The Nation Newspaper

Category: Law

  • ‘RMAFC should fix salaries of govt workers’

    The Revenue Mobilisation Allocation and Fiscal Commission (RMAFC) should fix salaries of all government workers and not those of political office holders only, activist-lawyer Collins Okeke, has said.

    He believes empowering the RMAFC to fix salaries across board would curb the special treatment accorded elected public office holders to the detriment of workers.

    Okeke, who spoke at a briefing in Lagos by a civil society coalition, One Voice, said: “Why should the RMAFC fix salaries for only the president, vice president, governors and others? It should fix salaries for everybody, from president to the minimum wage earner. Does the minimum wage earner who works for the government not deserve a wardrobe allowance?

    “When it comes to the minimum wage, it is being debated; it is in the pipeline. Palliatives are also in the pipeline, but the wages of public officials is never in the pipeline. RMAFC fixes the same salaries for governors. Judges in all states earn the same thing. But when it comes to minimum wage, governors will say all states are not equal. Why don’t they consider the wealth of each state before fixing governors’ salaries?

    “Let us have a harmonised wage structure. Lawmakers, for instance, should not have a different body that fixes their salaries. This dichotomy should be ended. We must democratise salaries,” Okeke said.

    One Voice Media Committee chair Pastor Adedeji Adeleye said labour ought to have declared strike on the effects of the fuel price hike on workers’ wages, and the effects on the ordinary citizens, rather than over the fuel price hike.

    He said: “Labour needs to query government’s double standard – why the RMAFC should continue to fix salaries and allowances of political office holders and elected officials while the Federal Civil Service Wages Commission fixes salaries for low cadre workers. There is need to harmonise the two commissions to fix all workers’ salaries and allowances from bottom up.”

    One Voice said even while sourcing forex at the secondary market, government must monitor and control their activities to ensure that Nigerians are not further pauperised.

    “There are questions left unanswered: What happened to the crude oil allocation for local refining, that NNPC claims it uses in the form of oil swap? Two refineries (Port Harcourt and Kaduna) are operating at 20 per cent capacity. What is the official price for the refined petroleum products coming out of these refineries? Government should explain to Nigerians the various palliatives and the implementation process,” the group added.

  • Community seeks justice for slain youth

    • Police deny killing him

    The Odogwu community in Ibaji, Kogi State, has urged the Inspector-General of Police Solomon Arase to order an investigation on the alleged killing of their son, Julius Ilemuda, on March 12.

    The community, in a petition, said officers from the Idah Area Command, killed their son. But the police have denied the allegation.

    An eye witness, Daniel Chidokwe, said his son Omachonu was amongst those arrested and bundled away by the police.

    “The deceased Julius IIemula was dragged from his room and shot at the back of the house by policemen in broad day light,” he alleged.

    Another resident, Gabriel Omale, said the problem began with a land dispute.

    He said nine other persons arrested by the police were detained for four days before being released after allegedly paying for their freedom.

    An indigene of the community, Monday Ilemuda, said they have, through their lawyer Mr F. Ojefu, lodged a petition at the Force Headquarters, Abuja for necessary action against the officers.

    A fundamental rights suit, he said, has also been filed at the Federal High Court in Lokoja.

  • Court reverses receiver/manager’s appointment

    A Federal High Court in Lagos has set aside the appointment of Chief J. Akingbola Akinola, as the Receiver Manager of Avian Specialties Nigeria Limited.

    This followed an application by the firm and its director James Oluwole.

    Justice Ibrahim Buba  said the appointment was made in defiance of a January 29 ex-parte order.

    The court ordered Akinola, who was appointed Receiver/Manager by the Asset Management Corporation of Nigeria (AMCON), to vacate Avian Specialties’ premises and its farm which possession was taken on March 23.

    The court  held  that the company could reverse all steps taken by Akinola while serving as Receiver/Manager.

    Justice Buba held: “Pursuant to the disciplinary jurisdiction of the court, an order of the honourable court setting aside the appointment of Chief J. Akingbola Akinola as Receiver Manager of Avian Specialties Nigeria Limited which appointment was registered with the Corporate Affairs Commission on 15th February, 2016 in disregard or defiance of the ex-parte order of the court on 29/01/16 restraining the Assets Management Corporation  of Nigeria from appointing itself or any other person as Receiver Manager over the affairs of the company.”

    A federal high court sitting in Abuja had in a similar application on May 23 discharged the ex-parte order that it earlier granted in favour of AMCON on  and Chief Akinola.

    The court took the decision after hearing arguments from counsel to Avian stating that the ex-parte order was obtained through willful concealment.

    The Abuja court, while resolving the matter in favour of Avian Specialties stated that upon reading the affidavit in support of motion deposed to by Evans Jones Osimerha  and upon hearing him move in terms of the application with Exhibits A-D, delivered its ruling and discharged the earlier order.

    Avian through its counsel, Osimerha, had argued that the ex-parte orders granted in favour of AMCON and Chief Akinola on March 15, 2016 were obtained through willful concealment or suppression of material facts, in bad faith and out of abuse of the judicial process.

  • Way out of conflicting judgments, by SANs, others

    Way out of conflicting judgments, by SANs, others

    Conflicting judgments from courts of concurrent jurisdiction remain a problem. Last week, the Port Harcourt and Lagos Divisions of the Federal High Court gave opposing orders, recognising two factions of the Peoples Democratic Party (PDP). Few months ago, the Chief Justice of Nigeria (CJN) Mahmud Mohammed observed that the Court of Appeal gave conflicting decisions in some election petition cases. How can these be avoided? Former Nigerian Bar Association (NBA) presidents Wole Olanipekun (SAN), Joseph Daudu (SAN) and other lawyers proffer solutions. JOSEPH JIBUEZE sought their views.

    Conflicting judgments from courts of concurrent jurisdiction keep recurring. There seems to be no immediate solution in sight. Last December, Chief Justice of Nigeria (CJN) Mahmud Mohammed decried the problem.

    Addressing Justices of the Court of Appeal (JCA) in Abuja during their annual conference, the CJN said: “We must not ignore the negative perception that is occasioned by conflicting judgments delivered at various divisions of the Court of Appeal.

    “Such judicial contradictions only result in untold hardships to litigants in their quest for justice. They further cast your lordships in an unfavourable light and leave the judiciary at the mercy of innuendos, crass publications and editorials.”

    Two judges of the Federal High Court, Justice M. Liman of the Port Harcourt Division and Justice Ibrahim Buba of the Lagos Division last Monday and Tuesday issued conflicting orders on the Peoples Democratic Party (PDP) leadership crisis.

    Three people have been laying claim to the leadership of the troubled former ruling party. They are  Senator Ahmed Makarfi, the caretaker chairman appointed in Port Harcourt, Prof. Jerry Gana, the Interim chairman picked in Abuja and Alhaji Ali Modu Sherriff, who was removed by the governors.

     

    The first order

     

    Justice Liman issued an ex-parte order following an application by the PDP in its suit against Sherriff, Prof Adewale Oladipo, the Independent National Electoral Commission (INEC), the Inspector-General of Police (IGP) and the Department of State Services (DSS).

    He ordered: “The first and second respondents (Sherriff and Oladipo) or any and/or all of the national officers, the members of the National Executive Committee and the members of the National Working Committee who were removed from office by the national convention of the plaintiff held on Saturday,  the  21st of May,2016 in Port Harcourt, Rivers State be and are hereby restrained from parading/holding out either individually or collectively as the chairman, Secretary or national officer or member of the National Executive Committee or National Working Committee of the plaintiff, nor do anything howsoever to negate or frustrate the decisions reached at the said convention pending the hearing and determination of the motion on notice.”

     

    The second order

     

    Justice Buba made his ruling in a suit by Sherriff, Oladipo and Alhaji Fatai Adeyanju against INEC and the PDP.

    He directed the IGP to enforce an earlier order he made on May 12 barring the party from conducting elections into offices of national chairman, national secretary and national auditor.

    The judge held: “The IGP is hereby directed that there is a matter pending in court filed by the warring PDP and the court has made an order of interlocutory injunction in respect of offices occupied by the plaintiffs and there are applications and appeals pending.

    “The police is directed to enforce the orders of this court until all applications before the court are disposed of, so that there will be no anarchy.

    “That Senator Ahmed Makarfi and Senator Ben Obi too shall be served and heard as to why the order of this court is ignored and show cause why their appointments should not be nullified.”

    The implication of the two ruling, analysts say, is that both Sherriff and Makarfi could validly claim to be in charge of the PDP, based on the orders, until vacated or set aside on appeal.

     

    A recurring problem

     

    After last year’s general elections, no fewer than 749 appeals emanated from the decisions of the various tribunals, which were determined by the Court of Appeal. Conflicting judgments were given in some of them, which were resolved by the Supreme Court.

    At a two-day conference by the Court of Appeal to review the 2015 election cases, INEC Chair, Prof Mahmood Yakubu expressed worry about the problem of conflicting judgments. He said it sometimes created confusion for the commission.

    Justice Sidi Bage of the Court of Appeal said conflicting decisions arose from the interpretation of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 as it relates to the procedure for initiating pre-hearing session.

    He said there were also conflicting verdicts over use of card reader machine in proving electoral fraud, and use of extrinsic evidence to establish electoral offences such as electoral manipulations and violence.

    He noted that there was conflict in the Court of Appeal’s treatment of the procedure for accreditation of voters other than the one prescribed in the manual for the conduct of election.

    As a way out, he suggested that judicial officers should dwell less on technicalities in considering election cases.

    The Court of Appeal, he suggested, should initiate an internal law report, either electronically or in print, to guide its justices.

    Justice Bage, who referred to a recommendation by retired Justice of the Supreme Court, Niki Tobi, said a mechanism should be in place to ensure that once a judgment is rendered by a division of the Court of Appeal, it is immediately circulated to other divisions to engender uniformity and consistency in verdicts.

    Justice Helen Ogunwumiju of the Court of Appeal suggested among others, the need for an active Court of Appeal website, where decisions of each division could be published, to be easily accessed by other divisions, to eliminate instances of conflicting decisions.

    She frowned on the practice where parties file multiple appeals on a judgment and urged the Nigerian Bar Association (NBA) to sensitise its members on the Supreme Court position on the filing of unnecessary and frivolous interlocutory appeals and multiple cross appeals against a judgment.

     

    Olanipekun, Daudu, Oguntade proffer solutions

     

    Two former NBA presidents Chief Wole Olanipekun (SAN) and Joseph Daudu (SAN) suggested ways to tackle the problem.

    Olanipekun said judges should not be too eager to grant every ex-parte application brought by lawyers.

    “Law is not that an ass as people think, and assuming it even has the semblance of an ass, those who administer or practice it, that is, the lawyers and judges aren’t asses.

    “Decisions of courts should be based primarily on precedents and the imperatives of relevant statutes and not really on whims and caprices of judges and lawyers.

    “There are laid down procedures and precedents for the grant of an ex parte order by any judge. T hat is, the applicant must establish a case of extreme urgency; the circumstances must be compelling.

    “He mustn’t have been tardy; he mustn’t be guilty of delay, etc. But it appears to me that all these imperatives aren’t being followed or respected nowadays as ex parte orders fly all over and from most of our courts to the embarrassment of the legal profession.

    “We even see instances of judges granting ex parte orders where the statutes clearly forbid them from doing so. Some lawyers have also thrown caution to the winds by applying for ex parte orders on behalf of clients in clearly ridiculous situations.

    “The late Chief Justice Bello once lamented that it’s only in Nigeria that an ex parte order would be granted at the instance of one disgruntled student forbidding a university from going ahead with its convocation or on behalf of an individual to restrain NEPA from supplying electricity to a whole town!

    “It appears we are re enacting the ugly days that led to the cancellation and annulment of the June 12,1993 presidential election through an ex parte order, and Gen Sanni Abacha mischievously stated that he sacked the Ernest Shonekan interim national government in order to save the judiciary from plunging the country into anarchy,” Olanipekun said.

    He described the seeming conflicting orders by Justice Buba and Justice Liman as “embarrassing” and urged the National Judicial Council (NJC) to intervene.

    “Frankly speaking, the ex parte orders, both for and against on the recent PDP convention are very embarrassing, to say the least. Both the NJC and respective heads of courts should wade in.

    “I’ve noticed a sad trend as well in the sense that some particular lawyers have made applications for and grant of ex parte orders their specialised practice,” he said.

    Olanipekun believes that conflicting orders on ex parte applications as well as conflicting judgments from the Court of Appeal are an extension of indiscipline and failure to follow precedents.

    He suggested that divisions of appellate courts should have a means of exchanging and studying each others’ judgments.

    Olanipekun said: “The Court of Appeal cannot statutorily overrule itself. It’s previous judgment is binding on it, except where it has been upturned by the Supreme Court.

    “When the Court of Appeal was first established with divisions in Lagos, Ibadan, Enugu, Benin and Kaduna, its judgments from the various divisions were being exchanged on weekly basis and one cannot remember a single incident or accident of conflicting decision from any of the divisions.

    “The story is far different now, but the bottom line is that all these pose a very serious threat not only to the administration of justice, but also to the legal profession at large.

    “We mustn’t allow the profession to be plunged into opprobrium. All of us must caution ourselves and apply the brake now,” said Olanipekun.

    Daudu said due to the very large expanse of Nigeria’s land mass and its attendant communication hiccups, it appears in genuine situations that conflicting judgment in rare cases cannot be avoided.

    “But the present strain or feature of conflicting orders in the PDP cases arises from forum shopping,” he said.

    According to him, conflicting orders are avoidable if “forum shopping” based on selfish interests is jettisoned.

    “In my view, cases of contract and tort can only be commenced either where the defendant resides or where the cause of action occurred.

    “Consequently, the only places with jurisdiction are Port Harcourt (where the convention was held) and Abuja (where the PDP headquarters is located). That, however, is if the Federal High Court has jurisdiction to inquire into the internal activities of a political party.

    “If not, then the parties should have recourse to the state high court where the cause of action arose or where the defendant resides.

    “I have stated the position so as to show that conflicting judgments are avoidable and are usually the product of either a selfish interpretation of the law or forum shopping i.e. going to obtain orders from favourably disposed judex. Either way it is objectionable and condemnable,” Daudu said.

    Oguntade said by the doctrine of “stare decisis”, a high court is bound to follow decisions of the Court of Appeal and the Supreme Court, being superior courts. It is, however, not bound to follow a decision of a court that has co-ordinate jurisdiction, as such decisions, he said, are only of persuasive authority.

    He said the conflicting decisions in the PDP cases are “indubitably the consequence of a brazen abuse of process by the parties involved.”

    According to him, following the institution of the first action, it amounted to an abuse of process for the second action to be filed on the same subject. To him, the second action ought to have been subsumed in the first suit.

    Oguntade added: “The court ought to have declined jurisdiction in the second action provided the existence of the first action was brought to its attention as I expected it would have been done.

    “If this was done and the judge in the second action nevertheless decided to proceed, then the judge would have acted improperly and should be sanctioned appropriately.

    “Also, lawyers who proceeded to file the second action despite being fully aware of the pendency of the first action would have acted improperly and a case of misconduct may be made against them.”

    He said issue of different divisions of the Court of Appeal giving conflicting decisions on similar facts, especially in election petitions, is “a very big problem and makes nonsense of the law much to the chagrin of every right thinking person.

    “I  will want to believe that the problem is due to an infrastructural deficit where one court is not aware of the decision of the other court before rendering its own decision.

    “Given the crucial position occupied by the Court of Appeal in the Nigerian Justice system, I will expect judgments of one court to be made available to other divisions immediately upon delivery, in real time.

    “While one division is not bound to follow the decision of another, it ought not to deliver its decision by deliberately ignoring the other.

    “It should at least consider the first decision and then give justifiable reasons why it will not follow it. This is a matter that has to be taken seriously and handled by the President of the Court and I believe that steps are already being taken to remedy this.

    “I will go further to say that where one division is fully aware of the decision of another and nevertheless goes on to give a contrary decision without any reference to the first decision, this should amount to an abdication of judicial responsibility and ought to be sanctioned appropriately,” Oguntade said.

    Lagos lawyer Yemi Omodele said conflicting orders can happen as judges only decide on facts before them. He urged any dissatisfied parties to appeal. According to him, it behoves the Court of Appeal and the Supreme Court to set matters straight.

    “So, if it gets to the Court of Appeal, it would be streamedlined, hence it would not be conflicting again because that is the purpose of having appellate courts. They will make sure that the conflict is corrected.  But one cannot say that the judges who made those rulings made a mistake,” Omodele said.

  • Review banking law, says Olanipekun

    Review banking law, says Olanipekun

    • SAN presents book

    A Senior Advocate of Nigeria (SAN), Dr. Oladapo Olanipekun, has called for the review of the Banks and Other Financial Institutions Act (BOFIA) of 1991.

    He said the law has not undergone a “major amendment” since its enactment.

    Olanipekun spoke with reporters in Lagos at the launch of a book: Banking: Theory, Regulation, Law and Practice, which he edited and contributed three chapters to.

    Bank failures, he said, should be blamed on regulators rather than the banks.

    Olanipekun said: “In banking, when there is failure in the market, it’s usually termed as regulatory failure. If there is a security breach at home, the first thing you need to do is to reevaluate your security arrangement.

    “Unfortunately in Nigeria, whenever there is regulatory failure, we don’t look at the regulator. We always look at the bank. I think this is borne out of lack of proper understanding of the nature of banking.

    “Banks will always take risks. What regulators should do is to attempt to mitigate the effect of the risk that banks take. Unfortunately, we lay more emphasis on the bankers rather than the regulators.

    “The principal statute that regulates banks in Nigeria is the Banks and Other Financial Institutions Act of 1991. It has not undergone any significant amendments and it’s now about 15 years old.

    “So, we’re hoping that the issues that have been discussed in this book will trigger a reform process hopefully, if policy makers can use the book.”

    According to him, the book is borne from the dearth of literature on the subject, both from the legal and practical perspectives.

    The lack of literature, he said, resulted in a very low level of understanding of banking, which he described as the most critical aspect of the economy.

    He said he tried to write the book alone, but realised it was “a very optimistic attempt” because banking, according to him, is very wide and could be approached from a regulatory, legal and practical perspectives.

    So, he sold the idea to the contributors. Six months of editing resulted in what he described as “a proper textbook rather than a collection of essays”.

    There are 25 contributors to 22 chapters of the 823-page book, including Lagos State University (LASU) Vice-Chancellor Prof Lanre Fagbohun; former Dean, Faculty of Law, University of Lagos Prof Imran Smith (SAN); a judge of the Federal High Court Justice Nnamdi Dimgba, who holds a Ph.D, and a UNILAG law lecturer Dr Yemi Oke.

    Others are Dr Joseph Nwobike (SAN), Prof Fabian Ajogwu (SAN), Malam Yusuf Ali (SAN), Dr Adewale Olawoyin (SAN), Mr C. A. Candid-Johnson (SAN), Prof Bakole Shodipo, Dr Simon Akayaar, Dr Jumoke Oduwole, Dr K. Ekwueme, among others.

    The reviewer, Uche Nwokedi (SAN), said: “Given that the anticipated use of the book is not restricted to lawyers, the authors strived to keep the text in plain English, devoid of legalese and outdated words. Interestingly, the book is published in Nigeria by Au Courant. It is published with good quality materials and neatly bound in hard covers.

    “The publication is well laid out, easy to read and easy to reference or cross reference. The topics are thoughtfully chosen and treated. It is rich and covers virtually every aspect of banking law and practice in Nigeria and beyond the shores. It is easily the most comprehensive publication on banking regulation and supervision in Nigeria that I have come across in 32 years of legal practice. It is a comprehensive one-stop shop on banking law and practice. Well done.”

    The guest speaker, Chief Operating Officer of Barclays Bank Nigeria Mr Sadiq Abu said financial crises could occur irrespective of the regulatory architecture.

    He said the United States and Nigeria with multiple banking regulators, and the United Kingdom with a single regulator, all had financial crises.

    According to him, there is no single magic bullet to solving regulatory failures. He suggested that a framework be designed that “takes into cognisance our financial sector peculiarities.”

    Former Nigerian Bar Association (NBA) president Chief Wole Olanipekun (SAN) said when his son mentioned the book to him, he thought it was a pamphlet.

    “I never knew such effort was put into the book. When I read it, I was captured by the beautiful prose. It is a beautification of jurisprudence. Oladapo, we’re so, so proud of you,” he said.

    At the event were Justice John Inyang Okoro of the Supreme Court, who wrote the book’s foreword, a professor of law Gabriel Olawoyin, who chaired the event, Mr Gbenga Oyebode, who presented the book, former Central Bank of Nigeria (CBN) Deputy Governor Tunde Lemo, former NBA president Okey Wali (SAN), Justice Chidi Uwa and Justice Chinwe Iyizoba, both of the Court of Appeal, Justice Lateef Lawal-Akapo of the Lagos State High Court, and Justice Adesuyi Olateru-Olagbegi (rtd).

    Also present were former Intercontinental Bank Managing Director Dr Erastus Akingbola, former Civil Liberties Organisation President Mrs Ayo Obe, Mrs Doyin Rhodes-Vivour, Dele Adesina (SAN), Rickey Tarfa (SAN), Dr Joseph Nwobike (SAN), Chuka Agbu (SAN), Sylva Ogwemoh (SAN), Kemi Balogun (SAN), Bioldun Layonu (SAN), Abiodun Owonikoko (SAN), Dr Olu Daramola (SAN), Kemi Pinheiro (SAN) and Eyitayo Jegede (SAN), among others.

  • Wanted: New national order

    Wanted: New national order

    Former Nigerian Bar Association (NBA) president Dr Olisa Agbakoba (SAN) has identified issues President Muhammadu Buhari should address. He appraised the Buhari administration after one year. JOSEPH JIBUEZE was at the briefing.

    On insecurity

     

    The President has done well with the Boko Haram crisis. But unlike late President Yar Adua, the Niger Delta crisis is seemingly out of control.  With oil production at about 900 Bpd, this is a danger signal. The President needs to adopt a more flexible approach. This also extends to pro Biafra agitators. Part of the flexible response is set out below:

    The President must go back in history and borrow a leaf from President Roosevelt who ably dealt with the shock of the great depression that ravaged the United States of America when he became the US President in the 1930s. Nigeria is in utter chaos and disorder. This greatly affects the nation. The disease of disorder has eaten deep into our national fabric. The absence of order has badly damaged the national psyche. Love of country is absent. It is suggested that government works out a framework to reverse disorder and instil discipline. The issue of national order is closely linked with a new constitutional order. It is strongly recommended that priority should be given to the national question, and it should be resolved urgently. The nation will not settle or move forward without solving the issue of disorder.

     

    On weak political structure

     

    The most critical pillars are the political arrangements and agreements that bind Nigerians in one nation. We have not lived in peace and harmony. Nigeria is a fractured and divided nation. The Amalgamation agreement of 1914 failed. The colonial agreements in the shape of orders in council promulgated by the English crown failed us. The post-colonial constitutions and their military counterparts all failed. The result has been long years of national disorder and disharmony that has impeded economic development and political stability. This is a challenge the President must engage.

     

    On need for a new

    national order

     

    The President can build a new national order by recognising our diversity and managing it in an inclusive process that would lead to an agreed constitution by all Nigerians. The president must refrain from calling yet another wasteful national conference. All that is needed is a comprehensive review of the reports of the national conferences. It will be a very difficult but not impossible task. The key to arriving at a new constitution is isolating what Nigerians will agree to immediately. I believe Nigerians will accept the need for a balanced federation. We must strive for a balanced federation and decentralisation of powers from federal to state government. The centre is too strong and can pass responsibility out of the 98 items of power, under its exclusive control, to the states. This will balance up the federation. It is recommended that a graduated process of constitutional amendments should be introduced to replace failed holistic attempts to write   new constitutions in one fell swoop. Creating a new national order will be very difficult but not an impossible task. The effect of a national order will be stabiliaation and national rebirth.

     

    On taming corruption

     

    Corruption is endemic in Nigeria and to reverse it requires strong new institutions. There has to be roots and branch reform of the anti-corruption agencies if we must succeed in slowing down corruption before even thinking of reversing it.

    Salaries and emoluments voted to our legislators by themselves is about 25 per cent of our national budget. This is unconstitutional because it is not approved by the Revenue Mobilisation and Fiscal Commission. Stopping this outrageous conduct on the part of the legislators is, with respect, the litmus test in assessing the sincerity of the anti-corruption agenda. It is strongly recommended that the NNPC be fundamentally reformed. Corruption is also manifest in over bloated budgets for the presidential villa and government houses, corrupt/weak public procurement procedures and abuse of discretion by ministers in the award of contracts. All these have taken a major toll on our resources and encouraged corruption. The first crucial challenge is for the President to stop these aspects of corrupt practices and introduce major spending cuts.

     

    On recession

     

    Experts are unable to agree on whether Nigeria is in a recession or depression. Whatever the position, 5 conservative quarterly low GDP performances have had a massively negative impact. From Q4 2014 to Q1 2016 Nigeria has been in terrible economic straits. The critical nuggets to turn things around must be put in place right now because they are not in place. Confusion as to whether we are liberalising or regulating different aspects of our economy is keeping investors away. A good example is the Petroleum Industry. The only way Nigeria can grow and sustain development to attract 5-10 GDP is to have an open deregulated economy. This will bring hardship but with a robust social benefit agency to properly implement welfare package in the Budget a substantial cushion can be provided. The priority must be to diversify the economy and make it less dependent on imports. Nigeria has long depended on crude oil as if it is the only hydrocarbon to the utter neglect of gas. The economy heavily relies on oil revenue and is vulnerable to price shocks in oil and the associated risk to national stability. The most recent volatility in oil prices suggest that we must start to diversify our revenue income streams by developing non-oil tradable sectors.

     

    On need for diversification

     

    A clear strategy, model and plan for economic diversification both horizontally and vertically is necessary. Horizontal diversification should explore new opportunities in the same oil and gas sector. There are at least 36 value added products to be explored in the extraction of crude oil. Vertical diversification means a shift from the oil and gas sector to other sectors, Agriculture, Services, Maritime, Aviation/space, Manufacturing, Health, Sports etc. Pursuing economic diversification will make the economy less vulnerable to the boom and bust cycles of oil and natural gas prices. A model we can follow is the United Arab Emirate that has successfully diverted out of oil into new revenue sources.

     

    On forex policy

     

    Nigeria’s Forex policy is unclear and uncertain. We have CBN rates, rates for fuel importers, rates at autonomous markets and rates at the parallel Market “black Market”. This breeds corruption from differentials in the four markets.

     

    On his verdict

     

    There is no doubt the absence of National Order has hampered the President from delivering on most of the issues.  This government needs to stop looking at the rear view mirror. It needs to develop a clear political and economic vision for the country. At the moment this does not exist. Therefore, I have moved from being cautiously positive to cautiously negative.

  • ‘Why Extradition Act needs amendment’

    An associate counsel at a Lagos law firm, Marine Partners, Chibueze Muobuikwu, examines how to make the extradition law work better.

    Provisional Warrant for Arrest

     

    Request for provisional arrest is usually made by the requesting country as matter of urgency, especially if the fugitive is about to abscond. In this instance, no evidence is required; information about the fugitive criminal will suffice.  By section 8 of the Extradition Act, the Magistrate can issue a provisional warrant for the arrest of a fugitive criminal whether accused of or unlawfully at large after conviction of an extradition offence. However, the Magistrate shall forthwith send a report of the facts to the Attorney General, together with the information and evidence on which he acted, and on receipt of the report the Attorney General may, if he thinks fit, order the warrant to be cancelled and the fugitive criminal, if already arrested to be released.  The fugitive criminal when arrested, shall be brought before the Magistrate, who shall either remand him in custody or grant him bail, pending the receipt from the Attorney General of an order signifying that the request for the surrender of the criminal has been received or an order for the cancellation of the warrant and the release of the fugitive. In this instance, the Magistrate shall have powers to remand the fugitive as if he was brought before him charged with an offence within the jurisdiction of the Magistrate.

     

    Commital or Discharge of

    the Prisoner

     

    It is noteworthy that the purpose of hearing is not to ask the fugitive criminal if he desires to be extradited. The purpose is to determine whether the request made shows sufficient cause to warrant the extradition.

    When the fugitive criminal is brought before the Magistrate on warrant or on provisional warrant upon the order of the Attorney General, the Magistrate shall proceed with the case in the same manner as near as may be, and shall have the same jurisdiction and powers, as if the fugitive were brought before him charged with an offence committed within his jurisdiction.  The Magistrate shall receive any evidence which may be tendered to show that the offence of which the fugitive criminal is accused or alleged to have been convicted is not an extradition offence or that the surrender of the fugitive is for some other reason precluded by the Act or by the extradition agreement in force between Nigeria and the country seeking his surrender.  If the case is an extradition offence, and there is a warrant issued outside Nigeria authorising the arrest of the fugitive criminal, the Magistrate shall satisfy himself that: (a) The warrant is duly authenticated, and relates to the prisoner; (b) the offence of which the fugitive is accused is an extradition offence in relation to that of the requesting country…The Magistrate shall commit the fugitive to prison to await the order of the Attorney-General for his surrender.

    If the fugitive is alleged to be unlawfully at large after conviction for an extradition offence, and there is a certificate of conviction to that effect, the Magistrate shall satisfy himself that: (a) The certificate of conviction records a conviction to which the Act applies, is duly authenticated and relates to the prisoner; (b) The offence of which the fugitive is stated to have been convicted is an extradition offence in relation to that country; (c)       The surrender of the fugitive is not precluded by the Act (especially, section 3(1)-(6) of the Extradition Act) or the extradition agreement between the requesting country and Nigeria or the order.

    The Magistrate shall commit the fugitive to prison to await the order of the Attorney General for surrender.

    However, if committing the fugitive to prison would in the opinion of the Magistrate be dangerous to the life or prejudicial to the health of the fugitive, he may order that the fugitive be detained in custody in any place named in the order instead of the prison, and while detained the fugitive shall be deemed to be in legal custody.  On committing the fugitive to prison, the Magistrate shall inform the fugitive that he will not be surrendered until after fifteen days beginning with the day on which he is so committed, and that he has a right to apply for habeas corpus, after which the Magistrate shall send a certificate of committal to the Attorney General and such report on the case as the Magistrate thinks fit. But, if the Magistrate is satisfied by the evidence before him, he shall order that the fugitive be discharged.

     

    Returnable Offences

     

    According to section 20(1) of the Extradition Act, a fugitive may only be returned for a returnable offence. A returnable offence is defined by the Act as an offence which is punishable by imprisonment for two years or a greater penalty both in Nigeria as well as the Commonwealth country seeking his surrender. By section 11(2) of the Extradition Act, a prisoner serving such sentence as earlier mentioned in section 10 of the Act may at the discretion of the President of Nigeria, be temporarily returned to another country within the commonwealth in which he is accused of a returnable offence to enable proceedings to be brought against the prisoner in relation to that offence, on such condition as may be agreed between the President and the country requesting the surrender of the prisoner. According to the Court of Appeal in Udeozor V. FRN, the essence of the above provision is so that the fugitive criminal will not be surrendered for a trivial offence.

     

    Conclusion

     

    Although, the law on extradition in Nigeria has been rendered redundant for a long while, the readiness of the present administration to collaborate with the foreign countries in the fight against corruption has revived the interest in the concept of extradition in Nigeria. However, in order to strengthen this, there is need for the present Extradition Act to be revised by the National Assembly so as to make the Act tidier, especially in the aspect of the jurisdiction of the court on extradition matters. This would also make the Act to reflect the present situations in Nigeria.

     

    • Muobuikwu can be reached on 07035021885 or chibuezemu-obukwu@gmail.com

  • Status quo ordered as firm challenges Cabotage Act

    The Federal High Court in Lagos has ordered parties to maintain status quo pending the determination of a suit by a firm, Seadrill Mobile Units Nigeria Limited, against the Federal Government.

    Justice Babs Kuewumi directed that hearing notice be issued on the defendants.

    Seadrill is praying the court to determine whether drilling operations fall within the definitions of ‘coastal trade’ and ‘cabotage’ under Section 2 of the Coastal and Inland Shipping (Cabotage) Act.

    It also wants the court to determine whether, based on sections 2, 5 and 22 (5), drilling rigs fall within the definition of ‘vessel’ under the Act.

    The Minister of Transportation and Attorney-General of the Federation are the defendants.

    The plaintiff, through its lawyer Olumayowa Owolabi, is seeking a declaration that drilling operations do not fall within the definitions of ‘coastal trade’ and ‘cabotage’ under Section 2 of the Cabotage Act.

    It also wants the court to hold that drilling rigs do not fall within the definition of vessels under the Act.

    Seadrill is seeking an order of perpetual injunction restraining the defendants or their agents from taking any further steps to harass, intimidate, disturb or stop its rig operations based on any alleged violation of the Cabotage Act. The rigs, said the plaintiff, include the West Capella, the West Saturn and the West Jupiter.

    When the case came up before Justice Babs Kuewumi last Friday, there was no legal representation for the defendants.

    Owolabi told the court that the bailiffs only just effected service of the processes on them in Abuja last Wednesday. He requested for an adjournment for hearing of the pending motions.

    In a supporting affidavit, the plaintiff’s Supply Chain Manager, Steve Taylor, the plaintiff said officials of the Nigerian Maritime Administration and Safety Agency (NIMASA), last November 10, paid an unscheduled visit to the West Capella on board the “Nimasa Oweikenighan” and made an attempt to board the rig without having pre-informed the plaintiff of its intentions.

    After a stand-off which lasted for several hours, the officials demanded evidence of cabotage registration, the crew list of the vessel, waiver approvals for the crew, vessel building waiver and evidence of payment of cabotage surcharge.

    The deponent said NIMASA officials last November 19 paid another unscheduled visit to the USAN Field with the intention to board the plaintiff’s West Capella.

    “Before dis-embarking from the West Capella, the NIMASA agents served a Detention Order dated the 19th of November 2015 on the Master of the West Capella, which indicated that the rig was being detained for failure to register as a vessel with the Agency’s Ship Registry amongst several other alleged infractions,” Taylor said.

    He added that the plaintiff took steps to resolve the issues, yet the detention letter was not withdrawn.

    “Therefore, it is quite worrisome that rather than withdrawing the detention letter, NIMASA issued another letter of non-compliance dated the 14th of March 2016 to the plaintiff.

    “In view of the foregoing, I verily believe that it is in the interest of justice that the questions for determination as contained in the Originating Summons are determined in favour of the plaintiff and the declarations sought therein are granted as a matter of urgency,” the deponent said.

    Justice Kuewumi adjourned till June 17 for hearing of pending applications.

  • Court extends time for businessman

    •Firm denies plaintiff’s claims

    An Ijebu-Ode High Court in Ogun State has  granted the request of a businessman, Chief Adeosun Adebayo, for an extension of time within which to file his reply to the statement of defence by International Breweries Plc.

    The court also granted him an order deeming the reply to the defence as properly filed and served.

    The March 24 application was brought on Adebayo’s behalf before Justice S. E. Akinbiyi by his counsel Mr Wale Ajayi.

    Neither the firm (first respondent) nor its counsel was present when the matter came up last Wednesday, but Adebayo, his counsel Ajayi, the second respondent (Sharelink Proxy Service Ltd) and its lawyer Enitan Fawoye were present.

    Adebayo, in the suit numbered HCJ/9/2016, is seeking redress for an alleged harm done to him by the firm, a manufacturing and bottling company that brews Trophy beer.

    The second respondent is the Managing Director of Sharelink Proxy Service Ltd, Ijebu-Ode, a major distributor of Trophy beer.

    The plaintiff is claiming N100million being damages for shock, pains and sundry inconveniences he suffered on account of the firm’s alleged negligence.

    The claimant is also seeking N50million from International Breweries being cost of damages for loss of life expectancy as a result of alleged injuries to his health.

    In his statement of claim, Adebayo alleged that last July 20, he took ill after drinking a bottle of Trophy beer from the two crates he bought from Sharelink Proxy Service and was treated at a specialist hospital before he could recover.

    In its defence, the firm denied the allegations.

    Justice Akinbiyi adjourned till June 30.

  • Gowon: Where leaders got it wrong

    Gowon: Where leaders got it wrong

    Former Head of State Gen. Yakubu Gowon (rtd) has attributed Nigeria’s economic challenges to the failure to diversify the economy.

    Speaking as guest of  honour at the 2016 annual lecture of Punuka Attorneys and Solicitors, Gowon said leaders who came after him did not sustain his economic initiatives.

    He said had his innovations in agro- allied and chemical industries, steel rolling mills and Liquified Natural Gas (LNG) in the 70s been sustained, Nigeria would have been better for it.

    He said: “If they had sustained these innovations in the Second Development plans of the 80s, we won’t have most of the problems we have in the country today.

    “The ideal situation is to find a balance between extreme interests. There is the imperative need to guide executive involvement in business otherwise, they will guide their own interest against  the interest of the nation.”

    The lecture had the theme: The challenges of balancing the need for protection  of developing economies and the provision of  an enabling environment for foreign investment and trade.

    Senior Partner,  Punuka Attorneys and Solicitors, Chief Anthony Idigbe (SAN) said the topic was chosen due to the current social-economic upheaval.

    “The global meltdown of 2008 has apparently refused to abate. Recent instability in commodity prices such as crude oil has exacerbated the situation for most developing economies. There is apparently need  for developing economies to  look inward on how to diversify their economies . As they endeavour to diversify,  the other economies plan barriers to protect their local producers.

    “The quagmire was aptly captured by Franklin R.  Root when he stated that  ‘the issue of free trade versus protection has been in dispute since the eighteenth century’.

    “The arguments are complex and subtle though the controversy itself is obvious,” Idigbe said.

    Prof. Robert Lawrence, who gave the keynote address, said that there is a new global economic environment which is determined by what is happening in China.

    “Sustainable growth comes from convergence with the productivity levels  that prevail in the rich countries. Technology is the name for the stock of ideas and knowledge that is available for developing countries to absorb  and disseminate throughout their economies

    “This stock does not disappear or dissipate when rich countries grow more slowly or when world trade is less buoyant or  produces bad politics on top,  Chile is rare example of a country that has so far  managed resource rents very well

    “These changes are giving us opportunities to move from manufacturing to the exportation of services.  The real key to growth and big salary is productivity and the average productivity level of the government,” he said.

    Prof. Lawrence identified two types of growth – one based on borrowing as seen in such countries as Greece and others which lived beyond their means, and the other based on what he called commodity  boom.

    “Commodities are volatile in nature, but in this growth you use the good times to save for the bad day. And there is a good growth which is structural transformation–led growth as can be seen in China, India, which moved from  low productivity of traditional products to sustainable structural growth.

    “If government can get 50 percent depreciation of the economy, that amounts to 50 per cent subsidy to the manufacturing firms on a level playing field. There are opportunities in the current global environment but Nigeria is poorly equipped to achieve them.

    “It needs policies that can facilitate structural change, but an appropriate macroeconomic environment with a competitive exchange rate is essential,” Prof. Lawrence stated.

    An industrialist, Chief Sam Ohuabunwa said Nigeria must achieve competitiveness.

    “Government can achieve this by applying incentives to create competitiveness and not by ban,” he said.