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Category: Law

Why court acquitted Ikuforiji of money laundering

After over 12 years of trial, the Federal High Court in Lagos acquitted former Lagos State House of Assembly Speaker Aderemi Ikuforiji and his aide Oyebode Atoyebi of money laundering charges. ADEBISI ONANUGA reviews the case.

It was indeed a long trial journey for former Speaker, Lagos State House of Assembly, Aderemi Sabit Ikuforiji and his former Personal Assistant, Oyebode Atoyebi for money laundering.

The trial which lasted over 12 years, took Ikuforiji and Atoyebi to and from the Supreme Court. It passed through two judges of Federal High Court in Lagos – Justices Okechukwu Okeke and Ibrahim Buba.

Judgment was finally delivered in the matter by a third judge, Justice Mohammed Liman, who absolved and freed Ikuforiji and Atoyebi of a 54-count amended charge bordering on money laundering on June 24, 2024.

All the 54 counts against the defendants were premised on similar provisions of different legislations, and the same set of rules applied to the interpretation of the law.

The prosecution’s failure to establish the elements of the offense must also be noted.

Interestingly, the court relied mainly on the evidence of the prosecution to decide against the prosecution.

The testimony and the documents which the court relied upon to reach its decision were all submitted on behalf of the prosecution.

For instance, with regards to the Section 1 of the Money Laundering Prohibition Act, the court correctly held that none of the activities alleged contravened that provision.

One key element of the offense is that the transactions were not processed through a Financial Institution.

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The court, however, decided based on the testimony of the PW1 and the documents tendered by the prosecution, especially the ledger of the three commercial banks which were maintained by the House.

The court found that the financial institutions were involved in the disbursement of the money as it was established as a procedure of the House for officials of the banks to bring cash and disburse upon requisition, which was often in the form of a cheque.

Invariably, the court has clarified that position of the MLPA and interpreted same to mean that one does not have to go into the banking hall, and the involvement of the financial institution upon the receipt of an instruction to the financial institution to collect or disburse suffices.

Ikuforiji and Atoyebi were charged with a 54-count money laundering charge. A petitioner had alleged that he stole about N7 billion from the Lagos House of Assembly. The EFCC closed its case on March 17, 2021 after calling two witnesses.

The defence counsel, Dele Adesina, (SAN), opened his clients’ defence on May 4, 2023. He called three witnesses, including Ikuforiji, who testified that he was being prosecuted based on a petition written by an unknown person.

Judgment

The court held that the testimonies from defence witnesses highlighted that the Speaker and his assistant operated under documentation and furthermore that there is a robust internal control system in the House of Assembly aimed at preventing money laundering.

“It is pertinent to state that the evidence presented by the prosecution itself reveals that monies utilized by the House under the Speaker, passed through financial institutions”, the court held in view of evidences made up of cash registers from Wema Bank and Equatorial Trust Bank.

Justice Liman, after the trial held that the prosecution had failed to prove the charges of money laundering against the defendant.

“Given the evidence demonstrating and predicate offense or illegal activity committed by the defendants, the only logical inference to be drawn is that the prosecution has not met the burden of proving the charges of money laundering beyond reasonable doubt.”

Justice Liman said: “The prosecution has failed to establish any underlying criminal activity or wrong doing by the accused that would have generated the funds in question, this rendering the accusation of money laundering unfounded.

He said this assertion aligns with the precedent set forth in the case of EFCC VS Dr Martin’s Okuwafemi Thomas (2018)-JELR 34398 which underscores this point effectively.”

The court also noted that the offence of money laundering must be accompanied by a predicate offense which is an illegal act that yields the funds sought to be laundered as clean money. It is difficult or near impossible to prove money laundering without a predicate offense. The burden therefore lies on the prosecution to name a predicate offense that generated the funds . Money laundering can therefore not stand on it’s own without any form of illegality, citing Dauda V FRN (2018) LPELR-43637 (SC).

The court noted that the Money Laundering (Prohibition) Act 2004/2011 requires clear evidence of intent and the actual act of laundering money. Previous cases such as FRN vs Ibori underscore the necessity for incontrovertible evidence linking the accused to illicit financial activities. In the absence of such evidence, the benefit of the doubt must be given to the accused as per the principles of natural Justice and the right to a fair trial.

The court declared that the evidence presented by the prosecution itself reveals that money utilized by the house under the speaker, the 1st defendant, passed through financial institutions.

It further held that testimonies from the defence witnesses highlighted that the speaker and his assistant operated under documentation and that there is a robust internal control system in the House of Assembly aimed at preventing money laundering.

Legal analysis

The judge said it was his firm position that the substantive law in effect at the time an alleged crime occurred governs the charges brought forth. When scrutinising the impugned charges vis-a-vis the dates of the alleged crimes contained therein, the pivotal question arises: what was the substantive law in force at the time of the offense’s commission?

He said it was of paramount importance to underscore that if a certain law was operative at the time of the offence and same was subsequently repealed before the charges were filed, then by virtue of parity in reasoning, the accused ought to be charged under the law extant at the time of the offense’s commission

“Allow me to elucidate with an illustrative example. Let us suppose individual A committed an offense on the 3rd of October, 1960, and the prevailing law at that the time of commission was the 1960 law. Subsequently, the 1960 law was abrogated and replaced by the 1961 law. In the event charges are preferred against A, it is incumbent upon the prosecution to invoke the 1960 law, for it was the operative law at the time of the offense.

The judge said this approach epitomises the principles of fairness and legal certainty.

“Therefore, it is imperative to apply the law that was in force at the time the alleged crime was perpetrated.

“Charging someone under a law not in effect at the time of the alleged offense contravenes fundamental notions of due process and fairness.”

He said central to the rule of law is the principle that individuals must have notice of what constitutes criminal behaviour and the associated penalties. Prosecuting someone under a taw that was not in force at the time of the alleged offense runs foul of this principle.

With that being stated, he carefully assessed the charges contested by the defendants to determine the validity of the issues raised in their Motion. This evaluation entail and considered whether the concerns regarding the disputed charges hold merit and if they justify the Court’s decision to strike out the said counts .

Why Count 1 was struck out

Justice Liman held: “Upon careful consideration, it was evident that the charge under Count 1 does present a potential legal issue. The discrepancy in the timeline, spanning from 2010 to 2011, coupled with the application of the 2011 Act for an offense allegedly committed in 2010, which raises questions about the alignment of the charge with the applicable legal provisions at the time of the offense.

“In legal proceedings, it is said that precision and accuracy in framing charges are paramount to ensure fairness to the Defendants and uphold the integrity of the legal process. Any inconsistencies or discrepancies in the charges can undermine the validity of the case and compromise the defendant’s right to a fair trial.”

The judge, therefore, held that the charge under Count 1 was defective due to the mismatch between the timeline of the alleged offense and the applicability of the 2011 Money Laundering Prohibition Act. This discrepancy creates ambiguity and raises doubts about the legal basis for the charge. Consequently, Count 1 is hereby struck out.

Moving forward, after a meticulous examination of the Amended charge presented to this Court, it becomes evident that the purported offenses occurred between 2010 and 2011. Notably, these charges were based on the provisions outlined in both the 2004 and 2011 Money (Laundering Prohibition) Act.

It is important to note that the alleged offenses committed in 2010 and 2011, prior to the repeal of the 2004 Act, are charged under the 2004 Act (Counts 2 through 48). Conversely, offenses allegedly committed after the repeal, on June 3rd, 2011, are charged under the 2011 Act (Counts 49 through 54). Hence, I firmly believe that the challenged counts within the complaint are valid, hence they are not flawed as claimed by the Defendants, with the exception of Count 1.

How to ensure successful prosecution

Justice Liman said for a successful prosecution under the Money Laundering (Prohibition) Act, it is imperative that all the aforementioned elements be duly substantiated.

He said judicial authorities abound to the effect that all ingredients of an offence must be proved together, emphasizing that failure to prove any ingredient of an offence means the failure of the charge itself.

He cited Adava V. State (2006) 9 NWLR (PT. 984) 152 @ 167 to support his view.

Prosecution’s case hinged on transactions that purportedly exceeded the thresholds of Naira 500,000/ 5,000,000 for individuals and Naira 2,000000 / 10,000,000 for corporate entities under the 2004 / 2011 Acts respectively The transactions scrutinized were claimed to involved large cash payments and receipts.

The defence however provided comprehensive records and oral evidence, indicating that all transactions were conducted transparently and within the legal framework. See the evidence of DW.1, DW.2 and DW. 3.

Testimonies from the Defence Witnesses highlighted that the Speaker and his assistant operated under documentation furthermore that there is a robust internal control system in the House of Assembly aimed at preventing money laundering.

Itis pertinent to state that the evidence presented by the Prosecution itself reveals that monies utilized by the House under the Speaker, the 1° Defendant passed through financial institutions. See Exhibits C and D (Cash registers of Wema Bank & Equitorial Trust Bank)

Note that The Money Laundering (Prohibition) Act, 2004/2011 2011 requires clear evidence of intent and the actual act of laundering money. Previous cases, such as Federal Republic of Nigeria v. James Ibori, underscore the necessity for incontrovertible evidence linking the accused to illicit financial activities. In the absence of such evidence, the benefit of the doubt must be given to the accused, as per the principles of natural justice and the right to a fair trial.

Furthermore, it is worthy of note that money laundering must be accompanied by a predicate offence which is an illegal act that yields the funds sought to be laundered as clean money. It is difficult or near impossible to prove money laundering without a predicate offence. The burden therefore lies on the Prosecution to name a predicate offence that generate the funds.

Money laundering can therefore not stand on its own without any form of illegality, citing Daudu V. FRN (2018) LPELR-43637 (SC).

Justice Liman said the prosecution has failed to establish any underlying criminal activity or wrongdoing by the accused that would have generated the funds in question, thus rendering the accusation of money laundering unfounded. This assertion aligns with the precedent set forth in the case of EFCC v. Dr. Martins Oluwafemi Thomas, (2018) -JELR 34398 which underscores this point effectively.

Given the absence of evidence demonstrating any predicate offense or illegal activity committed by the defendants, the only logical inference to be drawn is that the prosecution has not met the burden of proving the charges of money laundering beyond a reasonable doubt.

Consequently, the defendants are acquitted of all accusations related to money laundering in Counts 2-54 of the charge.

October 22, 2024
Pedro: cases to be decided in 24 months

Lagos Attorney-General and Commissioner for Justice, Lawal Pedro (SAN), yesterday said soon, no case would last more than 24 months in court.

He said a bill for the enactment of Administration of Civil Justice Law has been forwarded to the State House of Assembly.

He said this at a briefing on the upcoming Strategic Stakeholders Meeting and Commemoration of his first year in office held in Alausa, Ikeja.

Pedro said when the bill is passed into law, litigation in trial courts should not last more than 18 to 24 months and tenancy matters between three to six months.

“The idea is to ensure that no tenant is owing his landlord or the landlord is ejecting his tenant when matter is before the court.

“Notices would be given but we would not allow it to be used as instrument of oppression by either the tenant or landlord.’

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He said no tenant would be allowed to go away with his landlord’s money because the matter is in court.

Pedro said that in the criminal justice system, delay in DPP legal advice and prosecution have been addressed.

He said in addition that the Lagos State Criminal Information System (LSCIS) has been established to capture photographs, biometric and identify the cases of all inmates in the Correctional Centres in Lagos State.

He listed other innovations introduced to include the Bill for the establishment of Lis Pendens Registry on land matters.

“The Registry aims to serve as a repository of information of land disputes in our courts to prevent instances of purchase of land that is subject of litigation by unsuspecting purchasers without notice.

“This initiative will not only reduce incidents of third-party interests arising from on-going court cases but also enhance confidence in real-estate investment within the State.”

Pedro said another Bill being proposed, is the Customary Marriage and Dissolution Registry for the registration of customary marriages and dissolution of customary marriages.

He said this would give people of Lagos opportunity to have customary marriage certificates and certificates of dissolution of customary marriages.

According to Pedro, Governor Babajide Sanwo-Olu has approved fund for the completion and furnishing of the JIC Taylor Magistrate courthouse, Igbosere and payment of 34 flats official quarters for the Magistrates.

He announce the upcoming Strategic Stakeholders meeting scheduled for tomorrow.

He said the meeting, with the themed: “Enhancing Collaboration for Effective Justice Delivery,” aims to strengthen inter-agency collaboration and improve the enforcement of laws throughout Lagos State.

“This gathering is a direct response to the insights gained from the Lagos Justice Summit held in May this year, where key stakeholders identified the need for enhanced cooperation and coordination within the justice system.

“One of the summit’s primary recommendations was to convene this strategic meeting to elevate the standards of justice and ensure that justice is not merely an ideal but a tangible reality for all residents of Lagos State.

“The meeting will provide a critical platform for engaging with various stakeholders towards harmonizing MDA operations to improve service delivery and reduce government liability exposure in land administration, physical planning and environmental management,” he said.

October 22, 2024
Idigbe advises SANs to serve as judges

A Senior Advocate of Nigeria (SAN), Dr Anthony Idigbe, has urged SANs to consider serving as judges.

He believes they will help transform Nigeria’s jurisprudence.

The SAN also called for legal and judicial reforms, including revamping the regulatory framework and adherence to ethical standards.

Idigbe delivered the speech at the pre-SAN conferment dinner organised by a law firm, Pinheiro LP.

Initiated in 2018 by Dr Kemi Pinheiro (SAN) as the Cilantro Dinner Series, it is an informal forum where experienced SANs share ideas and convey softer skills to new members of the Inner Bar.

Among them was Mr Chukwudi Enebeli, a partner at Pinheiro LP, who was also elevated to the SAN rank.

Idigbe suggested that those who have achieved the rank of SAN could consider other opportunities the rank provides, including serving as judges.

He said: “From my experience, I suggest you do it early, say three or four years after elevation.

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“I recall Chief Wole Olanipekun SAN encouraging me to apply for an appointment as a Supreme Court judge and telling me about 13 years ago that he would have done the same, but for his age, which was too close to the then retirement age of 65 years.

“Many of us are passionate about mixing the backgrounds of those in the policy court.

“Unfortunately, I must share the same sentiment as Chief Olanipekun with you today: I’m getting dangerously close to my potential exit even if I get the opportunity.”

Addressing the new SANs, Idigbe advised: “You are young and can enter the judicial space now and impact the jurisprudence.

“I suggest that some of you explore becoming judges at the entry-level of the High Court, say three to four years from now.

“Once SANs begin to be appointed at that level, it would soon become the norm, and the season of appointment of only failed practitioners to the junior bench will be a thing of the past.”

On why SANs should serve on the Bench, Idigbe recalled: “At some point in my practice, the briefs and associated money no longer motivated me, given the jurisprudence coming from the courts.

“While my practice brings solutions to particular clients, I could not impact the general jurisprudence from the outside.

“Maslow’s laws of the hierarchy of needs applied at some point, and I then understood why my father abandoned successful legal practice twice to go to the Bench.

“Also, though I swore that my father had made too many sacrifices for Nigeria that I needed to focus on running a financially successful legal practice, I soon found myself with the same craving to serve.”

Idigbe also urged legal practitioners to uphold the profession’s ethics, otherwise the entire legal system risks collapse.

“Understanding that a Senior Advocate must adhere to ethical standards is non-negotiable,” the SAN said.

He added: “It has also become increasingly alarming how some lawyers have continued to engage in ‘Jankara practice.’

“Some have been disbarred because of professional misconduct.

“Recently, a Senior Advocate sued me and used a fake address for service, a tactic more reflective of the ‘sharp practice’ he must have engaged in before his conferment as SAN.”

Idigbe urged SANs to unite in fighting for legal and judicial reforms.

He said: “We need to review the current standards for admission into the Nigerian Bar and recommend changes; review the ethical requirements for the legal profession and determine the adequacy of such requirements and how best to maintain high ethical and professional standards in the legal profession; and review the structures for regulating the legal profession.

“The reform that I encourage us to champion is a symbiotic relationship that puts legal practitioners at the forefront of all industries, the economy and politics of the country.

“Indeed, my interest in these reforms is selfish because we risk losing relevance.

“If the system is limping, we will have a situation where clients turn to the police or other agencies and, worse still, unregulated self-help organisations for dispute resolution instead of seeking our counsel.

“Unfortunately, this is already happening. A clear example is the real estate sector, where many clients prefer dealing with estate agents rather than lawyers.

“This shift is not solely about professional fees; it stems from a lack of trust, as some lawyers have unfortunately betrayed that trust by mishandling client funds.

“If we implement better regulations and uphold our standards, we can ensure that lawyers remain integral to every facet of the economy – politics, boardrooms, or beyond.

“In the United States, a vast majority of politicians and successful businesspeople are lawyers.

“The same potential exists in Nigeria, and we must harness it.”

Idigbe believes the SAN rank was good for the profession because those appointed are certified to have the skills, can mobilise human resources, manage big law firms, become great adjudicators, train young lawyers, improve jurisprudence and create wealth.

He said: “Conversely, without a ranking system, where the public is unsure of the lawyer to engage or entrust their disputes to, we risk encouraging the rise of ‘mushroom’ offices that struggle to compete internationally.

“However, attaining this level of distinction alone is not enough, you need the skills, competence, and expertise for the job.

“Clients need change constantly, so you must adapt. When the client engages you, repeats the purchase, or refers others to you, your performance becomes a meal ticket.

“The clients will leave if you do not perform, even with the rank. So, I suggest you should be inventive.”

Idigbe urged the new SANs to remember that attaining silk rank is not the end of the road but a new professional chapter.

“Continuous education to bridge our skill and knowledge gaps is essential to your success and utilising the title’s value.

“Once you become complacent and view your title as the ultimate destination, you risk making the status a mere local chieftaincy title without real value,” he advised.

Idigbe urged lawyers to take care of their health.

“Our profession is tasking and exhausting – both physically and mentally.

“Therefore, you should prioritise your health and ensure you enjoy the dividends of your hard work,” he said, adding that they must also be prayerful as it takes God’s grace to succeed.

October 22, 2024
Understanding Nigeria’s cryptocurrency regulatory framework

By Tochukwu Onyiuke (SAN) and Oge Anene

In recent years, cryptocurrency has transformed from a niche digital asset into a significant component of the global financial system. As its use expands, countries like Nigeria have recognised the need for clear regulations to manage risks, protect investors, and foster innovation. However, Nigeria’s journey towards establishing a robust regulatory framework for cryptocurrencies has been challenging. The current regulatory landscape remains fragmented, with overlapping roles between regulatory bodies creating confusion.

This article provides an overview of Nigeria’s cryptocurrency regulatory framework, tracing its evolution, examining its strengths and weaknesses, comparing it with global practices, and proposing improvements for a more coherent and effective system, particularly in the area of dispute resolution.

Key regulatory milestones

Nigeria’s approach to regulating cryptocurrencies began on January 12, 2017, when the Central Bank of Nigeria (CBN) issued its first official caution. The CBN sent a circular to banks and financial institutions warning them about the risks associated with cryptocurrencies, including concerns about market volatility and potential use in money laundering and fraud. Although this circular did not impose a formal ban on cryptocurrency transactions, it urged financial institutions to exercise caution when dealing with digital assets.

Less than a month later, on February 6, 2017, the CBN took a stronger stance by prohibiting financial institutions from facilitating cryptocurrency transactions. This directive explicitly banned banks from converting cryptocurrencies into naira or facilitating crypto transactions, effectively pushing cryptocurrency activity into informal sectors, particularly peer-to-peer (P2P) platforms, which have since become dominant in Nigeria.

In 2018, the Nigerian Securities and Exchange Commission (SEC) recognised digital assets and initial coin offerings (ICOs) as securities if used for investment purposes. However, the lack of detailed guidelines led to uncertainty about how digital assets should be treated.

On February 5, 2021, the CBN reiterated its ban on cryptocurrency dealings by financial institutions. This directive resulted in the closure of many crypto-related bank accounts and pushed more transactions onto P2P platforms. Later that year, in October 2021, the SEC released a position paper aimed at providing clearer guidelines for regulating ICOs and digital assets, but the regulatory framework remained fragmented due to the overlapping responsibilities between the CBN and SEC.

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Recent developments

In 2023, the National Information Technology Development Agency (NITDA) launched the National Blockchain Adoption Strategy to promote blockchain technology across various sectors, including finance and healthcare. Although the focus is on blockchain innovation, this strategy indirectly supports the cryptocurrency ecosystem by encouraging the use of blockchain infrastructure.

As part of this strategy, NITDA introduced a regulatory sandbox, allowing startups to test blockchain applications in a controlled environment. This initiative fosters innovation while ensuring regulatory oversight, providing a safe space for blockchain experimentation.

Although specific regulations for cryptocurrency exchanges and wallet providers have not yet been implemented, ongoing discussions suggest that future rules will focus on consumer protection, market integrity, and preventing illicit activities. Stricter Know Your Customer (KYC) and Anti-Money Laundering (AML) requirements are expected to be introduced, creating a more secure environment for Nigeria’s cryptocurrency market.

Analysis of current regulations

Nigeria’s current regulatory framework for cryptocurrency has notable strengths but also significant gaps. One of its key strengths is the recognition by both the CBN and SEC of the need to manage risks such as fraud, money laundering, and financial instability. The CBN’s prohibition on banks directly engaging with cryptocurrency transactions was intended to protect the naira and safeguard the financial system from potential risks posed by volatile digital assets.

However, the major weakness in the framework is its fragmentation. The CBN restricts financial institutions, while the SEC regulates ICOs and other digital assets, leading to confusion among businesses and investors about which regulatory body holds ultimate authority in certain areas.

Another gap is the limited scope of regulation. While the CBN focuses on banks, no comprehensive rules govern cryptocurrency exchanges, wallet providers, or P2P platforms, which dominate the Nigerian market. This lack of oversight increases the risks of fraud, security breaches, and consumer harm. Furthermore, the absence of formal regulations discourages foreign investment and limits the potential growth of Nigeria’s cryptocurrency ecosystem.

Dispute resolution in cross-border cryptocurrency transactions

As cryptocurrency transactions increasingly involve cross-border interactions, effective dispute resolution mechanisms are essential for ensuring investor confidence and legal recourse. Nigeria currently lacks a well-defined framework for resolving disputes, especially those involving cross-border transactions, leaving participants vulnerable in case of conflicts.

European Union (EU) approach

The EU’s Markets in Crypto-Assets (MiCA) regulation, includes provisions for Alternative Dispute Resolution (ADR), which enables disputes to be resolved outside of courts through mediation or arbitration. The EU also offers an Online Dispute Resolution (ODR) platform, providing a user-friendly digital platform for resolving disputes across borders.

United States approach

In the United States, the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) regulate different aspects of cryptocurrency markets, and many cryptocurrency-related disputes are resolved through mandatory arbitration. Arbitration is commonly included in the terms of service for many cryptocurrency exchanges, ensuring that disputes are settled quickly and outside of court. Additionally, regulatory bodies like the SEC play a role in overseeing enforcement actions when necessary.

Lessons for Nigeria

Nigeria could benefit from adopting similar ADR and ODR mechanisms, ensuring quicker and fairer dispute resolution, especially for cross-border transactions. Setting up a local ADR platform for cryptocurrency-related disputes and ensuring mandatory participation from businesses would help improve trust in the market. Nigeria could also implement arbitration clauses in service agreements for cryptocurrency platforms, ensuring disputes are resolved efficiently.

Comparison with global practices

To improve its cryptocurrency regulations, Nigeria can learn from global best practices:

• United States: The U.S. employs a dual regulatory approach, with the Securities and Exchange Commission (SEC)regulating digital assets classified as securities and the Commodity Futures Trading Commission (CFTC) overseeing cryptocurrency derivatives. Nigeria could adopt a similar model where different types of digital assets are regulated based on their specific characteristics.

• European Union: The EU’s MiCA regulation creates a unified framework for regulating digital assets, ensuring transparency and consistency across member states. Nigeria could adopt a similar approach to eliminate confusion and create a cohesive regulatory environment for its cryptocurrency market.

• United Arab Emirates (UAE): The UAE’s Virtual Assets Regulatory Authority (VARA) offers a centralized regulatory framework for virtual assets, streamlining oversight and promoting innovation. Nigeria could reduce the overlap between the CBN and SEC by creating a unified regulatory body to oversee all digital assets and activities.

Recommendations for improving the regulatory framework

• Establish a Unified Regulatory Body: Nigeria could streamline its cryptocurrency regulation by creating a dedicated regulatory body, similar to the UAE’s VARA, to oversee all digital asset activities and reduce confusion caused by overlapping responsibilities between the CBN and SEC.

• Develop a Comprehensive Regulatory Framework: A unified framework covering exchanges, wallet providers, ICOs, and P2P platforms is essential to ensure that all participants in the ecosystem are regulated appropriately.

• Strengthen KYC and AML Measures: Enforcing stricter KYC and AML requirements across all cryptocurrency platforms would reduce the risks of fraud and money laundering while enhancing market security.

• Support Innovation with Regulatory Sandboxes: Introducing regulatory sandboxes would encourage innovation in the cryptocurrency and blockchain sectors while maintaining oversight from regulators.

• Enhance Public Awareness and Financial Literacy: Increasing public awareness about cryptocurrency risks and improving financial literacy would empower consumers to make informed decisions and avoid scams.

• Implement ADR and ODR Mechanisms: Nigeria should establish internal and cross-border dispute resolution mechanisms similar to the EU’s ADR and ODR systems, providing accessible and efficient avenues for resolving cryptocurrency-related disputes.

Conclusion

Nigeria’s cryptocurrency regulatory framework has evolved significantly since 2017, but there are still significant gaps that need to be addressed. The fragmentation between the CBN and SEC creates confusion, while the lack of a clear dispute resolution process hinders cross-border transactions. By adopting a unified regulatory framework, strengthening KYC and AML measures, supporting innovation, and introducing effective dispute-resolution mechanisms, Nigeria can create a more cohesive and effective regulatory environment. These reforms will not only protect investors but also foster the growth of the digital asset sector, positioning Nigeria as a leader in Africa’s cryptocurrency market.

• Onyiuke is a Senior Advocate of Nigeria (SAN) and heads the dispute resolution team of Accendolaw LP, a commercial law firm in Lagos. Anene, a blockchain expert, is a Supervisory Associate Counsel in the firm.

October 22, 2024
Group alleges witch-hunt plot against Theodore Orji

The Equity and Justice Initiative (EJI) has said that it uncovered a plot by some “disgruntled elements” in Abia State to use the Economic and Financial Crimes Commission (EFCC) to tarnish the image of former Governor Theodore Orji.

In a statement, the group claimed those behind the plot had been hatching it for years with the intent to harass Orji, whom they asserted did his job as governor creditably.

Orji is the immediate past senator who represented Abia Central Senatorial District.

The alarm comes days after Dr. Philips Nto, a former Finance Commissioner in the Orji Administration, raised his concerns over unending invitations by the EFCC without charge.

EJI, in a statement by its Secretary, Dr. Abel Akudo, said the masterminds of the plot wanted to use the anti-graft agencies to disgrace Orji who voluntarily retired from active politics after his meritorious service to the state and the nation at large.

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The statement reads: “We want to place Abians on alert about a clandestine mission by detractors to discredit Senator T.A Orji and his family using the anti-graft agencies.

“What could be their grouse with the former governor or could it be a question of jealousy over his outstanding performance while in office and his rising profile even after leaving office?

“Plans by some disgruntled individuals and groups to tarnish the image of Senator Theodore Orji have been unearthed.

“In the past few years, these disgruntled elements who are hell-bent on pulling down the former governor have not relented in writing all untenable petitions against him before the EFCC.

“It is on record that as a governor, Senator Orji acquitted himself creditably with great achievements that are there for everyone to see.

“Even as a Senator, the former governor impacted positively on the lives of his constituents via his numerous empowerment programmes.”

The group frowned at using anti-graft agencies to endlessly harass the former governor, arguing that he would not be unwilling to defend himself if charged to court.

“The Senator TA Orji we know, will not be unwilling to face any panel, court summons or trial by any anti-graft agency to give an account of his stewardship while in public service.

“So, instead of resorting to continued smear campaigns, the detractors should be more reasonable.

“Every plot seen and unseen by this power-hungry group to rubbish the former governor will fail.

“In the nearest future these disgruntled elements will be exposed to the public as their identities will be made known to Abians,” the statement added.

October 22, 2024
Brila FM chief accountant remanded

Magistrate B.A Sonuga of an Igbosere Magistrate Court, sitting at Tinubu has granted a 21-day remand order for the police to detain a former Chief Accountant of Brila FM, Mrs Ekerete Blessing Sunday, to enable conclusion of investigation and arraignment over alleged N100million fraud.

Brila FM, is owned by Dr. Larry Izamoje.

The defendant, according to the prosecution, Friday Mameh, was alleged to have established a similar radio station while he was in the employment of his employer (Brila FM) without the consent of Dr Larry and diverted and over N100 million in from Brila FM to various accounts.

Mameh argued that for the Police to conclude investigation of the matter, they brought the defendant to the court and to seek for a remand order to detain the defendant at the police station to pave way for arrest of other suspects outside Lagos.

The court was informed that there was probable cause to order the remand af Ekerete in the custody of the Nigeria Police Force, Force Inteligent Department. Obalende Lagos for 21 days to enable the Police to complete their mvestigation.

He argued that this has become necessary because investigation into the matter cannot be concluded within 24 to 48 hours.

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He said that on conclusion of investigation, there is need to file a formal charge at the State/Federal High Court against the suspect.

He said the arraignment of the suspect by the office of the Commissioner of Police, Force Intelligent Department, Obalende, Lagos was inevitable to avoid a breach of the suspect/defendant constitutional right to liberty.

In a 13-point affidavit deposed to by Inspector Victor Effiong in support of the request for remand order of the court, in a case of Criminal Conspiracy to wit diversion/conversion of funds and Stealing reported by Mr Larry Ezamoye against the defendant.

He averred that It took several efforts by the potice to arrest the defendant, to the extent of expounding his modde knes which eventually paved way in the arrest of the defendant.

He averred that in their and they volunteered written statement, they denied the allegation made against them by the Pettoner Annexed and marked Exhibit C are certified true copres of the statements of the Defendant.

That investigation in this matter will take the Police to other parts of Lagos to recover the proceeds of crime in connection with this matter.

October 22, 2024
Petitioner faults plea bargain offer for killer-suspects

A petitioner, Oluwatosin Onamade, has faulted the approval of a plea bargain deal by the Attorney-General of Lagos State Lawal Pedro (SAN) for suspects who allegedly killed his assistant.

The suspects are Atunrase Omolabi (28), Shittu Olawale (28), Olaide Opeifa (40), Olanrewaju Adebiyi (35) and Jamiu Omosanya.

The prosecution said they killed Ifeanyi Godfrey Etunmuse at Western Funeral Home, Ijede Ikorodu, owned by Onamade, a chieftain of the All Progressives Congress (APC) in Ijede LCDA, on April 16, 2021, ahead of the council election in which Onamade contested for Ijede chairman.

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Witnesses had testified before Justice Hakeem Oshodi of Lagos State High Court, and CCTV recording of how the suspects attacked the petitioner’s office and murdered Ifeanyi, who was Onamade personal assistant, was viewed in court.

There was a twist to the trial when the prosecution approved a plea bargain for the suspects.

Prosecuting counsel, Michael Adewoye, stated that the A-G approved a 20-year imprisonment for all the defendants.

Onamade faulted the approval, saying a murder charge attracts life imprisonment or a death sentence according to law.

“They want to give them 20 years for all the seven charges, including murder,” he said.

It was learnt that the defence counsel brought the plea bargain application, which is allowed under sections 75 & 76 of the Administration of Criminal Justice Law.

October 22, 2024
Post-election judgments: Justice Owoade calls on NJC to improve capacity of judiciary

A retired Justice of the Court of Appeal, Prof Mojeed Owoade, has called on the National Judicial Council (NJC) to ensure improvement in the quality of the judiciary staff through training.

Owoade who is also the Chairman of the Technical Working Group (TWG) for ActionAid Nigeria

Citizens’ Led Engagements on Judicial Accountability (CLEAP) project, thought that the NJC should be equipped with the necessary data/information, and authority to address contradictions in judgments and prevent judges from issuing inconsistent judgments or disregarding decisions of superior courts.

He spoke at a recent forum on effective and efficient post-election justice delivery in Nigeria.

He said: “The National Judicial Council (NJC), through the National Judicial Institute (NJI), should ensure improvement in the quality of the judiciary staff through training.

“Tribunals should be empowered to call independent experts on elections to give expert opinions on election matters if and when the need arises.

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“It is further suggested that the NJC should be equipped with the necessary data/information, and authority to address contradictions in judgments and prevent judges from issuing inconsistent judgments or disregarding decisions of superior courts.”

On his part, the Country Director of ActionAid Nigeria, Andrew Mamedu, expressed sadness that the average politician in the country is making a mockery of the judiciary by doing everything possible to win elections and post-election court cases.

He said: “This is the second year of (CLEAP) project, so we deemed it fit to bring everyone together. We work with the poor to eradicate poverty. We are political because of the cause we fight for the poor. Poverty is very political. We take sides. We’re always on the side of the poor. We do on-field and post-election work, that is judicial engagements. We do the majority of our work in the courtroom.

“Unfortunately, it is getting more difficult for many to believe in the political value chain and judicial processes. Since we’re on the side of the people, we want the best for the people. The greatest threat to democracy is the politicians.

“The average politician is selfish. They are all interested in winning elections. Then they tell you to go to court. The country can burn for all it cares. Our concern is the poor. We are ready to engage the government in the interest of the poor, even if it means confrontation. We have to save democracy for the interest of all.”

October 16, 2024
Why many company directors could face arrest, jail over advertising violations without direct involvement

By Saheed Akinola, Esq.

Company directors in Nigeria may unknowingly be at risk of arrest and imprisonment due to advertising violations under the Advertising Regulatory Council of Nigeria (ARCON) Act 2022, even without their direct involvement.

Several sections of this law place personal liability on directors for their companies’ advertising infractions, which creates serious legal challenges and erodes protections traditionally provided under the Companies and Allied Matters Act (CAMA) 2020.

This article explores how these provisions, particularly Sections 32, 34, and 54 of the ARCON Act, expose directors to personal liability and conflict with the principle of separate legal personality under CAMA.

Section 32 of the ARCON Act:

“An individual or organization, not being registered in any register established under this Act who has failed, refused or neglected to comply with the conditions and requirements for advertising, advertisement and marketing communications as stipulated under this Act, or who uses any name, title, description or symbol calculated to lead any person to infer that he is engaged in advertising, advertisement or marketing communications commits an offence and is liable on conviction—

a. on first offence—

i. in the case of an individual, to a fine not more than N500,000, or imprisonment for a term of six months or both, and

ii. in the case of an organization, to a fine of at least N1,000,000; and

b. on subsequent offence—

i. in the case of an individual, to a fine not more than N1,000,000, or imprisonment for a term of 12 months or both, and

ii. in the case of an organization, to a fine of at least N5,000,000.”

Section 32 imposes penalties on individuals or organizations for failing to comply with advertising regulations. While this section is necessary to ensure regulatory compliance, it raises concerns by failing to clearly distinguish between the person who directly committed the offence and company directors who may have no involvement in day-to-day operations.

The principle of separate legal personality, as protected under Section 42 of CAMA 2020, shields directors from personal liability unless they have committed fraud.

However, the ARCON Act blurs this protection, leaving directors vulnerable to criminal liability for infractions they did not know of. This erodes the corporate veil by making directors potentially liable for actions undertaken by the company, thereby conflicting with the limited liability principle in CAMA and exposing innocent business owners to unnecessary legal risks.

Section 34 of the ARCON Act:

34(3) “A person, body corporate, associations or organization that exposes any advertisement that contravenes any provision of this Act, commits an offence.”

34(6) “Where an offence under this Act committed by a body corporate is proved to have been committed with the connivance of or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate or organisation or any person purporting to act in any such capacity, he, as well as the body corporate or organisation, shall be deemed to be guilty of that offence and punished accordingly.”

Section 34 introduces a troubling expansion of liability by holding directors and other corporate officers personally responsible for advertising violations, even if they were not directly involved in the infringing activity. This section significantly weakens the protections offered by section 42 of CAMA 2020, which asserts that directors are not personally liable for company actions unless fraud or deliberate misconduct can be proven.

The wording of Section 34(6) creates a presumption of guilt, making it easier to hold directors responsible based on mere negligence. This not only conflicts with the Corporate Veil Doctrine, but it also increases the likelihood that innocent directors could be penalized for the actions of lower-level employees or departments that they do not directly supervise. The ARCON Act’s presumption of guilt erodes the business environment by placing unnecessary pressure on directors to personally oversee all operational aspects of their businesses, including advertising compliance.

Section 54 of the ARCON Act:

“Any person including sponsor or beneficiary of an advertisement, body corporate, organization or agency which creates or places for publication or exposure of an advertisement in any medium directed at or targeting the Nigerian market without the prior approval of Standards Panel commits an offence and is liable to such fine as stated in the Nigerian Code of Advertising Practice.”

Section 54 extends the scope of liability to a broad range of actors, including sponsors and beneficiaries, which further complicates compliance. The problem here is the lack of clarity on the extent of directors’ involvement in such advertisements and how liability should be determined. Under CAMA 2020, directors enjoy legal protection from personal liability unless fraud is involved.

This section of the ARCON Act, however, makes directors potentially liable for advertisements they may not have even approved or reviewed, making compliance almost impossible to manage. Such broad liability contradicts the separate legal entity principle under CAMA, which holds that companies and their shareholders or directors are distinct legal entities. It also poses serious risks for directors, especially in large corporations, where delegation is a necessary aspect of daily operations. Directors may find themselves facing fines or imprisonment for the actions of employees or third-party advertisers who breached ARCON regulations without their knowledge or consent.

Conflict between ARCON and CAMA

The ARCON Act’s provisions, particularly Sections 32, 34, and 54, create a direct conflict with CAMA 2020. CAMA, particularly Section 42, enshrines the principle of corporate autonomy by recognizing that a company is a separate legal entity from its directors and shareholders. Directors are shielded from personal liability unless they are involved in fraudulent activities or misrepresentation, as outlined in Section 316 of CAMA. However, the ARCON Act undermines this legal doctrine by holding directors liable for corporate infractions without requiring evidence of fraud or intentional wrongdoing. This erodes the protection provided by the corporate veil and opens directors up to criminal prosecution for actions they may not have been involved in or aware of.

Case Law and Corporate Liability

Nigerian courts have traditionally upheld the principle of corporate autonomy. In the case of Citec Int’l Estate Ltd. v. E. Int’l & Associates, the court reaffirmed that a company is a distinct legal entity, separate from its directors and shareholders. Similarly, in NNPC v. Lutin Inv. Ltd., the courts reinforced that the corporate veil can only be pierced in cases of fraud or intentional misconduct by directors. The ARCON Act disrupts this judicial consistency by imposing liability on directors for corporate offences under much broader and less specific conditions.

Mitigating Liability under the ARCON Act

Directors must adopt comprehensive compliance strategies to protect themselves from the risks posed by the ARCON Act. One method is to ensure that all advertising materials are vetted by legal professionals or registered advertising practitioners who are familiar with ARCON’s requirements. Directors should also demand written confirmation from these experts that their advertisements meet all necessary standards before publication.

Additionally, companies should establish internal systems that ensure advertising compliance at all levels. This could include setting up internal audits or having regular checks to confirm that all advertisements conform with ARCON regulations, thereby reducing the chances of any oversight that could lead to liability.

Conclusion

The ARCON Act introduces significant risks for company directors by imposing personal liability for advertising violations, even when directors have no direct involvement in the infraction. The provisions of Sections 32, 34, and 54 of the ARCON Act conflict with the protections provided under CAMA 2020, which shields directors from personal liability unless they engage in fraud. To prevent unjust liability, directors and companies must take proactive steps to ensure compliance with advertising regulations. Moreover, the ARCON Act must be amended to align with CAMA’s principle of limited liability, ensuring that directors are only held accountable for advertising violations in cases of direct involvement or fraud.

October 15, 2024
Identity of land
- Ben Ijeoma Adigwe
When a person approaches the court to claim a declaration of title to land, he has a primary duty to show the court clearly the area of land to which his claim relates so that the land can be identified with certainty.

The claimant in an action for declaration of title to land has the onus of proving to the court title to a defined area to which the declaration can be pinned down.

Where the land being claimed is contained in a survey plan, the claimant has the responsibility of serving the plan on the defendant to inform him of the land being claimed against him.

Such a survey plan must clearly show the dimensions of the land, the boundaries and other features. This is so decided in the following cases: Idehen v. Osemwenkhae (1997) 10 NWLR (pt. 525) 358 SC ; Dada v Dosunmu (2006) 18 NWLR (Pt. 1010) 134 SC

In a claim for declaration of title to land, the claimant has the burden of establishing his claim upon the strength of his own case and not upon the weakness of the defendant’s case.

The claimant therefore has the responsibility of satisfying the court that he is entitled to the sought declaration upon the pleadings and evidence adduced by him. See Gbadamosi v. Dairo (2007) 3 NWLR (pt. 1021) 282 and Ajibade v. Ishula (2006) 13 NWLR (Pt. 998) 628 SC.

In a claim for declaration of title to land, where the claimant fails to give the exact extent and identity of the land he is claiming, his case should be dismissed. See Aribe v. Asanlu (1980) 5 – 7 SC 78.

Thus the claimant in a claim for declaration of title to land has the duty of establishing with certainty and accuracy the identity of the claimed land. This is a condition precedent to the success of the claim.

It has also been held that where the claimant fails to prove his root of title relied on in a land matter; the proper order to make in such circumstances is a dismissal of his case. See Ndukuba v. Izundu (2007) 1NWLR (Pt. 1016) 432.

It is by a properly drawn survey plan that the identity of land is proved. However, a survey plan, no matter how well and how properly drawn, has to be countersigned by a Surveyor–General to be admissible in evidence. See Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 SC.

Where the two surveyors called by the parties are in conflict as to the identity of the disputed land, the proper thing to do is to call on independent surveyor agreed on by both parties. See Sanni v. Ogunbode (2001) 8 NWLR (Pt. 714) 74 CA.

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The court is not bound to accept the evidence of a surveyor on boundaries and description. It is sufficient if the parties know the land. See Yussuf v. Keinsi (2005) 13 NWLR (Pt 943) 554 .

A survey plan will not be necessary in a land case and can be dispensed with in the following cases: (a) where the land is properly described; (b) where there is no dispute as to the boundaries of the disputed land; and (c) where the parties are not in any doubt as regards the boundaries of the land. See C.G.C. (Nig) Ltd. v Baba (2004) 10 NWLR (Pt. 882) 658.

It has also been held that where in a land case, the area of the land in dispute is well known to both parties to the dispute, the requirement of proof of it does not arise, as the court cannot possibly reach a conclusion that the area claimed is not certain. See Osho v. Ape (1998) 8NWLR (Pt 562) 492 at 495 SC

The Claimant has a duty to prove the precise area to which his claim relates. The burden of doing this will not arise if the identity of the disputed land was never an issue.

The issue of the identity of the land in dispute arises only where the defendant raises it in his statement of defence and supported by evidence. See Dada v. Dosunmu (2006) 18 NWLR (Pt. 134) SC.

If there is a visit to the locus in quo in a land in dispute, the law and the practice of courts is that the court should bring with it all the parties in the case, giving them the opportunity to explain the nature and circumstances of the disputed land. See Azupkwu v. Oshasona (2005) 11 NWLR (Pt.937) 537 SC.

Where the evidence adduced (oral and documentary) by the claimant and defendant are in agreement and settled as regards the identity of the disputed land, the fact that different names are given to the land or the place of the location of the land is not fatal to the claimant’s case. See Ogbu v. Wokoma (2005) 14 NWLR (Pt.944) 118 SC.

In a claim for declaration of title, if the claimant should succeed in proving only the boundaries and title to a smaller parcel of such land, he would be entitled to a declaration of title as regards the smaller portion of the disputed land, the title and boundaries of which he has proved satisfactorily. See Ezeokonkwo v. Okeke (2002) 11 NWLR (Pt.777) 1.

If a claimant fails to establish the identity of the land on which his claim of ownership is based, any other piece of oral or documentary evidence, adduced in court cannot in law ground a declaration of title in his favour. See Otanma v. Youdubagha (2006) 2NWLR (Pt.964) 337 SC.
- Adigwe (www.benadigwe.com) is a lawyer, poet, chartered mediator/conciliator and the author of many books.
October 15, 2024