The Nation Newspaper

Category: Law

  • Criminal law made ‘easy’

    A lawyer, Sylvester Imhanobe, has written no fewer than seven books on various topics in law.

    Reviewing one of them (Administration of Criminal Justice) during its presentation, Mr. Anthony Agbonlahor said it can help students avoid failure in Bar examinations.

    He added that with the infusion of dexterity and currency, the author simplified the sujbect for both students and lawyers.

    His words: “If some of these books were launched before the students of Law School wrote the last examination, the school wouldn’t have recorded that level of failure.”

    Other books by the author are Civil Litigation, Law of Evidence, Principle for Legislative Drafting , Company Law, Legal Profession: Ethics and Lawyering Skills.

    The books, said the reviewers, could be of immense benefit to lawmakers, judges, students, businessmen and corporate organisations.

    Ex-Aide-De-Camp (ADC) to former Head of State, General Muhammadu Buhari (Rtd), Maj. Mustapha Jokolo, said Imhanobe’s excellence transcended the Law School, where he once lectured.

    Jokolo, the 19th Emir of Gwandu, described the author as his reliable counsel who argues his cases excellently.

    He said Imhanobe had contributed greatly towards the development of the judiciary.

    According to the monarch, the author has been a talented counsel worthy of emulation since 2006 when he discovered him.

    He said that : “I engaged him as my lawyer after a lawyer from my place who I initially took into confidence betrayed me.

    “As my counsel, he defeated many Senior Advocates of Nigeria, some of whom are yet to recover from the shock of defeat in court.

    “In fact, some of those opposed to us ended up sacking their lawyers, so he is, to me, a reliable and talented lawyer who is worthy of emulation by others .”

    The Chief Judge of the FCT High Court, Justice Ibrahim Bukar, said the books would become indispensable reference tool in legal research in Nigeria and beyond.

    Represented by Justice Adebukola Banjoko of the FCT High Court, he said: “The true and real legacies of these books will be realised when their readers surpass themselves.”

     

  • ‘Unlawful’ detention: Businessman sues police, others

    A businessman, Mr. Yinusa Ganiyu, has filed a suit at the Lagos High Court, Igbosere against the Inspector General of Police and  the Lagos State Commissioner of Police, claiming N200million as damages for alleged unlawful detention.

    Mr Barry Nyong, Mr Richard Nyong and GTRich Investment Limited are the other respondents.

    Ganiyu, who supplies sand, cement and other building materials, is also claiming N18million allegedly owed by the first, second and third defendants for the delivery of filling sand to the Horizon and Ikoyi Gardens construction sites.

    According to the claimant, following  a dispute between him and the respondents, he was arrested and detained for four days at the Force CID, Alagbon Close, Ikoyi, Lagos State.

    Ganiyu averred that on February 21, he supplied 550 truck-loads of sand to the site at the rate of N23, 000 each on the first defendant’s request.

    “Between May 12 and May 23, a cumulative total of 341 trucks load of filing sand were delivered to the site at Ikoyi on order of the 1st Defendant. The cumulative value of the said delivery is N11,253,000 which the first, second and third defendants have wilfully amd blatantly refused to pay till date,” the claimant said.

    Ganiyu stated that he went to collect a cheque from Nyong on June 2, but when he got there, he was arrested and was not released on bail until the night of June 5.

    He is claiming interest on the sum of N18,336,000 at the rate of 21 per cent from May 23 until the day of judgment, and solicitors fee of N3,103, 600.

    No date has been fixed for hearing, while the respondents are yet to file their defence..

  • Are deductions from state allocation legal?

    Are deductions from state allocation legal?

    All Progressives Congress (APC) governors have demanded a meeting with President Goodluck Jonathan over the cash crisis, which they said is crippling their states, many of which cannot pay salaries. The dwindling allocation to states is said to be, in part, due to certain deductions by the Federal Government. Are the deductions legal? What options are open to the states? JOSEPH JIBUEZE asks.

    Is Nigeria broke? No, says the Federal Government. But to some governors,something is wrong. Allocations are reducing, and they are unable to meet their states’ needs. Many have resorted to borrowing to pay salaries and fund capital projects. Many states are in debt.

    It is for this reason that the All Progressives Congress (APC) governors met in Ilorin, the Kwara State capital, last week and resolved to have an emergency meeting with President Goodluck Jonathan over the crippling cash crisis.

    At the meeting were Governors Abdulfatah Ahmed (Kwara); Rauf Aregbesola (Osun); Abiola Ajimobi (Oyo); Abdulaziz Yari (Zamfara); Rabiu Kwankwaso (Kano); Ibrahim Gaidam (Yobe); Chibuike Amaechi (Rivers) and Rochas Okorocha (Imo).

    The governors were worried that allocation from the Federal purse keeps reducing, even as the central government says the country is not broke. Many states, they said, may not be able to pay their workers.

    Okorocha said the dwindling allocation from Federation Account Allocation Committee (FAAC) has hampered states’ capacity to pay salaries.

    “This has become a very serious concern to us as governors and we felt that issues that affect the lives of our people must never be politicised. We refuse to accept that this nation is broke. I thank God that the Federal Government is not broke, that if the nation is not broke, what is due to states as revenue should be paid to the states.

    “This idea of cutting down what should go to states does not in any way promote democracy and democratic dividends and so we as progressive governors do call on the Federal Government to look into the issue of dwindling resources or convince us as to why the states should not get what is due to them.

    “We do not know why our colleagues in the Peoples Democratic Party (PDP) are not talking of this matter. If they are not talking, it is either they are not affected or somehow they are getting something from the back door, which we do not know.

    “But if that is not the reason, I think the Presidency or the Federal Government should act quickly on the present ugly situation which this terrible condition of dwindling revenue has caused us by making sure that the states get what is due to them at least to pay the basic salaries of the workers.”

     

    Deductions to fund the police

    The APC governors’ complaint is not new. In October last year, they threatened to employ all constitutional means to compel the Federal Government to pay exactly what was due the states. The immediate past Ekiti State Governor, Dr Kayode Fayemi, had said: “We continue to insist that we condemn the illegal and unconstitutional deductions.”

    States were said to have lost 40 per cent of their normal earnings from the FAAC. They argued that based on budgetary benchmarks, oil never sold for anything lower than $115 per barrel, and therefore, there was no basis for the incomplete allocations.

    In March, Lagos State challenged at the Supreme Court the Federal Government’s power to deduct one per cent from the revenue due to all federating units from the Federation Account for the purpose of funding police reforms.

    Lagos said the defendant had been deducting the one percent since October 2013, describing it as unconstitutional and illegal.

    The state asked the Supreme Court “to declare that it is unlawful for the defendant to deduct at source one percent or any other fraction or per cent of the revenue due to Lagos State and its local government councils from the Federation Account under the Allocation Revenue Act for the purpose of funding police reforms or for any other purpose.”

    Lagos also sought a declaration that it “is unlawful for the National Economic Council or any other agency of the federation to authorise, by resolution, decision or consensus, the charge or deduction at source by any authority or person of any part of revenue due to Lagos State Government and its local government councils under the Allocation Revenue Act for the purpose of funding police reforms.”

    The state prayed for an order compelling the defendant “to immediately reverse the unlawful deduction of one percent…and to credit the amounts so far deducted to Lagos State Government with interest at the current Central Bank of Nigeria (CBN) minimum rediscount rate.”

    Governor Babatunde Fashola contended that, as a result of the deduction, insufficient statutory allocation “has reduced the capacity of the state and its local governments to fund their programmes and projects.

    “The police as constituted is an organ of the Federal Government and the constitution does not prescribe a situation where one level of government will impose a financial obligation on another level of government.

    “The National Economic Council has no power under the constitution of Nigeria or under any act of the National Assembly to approve any deduction, appropriation or expenditure from the federation account or statutory allocations due to the states and local governments,” he said.

     

    Fuel subsidy deductions

    The 36 states are challenging at the Supreme Court the Federal Government’s deductions of funds for fuel subsidy and related expenses from crude oil proceeds before making payment into the Federation Account.

    They are unconvinced about the government’s transparency in its handling of proceeds from crude oil sales and urged the apex court to stop the practice.

    The states, in a suit filed by their Attorneys-General, described as “unwholesome and unconstitutional” the practice of deducting “fuel subsidy funds and other expenditure from oil proceeds before it is paid into the Federation Account.”

    They contended that the practice, carried out through the Nigerian National Petroleum Corporation (NNPC), is a means through which the states and local governments are shortchanged.

    The states claimed that the practice has occasioned inaccuracies in the computation of oil revenue remitted to the Federation Account by the government and its agencies and urged the court to abolish the practice.

     

    Sovereign Wealth Fund

    The Excess Crude Account (ECA) was replaced with the Sovereign Wealth Fund (SWF) to manage Nigeria’s excess earnings from crude oil. In other words, the fund would hold the differential in oil revenues above annual benchmark price.

    The Nigerian Sovereign Investment Authority was set up in May 2011 to manage the SWF in the form of Future Generations Fund, Nigeria Infrastructure Fund and Stabilisation Fund.

    Implementation of the Sovereign Wealth Fund began  with an initial fund of $1 billion. President Jonathan assented to the bill setting up the fund on May 27, 2012.

    Governors have opposed the Fund, describing it as illegal, and saying it would deny them the opportunity to have enough money to develop their states.

    A sovereign wealth fund (SWF) is a state-owned investment fund investing in real and financial assets, such as stocks, bonds, real estate, precious metals, or in alternative investments, such as private equity or hedge funds. Sovereign wealth funds invest globally. Most SWFs are funded by revenues from commodity exports or from foreign-exchange reserves held by the Central Bank.

    Analysts say SWFs are typically created when governments have budgetary surpluses and have little or no international debt. It is not always possible or desirable to hold this excess liquidity as money or to channel it into immediate consumption.

    High volatility of resource prices, unpredictability of extraction, and exhaustibility of resources are some of the reasons for creation of SWFs. It may also be economic, or strategic, such as war chests for uncertain times.

    The states are challenging the legality of the Excess Crude Account and the decision to transfer $1bn from the account to the SWF. They sought an order declaring the SWF illegal and unconstitutional.

    When the case came up on September 24, the Supreme Court said it was not ready for hearing. It adjourned till January 26 next year.

    Presiding judge Justice Mahmud Mohammed said the case was not ripe for hearing because vital documents were not in the file. “In order to hear the case, it is necessary for counsels to go to the registry and make sure that all necessary processes were in the file,” Mahmud said.

    The government had challenged the Supreme Court’s jurisdiction to hear the suit, arguing that the matter was not between states and the federation, but a dispute between the states and the government, which it said ought to have been filed before a Federal High Court.

    The states also prayed the court to order that all sums standing to the credit of the Excess Crude Account be paid into court or be secured as the court may deem fit, pending the hearing and determination of the substantive suit.

    The states sought an order compelling the Federal Government to pay into the Federation Account N5.51 trillion being the balance of the money that accrued to the central purse between 2004 and 2007 from crude oil sales, petroleum profits tax and oil royalties.

    The government, however, accused the states of mischief because they allegedly took part in the deliberation of the National Economic Council where the decision to transfer the $1bn from the Excess Crude Account to the SWF was taken.

    But the states insisted that they had shared only the legitimate funds deposited in the Federation Account and not from the funds illegally deposited in the Excess Crude Account.

     

    ‘Nigeria not broke’

    Coordinating Minister for the Economy and Minister of Finance, Dr. Ngozi Okonjo-Iweala, while giving account of her ministry’s stewardship in the last nine months, insisted that all the economic fundamentals remain strong.

    “The country is like a household. There may be periods that your income may shrink because of some unforeseen circumstances and you just adjust.

    “If you were indulging in very expensive food you may tell your children that its time we just manage garri and if you have a spouse that is not working, you tell her please you must go and start a trade.

    “You would not jump out and begin to tell people that your condition is worst and you are dying because you know that it’s a temporary condition. That is the same with a country.

    “We are facing a temporary challenge because of the fluctuation in both price and quantity of oil produced. Yet we are meeting our obligations. We have not got to where we can’t pay our salaries nor are we failing to meet our obligations to our creditors.

    “Our foreign reserve is robust at $39.48 billion as at October 16 and it can finance nine months of import. We are gradually rebuilding our excess crude account, which is at $4.11 billion at the moment and we are working to increase the account.

    “Our Sovereign Wealth Fund today holds investment of $1.55 billion… This is as a result of confidence in our economy, which is today the third destination of foreign direct investment in Africa as a result of the recent rebasing of our economy.”

     

    Are the governors’ claims valid?

    The 2006 United Nations Human Development Index puts Nigeria at 159 of 177 countries, with 70.8 per cent of the population living on less than one dollar a day and 92.4 per cent on less than two dollars a day.

    According to the National Bureau of Statistics, the number of the poor is rising. In 2004, 55 per cent of the people were living in abject poverty. By 2010, this had risen to 61 per cent.

    Corruption has been identified as the country’s major source of poverty.  A former Economic and Financial Crimes Commission (EFCC) Chairman, Nuhu Ribadu, once said more than $380 billion has either been stolen or wasted by leaders since 1960. Nigeria is regularly ranked as one of the most corrupt by graft watchdog, Transparency International.

    A former Minister, Oby Ezekwesili, reckoned that $400 billion of Nigeria’s oil revenue has been stolen or misspent since independence. It is reported that oil is being stolen at a record rate. Some analysts say it is still unclear how much oil Nigeria actually produces. If there were a reliable figure, perhaps the truly horrifying scope of corruption would be exposed.

    To observers, if corruption and wastages are tackled, there will be enough resources to truly transform the country and its citizens.

    This year’s budget is based on a projected $79 per barrel of crude oil. The country has been selling above $100. This, observers say, tends to validate the states’ claim that there is a problem.

    The constitution vests too much power in the Federal Government, giving it wide and imperial powers over other tiers of government. It has been noted that the exclusive Legislative list takes initiatives away from the states, resulting in their dependence on the Federal Government on several issues. There have, therefore, been calls for a reduction or devolution of these powers.

    Former Chairman, Nigerian Bar Association (NBA) Ikeja Branch, Mr Monday Onyekachi Ubani described the governors’ move as “a wise step and a thoughtful process to getting proper information on what is going on in the management of our economy”.

    He added: “It is clearly frightening as most states that are heavily reliant on federal allocation are on the verge of collapse due to their inability to meet basic economic needs like payment of salaries to their workers. Their demand is legitimate and calls for urgent redress to avoid catastrophic backlash on the entire country.

    “If it is true that the Federal Government is making certain deductions from the federation account which is unknown or not disclosed to the other tiers of government, then such deductions are unconstitutional, unlawful and legally redressible.

    “The budget of 2014 was based on a certain bench mark as pertains to the sale of our crude oil. How come we are in deep economic quagmire so soon due to crash in oil price when for a very long time we have experienced boom in crude oil sales in the international market?

    “The reason is not far-fetched. We have as a nation mismanaged our economy based on greed, corruption and outright theft of our resources.

    “Despite bold face denial by the Finance Minister that we are not broke, the truth of the matter is that Nigeria’s economy  presently is not healthy, and when you take into account that election is next year, then be rest assured that more dangerous health issues on the economy will crop up as we match towards 2015.

    “In all these we pray that what we know from facts available should not happen as its consequence is better imagined than experienced,” Ubani said.

    According to the rights activist, it is illegitimate for the Federal Government to make unauthorised deductions from money due the states’ and must be challenged in court.

    “If its true and the Federal Government does not show remorse and repentance, I will advise the state governments especially, those states that cannot meet their financial obligations to file a straight action before the Supreme Court of Nigeria to halt the illegality and to demand the immediate refunds of such illegal deductions into the federation account for a common sharing.

    “They should seek the instruments of law to nip the illegality in the bud. It is the only way out. Another method may be (used advisedly) seeking political solution.

    “The National Assembly that should carry out their oversight function is failing heavily in this regard. How come they are there and the executive is basking and carrying out illegality with impunity as alleged, and they have not spoken or done anything about it? They have certainly failed the citizens.

    “The Federal Government is advised to stop those deductions that are only known to them as that violates the express provision of the Constitution. They can only spend their own money after the sharing.

    “It is unconstitutional for them to dip their hands into the Federation Account and begin to spend the money that is not meant for them alone. It is not only unconstitutional, it violates the spirit of federalism which we preach that we are practising! That is a short- term solution.

    “A long term solution is the entrenchment of fiscal federalism that will enable each state to produce and control their resources while paying certain percentage to the federal government for common good.

    “Until we start to practise true federalism, encourage competitive economic spirit and diversify our economic pursuit as a nation we will continue to suffer what is happening presently and that is the truth!” Ubani said.

    Executive Director, Legal Defence and Assistance Project (LEDAP) Chino Obiagwu

    urged states to be more creative in the management of available resources.

    “The deductions are based on the sliding national income and huge debt portfolio of states. The truth is that some state governors in the last two tenures have been fiscally reckless. Most of the states have borrowed more money from local and foreign creditors than their states can re-pay in 20 years.

    “Rather than save for the future, the governors are creating liabilities for their people.  Rivers State for example has a debt portfolio of nearly $1 billon. So also Lagos, Imo, Benue etc.

    “Recently, Benue State divested it’s investment in a major industrial stock and Rivers wants to dissipate its long-held reserve. These are reckless financial management. The truth is that no business can run for long in borrowed funds without creating its own wealth. Governance is a business.

    “Most of these people that found themselves in government have never run any business successfully and so they don’t understand wealth building. The state governors are not creating wealth at all. They are not empowering their people. All they do is get money monthly and throw around or build elephant projects and wait for the next round of sharing.

    “Unfortunately the state Houses of Assembly that are supposed to be checking on the executive are just mere rubber stamp legislature. The civil society on the other hand has paid most attention to to federal government but there are a lot of rot taking place at state levels,” he said.

    Obiagwu said LEDAP sued 15 state governors to account for the millions of dollars they borrowed from the capital market.

    “None of them has provided any answer. So, since Federal Government is the guarantor of these credits, it’s natural that it will make deductions from state allocations.

    “Another reason for deducting is the dwindling national income. We all know the price of oil is going down and the US has started massive oil production and has not been importing oil. So that affected the crude oil market.

    “We will continue to see slides in national income for a long time to come. So any governor who still sits back and waits for the national cake should think twice. It’s time our state governments started building capacity of their people to create wealth so they can justify the public vote,” Obiagwu said.

     

  • IBA publishes ‘principles’ on business, rights

    The International Bar Association (IBA) Business and Human Rights Working Group has published guidlines for bar associations and business lawyers on the implementation of the United Nations (UN) Guiding Principles on Business and Human Rights.

    It is the first of its kind since the UN Human Rights Council endorsed the Guiding Principles in 2011 and was released in Tokyo, Japan at IBA’s Annual General Conference last week.

    It is divided into two working documents, one for bar associations (11 pages) and the other for business lawyers practising as in-house counsel and law firms (60 pages).

    Its aims are: to encourage bar associations to improve the understanding of the relevance and applicability of business and human rights principles; urge bar associations to develop an overall strategy for integrating the guiding principles into the practice of law; provide information to heighten awareness of the implications of the guiding principles; and to serve as a training tool for current and future legal professionals.

    For business lawyers, the principles explores the ways in which the guiding principles may be relevant to the advice they provide clients, consistent with their professional ethical responsibility as lawyers to uphold the law, to act in their clients’ best interests and to preserve clients’ confidences; reviews potential implications of the guiding principles for law firms as business enterprises with their own responsibility to respect human rights, focusing on services rendered to clients; and will assist the representation of the legal profession in the design of business and human rights policies before policy makers, governments and legislatures.

    The culmination of a six-month consultation and drafting process, working in collaboration with the IBA Corporate Social Responsibility (CSR) Committee and facilitated by the IBA Legal Projects Team, the IBA Working Group Guidance reviewed the implications of the guiding principles for the global legal profession and provides practical support for their implementation.

    Commenting on the release, IBA President Michael Reynolds said: “In recognising the essential role that lawyers play in upholding the rule of law, and that they can provide advice on human rights in client business transactions in a manner that greatly enhances the value of their legal services, the IBA Guidance aims to support the development of a global strategy for the integration of the principles into legal practice.

    “The Guiding Principles recognise that the responsibility to respect human rights is a global standard of expected conduct for all businesses, and that measures are required to address the impact of human rights on commercial practices and enterprises. The promotion of integrity standards and the rule of law are at the core of the work of the IBA, and through our leadership we intend to mobilise the legal profession to take affirmative steps to integrate the Guiding Principles in the services they provide to their clients”

    The Chairman, IBA Business and Human Rights Working Group, John F Sherman III said: “Since the endorsement of the Guiding Principles, businesses are increasingly turning to their legal advisors for assistance on their implementation. This guidance is designed to support those bar associations and business lawyers to understand the implications of the Guiding Principles to effectively counsel their clients and ultimately help business enterprises to fulfil their responsibility to respect human rights.”

    Over the next 12 months, the IBA Business and Human Rights Working Group said it would solicit feedback from several national bar associations, including the  Nigerian Bar Association (NBA), Spanish National Bar, the Law Society of Namibia, and the Costa Rican Bar Association.

  • Enugu and Ebeano family oligarchs

    Last week, this column argued that what is unfolding in the run up  to the 2015 general elections, as Nigeria enjoys her longest civilian rule, is rather a triumph of oligarchy, founded on a culture of ‘settling the godfathers’. This national ethos, across the political parties, has strong followership in Enugu state, which is in the firm grips of the People Democratic Party (PDP). The Enugu state model is patented by a political group, which emerged after the 1999 elections, and goes by the appellation, the Ebeano family, or something not very far from that.

    The inventor of the group is the former Governor of the state, and later a Senator representing Enugu East, Dr. Chimaroke Nnamani. Before he became Governor in 1999, Chimaroke was resident in the United States of America, where he practiced medicine. At the sanction of political activities by General Abdusallami Abubukar, after the death of the maximum ruler, General Sani Abacha; Dr. Nnamani returned home to participate in the emerging political process. Having neither political experience nor any form of political network, Dr. Nnamani, relied sorely on his kinsman, Chief Jim Ifeanyichukwu Nwobodo, the former Governor of old Anambra state, from which Enugu state was carved out, to pursue his ambition.

    The legend is that Dr. Nnamani was the first to arrive at the Nkanu home of Chief Nwobodo, and the last to leave, everyday of the week, as Chief Nwobodo, the godfather, majestically sat on his throne to share the state political offices, with a few acolytes. Of course, the godfather kept a Senate seat for himself. After successfully delivering his godson, Dr. Chimaroke to the Lion Building, the seat of government of Enugu state; the godfather triumphantly moved over to Abuja as a distinguished Senator, hoping to shout orders to his godson from there, while he contends for national space with others federal officials.

    Nobody has publicly owned up to knowing what went wrong, but obviously the godson, posthaste desired to become a godfather. Initially it was said in hush tones, but later it was shouted from the roof top, that the godson, Dr. Nnamani, had become his own godfather, and any obstacle on the way, man and material, were cleared without any modicum of mercy. The deposed godfather got the message and stayed in Abuja. Not long after, he could only visit his constituency, if those he went to contend power with, the Obasanjos and the Abubakars, granted him journey mercy, by providing police security. Of course he had his occasional gyrations and public entertainment during arranged visits, but he knew that power had left him.

    Governor Chimaroke Nnamani’s reign began in earnest, and the Ebeano political family was born, in blood and tears. When it was time for the creator and godfather of Ebeano family to move on after serving two terms as Executive Governor of Enugu state, he was determined to avoid the pitfall of his deposed godfather, Chief Nwobodo. He sought for ‘a most pliable, reliable, apolitical and dependable ally’, during his reign, to succeed him as Governor. The lot after a strenuous search fell on the incumbent Governor, Barrister Sullivan Chime, who was conservatively loyal, politically austere, and somewhat a technocrat. He was a perfect godson. An even more perfect godson Sunday Onyebuchi, the impeached deputy governor of Enugu state, was installed as his deputy. The new kingmaker, Governor Chimaroke, assumed the senate seat which he early enough strategically appropriated from the defunct godfather, Chief Nwobodo; and the Ebeano family flourished.

    His Excellency, Barrister Sullivan Chime, did not disappoint his political family. On consolidating the reigns of power, he knew that in the tradition of the Ebeano family, the throne of the reigning godfather must be decapitated and the occupant banished. Considering that Dr. Nnamani was not generally loved like his erstwhile godfather, Chief Nwobodo; it did not take much effort to steer the people away from him. The family’s other godsons like the current Deputy Senate President Ike Ekweremadu, Senator Ayogu Eze, Senator Gilbert Nnaji, state party officials, local government administrators, name them; immediately abandoned the deposed godfather. Of course the New Ebeano family made in the image of Governor Sullivan Chime has been flourishing.

    With 2015 in sight, the reigning godfather of the Ebeano family, Governor Sullivan Chime, has been discharging his onerous political responsibilities, without any fear. Of course, according to the family tradition, favour is the sole determinant. Considering the past exploits of the reigning Enugu state oligarchs, it is in order to begin to refer to the anointed gubernatorial aspirant, Hon. Ifeanyi Ugwuanyi , as the next executive governor of Enugu state. According to the Governor’s media handlers, the selection process was done in the best tradition of democracy. A senior Senator from the same zone as the anointed candidate, and whom I expected to run, Senator Ayogu Eze protested mildly, knowing as he ought to, being an inner-caucus member of the family that reigning godfathers are maximum rulers, and it may be unpleasant to excite them.

    I recall an encounter for a lesser office in the state, which event I relayed here some years back. It was at the selection of Barrister Emeka Ozoagu, as the PDP’s chairmanship candidate for Ezeagu local council. During the process, the now forgotten House of Assembly member, Tico, who showed dissent while the godfather presided, was allegedly beaten black and blue at the instance of a top state functionary, now the preferred candidate for the senatorial zone of the two erstwhile godfathers, Enugu East. According to that source, when Representative Ozomgbachi was called upon to contribute; he told His Excellency, the reigning godfather, that he holds the yam and the knife, and it was his prerogative to share according to his will; to which even other contestants fearfully chorused, Amen.

     

  • ‘Why court awarded Bi-Courtney N132b’

    ‘Why court awarded Bi-Courtney N132b’

    Following the failed attempt, on September 22, by the Asset Management Corporation of Nigeria (AMCON) to take over the assets of billionaire businessman, Dr. Wale Babalakin (SAN) through a court order obtained by its lawyer, Olisa Agbakoba (SAN) over a controversial N50 billion debt, there have been several claims and counter-claims by both parties.

    The dismissed order had empower Agbakoba as the receiver to take over the assets of Babalakin, including the domestic Murtala Mohammed Airport terminal II (MMA2) and the old Federal Secretariat, Ikoyi.

    On September 29, Justice Ibrahim Buba of the Federal High Court in Lagos, in response to Bi-Courtney’s contention, described steps taken by AMCON to obtain the order as an abuse of court process and subsequently set it aside.

    The dispute began shortly after the Murtala Mohammed Airport terminal two (MMA2), operated by Bi-Courtney, started operations in May 2007. The concession agreement between the Federal Government and Bi-Courtney for the construction and operation of the terminal provided for a coordinating committee with three representatives from the Federal Government and three from the concessionaire in the event of any dispute.

    Based on allegations that there were a series of breaches on the part of the Federal Government, the concessionaire approached the arbitration body, stating that it had been denied the exclusivity clause and several revenue sources in the concession agreement.

    According to reports, Bi-Courtney is expected to make its revenue from passenger traffic, cargo handling, parking space, advertisements, space rental, and fuel surcharge on every litter of petrol sold, among others, as these were the revenue streams on which a consortium of banks had based their financial projections and assumptions before they granted the firm a loan to build the terminal.

    The firm submitted to the arbitration body that the Federal Government was maliciously blocking these revenue streams by providing another terminal for the biggest airline operators. When Bi-Courtney started operating MMA2, only Chanchangi Airline was said to be flying from the terminal.

    Arik, and Virgin Atlantic, which later turned to Air Nigeria, were controlling between 60 to 70 per cent of the market; they were initially allowed to operate from the International Airport terminal. Aero was flying from its own station.

    Even, when Air Nigeria eventually moved to MMA2, the Federal Government allowed Arik and some other airlines to move their operations to the General Aviation Terminal (GAT), which is next door to MMA2, and should have been part of the concessionaire’s terminal under the agreement.

    The firm also submitted that the spaces being let out at the GAT should have been part of its revenue, and that the government has also been denying it of revenue from advertisement space, fuel surcharge, and several other sources.

    Although Bi-Courtney claimed that it never made up to 50 per cent revenue from the terminal, it had paid over N11billion of its debts to the banks before the outstanding debt was transferred to AMCON.

    AMCON had bought the debt from the banks at N19billion, which Bi-Courtney felt was wrong. Babalakin contended that most of the debts of AMCON were bought at discounted value, but that of MMA2 was bought at 100 per cent, with no discount.

    When the MMA2 dispute was resolved in favour of Bi-Courtney by the coordinating committee, the unanimous decision was that the Federal Government was in breach of the agreement; that it should hand over the General Aviation Terminal (GAT) to Bi-Courtney, and ensure that all domestic flights originate from the concessionaire’s terminal.

    Although the Federal Government was represented at the arbitration panel, its agencies allegedly refused to comply with the resolution. This development made Bi-Courtney to seek redress at the court. After a review of the case, the court found that all the decisions of the coordinating committee were correct, and it reaffirmed the decision in a 2011 judgment.

    The court also asked the government to forward an account of all the revenues it has made, and Bi-Courtney was asked to present an account of all the revenue it has lost as a direct result of the breaches. Bi-Courtney complied, and the Federal Government did not. The court thereafter awarded N132billion to Bi-Courtney to compensate for the breaches.

    Six appeals were filed against this judgment – two by the unions, one by Federal Airports Authority of Nigeria (FAAN), one by Ojemaie Holdings, the handlers of Arik, one by Arik, and one by the Attorney-General of the Federation. All the appeals were dismissed within four years.

    Despite the court judgment and the submissions of the arbitration panel, the government allegedly went ahead to develop the GAT in further breach of the agreement.

    Bi-Courtney believes the actions of the Federal Government and AMCON have grave implications for a nation that is dreaming of a private sector-led resuscitation of public infrastructure and the nation’s economy. It has also described the government’s action as a deliberate attempt to frustrate investments, commercial development and job creation in Nigeria.

    Meanwhile, AMCON has since filed a notice of appeal of Justice Buba’s ruling and formulated four grounds before the appellate court. Some analysts see Babalakin’s travails as capable of discouraging investors.

     

  • ‘No rule of law without obedience to court orders’

    The Rule of law will be absent where court orders are not obeyed by the government, Abia State Governor, Theodore Orji has said.

    Speaking with reporters in Umuahia during the presentation of the Abia Governorship Law Reports (AGLR) written in his honour, he urged politicians to be just and equitable in their pursuit of power.

    He said the best way to enthrone rule of law is to exhaust the appellate options available in courts  rather than taking laws into one’s hands. This, he said, could lead to anarchy.

    He said: “My recommendation to other  politicians is that they should not disobey court orders because that is what unifies  and sustains our democracy. They should not disobey court orders because there are avenues for them to seek redress.

    “ If not from the lower court, they  can go to the Appeal Court.  After  Appeal Court and you do not succeed, go to the Supreme Court and once the Supreme Court decides, that is final.

    “I will not recommend that any person disobeys court orders. I will not recommend that if our democracy must be sustained. It is the judiciary that will help to sustain it.  Citing the Adamawa example, Orji said the obedience to court order save the state from crisis. “What happened recently in Adamawa State, assuming that the people said  no, we will not obey the court order to swear in the former deputy governor  James Ngilari  as governor, there will be crisis there. There will be killing and burning of property there,  but because they obeyed  court order, you see there is at least, relative peace there now.

    “So in our own interest for peace and sustenance of our democracy and separation of power, I will recommend that every government, every Nigerian should obey court orders. If you are not satisfied, go through the process of seeking redress.”

    On the Law Report, Orji said the idea did not emanate from him. “The writing of the book was not my initiative. Dr. Livy Uzoukwu,  a Senior Advocate of Nigeria (SAN), who represented me at the tribunal, initiated it.  He told me that my cases  were  exemplary in election petitions and that it will be good to document  them  for posterity.

    “He came and asked me some questions,  because  honestly, I underwent a lot of troubles during those elections. I was one of the governors that had the greatest litigations. It caught my fancy because it will be good and it would add value to our justice system  and electoral jurisprudence.

    “I said okay go ahead and use me as a sample and I will like to be used as an example. Eventually  he went ahead and did that,  I am happy for it.”

    Speaking on the aspect of the Law Report that interests him most, the governor said: “There are several interesting cases that will serve as reference points for any tribunal case  that is similar to my own, but the one that  interested  me most is the one that said that  I belonged to a secret society and   that the secret society is Okija shrine

    “But I know that I never belonged to any secret society and for sure Okija shrine is not a secret society. What you have there is a Shrine,  people go there to perform their rituals. Eventually the thing was sorted out that I did not belong to any secret society and now like I said, it is now a reference point for any person,  who contests  election and they said he belonged to a secret society. They have to prove that society is secret. They have constitutions, they have modus operandi,  but I have never heard anything about Okija secret society.”

    He advised politicians who may have a similar experience to consider them as “political trials.”

    “As we come to struggle for power, everything goes, there are people, who want that power by all means, through blackmail, through propaganda, through false accusations; that was exactly what I experienced

    “A very innocent and humble man, coming into politics, jumping into the murky waters of politics, then the accusations came from every right, left and centre. At a time, they even said I did not resign at the appropriate time, but I know that I resigned.

    “My advice to politicians, who want to pass through this, is, first, you have to stand on the truth. If there are areas, you can reconcile and negotiate with your opponents, please do that, but if you are going through this process, you have to be determined. It is not something you can do half way and run away.

    “You have to be determined to fight, once you know that you are in the right course and with good lawyer, you will win, but if on the other hand you know that what you are fighting for is not just, there is no need damaging your image or damaging the relationship that you had with the man, who is on the right track. Just discuss with him, parley with him, politics is all about negotiations and interest.”

  • Man freed from death row

    A 30-year-old man, Monday Ilade Prosper, has been released from the Kirikiri Maximum Security Prison 11 years after he was sentenced to death. He spent eight years on death row.

    He was barely 18 in 2003 when he was charged with armed robbery in Benin City for forcefully collecting his salary from his employer. He was a private driver to an industrialist who allegedly refused to pay him for three months.

    As his employer withdrew money from a bank, Prosper threw sand on his face, took the bag of money, counted out his salary and returned the balance, as was reported.

    He was arrested and charged with armed robbery, convicted and sentenced to death in 2006 by the Edo State High Court.

    Prosper waited for the hangman for eight years in great trauma, especially with the resumed executions last year.

    But the Court of Appeal in Benin allowed his appeal and overturned his conviction and sentence. The court held that the evidence was ‘spurious’ and the prosecution’s case was too weak for a conviction for armed robbery.

    A group, the Legal Defence & Assistance Project (LEDAP), which has in the last decade litigated over 210 cases of persons charged with capital offences or convicted and sentenced to death, called for capital punishment abolition.

    Its National Coordinator, Chino Obiagwu, in a statement, quoted Prosper as saying: “It is time to abolish the death penalty. Many of my friends on CC (condemned cell) in Kirikiri are innocent. I know that as a fact. It is true.”

  • Banks’ shareholders seek compensation

    Shareholders of defunct Afribank Plc,Bank PHB Plc and Springbank Plc have urged the Court of Appeal in Lagos to order their compensation following the revocation of the banks’ licences by the Central Bank of Nigeria (CBN) in 1999.

    They are praying the court to overrule a Federal High Court judgment by Justice Charles Archibong (as he then was) which dismissed their originating summons.

    According to them, the defunct banks’ assets can not be transferred free of charge to another entity without compensation to the shareholders.

    CBN, Nigeria Deposit Insurance Corporation (NDIC), Asset Management Corporation of Nigeria (AMCON), Securities and Exchange Commission (SEC) and Nigerian Stock Exchange (NSE) are the respondents.

    Also joined in the appeal are Mainstreet Bank (formerly Afribank), Keystone Bank Limited (formerly Bank PHB) and Enterprise Bank Limited (formerly Spring Bank).

    The appellants, represented by Boniface Okezie, Adeyemi Kehinde and Adebowale Bolanle, said Justice Archibong was misconceived when he validated the respondents’ action.

    They said the respondents revoked the banks’ licences, transfered their assets free of charge to Mainstreet, Keystone and Enterprise banks, and de-listed their shares from the exchange.

    These acts, the shareholders said, were in breach of the law, motivated by malice and were based on inconsistent reasons not based on law.

    They are seeking damages, while urging the appeal court to uphold their appeal.

    “The court is respectfully urged to allow the appeal and grant the reliefs sought on the originating summons.

    “Damages should be assessed at the rate of the difference between the value of shares of the 9th (Afribank), 10th (PHB) and 11th (Spring) respondents on the stock exchange at the time of the intervention of the CBN governor in the banks in 2009 and their nominal value of N1 per share which is all that the respondents would have left to their shareholders by their unlawful and malicious action should the appeal succeed,” the appellants said.

    The shareholders said no compensation of any sort was paid to them following the banks’ takeover.

    According to them, SEC and the Exchange, which ought to protect their investments, succumbed to the CBN governor’s will and publicly approved the actions, going ahead to de-list the banks’ shares from the stock exchange without pursuing any form of compensation for their shareholders.

    However, CBN and SEC are urging  the appellate court to dismiss the appeal as lacking in merit and with substantial cost.

    They said the Appeal court cannot hear the originating summons because it was not heard at the lower court.

    Besides, Justice Archibong, they added, had dismissed the originating summons because it is “unsustainable” after the respondents filed preliminary objections against it.

    “We submit that, having regard to the fact of the case and in all the circumstances of this case, the Court of Appeal has no jurisdiction in the circumstances to consider the appeallants’ originating summons which has not been argued at all at the lower court as urged by the appellants and there being no appealable decision thereon,” CBN and SEC said.

    The appellants’ lawyer, Deacon Paul C. Ananaba (SAN), who led Mr Chuks Nwachukwu, said two of the banks are about to be sold while the appeal is pending.  “They’re proceeding to sell two of those banks,” he said.

    The presiding justice, Amina Augie, said, referring to AMCON: “Don’t sell anything.”

    AMCON is expected to respond to the amended notice of appeal.

    Justice Augie adjourned till January 21 next year for mention because other parties indicated that they would file cross-appeals.

     

     

  • ‘Security is everybody’s business’

    Mr. Sabastine Ubua Anyia is the chairman, Nigerian Bar Association ( NBA) Aguata Branch. He is a graduate of the University of Maiduguri and holds a Masters of Law from the Nnamdi Azikiwe University, Awka. In this interview with the Legal Editor, John Austin Unachukwu, he speaks on his plans for his branch and insecurity.

    Give us an insight into your activities at the Bar. How would you appraise the current leadership of the Bar?

    I have been an active Bar man from the day I was called to the Bar. I have attended all National Conferences of the Nigeria Bar Association (NBA)  from day one till date. I have been a NEC member. I am also a strong member of the Eastern Bar Forum (EBF). I am a committed member of the NBA, Aguata Branch. I have worked assiduously for the growth and achievement of the Bar goals and objectives all this time. I am by nature a goal-getter and in recognition of my contributions to the branch, the branch honoured me with an award of “The foot Soldier of Aguata Bar”.

    So, how do you feel about the award?

    I am humbled by this award. I have watched closely leaders of the NBA  from the days of  Chief Wole Olanipekun (SAN)  till date. They have all contributed their quotas to the growth of this great Association. Do not forget that being a leader of the NBA is like a wise man leading millions of wise men. It is always not easy because every person you are leading knows what you know, if not even more than you. So my brother, it is not always easy to please wise people.

    The NBA President has taken a few actions since his inauguration, what are your expectations from the current leadership of the Bar?

    Having said the above, the current leadership of the NBA, by Augustine Alegeh (SAN)  from the very first foot he placed forward, I have no doubt that he is going to be the Messiah of the NBA. If you listened  to his inaugural speech on August  29, you will agree with me that it was a bombshell.  He left no one in doubt that he is an agent of change; the one members of the Bar had yearned for years now.

    In which areas are you expecting the changes?

    His administration will encourage members, who have before now, refused to pay their practicing fees because of the style and manner the previous leadership of NBA have piloted the affairs of the Association to start paying because of the benefits attached to the payment of the  fees. For instance, if you pay your practicing fees (which he promised to reduce) as at when due, you are entitled to NBA Welfare Scheme without any further payment or additional fees. You will be issued with free Identification Card. The card, he disclosed, would also function as a payment card for ATM, PoS and other online transactions. The card also entitles the bearer to a menu of discounts and other packages negotiated by the association. He has also opened the gate for observers to attend NEC meetings unlike his predecessor. What is more, Augustine Alegeh  has reduced drastically conference fees.

    So, back to your question, the present leadership led by Alegeh will lead the NBA to the Promised Land.

    How do you feel about your election as the Chairman of NBA, Aguata Branch?

    I thank God for making it possible for me to emerge winner of the election. Indeed, I am exceedingly grateful to God and good people of NBA, Aguata Branch. The people have spoken through their votes and I assure  them that I will not disappoint them. I believe in the concept of servant-leadership and this has been my guiding principle. Do not forget that though I practice my profession in Anambra State, I am from Cross River State, while my opponent,  Sir Izu Nwankwo is an indigene of the state,  the son of the soil and also a very senior member of the Bar.

    Therefore,  for members to choose me shows the confidence and trust they have in me. I give them my solemn undertaken that I will not disappoint them. I told the members of this great Bar in my acceptance speech that: “Words of mouth are grossly inadequate to say thank you. God Almighty will reward you all and your families. Nobody won and nobody lost. We all won, NBA, Aguata Branch is the winner. Unity is strength … When there is team work and collaboration wonderful things can be achieved. We shall work like one united happy family. Once again, thank you all for your support. I shall not disappoint you”. This is my bound with the good people of Aguata Bar. Let me also use this opportunity to thank the leadership and members of other branches of NBA in Anambra State for their support and encouragement. To them I say Imela ooo! Chukwu gozie unu ooo!

    What examples did this set for other branches?

    During my campaign, I discovered that in Anambra State, the people are not interested in where you come from, but in your track record and your ability to deliver. The support I have received from members of the NBA, Aguata Branch and the encouragement from lawyers of the other six (6) branches of NBA in Anambra State has been amazingly wonderful. The issue of none indigene was never a factor in my campaign. My acceptability cut across senior and junior members of the Bar.

    What is your track record of activities at the branch?

    I have been a member of the NBA, Aguata Branch since 2004. I came to Anambra State as a Youth Corper and I remain thereafter. Since then, I have served the branch assiduously that Chairmen of other NBA braches in Nigeria call me Aguata. I have been the Public Relation Officer (PRO) of the branch, I have been voted as the Financial Secretary of the branch. I have also contested and won the Secretary of the branch. I have been the Secretary of Committee of Chairmen and Secretaries of NBA, Anambra Chapter. I have served as the Secretary of NBA, Aguata Law Week Planning Committee in 2012, Chairman Law Week Contact Committee 2014, Chairman Bar Dinner 2010 to 2012, Member Aguata Bar Center Project. Chairman Aguata Branch Conference Committee for lodging and/or accommodation from 2010 to 2014, Chairman Young Lawyers Forum. In all these offices I have performed to the satisfaction of my branch members. This explains why they are full of praises for me. Apart from my branch, my relationship with other branches of the NBA in Anambra State has been simply fantastic.

    Why do you think you are the man for the job?

    I think that I am the man for the job because of my upbringing and training from my family, the church, school and the training in this bar. During my secondary school days I was the youngest student in the class and the smallest, yet, when the senior class handed over power to us; the school authority made me the senior prefect in spite of my age and size. My success story as the youngest senior prefect of the school is there for everyone to see. In my university days, I was the Secretary of National Federation of Catholic Students, Secretary of Rotary Club, Secretary of University of Maiduguri Sport, Secretary of Cross River Students and President of Wula Students Worldwide.

    In NBA, Aguata Branch, I received training and tutelage from Chief  C.O. Ezeanowai-Obiezi (now late), worked so closely with him that I knew the problems of the branch and the best way to solve them. During the tenure of Sir Emeka Umejiaku, I was the Financial Secretary of the branch and his strong anchor man. Also, during the tenure of Hon. M.C.Z Aniazoka, I was the Public Relation Officer (PRO) of the branch, I worked so closely with him that the branch members called him my mentor. Again, during the period of D.U. Umeobika, a man known by every person as a perfect gentleman, I was the Secretary of NBA, Aguata Branch. I learned from him the real teaching of life and how to manage people. I am the only member of the branch, who knows all branch members by name and their houses and offices. I also have members’ phone lines. I know the problems of members and the problems of the branch in general. I have received training, tutelage and blessings from past chairmen that have equipped me for the job. I have the magic touch to solve the problems and take the branch to the next level.

    What are your plans for the branch, how do you hope to actualise them?

    My administration shall introduce loan scheme for members, who are in financial difficulties, especially for young lawyers. My plan is to change the mind set of lawyers in Aguata Branch to be achievers, to encourage them to take up the ranks of Senior Advocates, to look beyond the locality where they live and practice. To attract businessmen and incorporate bodies to identify with the branch, to complete the branch Bar centre  and to reduce or remove unnecessary levies placed on members.

    I shall make members see NBA meetings as a place to confide in; a place to solve your legal problems and a place for protection of members. I shall resolve all branch problems, especially the land problem. My administration shall focus on human development and each member shall be his brother’s keeper.

    What are your expectations from the current leadership of NBA?

    Good governance and/or leadership. I have no doubt that Augustine Alegeh will lead the bar to the Promised Land. He has started the fight to free NBA from the iron grip of the powerful few, who have hijacked it. I pray God to stand by him.

    What roles do you expect of the Bar in a pre-election year and how do you think the Bar can make significant contributions to the forthcoming general elections?

    I expect the bar to focus primarily on the welfare of her members, the legal profession – the state of our judiciary, the conditions under which our judges are working, their productivity, the conditions under which lawyers are working, the conditions under which they are being trained. I also expect the bar to focus on the Bar and Bench relationship, where one will not see himself or herself as the king and the others as slaves. The Bar should take a clear and firm position on the politics of the nation without necessarily taken side with any of the political parties. I also expect the Bar to preach peace and tolerance in the forthcoming general elections. This is because peace is also a form of justice

    How would you appraise the speed of justice delivery in the country, how can we improve on this?

    Our Judges have been doing their best in justice delivery taken into consideration their conditions of work. However, they have to improve as their best is not good enough. With the signing into law the judicial autonomy by some states of the Federations and to my mind before the end of this year all the states will sign it. Once that is done, our court shall have better electronic gazettes to help them in speedy dispensation of justice. The bar can also play a role by imposing sanctions on her members who are frustrating the court from speedy trail of cases.

    It is widely believed that the standard of legal education on the decline, how do you think this can be improved?

    There is no gain emphasising it. But who do we blame for the decline? Is it the students or the lecturers? Until the NBA and NEC members take a serious position on this, the saying will only be a recurring decimal. Compare the number of universities offering medicine and the one offering law, you will know the cause. Today 80 per cent of the students in the Open Universities are studying law; at the end what do you expect? Until we stamp out these programmes and reduce schools offering law to a manageable level, we will not see any change. For the lawyers, I encourage a more committed and serious continuous legal education.

    Insecurity of lives is one of the greatest challenges facing the country, how do you think this  can be resolved within the internationally accepted best practices?

    The issue of insecurity as a matter of fact is worrisome. Whenever the issue of insecurity is discussed I always advise people to look back and by their sides and be sure if the next person is not one of them or their agent. For me, insecurity is not caused by the terrorists in the forest, who occasionally come to the town and villages to attack and kidnap innocent citizens. Rather, their agents, who live with us, give them information on how and when to attack. These informants and/or agents are in the Army, schools, Police, markets, government institutions and above all, there are the politicians who sponsor them. The truth is that these sponsors and/or agents of these cowards called Boko Haram are known by people, who out of fear or other primordial interest, will not want to report them to the government.

    The insecurity will come to an end when we all sincerely decide to become informants to government. There is so much betrayal in the military that the junior officers do not trust their commanders and their GOCs. They complained of not having modern equipment to confront the insurgents, yet, the Federal Government spends millions on the military as shown in the nation’s budget every year. Why has the insurgent not be able to penetrate Cameroon? It is simply because they are committed and sincere to themselves. They look at it as war against the enemy of their state. We must forget about tribe and religion and see the terrorists as the enemy of the Federal Republic of Nigeria.

    That is the only way we can win this war. I read in Vanguard of September 26, that Shekau has become a brand name for the terrorist leader. What that means is that Shekau has been killed since. The recent person acting Shekau is Mohammed Bashir, who was recently killed. I expect the military to scrutinise and interview the 135 terrorists that have surrendered to get information on how to end this insurgency once and for all in conformity with the dictates of standard best practices.