By Stephen Kola Balogun

Introduction
The legal profession is a noble profession. It has existed in various forms through the ages. It is arguably, the most prominent professional body in almost every country of the World, and in Nigeria, it is no different. The Nigerian Bar Association ( NBA) is the professional body of many prominent Nigerians. It’s past Presidents include Chief Rotimi Williams, SAN, Chief Richard Akinjide, SAN, the rather popular and much loved Chief Alao Aka Bashorun (all of blessed memory), Dame Priscilla Kuye, the only female President in the history of the NBA so far, but to mention a few.

The NBA has long been regarded as the custodian of the democratic process, and bastion of the rule of law. It is therefore, an indictment and a sad day for the Nigerian Bar if those expected to be the guardians of our civil rights, liberties and freedoms cannot be seen to conduct free and fair elections amongst themselves, or like the equally respected physician, heal the several electoral malpractices that have plagued the NBA in recent years.

Non-SAN and the NBA Presidency
This particular NBA election, was billed to be different. The vast majority of members of the outer Bar had expressed through different media outlets and forums, their displeasure and discontent with their more eminent colleagues who make up the inner Bar and have been elevated to the prestigious rank and title of Senior Advocate of Nigeria. (SAN) It was generally thought that the Senior Advocate had not been pulling his weight in initiating much needed reforms within the profession, and that the lesser revered Lawyer who either practices law as a Solicitor or as General Practitioner within the reaches of the Outer Bar, should be given a chance.

Many Lawyers who wouldn’t otherwise bother to vote, at least going by past experience of NBA elections, went through a tedious process of verifying their credentials and registering for the elections which duly held on 29th through 30th July, 2020, only to be let down by the Electoral Committee of the NBA ( ECNBA) who failed in its duty to provide many Lawyers with a voting link. It is therefore, not only disappointing but a paradox, that the much sought after reforms have not only failed to materialise, but instead appear to have got worse even before the beginning of a new dawn.

Particular Flaws in the July 2020 NBA Election
Bearing in mind these allegations, can the NBA in all conscience, continue to project itself as a credible voice for the rule of law and a respected observer of National/ State legislative and gubernatorial elections?

The ECNBA struggled to conclude the verification exercise of the nearly 30,000 eligible voters captured on its final list, and left several unresolved issues before voting commenced. Some Lawyers wrote the NBA asking for a postponement of the election, arguing that certain fundamental aspects that ought to be addressed in advance of polling day, such as missing names on the voters lists; voter list verification; voters eligibility and transparency of the process, left a lot to be desired. They argued that these glitches could effect the credibility of the elections, and they have been proven right.

The disenfranchisement of any voter due to technical glitches, cannot be excused. A technical disenfranchisement is still a disenfranchisement, and the situation is further worsened with a perception that it was perhaps, a deliberate ploy to manipulate the election results in favour of particular candidates.

My position is perhaps, symbolic of many other disgruntled voters. I am a senior member of the Bar, and although I am not a Senior Advocate of Nigeria , like many other Lawyers of my ilk and standing, I was disenfranchised and so was my wife (a specialist Aviation Lawyer ) – we both had different candidates. She wanted to vote for Dr Ajibade, SAN, while I intended to vote for Mr Olumide Akpata who eventually won.

Notwithstanding this fact, I am disturbed by the entire election process. Even those in a minority and in the losing camp, must be allowed to participate in the election process and cast their votes. As Lawyers, our primary duty and role is to defend the rule of law. Unfortunately, the election process was visibly flawed, leaving many to question our integrity as a profession.

Other particular issues of concern, centred on how the election technology worked. There were also concerns, about whether the server could easily have been hacked. Concerns about the identity of the service providers, and how secure the NBA website and membership portals were. Many others found their names on the voting registers in obscure places of the country, where they had neither visited or practiced. The failure of the ECNBA to address these fundamental concerns before the elections, has resulted in a failed and botched election process which has severely undermined and eroded confidence in a profession already on trial in many other respects.

The Way Forward
What then is the solution? Can we redeem ourselves as a professional body, along with our dented image and pride ?
The declared winner of the NBA Presidential election, Olumide Akpata, now needs to show that he indeed, has the requisite leadership qualities. Justice as we often say, must not only be done, but must be perceived to be done, irrespective of whether or not there were wilful acts or omissions. You cannot conduct an election, by streaming live updates of votes being cast! It puts off the undecided voter. It could also lead to a band wagon effect in favour of the leading candidate at the time, with undecided voters possibly casting their votes in favour of the leading candidate. It’s not the same as exit polling, collated after an election has been declared closed.

Akpata needs to demonstrate why the NBA electorate seek change through him. He should rise to the occasion, and call for a rerun. Caesar’s wife, must appear to be above reproach. We must not allow others, to question our democratic process. We must encourage and breed confidence in our own democratic process, as a professional body. Akpata led throughout the day on polling day so he is unlikely to lose a rerun, but members of a professional body must not be disenfranchised. We must set the right example, for the rest of the country to copy and follow.

Conclusion
When a victor does a noble gesture, it carries weight and meaning. It shows that as a leader, he is more concerned about the integrity of the electoral process than just winning. It shows true leadership qualities. It shows a desire to unite various factions. Above all, it shows that the process was not all about him. Having said that, the other contestants should know what to do as well, if confronted with such a noble gesture. It is about the greater good of the profession. It’s about the NBA leading by example, and projecting themselves as such to the rest of the country. All things considering, I sincerely hope that we can revive the tenets of the profession which we love, cherish and honour. As for Olumide Akpata, I will stop short of congratulating him just yet, but when he is eventually sworn in as President of the NBA, I hope he will be able to leave a legacy and a system that works for all our members.

Stephen Kola Balogun, Lagos

By Abubakar D. Sani

Introduction

The charges reportedly filed by the Economic and Financial Crimes Commission against the former Minister of Petroleum Resources, Mrs. Diezani Allison-Madueke appear to be potentially undermined by their seeming inconsistency with certain provisions of the 1999 Constitution. This is because (if news reports of those alleged charges are to be believed), all but one of them might be problematic, necessitating – possibly – their re-think by the prosecution. I will presently elaborate, but first, a brief over-view of the charges.

According to media reports, the 13-count charge filed on the 14^th day of November, 2018, accused the former Minister as follows:-

• Count 1: That on the 20^th day of November, 2011, she took possession of the sum of US$20 million dollars, allegedly the proceeds of corruption, contrary to Section 15(2)(d) of the Money Laundering Prohibition Act 2011 as amended in 2012, and punishable under Section 15(3)
• Count 2: That, sometime between February 2012 and June 2012, she took possession of US$17.5million, allegedly the proceeds of corruption, contrary to and punishable under the same provisions of the Money Laundering Act, as amended.
• Count 3: That sometime in September 2013, she acquired a property in Banana Island, Lagos through a proxy, valued at US$37.5million, allegedly the proceeds of corruption, contrary and punishable under the same provisions of the same law as in Counts 1 and 2 above.
• Count 4: That on or about the 4^th day of June 2012, she took possession of the sum of N650million, which was allegedly the proceeds of corruption, contrary to and punishable under the aforesaid provisions of the Money Laundering Act, as amended.
• Count 5: That on or about the 4^th day of June 2012, she acquired certain property in Abuja, through proxies, valued at N650million, which consideration was allegedly the proceeds of corruption, contrary to and punishable under the self-same provisions of the same law as in the previous counts.
• Count 6: That, sometime in May, 2012, she took possession of the sum of N937million, allegedly the proceeds of corruption, contrary to and punishable under the same provisions of the MLP Act, as amended.
• Count 7: That sometime in May, 2012, she acquired certain properties in Yaba, Lagos, through proxies, valued at the sum of N973million, which sum was allegedly the proceeds of corruption, contrary to and punishable under the same provisions of the MLP Act.
• Count 8: That sometime in May 2012 she allegedly took possession of the sum of N928million which was the proceeds of corruption, contrary to and punishable under the same provisions of the MLP Act, as amended, as the previous charges.
• Count 9: That sometime in May 2012, she allegedly acquired certain landed properties in Port Harcourt, Rivers state with the sum of N928million which fund was the proceeds of corruption, contrary to and punishable under the same provisions of the MLP Act, as amended.
• Count 10: That sometime January 2011, she took possession of the sum of N805million, allegedly the proceeds of corruption, contrary to and punishable under the same provisions of the MLP Act, as amended.
• Count 11: That sometime in May 2012 she acquired certain landed properties in Ikoyi, Lagos, through proxies, valued at N805million.
• Count 12: That, sometime between January 2011 and December 2011, she took possession of the sum of US$2.2million, allegedly the proceeds of corruption, contrary to and punishable under the same provisions of the MLP Act.
• Count 13: That, sometime between January, 2011 and December, 2011, she acquired a certain landed property in Old Government Reservation Area, Port Harcourt, through proxies, with the sum of US$2.2million which was allegedly the proceeds of corruption contrary to and punishable under the same provisions of Sections 15(2)(d) and 15(3), respectively, of the MLP Act, as amended.

What About the Law?

Section 15(2)(d) of the Money Laundering Act, as amended, which the former Minister is alleged to have contravened, provides as follows:

“Any person or body corporate, in or outside Nigeria, who directly or indirectly acquires, uses, retains or takes possession or control of any fund or property (which he/it) (knows) or reasonably ought to have known that such fund or property is or forms part of the proceeds of an unlawful act, commits an offence of money laundering under this Act”

Section 15(3) provides that the punishment for contravening the provisions of Section 15(2)(d) of the Act is imprisonment for not less than seven years, but not more than fourteen years.

Analysis

It can be seen that, with the exception of the 3^rd Count, all the other twelve Counts in the indictment accuse Mrs. Madueke of committing the acts which allegedly constitute violations of the MLP Act between January 2011 and June 2012. The sole exceptions are the acts alleged in Count 3, which purportedly took place in September 2013. The legal implication of this will presently be explained.

Legal Status of the Charges

It is not only in movies that – as thespians say – timing is everything. It is even more so in relation to criminal indictments. In other words, the date when an offence was allegedly committed is crucial in determining the guilt or otherwise of the alleged culprit, having regard to the provisions of Section 36(8) of the 1999 Constitution, which stipulate, inter alia, that: “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence”.

In the context of the charges against Mrs. Madueke, at the time she allegedly committed the acts alleged in all but the third count (between January, 2011 and June, 2012), the provisions of Section 15(2)(d) of the MLP Act which she allegedly contravened did not exist; they were not part of the extant MLP Act, 2011 that was in force at that time; rather, they were inserted in the amendment thereto, the Money Laundering (Prohibition) (Amendment) Act, 2012, vide Section 9 thereof, which took effect on the 21^st day of December, 2012.

CBN’s GSI Guidelines and Bank Debtors

The circular recently issued by the Central Bank of Nigeria (CBN) permitting banks to set-off the credit balances of customers in any bank against any debts owed by such customers with other banks, (called Global Standing Instruction – GSI) appears to be long over-due, given its glaring benefits to the pervasive incidence of non-performing bank loans.

However, I believe that the initiative overlooks the implications of the legal relationship between a bank and its customer, which is contractual in nature. At the heart of the policy is the separate contractual relationship which exists between each bank (the lending bank and the setting-off bank) and the customer, inter se.

It is trite law that only parties to a contract are bound by it and no one may enforce it except the parties themselves. In the context of the GSI, this means that any undertaking which a customer gives to a bank to set off any debt due from him to that bank against any money which he may have in another bank, is legally unenforceable (through litigation, at least) against the second bank – unless that bank was a party to the undertaking ab initio.

The apparent answer to this might be that the debtor is estopped by his undertaking from resisting the set-off. However – just like contracts – estoppel applies only to parties or their privies. In my view, this excludes the second bank, because it is not the privy of the first bank.

The import of the foregoing is that the policy is fraught with serious questions over its legality: simply put, does it have the force of law? This question is pertinent because, Section 44 of the Constitution bans the compulsory acquisition of any kind of property “except in the manner and for the purposes prescribed by a law”. The apex bank has justified the policy on the strength of Section 2(d) of the CBN Act. However, this provision merely enjoins it “to promote a sound financial system” in Nigeria.

For two reasons, I believe it will be stretching its language too far to use it to legitimize the GIS policy. In the first place, it would be unfair to debts which are the subject of litigation or arbitration, because it would amount to foisting a fait accompli on the court or arbitral tribunal, as the case may be, for the supposed creditor-bank to unilaterally purport to set-off the alleged debtor’s funds with another bank against the disputed debt.

Secondly, and more importantly, it would render nugatory the aforesaid constitutional provision. This is because, to the extent that the policy (and the CBN’s Circular which proclaimed it) are not laws, they do not qualify for exemption from the aforesaid provisions of the Constitution. I believe this is particularly the case with bank debts which accrued prior to the commencement of the policy (on August 1^st, 2020), even assuming the policy is a law. The well-entrenched judicial policy is not to construe any legislation which affects vested rights, retrospectively: see OJOKOLOBO vs. ALAMU (1987) 3 NWLR pt. 61 pg. 377 @ 396.

Abubakar D. Sani, Esq. Writes from Kano

I read a press statement credited to a group known and referred to as Egbe Amofin, relating to the just concluded NBA Election in which an overwhelming majority of lawyers cutting across tribe and religion, voted independently for Olumide Akpata.

Let me begin by emphasising that the NBA Constitution does not recognise any such group as Egbe Amofin. It is an illegal organisation, not known to law or the NBA. NBA is an Association made up of individual members and only such individual members, who are financially responsible, are recognised by the NBA to raise such concerns.

Kindly ignore this group as they do not represent the views of majority of lawyers in Nigeria, who spoke loudly through their ballot.

In the new NBA, there is no Igbo Lawyers, Yoruba Lawyers, Hausa Lawyers, Idoma Lawyers, Igala Lawyers, Eastern Bar, Western Bar, Northern Bar etc, there is only one NBA for all. In this new NBA, individual lawyers from all over Nigeria, are the determinant of our leadership choice, not tribal groups or forums.

NBA was not established to create ethnic, tribal or religious sections within its fold. The old clueless leadership succeeded in splitting the Bar to satisfy their primordial interests. That era is gone.

Lawyers who are Igbos, Yoruba, Hausa, Efik, Ikwerre, Urhobo, Igala and many others, voted for Olumide Akpata to emerge as President of the Bar. Therefore, a selected group that could not even field a unanimous candidate in an Election cannot claim or pretend to be speaking for and on behalf of the very wise Yoruba lawyers that i know to be very independent in reasoning when it matters most as they just did in the just concluded election.

I am an Igbo man and i have never recognised or subscribed to what the Eastern Bar Forum does in respect of deciding my choices when it comes to election – i will never be subjected to such an arrangement.

I call on my good friends and brothers from the southwest, on whose behalf this groul claim yo be speaking, to individually dissociate themselves from the rebellious action of this group.

The Bar is bigger than anyone or group or cabal. We have taken back our Bar and no vested interest can scuttle that.

Is Egbe Amofin speaking for you?

Silas Joseph Onu
Convener, Open Bar Initiative.