low energy’. In keeping with his own self- proclaimed high energy persona, he had his cabinet choices ready before his inauguration for office. It struck me at the time that merely a day after his inauguration Mr. Trump had got the United States Senate to confirm his defence secretary (minister), and who was already at the Pentagon to start work the following day (a Saturday).

    The loquacious Mr. Trump would certainly be short of words were he to categorise his Nigerian counterpart who took over six months to assemble his nondescript cabinet. Given that candidate Buhari could be said to have run for, and was elected to, the Nigerian Presidency on only one major issue of anti-corruption, the least expected was that he would have been ready with his choice of the person to drive the fight against corruption immediately upon his assumption of office. However President Buhari took all of seven months to appoint Mr. Magu as Chairman of the Economic and Financial Crimes Commission [EFCC], the lead anti-corruption fight agency. As incomprehensible as this tardiness was, the President made matters worse by the strategic error of not promptly getting Mr. Magu confirmed and in the event did not send his name to the Senate for confirmation until after another seven months in July 2016. Even then, the deed was done by the Vice President Osinbajo as Acting President at the time President Buhari was overseas on medical vacation.

    Meanwhile, Mr. Magu who had been in occupation of the office in an acting capacity appears to have been uncompromising in his pursuit of our too many larcenous politicians and business people who seem hell bent on stealing the rest of us into extinction. With the National Assembly, especially the Senate, seemingly the natural habitat of a great percentage of these characters, Mr. Magu even at the best of times was always going to find it very difficult obtaining the senatorial confirmation. As it turned out, the Department of State Security [DSS] appeared on the scene as a willing and effective agent provocateur.

    Beyond the persistent rumours of a civil war within President Buhari’s kitchen cabinet, it became starkly clear to all perceptive observers that there was no love lost between the DSS and EFCC when the latter testified before a National Assembly committee that it was beyond the DSS remit to raid judges’ homes supposedly to stamp out judicial corruption. The problem had obviously gone beyond understandable inter agency rivalry. However, whatever the state of the relationship between both agencies it was inconceivable in the circumstances for the DSS to author a report which trenchantly denied Mr. Magu’s fitness for the office of EFCC Chairman. But that is what happened in the event.

    In the foregoing vein it is a safe, even probably irrebutable, presumption that Mr. Magu enjoyed the President’s trust and approval in the circumstances, otherwise which he would not have been appointed in the first place. Similarly, it is axiomatic that the DSS and EFCC are not only agencies of the Executive branch/Presidency, they share special kinship in the sense of being merely different manifestations of the law enforcement responsibility of the Nigerian state. And both are under the superintendence of the National Security Adviser. Given these facts therefore, and assuming that its position was not considered ever before the nomination, the least expected in the circumstances was that the contrary report of the DSS on Mr. Magu should have first gone through an internal bureaucratic filtration process and by which, depending on the substance of the case against Mr. Magu, either the report would have been discarded or the nomination quietly withdrawn. That way, the President would have been saved the monumental and unprecedented embarrassment and very public humiliation.

    Instead of an adequately decisive response, and reiterating the stupidity of any person holding or thinking of holding the tiger by its tail, the President rather like a punch-drunk boxer ponderously announced his mandate to the Attorney-General of the Federation to investigate the allegations levelled against Mr. Magu in the DSS report. Rather predictably, the Attorney-General returned a ‘not guilty’ verdict, Nigerians were told, and upon which Mr. Magu’s name was resubmitted for senatorial confirmation. Yet again, the DSS stuck to its guns that he lacked the requisite integrity and was not fit for the office.

    The Senate’s humiliating rejection of Mr. Magu of course cast him in pathetic light; it is always a sorry sight watching the hunter being hunted down. But the matter is way beyond Magu the person. News reports were recently awash with the spectacle of one young man who had the temerity to sit on the stool of the Tor Tiv during the monarch’s installation ceremony in Markurdi. According to newspaper reports, he has since been promptly tried in a court of law and sentenced to some years imprisonment. I do not know the specific offence he was charged with but it certainly revolves round his perceived disrespect, desecration even, of a revered stool. However, those who enabled or conjured President Buhari’s predicament in the Magu palaver did worse: they contrived to undress the President in public.

    It beggars belief that President Buhari and his handlers apparently do not realize the dreadful and lasting damage inflicted upon his Presidency in the circumstances of the Senate’s rejection of Mr. Magu. Decisive remedial measures were required to be taken to reassert the Presidency’s severely besmirched image and authority.  I made the point at the time, and became even more convinced by subsequent events, that President Buhari had no justification at all resubmitting Mr. Magu’s name to the Senate without first sacking all those in the DSS involved in penning and sending the anti-Magu report to the Senate. Nothing less would do.

    Resubmission of Mr. Magu’s name for senatorial confirmation and retention of the DSS leadership were, and remain, mutually exclusive unless the design is to turn government into a sick joke. Indeed if Mr. Magu is found to be corrupt, as alleged by the DSS, then the matter should go beyond promptly dropping him from further consideration for the job but he should also be prosecuted. At any rate, and given the heavily polluted water under the bridge in this case, it is inconceivable for the headship of both the EFCC and DSS to remain unchanged. Corruption-manifesting mainly in economic and financial crimes-may well be the biggest extant threat to Nigerian national security and there is therefore considerable coalescence in the objectives of both organisations.

    That there must be complete cooperation between them is therefore an article of faith for the Nigerian state. However, the headship of the EFCC and DSS are burdened by deep seated mutual distrust and have freely and openly exchanged charges of lack of integrity. It is thus unquestionably in our overall national interest that at least one must be sent away from office. The coach of a professional football team cannot have his two central defence partners not talking to each other and expect anything other than calamitous results. One, if not both, of the central defenders must be sold for the team to make any progress.

    One lesson observable from the unfolding tragedy of the Buhari Presidency is that is that the problem is all self-inflicted. There were loud protests when President Buhari insouciantly restricted his kitchen cabinet to what could be called a band of ‘Kanuri-Daura and allied’ irredentists. As so insensitively lopsided as the appointments were, I had counseled the exercise of patience and understanding for the taciturn infantry general. If only his kinsmen and women and those of his mother are the persons who would best assist him in getting Nigeria on the right track, then so be it. Well, the jury has returned and the verdict is devastating. Team Buhari is failing spectacularly and it appears the major reason is his insularity and nepotism.

    It does appear that the members of the President’s inner circle of power and influence acknowledge at a subconscious level that they did not need any qualification more than close family or such ties to him to occupy their exalted offices. Hence, their seeming lack of determination to justify themselves on the basis of stellar performance and overall merit. It is against this background of insouciance that we can understand why exalted officers of state would be so oblivious of the responsibilities of appearance on the national stage, and choosing to indulge in their petty personal and or clannish quarrels to our collective detriment. In this free-wheeling, ethics-free milieu it becomes a legitimate question if the fight against corruption is still alive. The buck however stops on President Buhari’s desk. At the news of Governor El Rufai’s letter of admonitions to him and listening to Emir Lamido Sanusi’s repeated advise on how Buhari could pick up the baton-which has so obviously fallen from his grasp-one becomes hopeful that the falcon may yet hear the falconer. Otherwise, we may discover to our collective doom that time may have passed for the best advice to Buhari, and which would have been that offered by Cardinal Wolsey to Thomas Cromwell:

    “Mark but my fall, and that that ruin’d  me.

    Cromwell, I charge thee, fling away ambition; By that sin fell the angels;…..be just and fear not. Let all the ends though aim’st at be thy country’s, Thy God’s, and truth’s.”-Shakespeare, Henry VIII; act III, sc.2.

     

    • Okoli, a Senior Advocate of Nigeria, is a past Chairman of the Nigerian Bar Association (NBA), Lagos Branch.
  •  Lagos assures inmates of improved welfare

    The Prerogative of Mercy Committee has inspected prisons in Lagos. The fact-finding visit revealed the unhealthy conditions of the wards and cells , reports ADEBISI ONANUGA

    Unlike what obtained in the past when prison visits were embarked upon by sitting Chief Judges of the state to grant freedom to awaiting trial inmates who have been in prisons longer than they would have spent if they have been tried and convicted of an offence, last week’s visit of the Lagos State Prerogative of Mercy Committee had a different mission.

    It was one designed to see the state of the prisons and the conditions under which the inmates live. It was also intended to determine what measures could be taken to decongest the facilities which are presently over populated.

    As it turned out, it was one visit that revealed another dangerous dimension in the prisons, that of poor health conditions capable of becoming an epidemic as against the usual over population of the prisons.

    The Prerogative of Mercy Committee was led by the state Attorney General and Commissioner for Justice, Mr Adeniji Kazeem. The committee also include the Solicitor General, Mrs Funlola Odunlami, the Director, Office of the Public Defender (OPD), Mrs Bukola Salami, Deputy Director, Directorate of Public Prosecution (DPP), Dr. Jide Martins among others.

    Kazeem, after the inspection of the prison facilities, promised that the state government would take steps to improve the health situation of the inmates and reduce mortality rate.

    He said he had taken note of the dearth of drugs at the clinics in the various prisons and promised to seek the support of the state’s ministry of health for provision of drugs to the sick inmates.

    Adeniji, while answering questions from journalists after the visit, lifted the spirit of the inmates  as he disclosed that government has set a committee headed by the Director, Office of the Public Defender (OPD), Mrs Bukola Salami to review the cases of awaiting trials with a view to ensure that the inmates don’t continue to stay in prison unjustly, or die in the process of waiting, particularly those who are on sick bed without access to medication.

    He noted for instance, the case of a security guard, Joshua Zakari who has been in prison for two years on the allegation that he stole a generator and presently suffering from liver problem; Bassey Mathew who is awaiting trial for allegedly defiling a nine year old girl but now on admission at the General Hospital, Lagos for renal failure among others.

    The Justice Commissioner emphasized the need for the federal government to show more interest in the prisons and to work out a system to assists those who are sick, particularly to prevent an epidemic like meningitis likely to be occasioned by severe heat currently being experienced in the state.

    “We don’t want to experience a prison break in Lagos, The prisons is supposed to  reform inmates and not to make them want to make them want to break out on the account of ill-health”, he said.

    Mr Adeniji commended the state Controller of Prisons, Mr Tinuola and his officials over how they have been caring for the inmates noting that they are well behaved in spite of the harsh conditions under which they live in the facilities.

    Earlier,  the Lagos State Controller of Prisons, Mr. Olumide Tinuoye had disclosed that 32 prison inmates died in one year in prison in Lagos owing to their inability to access funds for proper medication and drugs.

    According to Tinuoye, the prisons also lost one female inmate to death last month after being on dialysis for over two years.

    He said that often times, prison officials use their personal money to buy drugs for the inmates while others live on the philanthropic gestures of churches and mosques which have been assisting to provide medication for the inmates.

    The state controller of prisons stated that there are 7,714 in all the prisons across the state,  6,047 of are awaiting trials, 1,390 convicted, 202 already condemned while  75 are serving life sentences.

    He stated for instance that Ikoyi prisons which has a capacity of 800 presently has a total of 2,508 inmates, 461 of which are convicted and 2,047 while Kirikiri Medium prisons with 1,700 capacity has 2,979 inmates out of which 2,634 are awaiting trials while 345 are convicted inmates.

  • Group to CJN: Beware of of Abia politicians

    Agroup, the Concerned Abians in Lagos (CAL), has urged the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, to beware of attempts by some desperate politicians to influence the outcome of the appeal between Uche Ogah and Abia State Governor Okezie Ikpeazu.

    Its coordinator, Chief Kenneth Uchendu, said that the group was aware of moves by some politicians to get justice through the back door.

    According to him, a lady close to the CJN was recently approached by one of the parties to the suit with an offer of hundreds of millions  of naira if she could provide access to the CJN.

    “While we trust the CJN, we are however concerned that this desperate politician will stop at nothing in his desperate moves to get justice at all cost.

    “We are, therefore, appealing to your lordship to endeavour to allow your brother justices be aware of this desperate move,” he said.

    The group did not name the politicians.

    The Supreme Court had reserved judgment in the appeals against the judgment of the Court of Appeal upholding Ikpeazu’s election as governor.

    The apex court fixed judgment for May 12 after Ikpeazu and Ogah, both of the Peoples Democratic Party (PDP), adopted their briefs.

    Justice Okon Abang of the Federal High Court had ordered Ikpeazu to vacate his office as governor. The judge also ordered the Independent National Electoral Commission to issue Ogah with a certificate of return as the governor of Abia.

    However, the Court of Appeal set aside Abang’s judgment. Dissatisfied, Ogah appealed to the Supreme Court.

  • Stakeholders advocate Bar, Bench collaboration in anti-graft war

    Chief Judge of Lagos State, Justice Olufunmilayo Atilade and Lagos State University (LASU) Vice Chancellor Prof Olanrewaju Fagbohun have urged lawyers to support all rules that would help the courts succeed in fighting corruption.

    They spoke at the Asiwaju Babatunde Olusola Benson (SAN) annual public lecture titled: Combating Corruption in a Recession: The Transformative Role of the Bar and the Bench, organised as part of the activities marking the Nigerian Bar Association (NBA) Ikorodu Law Week.

    Fagbohun, who was the guest lecturer at the event, said the crisis of corruption would become more pervasive as long as the bench and the bar continue to come up short in their response to the vice.

    “If the bench and the bar are indeed responsive, they can effectively serve to keep corrupt activities, particularly as it concerns public officers and public institutions, in check”, he said.

    The erudite professor, who is also the Vice Chancellor of the Lagos state University (LASU), urged the bar and the bench to embrace global best practices to fight the negative impact of corruption in the country.

    He lamented public dissatisfaction with the country’s judicial system unlike the situation in developed jurisdictions where courts are among trusted government institutions.

    He regretted that aside from the challenge of delayed justice, the judiciary is enmeshed in controversies of corruption involving both the bar and the bench.

    He admonished the bar and the bench to exhibit preference for an efficient judiciary if the status quo is not to persist.

    The Chief Judge of Lagos State, Justice Olufunmilayo Atilade in an opening remarks also urged members of the legal profession to embrace the fight against corruption.

    The chief judge who was represented by Justice Oke Lawal said, “everybody should play a part in fighting corruption so that we can make Nigeria a noble country. This way, Nigeria can take her pride of place in the comity of nations”.

    Justice Lateef Akapo-Lawal, aligning with the chief judge advised the bar to stop interfering in the work of the bench.

    He said lawyers should be allowed to do their work the way they understood it for a better judiciary.

    In his welcome address, the chairman, NBA Ikorodu, Mr Levi Adikwaone remarked that corruption has become endemic in the country and urged lawyers to play their role in stemming the trend.

  • Lalong condoles with families

    Plateau State Governor, Simon Lalong has commiserated with some bereaved families.

    A statement by his Director, Press and  Public Affairs, Mr. Samuel Emmanuel Nanle, said the governor, a lawyer, sent separate condolence letter to the families.

    They include Dame Pauline Tallen,  over the loss of her husband Mishkoom John Tallen; and Senator John Nanzhip Shagaya  on the death of his wife.

    He also mourned the Deputy Chairman of the Plateau State Council of Ulamas, the late Alhaji Alhassan Sa’ed, who passed on in Kano on  April 5.

    “The Governor described all the deceased as outstanding citizens of Plateau State, whose contribution to good governance and the sustenance of peace will be greatly missed,” the statement said.

  • Fed Govt appoints Adenipekun Hague Arbitration Court member

    The Federal Government has appointed Mr Adebayo Adenipekun (SAN) as a member of the Permanent Court of Arbitration in The Hague, Netherlands.

    The court, established by treaty in   1899, is an inter-governmental organisation providing dispute resolution services for the international community.

    Among others, it administers arbitrations on disputes arising from investment and multilateral treaties. Each signatory country nominates four arbitrators to the court’s pool of experts.

    Adenipekun, an experienced arbitrator, is the Managing Partner of Afe Babalola & Co.

    He   holds   bachelor’s   degrees   in English and Law, as well as a Master’s Degree in Law.

    He is a Fellow of the Chartered   Institute of Arbitrators (UK) and a   Fellow of the Nigerian Institute of   Chartered Arbitrators.

    He is the lead counsel representing Nigeria in an investment arbitration pending before a panel of the International Centre for the Settlement of Investment Disputes   (ICSID), sitting in England.

    A letter by the Solicitor-General of the Federation, Taiwo Abidogun, says: “I am pleased to inform you that the Honourable Attorney-General of the Federation has approved your appointment as member of the Permanent Court of Arbitration.”

    “A letter confirming your appointment has been forwarded to the Court through the appropriate channel. Congratulations and please accept the best wishes of the HAGF.”

     

  • NBA election: Court rules on Gadzama’s suit June 8

    The Federal Capital Territory High Court will on June 8 rule on the preliminary objections brought by defendants in a suit by Chief Joe-Kyari Gadzama, SAN seeking to set aside the Nigerian Bar Association (NBA) Elections which held last July.

    Justice Olukayode Adeniyi last Friday heard arguments by parties on the preliminary objections.

    Plaintiff’s lead counsel Chief Sebastine Hon (SAN) had urged the court to hear the application seeking to set aside the swearing in of Mr. Abubakar Mahmoud, SAN (15th Defendant) as NBA President.

    But the court ruled in favour of the defendants who argued that the preliminary objection must be taken first.

    The defendants’ counsel then urged the court to strike out Gadzama’s suit for lack of jurisdiction. They argued that since the plaintiff allegedly failed to comply with Section 16 of the 2015 NBA Constitution which provides for an initial recourse to the NBA Dispute Resolution Committee (DRC), the court lacked the jurisdiction to entertain the matter.

    Represented by Mr. Jibrin Okutepa, SAN, the 13th defendant NBA’s ICT Partner, Grace Infotech Limited (Law Pavilion), further argued that the plaintiff had allegedly admitted in his statement of claim to ‘hacking’ into its computer network to obtain evidence.

    He said this was contrary to the Cybercrime (Prohibition, Prevention, Etc.) Act, 2015 and contended that the plaintiff “did not come with clean hands” and could not therefore be heard by the court.

    The court, however, held that the alleged ‘hacking’ ought to be proved by leading evidence.

    In response, Hon argued that it was premature for the court to rule on the issue of Section 16 of the NBA Constitution at the preliminary stage, adding that the DRC is being challenged in the substantive suit. He also argued that the authorities cited by the defendants were not applicable to the case.

    The court, however, drew the attention of parties to the judgment of Justice John Tsoho of the Federal High Court which voided the amended 2015 NBA Constitution. Justice Adeniyi then directed counsel to advert their minds to the said judgment, adding that he may invite counsel to address the court on the issue.

    Aside from Hon and Okutepa, Yunus Ustaz Usman SAN represented the first to sixth defendants,  Dr. Garba Tetengi SAN appeared for the seventh defendant while K. K. Eleja SAN represented the eighth to 12th Defendants. A. A. Malik stood in for the 14th defendant while Paul Erokoro SAN represented the 15th defendant.

  • Imported goods: Are vehicle owners liable to pay duties?

    A recent custom policy directing private owners of imported vehicles to ensure the payment of relevant custom duties has generated a lot of public complaints and opprobrium. The Comptroller-General of the Nigeria Customs Service (NCS) reportedly issued the directive in a letter dated 2nd March, 2017. The said letter approved “a grace period of one month between Monday 13th March to Wednesday 12th April, 2017 for owners of all vehicles within the country whose customs duty has not been paid, to do so”.

    The alleged letter also advised all motor dealers and private owners of all vehicles imported into Nigeria to “visit the nearest Customs Zonal Office to pay the appropriate customs duty on them”. The Comptroller-General of the NCS was also alleged to have predicated his approval of the grace period and aggressive decision to go after the motor dealers and private vehicle owners on the NCS’s “anti-smuggling operations” and the need to seize as well as prosecute owners of such smuggled vehicle after the approved deadline.

    Additionally, the letter also suggested that all private vehicle owners who are not sure that the relevant customs duty on the cars had been paid at the point of purchase should approach the Zonal Offices of the NCS for authenticity/verification “with a view to complying with the provisions of the law”. The above summarizes the content of the approval of the Comptroller-General of the NCS as contained in the letter signed by one Joseph Attah, the Acting Public Relation Officer for and on behalf of the Comptroller-General of the NCS.

    This policy has generated a lot of concern and fear among private car owners and the general populace thereby pressuring the NCS to put its implementation on hold. Be it noted that this paper does not question the powers of the Nigeria Customs Service to collect relevant duty on imported goods, including vehicles. The paper also does not dispute the existence of attendant punishments for failure to pay the relevant duties as prescribed by law. However, this discourse suggests that it is doubtful if NCS indeed has the powers to impound a privately owned vehicle purchased by another person from the open market or from a person who is not a motor dealer or from an importer of the said vehicle. Though the policy has been put on hold, the public opprobrium likely to be generated should the NCS eventually proceed to implement the policy may go beyond imagination. This includes and may not be restricted to multiplicity of actions in court and protests from vehicle owners who bought from the open market without notice of any encumbrance. In resolving this issue, this paper becomes instructive as it examines the basis for charging custom duty as prescribed in the Custom and Excise Management Act (CEMA). It specifically identifies the persons lawfully obligated to pay custom duty on imported goods while also analysing the powers of the NCS to deal with non-compliance of the law with a view to identifying the limits of the exercise of such powers by the NCS.

    Basis for Charging Custom Duty

    Generally speaking, taxation is a form of compulsory levy imposed by a superior legal order for the purpose of generating revenue for the superior legal order otherwise known as government. Custom duty is one of those species of taxation used as a fiscal tool to control an economy of a state depending on the particular needs of the state at a time in an open economy. The custom duties are imposed for different reasons and these include: revenue generation, control of consumption, redistribution of income, production capacity building, technology development to mention but a few.

    Custom duty is an example of indirect taxes considering the fact that its burden is transferable to the final consumers of the goods and services subject to such duty. Many scholars have posited that this specie of taxation is imposed on goods and services which assertion may not be faulted as the incidence of the duty is measured by the value or volume of the transaction involved. It is however opined that the basis for charging or imposition of custom duty is the movement of goods and services produced outside shore of another country into Nigeria as a sovereign state i.e. importation per se.

    Needless to state that this form of tax covers the import transactions as may be engaged by individuals, corporation Nigerian nationals and foreign investors. It is a settled principle of law that no citizen can be denied of its income, revenue, resources or assets except in accordance with the provisions of law. Since it is a form of taxation, its imposition is governed by legislation i.e. the Customs & Excise Management Act, Cap C45 LFN, 2004 (as amended) (CEMA). It is important to note that the charging, imposition, collection and administration of the legislation are the sole responsibility of the body created and known as the Custom Service as provided in Sections 3 and 4 of CEMA.

    • To be continued