The Nation Newspaper

Category: Law

  • Save us! Nigerian prisoners in China cry out to govt

    Save us! Nigerian prisoners in China cry out to govt

    Some 4,000 Nigerians are in detention  in China where they are allegedly subjected to inhuman treatment. They accuse the authorities of using them as human machines. They are urging the Federal Government to intervene, writes JOSEPH JIBUEZE.

    When Mrs Amaka Louis got married, she dreamt of spending the rest of her life with her husband, a businessman. But that dream was cut short after he travelled to China for business but never returned.

    “I’m married but I have been living like a widow for over two years and six months,” she wept.

    “It has been a painful experience for me. I’m pleading with the government to intervene. I haven’t even heard from him all this time. I’ve contacted the Nigerian Embassy, to know if I could speak to my husband. I’ve been calling but to no avail.”

    Mrs Louis is among many who are demanding justice for their relatives who are victims of alleged unfair treatment by Chinese authorities.

    Through a non-governmental organisation, The Patriotic Citizens Initiative, they held an advocacy rally in Lagos, calling for the government’s urgent intervention.

    According to PCI’s director, Osita Osaneme, a lawyer, no fewer than 40 Nigerians are executed yearly or die mysteriously in Chinese prisons, some after undergoing unfair or no trials.

    The families bore placards, some of which read: “China, give Nigerians fair trial;” “China, stop killing Nigerians;” and “Nigerians die monthly in Chinese prisons”.

     

    Prisoners relive ordeal

     

    The prisoners, in a statement, accused the prison authorities of violating their rights. They said they are not allowed to contact their families, nor are they given access to lawyers for proper representation in court.

    According to them, cases are deliberately delayed by the police, prosecutors and judges so as to force suspects to confess to crimes they did not commit. Such delays, they said, last for as long as five years, with the suspects kept in detention until they give in.

    They alleged that prisoners who are sick are not given proper care. According to them, in Guangdon Province prison, suspects are forced to shower with cold water during winter even if it leads to their untimely death. Relatives are also allegedly denied visas.

    “We Africans in Chinese prisons and detention centres are treated as lower humans,” the prisoners wrote.

     

    Treated like human machines

     

    According to the prisoners, their right to call their families is tied to the amount of work they do. Despite being turned to human machines, the pittance given them is not enough to buy toiletries.

    “Our phone bill per month in some prisons is as high as 6RMB, but we are paid as low as 1RMB or 0.5RMB. We labour day after day, yet after serving for even up to 20 years, inmates cannot even boast of up to one dollars savings,” they said.

    Speaking at the rally, Francis Jones, who was detained for over a year, said: “Nigerians in prisoners are used as labourers in producing most things made in China, yet they are not paid up to the minimum wage. They set targets based on what machines produce. If you don’t meet the target, your sentence won’t be commuted.”

     

    Unfair trial

     

    Due to language deficiencies, some Nigerians in detention do not know what is being said during trial, which is conducted in Chinese. Long sentences are handed to first time offenders.

    Jones recalled that he was arrested for allegedly assaulting his Chinese wife. “I was detained for a year and three months without making calls. I was not allowed to contact my people nor were they allowed to see me for an issue that I was asked to come and clear myself.

    “I was accused of violating my wife’s rights; that I touched her, whereas I didn’t, which did not warrant being detained for an hour. Whoever wants to go to China should be careful. Those people are dangerous,” he said.

    On how he was released, Jones said: “My Chinese wife helped me. I fired my first lawyer who wanted to collude with the Chinese to alter my statement. The Chinese hate blacks. All they want is our money. My wife used to pay through her nose for me to be a bit comfortable in prison – just to get fresh air. Sometimes my temperature would rise so high.”

    The prisoners some of them were picked up based on mere suspicions or coincidences, or being at the wrong place at the wrong time.

    “Sometimes people are manipulated into committing crimes they did not intend to. The police will refuse to investigate thoroughly or verify allegations before making arrests,” they said.

     

    Alleged organ harvesting

     

    The prisoners said although some of them are found guilty as charged, it is degrading to harvest the organs of those condemned.

    “People are sentenced to death for the purpose of harvesting their organs for sale,” they alleged.

    According to the prisoners, so many of their colleagues who are not even on death row cannot be accounted for.

    “We urge the Nigerian government to look for them and find out what happened. The Chinese government should also release photographs, DNA and details of all unclaimed dead Africans or provide their ashes if incinerated to African embassies in China so that the families can lay them to rest.

    “Because some Africans entered China with fake passports or without passports, the only way to identify these hundreds of bodies and ashes is by releasing their pictures and through DNA testing,” they wrote.

     

    Unfair sentencing

     

    According to the prisoners, sentences handed Nigerian suspects are unfathomable.

    “If one is arrested in China, you are kept for as long as three years before trial. If you are found guilty and given a death sentence with two years suspension, it will take about three years to change the verdict to life sentence.

    “You have to wait for another three years to be given a fixed term which is usually between 20 and 25 years. You will discover that it takes about nine years for a sentence to be converted to a fixed term. These nine years is not counted as part of the time served.

    “All this is because the Chinese government uses prisoners as working machines to make their products at no cost. Most of the ‘Made in China’ products are produced in Chinese prisons by prisoners at little or no labour cost,” they said.

    The prisoners urged the African Union and the Nigerian government to always demand to know when Africans in Chinese prisons were arrested.

    “If the Chinese tell you a Nigerian has served two years, it may mean 11 years when counted from the day of arrest. Some have stayed in prison for up to 10 years since their arrest, yet they have 20 more years to serve,” they said.

     

    Unjust judicial system

     

    According to the prisoners, Chinese authorities promote police officers, prosecutors and judges based on the number of people they are able to convict.

    “In the desperate need for promotion, these officials rape and abort justice, cover up the truth and line up false witnesses in their own selfish interests and due to their hatred for Nigerians. They hand out excessive sentences to Africans because their governments do not care about their citizens,” the prisoners said.

     

    Tales of ordeal

     

    Jones said when he learned of the rally, he had to attend because he witnessed first-hand what Nigerians go through in Chinese prisons.

    “What is happening there is really scary. I never pray for anyone to experience it, because it is hell on earth. What we read in the news is different from how the Chinese treat Nigerians there. They treat the black people like animals. They trade human organs. They subject people to hard labour.

    “If you don’t work hard enough, your sentence will not be commuted. For instance if you’re given 20 years, if you’re very hard working, they could reduce the sentence. There are thousands of Nigerians in Chinese prisons being used as slaves. Most of them don’t know when they are coming back home because the government doesn’t care for them.

    “China has prisoner exchange programmes with other countries where citizens return to serve prison terms in their countries.

    “So, we’re calling on Nigerians to intervene for our citizens. Many have died. Sometimes they will execute Nigerians and says ‘the embassy signed for your death.’”

    For Miss Nkiru Ezeonu, whose only brother has been in detention for years, urged the Buhari administration to intervene urgently.

    “My only brother is in detention in China. He’s been in prison for over seven years. We have been pleading with the government to intervene so that they are given more humane treatment or bring them back to Nigeria to serve here,” she said.

    A returnee prisoner, Chidi Cruiz, said close to 80 Nigerians died in Chinese prisons since last year.

    He added: “Our people are going through hell in those prisons. I spent nine years and a month there. We’re pleading with government to do something urgently to release our people or bring them back home to serve their sentence. They treat us like animals. Some are not even guilty of the crimes they are accused of because no fair trial.

    “Sometimes our embassy doesn’t believe the things we tell them. The embassy staff come there (to the prisons) once in a while but the problems persist.

    “The Chinese authorities confiscated everything I had, all my sweat. I was set up with a Chinese woman. They found foreign currencies in my place and I was charged with money laundering.

    “During trial they didn’t even allow me to make a call. They would intimidate you because you have nobody there to stand up for you. There’s no human rights there. It’s like slavery. During trial, the people they bring to translate don’t even understand English. They mis-translate English to China,” Cruiz said.

    Chimezie Njoku, whose relative is also in detention in China, said if there is an enabling environment, youths would not go to China in search of “greener pastures”.

    His words: “Through government’s help, they can return. Our country should not abandon its citizens abroad. And when these people return, they should be helped to resettle because they can contribute to the growth of this country. There are so many able bodied Nigerians languishing in prisons.

    “If the child of a governor or minister or top politician were detained, the government would surely go after him. But because it involves ordinary Nigerians, the government feels unconcerned. They don’t care for the ordinary Nigerians. And that is why other countries take us for granted.

    “Also, if there was an enabling environment, I don’t see why Nigerians would be trooping to China to seek employment. We have the resources to be an industrialised nation, but the problem has always been management.”

     

    ‘Enforce their rights’

     

    Osaneme said the Buhari administration must ensure that the rights of Nigerians in Chinese prisons are enforced.

    “It is true that most of them might have committed offences, but these people were not given fair hearing. I interviewed some of them and they said they were just dumped in prisons there. The prison authorities perpetrate all sort of atrocities against them, break their legs.

    “All of this is because nobody is asking questions. I feel that it is necessary for us to ask government to intervene. The government must investigate if these things are actually true because they are atrocities.

    “If a country can be harvesting Nigerian citizens’ organs, it is very wrong. There are procedures for these things. If there is a drug crime or a case of illegal migration, there are procedures. People should be given access to justice.

    “So, we’re asking the Federal Government to please intervene. If possible, send a delegate to find out if what these Nigerians are saying is true.  These Nigerians have wives and children back home. We’re not saying they may not have committed any offence, but the government should intervene because an accused also has rights,” the lawyer said.

    He continued: “Former President Olusegun Obasanjo went to Thailand to rescue Nigerians suffering there. If you commit an offence in Thailand now, you ccan ome back and serve your prison term in Nigeria.

    “If Nigerians in China are demanding that they want to serve their prison terms in Nigeria, the government should go into agreement with Chinese authorities. That is our demand,” he said.

     

    ‘Bring us back home’

     

    The prisoners urged the government to prevail on the Chinese government to repatriate those of them who have served at least five years or more in prisons.

    “The Chinese government should bring African countries to a roundtable and discuss repatriation of their citizens. China has benefited so much from Africa yet they treat us like animals.

    “If African countries decide to crack down on the Chinese some of who also engage in illegal activities on the continent, there will be many Chinese prisoners in African prisons, if not that our governments turn a blind eye to their illicit activities in Africa.

    “The African Union and the Nigerian government should make effort to bring back Nigerians in Chinese prisons,” the prisoners added.

     

  • CJN praises firm for mentoring lawyers

    The Chief Justice of Nigeria (CJN) Mahmud Mohammed has  praised the law firm of Chief Joe-Kyari Gadzama (SAN) for mentoring  young lawyers.

    Speaking during the inauguration of Gadzama’s corporate headquarters, the J-K Gadzama Court in Abuja, the CJN urged other law firms to emulate the gesture.

    He said: “I wish to comment upon the commitment of J-K Gadzama LLP to the improvement of the quality of legal practitioners through its mentoring programme. Although not a new initiative, it has doubtless become a gold standard in the type of positive improvement that firms can and must make to the lives of our young legal practitioners

    “I hope the firm continues to take on law school students and our younger colleagues who will seek much needed Chamber attachment and pupilage under it. Given the sheer size and area of the building, I have no doubt that it can,” the CJN said.

    Gadzama said his firm was accredited about a decade ago and registered by the Nigerian Bar Association (NBA) as a Legal Education provider.

    As part of its corporate social responsibility, a mentorship programme named after the late Justice Chukwudifu Akunne Oputa will begin this quarter for young lawyers below 10 years post call, he said.

    “The aim is to equip these young lawyers with the requisite skills, knowledge and values to enable them deal with everyday legal practice, which they require, but lack due to their infancy at the Bar. This is important as the  future of our beloved legal profession lies in the hands of these young lawyers who will one day, be at the helm of affairs in the profession.

    “The essence of mentoring is for the mentor to help the mentee become better in a particular area. This the mentor does by deploying his time, energy, experiences, and a belief in the innate capacity of the mentee to become better,” Gadzama said.

    According to him, the absence of formal or sufficient duration of pupilage has created a lacuna that urgently needs to be filled.

    He said most  lawyers graduate from the Law School with little or no idea of the  realities in the legal field.

    “Clearly, there is a huge gap that needs to  be filled and this scheme is created for that purpose. Young lawyers will be equipped with  requisite skills, knowledge and other etiquettes for success at the  Bar; and at the same time provide older members an avenue to  transmit valuable insight from their knowledge and experience.”

    He said the mentee’s first assignment is to be teachable, hungry to learn and committed to self development by showing what efforts he is making to advance his career.

    “Nobody wants to mentor a person who is not even serious with himself. It is important that a mentee clearly defines what he wants to gain from establishing such a relationship.

    “A young Lawyer that wants to be known as a person of integrity, a person who keeps his or her word, a person who follows through; who looks out for his or her client’s best interests, certainly needs a mentor.

    “Litigation is a full contract sport. There will be times you think you cannot lose, at times one hopes  to just keep his or her license at times now would want to beat the table or crawl under it. All of these will usually occur in the same case. Fight through the urge to give up for the wrong reasons,  play to the whistle. Just hanging in can yield positive results, don’t give up.

    “It is imperative that a young lawyer develops particular skills and   expertise in various areas of law. It is helpful to have a clearly  defined objective and make sure every effort is spent working  toward that goal. In essence, start at the end.

    “A mentee should respect his mentor. There is no point having a mentor if his  opinions don’t in any way matter to you. That is a waste of time for both mentor and mentee.

    “Developing trust-and confidentiality though difficult is essential.   Mentoring only works if on both sides, there is honesty and willingness to share,” Gadzama said.

  • African Bar appoints council, women’s forum heads

    African Bar appoints council, women’s forum heads

    The African Bar Association (AFBA)  has elected a former Nigerian Bar Association (NBA) president Joseph Daudu (SAN) as chairman of its governing council.

    Its Director of Information and Protocol, Ochieng Nyamago, in a statement issued in  Nairobi, Kenya, said Daudu was elected at a joint meeting of AFBA’s Executive Council and the Technical Board held on March 6 in Nairobi.

    He said Daudu’s credential as a seasoned lawyer, his interest in AFBA’s activities and his impeccable character stood him out among two other candidates. Daudu will serve for five years.

    AFBA also announced the appointment of  Mrs Josephine Anenih as the Chairperson of its African Women Lawyers ‘ forum.

    In a statement issued in Abuja by the Special Adviser on media affairs, Mr. Samuel Abasilim, AFBA said the association took the decision at the last Executive Council meeting held at the New Africa hotel  in Dar es Salaam, Tanzania from February 13 to 14, presided over by its president Hannibal Uwaifo.

    Mrs Anenih, a former Minister of Women Affairs, was called to Bar in 1990. She is expected to  coordinate all women groups across the continent on AFBA’s activities, including conferences.

    Abasilim said AFBA’s Rebirth Conference will hold in Banjul, the Gambia  with the theme: The rule of law: sure pathway to Africa ‘s  prosperity.

  • ‘How lawyers can succeed’

    How can lawyers succeed? Justice Chinwe Iyizoba of the Court of Appeal believes it is by hard work.

    The justice, a former senior Law lecturer who served as Anambra State Attorney-General, spoke at the Second Career Development Seminar of the National Association of Catholic Lawyers (Lagos Archdiocese), with the theme: Retooling your practice.

    According to her, some lawyers who appear before the Court of Appeal do not master their cases, to the extent that some do not know the date a notice of appeal was filed.

    Her words: “How could a full fledged lawyer come to the Court of Appeal to argue a case and he does not have at the tips of his fingers things he needs to do about that particular case? This is what has happened in this age when there has been some de-emphasis on advocacy – you bring your file, mention the date you filed and you adopt.

    “You find that some lawyers are no longer reading. Sometimes they pick up the files without bothering to go through it. Can such a lawyer make any progress? It’s difficult.

    “On the question of advocacy, it is true lawyers can come to court and adopt their brief. But that doesn’t prevent you as a good lawyer from studying the brief, knowing it inside out, and after you have adopted your brief, you talk to us in a few minutes, telling us what the case is all about.

    “Do you know that occasionally when counsel is given that opportunity, they pick up the brief and start reading it, which means he’s not familiar with the facts of the case. He doesn’t know what the case is all about. The fact is that in all professions, if you are good, you will be noticed. And if you are good you will go places.”

    Justice Iyizoba urged young lawyers to undergo on-the-job training after Law School before setting up their practice. “You can’t get there without passing through pupilage, and building yourself by working hard to excel,” she said.

    Nigerian Bar Association (NBA) President Augustine Alegeh (SAN) said lawyers can boost their practice by exploring emerging areas of law that have been ignored.

    According to him, electricity law, which he said can be a gold mine, entertainment law and sports law are areas lawyers can develop skills in and make money from. To him, every lawyer must not practice oil and gas law. “It is important that we look at other areas we can key into.”

    He urged lawyers to make sufficient contacts to follow through in building their client base. They must also “package” themselves well, including having customised email addresses, as some companies “spam” mails sent through regular email providers.

    Lawyers must also reassess their approach to work. “Concentrate on developing your advocacy, drafting and communication skills. You also need research skills – ability to find the right information,” Alegeh said.

    The NBA president urged lawyers to take advantage of the Stamp and Seal Policy since every legal document in Nigeria must bear the seal to be authentic, which means that foreign lawyers must go through their Nigerian counterparts to authenticate legal documents.

    He said lawyers must avoid all forms of corruption, adding that if they build their practice based on relationships with judges, their business could suffer when the judge is transferred.

    “So, let us develop practices that are based on law, on our knowledge and our expertise, not on our relationships. We cannot deny having relationships. We cannot deny giving gifts, but the gifts should be reasonable,” he said.

    A former Commonwealth Lawyers Association (CLA) president Mrs Boma Ozobia, in a keynote address, said lawyers can only give what they have. She said it was unfortunate that some lawyers earn less than when some drivers are paid.

    Ozobia regretted that about 80 per cent of paid legal work from Africa goes to foreign law firms; African lawyers share the remaining 20 per cent of revenue they should earn. “So, we should position ourselves to get a share of the cake,” she said.

    According to her, increasing number of lawyers should not be a problem compared to Nigeria’s population. “Yet, so many of our colleagues are struggling to make a decent living,” she said.

    On how lawyer can retool their practice, she said it involves having a business plan. Law firms, she said, should be run as businesses, and must function even if the principal is not there. Lawyers must also adopt business development strategies, plan for succession, and design exit strategies.

    “The most important tool is you: You have got to know your onion,” she said, urging lawyers to set targets and work towards achieving them, even if they work for others.

    A lawyer must also consider who his target clients are, which determines where he sets up shop. “You have to understand that you sell your services,” she added. While looking for clients, he should identify key influencers who will help make the introductions. “Don’t make the mistake of taking everything that comes,” she said.

    Self-discipline is also required. “You won’t see me in any aso-ebi party. It’s either you buy aso-ebi or you buy books. You have to make choices as to where you apply your income,” she said.

    Ozobia said a lawyer can also charge “refresher fees” where litigations last so long, so as not to subsidise old cases with new ones.

    A Senior Advocate of Nigeria (SAN), Anthonia Akinlawon, urged lawyer to think outside the box and to realise that every facet of life has a legal framework governing it which can be harnessed. “You must understand strategic thinking,” she said.

    The association’s president, Geraldine Wey, said while striving to excel, lawyers must maintain “impeccable standard of ethics, integrity and honesty.”

    The seminar’s organising committee chairman, Rudolf Ezeani, said the theme was chosen based on the need for lawyers to align thzeir careers with the changing times.

    How can lawyers succeed? Justice Chinwe Iyizoba of the Court of Ap-
    peal believes it is by hard work.

    The justice, a former senior Law lecturer who served as Anambra State Attorney-General, spoke at the Second Career Development Seminar of the National Association of Catholic Lawyers (Lagos Archdiocese), with the theme: Retooling your practice.

    According to her, some lawyers who appear before the Court of Appeal do not master their cases, to the extent that some do not know the date a notice of appeal was filed.

    Her words: “How could a full fledged lawyer come to the Court of Appeal to argue a case and he does not have at the tips of his fingers things he needs to do about that particular case? This is what has happened in this age when there has been some de-emphasis on advocacy – you bring your file, mention the date you filed and you adopt.

    “You find that some lawyers are no longer reading. Sometimes they pick up the files without bothering to go through it. Can such a lawyer make any progress? It’s difficult.

    “On the question of advocacy, it is true lawyers can come to court and adopt their brief. But that doesn’t prevent you as a good lawyer from studying the brief, knowing it inside out, and after you have adopted your brief, you talk to us in a few minutes, telling us what the case is all about.

    “Do you know that occasionally when counsel is given that opportunity, they pick up the brief and start reading it, which means he’s not familiar with the facts of the case. He doesn’t know what the case is all about. The fact is that in all professions, if you are good, you will be noticed. And if you are good you will go places.”

    Justice Iyizoba urged young lawyers to undergo on-the-job training after Law School before setting up their practice. “You can’t get there without passing through pupilage, and building yourself by working hard to excel,” she said.

    Nigerian Bar Association (NBA) President Augustine Alegeh (SAN) said lawyers can boost their practice by exploring emerging areas of law that have been ignored.

    According to him, electricity law, which he said can be a gold mine, entertainment law and sports law are areas lawyers can develop skills in and make money from. To him, every lawyer must not practice oil and gas law. “It is important that we look at other areas we can key into.”

    He urged lawyers to make sufficient contacts to follow through in building their client base. They must also “package” themselves well, including having customised email addresses, as some companies “spam” mails sent through regular email providers.

    Lawyers must also reassess their approach to work. “Concentrate on developing your advocacy, drafting and communication skills. You also need research skills – ability to find the right information,” Alegeh said.

    The NBA president urged lawyers to take advantage of the Stamp and Seal Policy since every legal document in Nigeria must bear the seal to be authentic, which means that foreign lawyers must go through their Nigerian counterparts to authenticate legal documents.

    He said lawyers must avoid all forms of corruption, adding that if they build their practice based on relationships with judges, their business could suffer when the judge is transferred.

    “So, let us develop practices that are based on law, on our knowledge and our expertise, not on our relationships. We cannot deny having relationships. We cannot deny giving gifts, but the gifts should be reasonable,” he said.

    A former Commonwealth Lawyers Association (CLA) president Mrs Boma Ozobia, in a keynote address, said lawyers can only give what they have. She said it was unfortunate that some lawyers earn less than when some drivers are paid.

    Ozobia regretted that about 80 per cent of paid legal work from Africa goes to foreign law firms; African lawyers share the remaining 20 per cent of revenue they should earn. “So, we should position ourselves to get a share of the cake,” she said.

    According to her, increasing number of lawyers should not be a problem compared to Nigeria’s population. “Yet, so many of our colleagues are struggling to make a decent living,” she said.

    On how lawyer can retool their practice, she said it involves having a business plan. Law firms, she said, should be run as businesses, and must function even if the principal is not there. Lawyers must also adopt business development strategies, plan for succession, and design exit strategies.

    “The most important tool is you: You have got to know your onion,” she said, urging lawyers to set targets and work towards achieving them, even if they work for others.

    A lawyer must also consider who his target clients are, which determines where he sets up shop. “You have to understand that you sell your services,” she added. While looking for clients, he should identify key influencers who will help make the introductions. “Don’t make the mistake of taking everything that comes,” she said.

    Self-discipline is also required. “You won’t see me in any aso-ebi party. It’s either you buy aso-ebi or you buy books. You have to make choices as to where you apply your income,” she said.

    Ozobia said a lawyer can also charge “refresher fees” where litigations last so long, so as not to subsidise old cases with new ones.

    A Senior Advocate of Nigeria (SAN), Anthonia Akinlawon, urged lawyer to think outside the box and to realise that every facet of life has a legal framework governing it which can be harnessed. “You must understand strategic thinking,” she said.

    The association’s president, Geraldine Wey, said while striving to excel, lawyers must maintain “impeccable standard of ethics, integrity and honesty.”

    The seminar’s organising committee chairman, Rudolf Ezeani, said the theme was chosen based on the need for lawyers to align thzeir careers with the changing times.

     

  • Bar, Bench in people’s court

    Bar, Bench in people’s court

    These are unusual times for the Bar and the Bench. Lawyers and judges have come under attack for alleged corruption. Economic and Financial Crimes Commission (EFCC) Chairman Ibrahim Magu is calling on the Nigerian Bar Association (NBA) to purge itself of those he called “vandals in the temple of justice”. Lawyers have challenged him to name such people. Chief Justice of Nigeria (CJN) Mahmud Mohammed and NBA President Augustine Alegeh are also not keeping quiet on the claim that the judiciary is corrupt. How can this perception be corrected? JOSEPH JIBUEZE reports.

    It was a turbulent week for the Bar and Bench. First, a Senior Advocate of Nigeria (SAN)  Rickey Tarfa was arrested on a court premises and charged by the Economic and Financial Crimes Commission (EFCC) with alleged obstruction of justice. A few days later, it was reported that five SANs were under probe over the Halliburton scam.

    The judiciary is also under attack for its handling of corruption and election cases. President Muhammadu Buhari fired the first salvo about two weeks ago when he expressed doubt about the judiciary’s commitment to his administration’s anti-corruption war.

    EFCC Chairman Ibrahim Magu,  at a meeting with the Nigerian Bar Association (NBA) executive members, urged the body to purge itself of those he called “vandals in the temple of justice”.

    He said: “We must tell ourselves the truth: there are lawyers within the fold of the NBA who ought not to be among your noble ranks. Those people are not fit to be called ministers; rather, they are vandals of the temple of justice…

    “Notwithstanding our hard-won successes, we are very worried that on a number of occasions, some members of the NBA have elected to side with those who do not want the good of Nigeria. I believe it is part of the professional ethical code of lawyers to ask questions as to the source of their clients’ wealth.”

     

    CJN, Alegeh kick

     

    Chief Justice of Nigeria (CJN), Mahmud Mohammed and NBA President Augustine Alegeh (SAN) decried the corrupt tag on the judiciary. Justice Mohammed said the barrage of criticisms against the judiciary is as a result of ignorance of its operations. Alegeh faulted the “total condemnation” of the third arm of government.

    They spoke in Abuja at a valedictory court session for retiring Justice Muhammad Saifullahi Muntaka-Coomassie of the Supreme Court.

    The CJN said: “The judiciary, though constantly striving to redress wrongs and tilt the balance in favour of that which is right, has recently had to face the backlash of misguided opinions fashioned without due consideration of the law and rationale for the system of government that we operate. The judiciary is duty bound to act in accordance with the dictates of the law as it stands and not as critics would like it to be.”

    Alegeh deplored what he described as the “generalisation and/or categorisation” of the judiciary as corrupt and a stumbling block to the Buhari administration’s war against corruption.

     

    Are graft allegations against lawyers misplaced?

     

    Are allegations of corruption against lawyers misplaced? Constitutional lawyer Prof Itse Sagay (SAN) believes there is substance in the claims. He said: “The most blameworthy are senior lawyers — a number of senior advocates who have made it a speciality; who have developed particular skills to kill corruption cases so that their clients, after many years of delays and frustrations of prosecution, end up going away with their loot.

    “And such lawyers, of course, share in the proceeds of crime. They get a part of the loot and that is why you see them buying private jets and so on. That amount of money from the proceeds of crime has completely blunted their consciences and they are as active as the accused persons — the looters — in trying to protect the loot because part of the loot now belongs to them by association.”

    To activist-lawyer Ahmed Adetola-Kazeem, senior lawyers are viewed as enemies of the common man. According to him, the feeling on the streets is that lawyers have teamed up with politically exposed persons to milk the state and by extension Nigerians dry. To him, the drum is beating louder and he hopes it does not get to a stage where lawyers will be mobbed on the streets.

     

    What lawyers should be

     

    In the book, Professional Conduct of Legal Practitioners in Nigeria, Prof J.O. Orojo, quoted the late Ghanaian president Kwame Nkrumah as saying: “In a developing country, the first priority is not for lawyers trained to conduct litigation between wealthy individuals … The lawyers needed in a developing state are, in the first place, those trained to assist the ordinary men and women in their everyday legal problems and particularly in the new problems likely to arise through industrialisation …”

    President Kenneth Kaunda, in an address to the Law Society of Zambia in 1970, was quoted as saying: “The lawyer in a developing society must be something more than a practising professional man; he must be more even than champion of the fundamental rights and freedoms of the individual… “

    A former CJN, the late AdetokunboAdemola, said: “Nigerian legal practitioners must be able not only to perform their traditional functions of catering for the professional needs of the citizens, of administering justice and manning the various legal institutions of the state, but they must also be involved in social change; they must be committed to law reform to ensure the harmonisation of law with the culture of the people and they must strive to ensure a strict adherence to the rule of law and among other things, ensure that the newly acquired political power is carefully watched and controlled so that it is not used to protect or perpetuate the status quo or class domination.

    “As the watchdog of the people, they must, through their independence and total commitment to social justice, provide the necessary support to sustain equally independent and fearless judiciary, the last hope of man for law and order, peace and progress.”

    In the past, lawyers were viewed as emancipators of the common man because of the activities of the likes of the late human rights crusader Gani Fawehinmi (SAN), among others.

    According to Adetola-Kazeem, the court which used to be viewed as the last hope of the common man is now mockingly viewed as the “lost hope of the common man”. The NBA, he believes, must rise up from its slumber and assume its rightful place as the voice of the voiceless and the hope of the common man.

    “We must find our identity and remain determined to have an expression of who we are as lawyers – which is naturally and principally to serve the common good without allowing economic, social, political, ethnic, religious or any prejudice whatsoever, to dictate the performance of our professional duties for the good people of Nigeria. These are the obvious challenges stirring at us, but we must resolve to be who we ought to be,” he said.

     

    In judiciary’s defence

     

    • Justice Adebajo (rtd)
    • Justice Adebajo (rtd)

    A former Lagos State High Court judge, Justice Ebenezer Adebajo, does not agree with Magu’s views. “I wholly disagree with them. I totally disagree with the President. I think the President’s view is wrong,” he said, referring to claims that the judiciary delays corruption cases.

    To begin with, Justice Adebajo said the executive has not done enough to stamp out corruption by retaining immunity for public office holders.

    “There is nobody in Nigeria who has immunity, not even the President of Nigeria. It is only that there is a special procedure in bringing the President to court for any offence. The law does not grant 100 per cent immunity. The law only dictates that under certain circumstances, some persons, proceedings can only be initiated against some persons in a particular manner,” he said.

    He, however, believes that the Bar must do more to entrench ethics in the profession. “I believe that Mr. Magu might have been referring to the lack of ethics in the profession. I think that is where the focus should be – to find a way of re-establishing the absolute reign of ethics.

    “If there is ethics, nobody will be stalling proceedings in court just for the sake of stalling proceedings. I think that is where we should look at, not to say judiciary is corrupt. It is a meaningless statement. We are lucky to have the type of judges we have in Nigeria.

    “As far West as the Gambia and as far South as Luanda, Nigerian Law Reports are in use by the highest court in those countries. So, why should we be demeaning our judiciary? Why should we be demeaning persons who have given themselves to the serve the people of this country?

    “Let us start with professional ethics. That is where we should start from; that is where we should turn our focus, professional ethics,” Justice Adebajo said.

    Asked how the Bar and the Bench can assist in the fight against corruption, Justice Adebajo said: “If they say something is badly constituted, the court would not say it has been properly constituted. So it is a matter of getting sufficiently qualified person to prosecute cases in court and you would see that the judges are able to do what the law asked them to do. Judges are not afraid of doing what the law says.”

    • Daudu
    • Daudu

    A former NBA president Joseph Daudu (SAN) does not agree with Magu. “No. It is extremely impolite and scurrilous for the chairman of the EFCC to refer to lawyers as ‘vandals’ in the temple of justice,” he said.

    Daudu argued that lawyers are trained to offer legal services, which include prosecution and defence of persons alleged to have committed criminal offences.

    “It is absolutely corrupt for any person, no matter how highly placed, to say that lawyers should not defend people who have been branded as corrupt. This is how Hitler and other practitioners of totalitarianism started,” Daudu said.

    He believes anyone accused of committing an offence is entitled to be defended by a lawyer of his choice.

    “It is absolutely wrong and immoral for law enforcement agencies to view lawyers as the source of their troubles. I think the defence of accused persons would be more interesting if and when prosecuting agencies did their work well,” he said.

    The former NBA chief also does not agree that the judiciary suffers from a perception crises.

    “The so-called negative impression on the judiciary by no other arm of Government than the Executive is propaganda-driven. The function of the judiciary is not to prosecute for and on behalf of the executive but to adjudicate fairly and in accordance with the law and justice.

    “The problem with this executive (Buhari led) is that it either does not understand the foundation pillars of the Nigerian Constitution, which are; (a)  the rule of law (b) separation of powers (c) independence and impartiality of the judiciary. The judiciary does not take orders from the executive,” Daudu said.

    Daudu, however, agrees that the bad eggs within the judiciary must be ridden of. “The level of corruption in the executive is both historical and legendry. However, the judiciary has some bad eggs but it is not such that can be characterised as institutional corruption,” he said.

    On whether he thinks the Bar and Bench need to do more in the fight against corruption, Daudu said: “We have consistently maintained that that there is a need to find solution to the menace of corruption but this scourge can only be fought in accordance with the tenets of the rule of law and due process.

    “The simple truth is that corruption cannot be fought in a day. The structures for anti-corruption are deliberately laid down over a while. They are not impulsive or selective or actuated by bad faith. The present anti-corruption crusade is headed for failure if not implemented property or faithfully.”

    • Fagbohungbe
    • Fagbohungbe

    For Chief Felix Fagbohungbe (SAN), one of the elders of the Bar, allegations of corruption without proof are designed to scandalise the judiciary. He said there is no society anywhere in the world where there are no bad eggs; yet, there are also good men. Where there is evidence of corruption against anyone, including lawyers, they should be charged.

    “But for EFCC chairman to say that, they have all the records of the people under investigation. They can do same on all the judges if they want to. They don’t need to go to the press and be stating all these things to the press. To the outside world, it would mean that the entire judiciary of Nigeria is corrupt.

    “So, all I would suggest is that if there are specific issues or isolated cases or individuals that have been identified, then of course they can deal with those people. But to bring the entire judiciary, to scandalise them and say that the entire judiciary is corrupt, I don’t agree with that.

    “So, it is not for the chairman of the EFCC to say that they corrupt or that they are this way or that way. If he has any report on any one of them, he should bring it out and prosecute those people. It is not for you to speak to the press and be making allegations. It is too general,” Fagbohungbe said.

    The senior advocate said the heads of the three arms of government could come together to find a common solution; but one arm, he said, should not run down others. “It is not for the executive to run down the judiciary,” he said.

    Fagbohungbe said EFCC should not blame the judiciary when it does shoddy investigations that gets thrown out by the courts.

    “Many of these things are just sensational. We read them in the newspaper and at the end of the day, you will just discover that it has died down all because either they didn’t do thorough investigation or because they don’t have evidence to even prove the allegation.

    “In the meantime, they would have destroyed the name of the people alleged to have committed such offences. Trial in the public or newspaper or other news media is not proper here. Proper investigation and proper prosecution is what I support here,” he said.

    On how the Bar and the Bench can help fight corruption, Fagbohungbe said: “They are partners in the fight against corruption. The bar will always support the bench, the bench will take the cooperation of the bar and they would work together.

    “If they want to set up any specific panel, when Kayode Eso’s panel was set up, some lawyers were part of the panel at every level, the state and the national level. So, if they set up any panel, NBA will support and cooperate with them. There is no doubt about that.”

    Another SAN, George Oguntade, said it was not fair to characterise the judiciary as corrupt. On Magu’s statement, he said: “I will say that this is a most unfair generalisation and that it was most likely made out of frustration as regards the lack of progress in the numerous corruption cases being prosecuted by the EFCC.”

    Oguntade said the “Cab-rank rule” requires a lawyer to take any case upon which he is instructed, including representing even “vilest offender.”

    “A lawyer who takes a brief has the duty to defend same to the best of his ability and in so doing, employ and exploit legitimate means to the benefit of his client. I believe that the EFCC chairman is not aware of this lawyer’s duty and obligation and that this is why he is unable to comprehend why a lawyer will accept a brief to defend an allegedly corrupt person or ‘looters’ as he put it,” he said.

    According to Oguntade, as it is with many professions, there are lawyers who have engaged in unethical conduct and who deserve to be appropriately sanctioned, and that the Bar needs to do more as regards the regulation of its members.

    “The Rules of Professional Conduct for Legal Practitioners 2007 makes copious provisions regarding the sanction of erring lawyers but the problem has been with implementation and enforcement. This is an area that definitely needs some urgent attention to stem the increasing flow of criticism against lawyers generally,” he said.

    On the judiciary’s commitment to the anti-corruption crusade, Oguntade said it must be examined in the context of constitutional and statutory provisions, many of which occasion delay in the administration of criminal justice.

    “The judiciary do not make laws but interpret and enforce laws enacted by Parliament. They cannot go outside them. Where the Constitution or the laws are inadequate to meet the reality on ground, it will be unfair to heap the blame on the Judiciary. Rather, the Constitution and the laws will need to be reviewed and reformed such that the judiciary are able to perform effectively,” he said.

    The SAN said judiciary cannot be expected to perform magic when it is not even adequately funded. “It is indubitable that a judiciary that lacks financial autonomy can never be truly independent and will always be prone to interference.”

     

    The way forward

     

    Alegeh said the judiciary will not close its eyes to cases of corruption by its members where there is proof.

    “The NBA, however, wishes to sound a note of warning to the few bad eggs in the system to desist from further causing untoward embarrassment to the judicial arm of government and will henceforth petition any judicial officer involved in or suspected to be involved in any corrupt or fraudulent transaction to the appropriate quarters for action.

    “We believe that a word is enough for the wise and that wise counsel will prevail in this regard,” the NBA president said.

    Oguntade admits the judiciary’s image has nosedived in the public’s eyes. More, therefore, needs to be done.

    “The image of the judiciary and indeed that of lawyers is clearly at a very low ebb and it is necessary that for both to survive, they urgently need to work together.

    “Judges must perforce turn to whistle blowers against colleagues involved in graft and also refrain from granting orders that are difficult for the reasonable man on the street to understand or justify.

    “Lawyers and, indeed, judges also need to expose lawyers who try to interfere in or pervert the course of justice, and where cases are identified, the Disciplinary Committee of the Bar should be swift and firm in dealing with such cases,” Oguntade said.

    Constitutional lawyer Ike Ofuokwu said the Bar and the Bench need to look inward to purge themselves of corrupt elements in their midst.

    “It is a shame and a reproach to the Bar when you see very senior members struggling among themselves to represent accused persons in corruption cases and doing everything whether lawful or otherwise to extricate corrupt persons from the law.

    “If a proper code of representation of counsels is not put in place, all that could be achieved as we have today, is to produce billionaire lawyers and judges out of the proceeds of corruption.

    “Nevertheless, the bulk of the job still lies with the agencies of government saddled with the responsibilities of investigating and prosecuting these cases.

    “The EFCC, for instance, needs to put its acts together. They need to conduct thorough investigation and put their facts and evidence in order even before arresting the suspects. It is often ridiculous and preposterous that after arrest are made they go shopping for evidence. This is an anachronistic approach.

    “We are no longer interested in trial by media. Parading them before the press will not get them a conviction rather it sometimes yields sympathy in favour of the accused. Nigerians want a result  and that is to see corrupt persons behind the bars,” Ofuokwu said.

    A group, the Socio-Economic Rights and Accountability Project’s (SERAP’s) Executive Director Adetokunbo Mumuni, said it does not only amount to professional misconduct but also a crime for a lawyer to knowingly assist another to break the law.

    “Lawyers are officers in the temple of justice but improperly influencing a public official to achieve results by means that violate lawyers’ rules of professional conduct or knowingly assisting a judge or judicial officer in conduct that violates applicable rules of judicial conduct or other laws is a clear negation of this sacred duty.

    “Yet, corrupt lawyers and judges often get away with their misconduct and crime. This impunity has contributed to the sporadic and lax prosecution and punishment of officials responsible for large-scale corruption, while, conversely, imposing severe sanctions for petty corruption and criminals, so as to give the impression of justice. This situation violates the underlying legal and moral assumptions that all persons will be treated equally, fairly, and with respect.

    “Any lawyer who acts in such a way as to be directly responsible for the act of corruption or acts as part of a conspiracy to corrupt should face liability as a ‘principal” offender.’ Even where a lawyer is not directly responsible for the act of corruption but facilitates or otherwise provides assistance to a principal offender, he/she should be liable as an accessory or accomplice. This accountability mechanism for lawyers and judges must follow due process of law.

    “The obligation on lawyers not to engage in illegal activities is vital in upholding professional standards and obviously extends to the activities of bribery and corruption, as lawyers must not themselves breach, or facilitate a breach, of the law.

    “For the sake of the legal profession, the cause of justice and effective remedies for victims of large scale corruption such as the arms procurement scandal, appropriate authorities particularly the NBA has to speak out strongly against corruption in the legal profession,” SERAP said.

     

  • Lawyer’s mum for burial Feb 26

    The remains of mother of an Abuja-based lawyer, Mr. Patrick Emeka Ikedigwe, the late Madam MaryRose Ekedinma Ikedigwe, will be buried on February 26 at the Aloysius Ikedigwe family compound, adjacent Nise Health Centre, near Ekeafor Market, Umueze kindred, Umuazu Village in Nise, Awka South LGA, Anambra State.

  • Nigeria gets first trademarks, patents law firm

    The protection of intellectual property (IP) has got a boost in Nigeria with the partnership between global IP giant Inventa International and Nigerian IP firm Silvax Legal.

    The firm, Inventa International Nigeria, opened its office in Lagos, last Thursday, as the first and only international trademarks and patents agency in Nigeria.

    Inventa International Nigeria will provide dedicated services in all matters involving IP protection, from registration to the strategic reinforcement of trademarks, patents, industrial design, copyright and domains.

    On the partnership, Angela Adebayo, Managing Director, Silvax Legal/ Inventa International Nigeria said: “To accompany the changing needs of our clients in the last few years, through this partnership we seek to enhance and broaden our activity in the Intellectual Property (IP) sector, by investing in more IP services and also in the area of technological infrastructures and information systems.

    “As a result this partnership will bring a fusion of international expertise and local knowledge to both national and international clients seeking to protect their IP rights in Nigeria in the most cost efficient manner”.

    Focused on internationalisation of IP matters, parent company Inventa International has 100 employees and a network of more than 200 representatives worldwide.

    Inventa adds Nigeria to its expansion into Africa and global network of operations including Angola, Mozambique, Cape Verde, Sao Tome and Principe, USA, Brazil, Portugal, Spain and Macau, allowing an integrated cross border service to better serve its local and international clients.

    On the office opening, Daniel Reis, Managing Partner, Inventa International, said: “Nigeria is a priority market and an exciting opportunity for us so we are very pleased to establish our physical presence with a locally staffed office in Lagos.

    “With over 45 years of experience in the field of Intellectual Property, Inventa International has provided its services to thousands of customers in various markets that include the food and beverage industry, communications, new technologies, pharmaceuticals, textiles and clothing, oil companies, financial and management consultancy firms and we are delighted we will be expanding this service to Nigeria.”

    Tiago Reis, Managing Partner, Inventa International said: “Nigeria is a key hub for our clients and expanding across the region is of great importance to us. We see immediate opportunities across energy and infrastructure, media, music and the entertainment industry.

    “The partnership with Silvax legal marks a significant step forward in the development of our Africa practice and will further enhance our global offering.”

     

  • Wanted: Communications appeal tribunal

    The Communications sector is a fluid sector that evolves with technological development, a precursor to the emergence of new products and services in the communications markets hence the need to ensure the existence of a seamless regulatory framework which accommodates for its evolving characteristics, for example, section 70 of the Nigerian Communications Commission Act (2003) provides regulatory powers for regulatory making with the purpose of giving full effect to the provisions of the Act and its due administration.

     

    Communications regulation

    The Regulator’s mandate and role in the liberalised communications sector is formidable being the protector of the public interest, guardian of the diverse markets in the provision of communications networks and services, an unbiased referee and independent expert adjudicator; ensuring market competitiveness through regulation of termination rates where necessary to ensure fair pricing between providers, by regulating significant market providers, by preventing the abuse of dominant positions through predatory pricing, by mandating access to essential facilities such as the local loop, by mandating universal service provision of communications services where it is not profitable to operators but beneficial to the public interest, by managing scarce resources such as radio frequency spectrum and numbers, by prescribing cost oriented pricing methodologies to ensure consumers get a good deal, by ensuring regulatory compliance with ex-ante and ex-post regulation, by making regulation and exercising dispute resolution powers.

     

    The requirement of expertise in communications regulation

    and adjudication

    The necessity of expertise in the complex regulation of the communications sector as illustrated above is the rationale for multiple jurisdictions adopting a fused system whereby the regulator in furtherance of its rule making powers also exercises adjudicatory powers. The British Institute of International and Comparative Law 2004 Report on Telecommunications Dispute Resolution: Procedure and Effectiveness gives credence to this view wherein it states that Oftel (now OFCOM, the UK regulator) in its combination of the roles of policy making with adjudication uses disputes and the dispute resolution process as an integral part of its policy making in a way that the courts are not able to. The Courts also shy away from meddling with such matters and have opined that such matters are best left to the experts, for e.g. the US Supreme Court in Verizon v Trinko 540 U.S. 398 [2004] stated that ‘effective remediation of violations of regulatory sharing requirements will ordinarily require continuing supervision of a highly detailed degree’ and reiterated that the regulation of the telecoms industry should be the purview of the FCC and the state public utility commissions, rather than judges all across the country. Also in Clear Communication v. New Zealand Telecommunications Corporation [1994] 6 TCLR 138; [1995] 1 NZLR 385 (PC) where an interconnection dispute arose following liberalisation of the market in the absence of the existence of a regulatory body, the Court stated that in the absence of guidance as to the principles applicable, the parties were ‘negotiating in a fog’. The experts and the Court agreed that such investigations are the function of regulatory bodies who can make decisive value judgments as the Court found it difficult to apply general competition rules to the dispute over interconnection rate. These historical cases reiterate the importance of regulatory adjudication in the communications sector.

     

    Errors in regulatory decisions

    However, disputes distinguished from complaints in the communications sector comprises of consumer/operator disputes, inter-operator disputes and regulator/operator disputes, Communications case law as it pertains to regulator/operator disputes has proven that regulators make mistakes and dispute resolution in the communications sector is an additional and autonomous form of regulation, which also fosters regulatory accountability. In BT v. Ofcom, Case No 1085/3/3/07, 12009] CAT 1, WL 6402, the appeal tribunal found that Ofcom, the regulator had erred and wrongly interpreted the term ‘reasonable’ in the context of the end-to-end connectivity obligation and that the ‘gains from trade test’ applied by Ofcom to assess the reasonableness of prices was seriously flawed; also in Hutchison 3G (UK) Ltd v Ofcom, Case No 1047/3/3/04, [2005] CAT 39, 12005J All ER (D) 396, Case No 1083/3/07, [2009] CAT 11, The UK Competition Commission determined that the price controls imposed on all the Mobile network operators by Ofcom have been set at an inappropriate level because Ofcom erred in its approach to the allowance of a network externality charge. The scrutiny by the CAT and its finding of regulatory errors is again illustrative of how the dispute resolution process is an additional regulatory tool which constitutes part of the overall regulatory framework in the UK. The UK institutional framework further distinguishes communications law disputes by referring pricing disputes to the UK Competition Commission and other disputes to the UK Competition Appeal Tribunal.

     

    Dispute resolution: An additional and autonomous regulatory tool

    The role of dispute resolution being a regulatory tool as illustrated in the case law and institutional framework above is achievable through a de novo review of a regulatory decision where the regulatory decision is considered in its entirety by a specialist adjudicatory body with cross-disciplinary expertise in law, economics, business and accountancy capable of hearing appeals against decisions of regulatory bodies on the merits, fact and law and enabling it to deal with legal and economic issues in economic related disputes. This composition evidently exhibits the inadequacy of the courts to adjudicate over such complex communications disputes, for example, the UK Select Committee on the Constitution Sixth Report, Chapter 11 on improving Appeal Mechanisms indicates that there was a gap in the UK institutional framework due to the lack of expertise in the courts to adjudicate over economic related disputes and states some of the reasons for the establishment of the Tribunal in the UK to deal with telecommunications appeals was because the judges lacked detailed economic expertise and the intensity of review in commercial regulated matters was limited. Jurisdictional experiences as discussed above illustrates the benefit of having a regulatory framework where appeals are reviewed on the merits and the appellate body seised with jurisdiction possesses the expertise to adjudicate over ensuing disputes.

     

    Nigerian framework

    Whilst the UK framework should not be a one size fits all model as each jurisdiction has its own peculiarities, the present Nigerian framework in the absence of an expert appellate body can glean some lessons towards enhancing its communications institutional framework, for example, appeals in communications matters are made to the NCC in the 1st instance, and following a review by the NCC to the Courts. A cause for concern in the Nigerian framework can be seen in the following cases NCC v MTN, Appeal No. CA/A/25/2004 where MTN, the Plaintiff/Respondent applied to the FHC for a review of the Interconnect Rate determination carried out by NCC. The NCC in response entered a preliminary objection in the matter contending that MTN was obligated to explore pre-action conditions stipulated in s86-88 of the NCC Act 2003. On appeal, the Court of Appeal held that it is essential that MTN meet the pre-condition stipulated in s86-88 of the NCC Act 2003 requiring a review of the decision by NCC, before going to court; also in Econet Wireless Nigeria Ltd V. NCC, Appeal No. CA/A/83/2004 Econet applied to the FHC challenging the Interconnect rate determination carried out by the NCC in December 2004. The NCC also challenged the jurisdiction of the court on the grounds that Econet had not followed the necessary procedural requirements before filing the suit. The Court upheld NCC’s contention and ruled that Econet was obligated to comply with the requirements of section 86-88 of the NCC Act 2003. The suit was thereby struck out.

    The Courts decision were accurate as section 86-88 of the NCC Act 2003 clearly provides for pre-action provisions which if not complied with ousts the jurisdiction of the Court pending compliance with the provisions. However, it is doubtful if the economic related disputes in both instances could be competently adjudicated by the Nigerian courts in the absence of the requisite expertise. Perhaps, the rhetoric that the Court could rely on expert evidence with the overriding duty of the expert to the court in adjudicating over the matter or seek the assistance of an amicus curiae, nonetheless the judge will still be required to understand, for example, economic evidence to make a reasoned decision especially where presented with two conflicting expert opinions. Moreover, communication disputes tend to be inquisitorial and not just adversarial going beyond the interests of the parties to the public interest especially in relation to economic related disputes, for e.g. an adjudicator may at times when reaching its decision carry out a consultation on its proposed decision to the parties in dispute or to interested stakeholders.

     

    Towards a robust legal Olawale Fayoseand institutional framework

    The ills of the absence of a robust legal and institutional dispute resolution framework are lack of regulatory accountability; it breeds errors in regulatory decision making; stifles legal development; creates distortion in the market through the application of incorrect regulatory decisions thereby impacting on the competitiveness of the sector and consumer welfare regulatory objectives, the epicenter of communications regulation. In contrast, the benefits are immense, the regulated network and service providers exercises its constitutional right of appeal to have their objections reviewed on the merits of the case by a competent appellate body; it provides a mirror which reflects the increasing effectiveness of competition in the market; it’s a good means to monitor the effects of ex-ante and ex-post regulation in the sector and to assess whether or not there is a need for more or less regulation in the sector thereby ensuring that regulatory objectives are met and not dated; it fosters regulatory accountability by testing the effectiveness of a dispute resolution framework in terms of resources, personnel and structure; and it facilitates timely resolution of commercial disputes.

    Nigeria should therefore consider developing the third regulatory restraint in communications regulation, the dispute resolution framework in addition to ex-ante and ex-post regulation towards a robust communications legal and institutional framework by enacting legislation creating a communications appeal tribunal to adjudicate over appeals from NCC decisions in particular regulator/operator disputes. The existence of such a framework will be most suited to resolve the on-going dispute between MTN and NCC.

     

    • Fayose is of Soji Fayose & Co, Lagos. e-mail: wale@so jifayose.com, wfayose@yahoo.com

  • Land case: Malami, Offor head for Supreme Court

    Abuja Electricity Distribution Company Chairman Shehu Malami and Chrome Group Chairman Emeka Offor have filed an appeal at the Supreme Court against the Court of Appeal’s verdict on a disputed property at Plot 1809, Asokoro, Abuja.

    The Court of Appeal had held that the property belongs to a Nigerian-American businessman, Mr. Imoakhuede Ohikhuare.

    Last May 28, it ruled that Ohikhuare was forcefully evicted from the property on September 12, 2012 through an unlawful execution of the judgment of an Abuja High Court, which transferred the property to Malami.

    Malami claimed at the Appeal Court that he sold the land in question and gave an irrevocable power of attorney to Offor in 2005 before he (Malami) instituted a case at the High Court in 2006. But, the Court of Appeal entered judgment against the elder statesman and Offor.

    The apex court adjourned the matter to May 17 due to the absence of the fourth respondent – former Minister of Transport, Alhaji Habibu Aliyu, who allegedly the property to Ohikhuare in 2006.

    Ohikhuare was said to have bought the land for N50 million, and built residential apartments valued at about N1 billion on it.

    According to him, for four years during which he occupied the land, Malami, Offor or their privies did not lay claims to the property.

    He was living with his family in the property when he was allegedly ejected with force from it on the basis of Justice Umar’s verdict which the Court of Appeal set aside.

  • Ex-UTC worker demands N26m

    Justice O.O. Oyewumi of the National Industrial Court (NIC) in Lagos has ordered a food producing company, UTC Nigeria Plc, to file its re-sponse to a suit filed against it by a former worker, Mrs. Abolade Ajala, within seven days with effect from last Friday.

    Through her lawyer Olatunde Adejuyigbe (SAN), the claimant is accusing  UTC of withholding the balance of her retirement benefits put at N26,558,012.76.

    When the matter came up for mention last Friday, the defendant was not in court despite being served with the processes on January 16. The company has not filed any response to the suit when the matter came up for mention.

    Ajala said she worked for the company for 29 years and rose through the ranks to the position of a Senior Management Officer at the time of her retirement on August 12, 2011.

    She alleged that her letter of retirement from the company dated August 12, 2011 indicated that N35, 558,012.76 as total amount due to her as retirement benefits and to be paid to her ‘on her exit date’.

    She stated that she was surprised that only N9million was later paid to her against her total retirement benefit of over N35million she was entitled to.

    “Out of the entire sum, only N9million was paid by the defendant vide an Oceanic Bank cheque dated December 23, 2015, “she averred.

    She further stated that the defendant is also owing her ‘post retirement contract salaries at the rate of N200, 000 per month from April 2013 to January 2014 totalling N2million.’

    As a way of recovering her money, the claimant stated that she wrote a letter dated June 8, 2015 to the company reminding them of the ‘balance of her gratuity at retirement as well as the outstanding salaries and demanded that the money be paid.’

    She claimed the company refused to respond to the said letter.

    “The claimant’s solicitor reiterated the demand for the payments vide a letter dated September 7, 2015 to which there has been no response till date,” she averred in her statement of claim.

    According to her, the non-payment of her benefits has deprived her the benefits and interests she should have earned as income if she had invested the funds in buying Treasury Bills from her financial institution from time to time.

    She further alleged that the defendant has been trading with the claimant’s benefits and earning profits from it.

    The claimant, therefore, sought for an order compelling the defendant to pay to the claimant N28, 558,012.76 being the outstanding retirement benefits and unpaid salaries due to the claimant from December 1, 2011 till February 28, 2015.

    She also wants interest on the amount at the rate of 11percent per annum from December 1, 2011 until judgment and thereafter at the rate of 30 percent per annum until the debt is liquidated; as well as N3million as legal fees.

    Justice Oyewumi adjourned till March 16.