By Ebun-Olu Adegboruwa, SAN

Last week, history was made when Nigerian lawyers all over the world held the first ever virtual Annual General Conference, with well over 20,000 participants. The high point of it all was the Annual General Meeting of August 29, 2020, which also marked the exit of the Paul Usoro SAN-led national executive. The newly elected executive officers were thereafter sworn in for a two-year tenure. The AGC also marked the 60th anniversary of the Nigerian Bar Association, NBA, an organization that is presently battling for life desperately, given all the events happening within its fold, with alarming rapidity. The President has promised to be a bridge builder and he has to do that with tact, because it is a very tight rope to walk.

STATE OF EMERGENCY IN THE JUDICIARY

Except we deceive ourselves, legal practice in Nigeria is facing its biggest trials ever. Even before COVID 19, justice administration was gradually moving towards the grave, perhaps only just remaining to be interred. The NBA should declare a state of emergency in the judicial sector, with the focus on emergency rescue efforts. So far, we have only paid lip service to judicial reforms, addressing just the surface without digging into substance. The absence of critical infrastructure in this all-important sector is a major drawback to effective justice administration. A system that is so slow and unproductive cannot but birth corruption, given the desperation that lawyers and litigants are confronted with, in order to have their causes heard and determined. In this regard, the abandoned new Federal High Court complex along Bourdillon Road in Ikoyi, Lagos, is a calamitous eyesore, it is a global embarrassment to all lawyers and judges, an unpardonable disservice to litigants and a monumental disgrace to Nigeria as a nation. I mean, how can Nigeria as a grown up State find it difficult to complete just one building for one of the most important judicial organs in the land? A proper analysis of section 251 (1) of the 1999 Constitution shows clearly that the Federal High Court is now the bedrock of litigation in Nigeria, given the critical subjects that it has been empowered to deal with. It is the Court that determines matters relating to the revenue of the federation, petroleum, oil and gas, electricity, admiralty, mines and minerals, immigration, aviation, telecommunications, citizenship, broadcasting, customs and exercise, security, taxation, banking, operation of companies, shipping, copyright and patents, arms, ammunition, diplomatic and consular matters, drugs, bankruptcy and insolvency and indeed anything relating to the federal government and any of its agencies. And that Court is not functioning as it should, as lawyers and litigants stand in the rain and in the sun, to conduct their cases. When recently I got to know that even the Chambers of the Judges have no functional toilets, I was moved to tears. A Judge sits from 9am till 4pm at times, yet he cannot afford to eat while in the office, since there is no means of taking care of any pressure that may come with such luxury, as it were. The NBA should take this as its priority and work with the relevant government agencies and the head of the Court, to ensure its completion.

It is not just the Federal High Court, but also the Court of Appeal and indeed the High Courts. It is totally unacceptable that lawyers and litigants go to court and cannot find a place to even sit down, to conduct their cases. My suggestion in this regard is that the National Executive Council of the NBA should in its next meeting mandate all NBA branches nationwide to urgently undertake an audit of all courts within their jurisdiction and submit a comprehensive report, as a working document for discussion and action. Armed with these reports, the NBA Exco should on behalf of all lawyers meet with the heads of the various courts, the Attorneys-General of the States concerned or of the Federation as the case may be and the Governors of these States. If we are constantly crying for funding for the judiciary, if litigants and lawyers are paying through their noses to have their cases filed and conducted (both in the Probate Division and the Main Courts), then we must have corresponding improvement in facilities in all the courts.

We must summon courage to tackle the issue of delay in the administration of justice, by encouraging the executive arm of government to build more courts and to appoint more judges. When you travel outside Lagos, Port Harcourt and Abuja to some other States, trials are conducted in the courts of those other States in just one week, final written addresses filed and judgment delivered in one month, whereas in Lagos State for instance, it takes an average four years to conclude a case, because a judge in Lagos has an average 600 cases to deal with. The rigid process of Case Management Conference, which was meant to last just three months, now takes years to conclude. There is an urgent need to tinker with the Rules of the various courts, whereby non-contentious matters of substituted service, leave to issue writs, renewal of writs, extension of time, etc, can be taken by qualified lawyers amongst the judicial staff, such as the legal assistants, legal officers, etc, who would then report to the supervising judge, on a daily basis. Such orders can be reviewed in cases of manifest abuse. In the Supreme Court for instance, such applications are taken on a special day in Chambers by the Justices, in the absence of counsel and their lawyers and you are only notified of the success or failure of your application, thereafter.

The National Assembly is currently working on a constitutional amendment. Instead of isolating just the cases involving politicians and political office for quick adjudication, the NBA should set up a Committee to work with the National Assembly to streamline the jurisdiction of the appellate courts, especially on issues relating to interlocutory appeals and matters where the principles of law are fairly settled, such as land law, stay of execution, election petitions, criminal cases, enforcement of fundamental rights, etc, as a means of decongesting these courts.

The new NBA Exco must confront the issue of corruption in the judiciary head on, as it is affecting the fabric of our national life already. The system of appointment of judicial officers should be made more transparent, similar to that of Senior Advocates, if it cannot be better. It is totally unacceptable that some set of lawyers and litigants are able to determine the courts to which their cases are assigned, as that in itself is the greatest act of injustice to their opponents. We just cannot continue like this at all, of operating a corrupt system of walking into the courtroom blindfolded, whereas your opponent is in cahoots with the court. And this is prevalent mostly amongst the senior lawyers, who deploy their position and influence to determine the fate of cases pending in court. It should be very easy for security agencies to know the income of judicial officers, with the advent of Bank Verification Numbers, Tax Identification Number, Payer ID, etc. Whereas I can personally testify to the credibility, neutrality and nobility of many judges and senior lawyers, yet we cannot close our eyes to certain anomalies capable of eroding public confidence in the justice system.

But of course we cannot do much in this regard without first addressing the issue of poor welfare conditions of judicial officers. To hear that some judges drive themselves to court, remain in traffic for hours and they are expected to sit in court, conduct cases and then deliver very sound rulings and judgments, is a huge joke. In some States, the salaries and benefits of judges have not been increased for over ten years! Even though judicial assignment is more of a calling, judges are human beings who go to the same market as others, who send their children to school and also buy diesel to power their generators at home and at times even in their offices. In this regard, the NBA NEC should direct the NBA branches to meet with the heads of the courts in all the States, to collate the salaries and allowances of judicial officers for confidential discussion and engagement, by a Sub-Committee of NEC, comprising experienced and tested advocates.

That then takes us to the issue of ethics within the legal profession, as a way of restoring the image of lawyers and judges. By now, it is clear that the Rules of Professional Conduct has become totally irrelevant and otiose, having been overtaken by technology and global trends in legal practice. But even at that, what is needed presently is a separate Rules of Professional Conduct for Senior Advocates, as a model for legal practice. Once we get it right with the senior lawyers, it becomes very easy for their juniors to fall in line. The things that we see some SANs do in court, are totally unpalatable to put in print. Lawyers say it within themselves in small gatherings, prominent names are mentioned very often, but it just seems that there is little anyone can or is willing to do about it. I don’t want to say more in this regard, save that the NBA should urgently work with the Body of Senior Advocates and the Legal Practitioners Privileges Committee, to develop a new set of rules to guide the conduct and etiquette for Senior Advocates. Given that they are not so many, it should be easy to isolate offenders, for the purpose of compliance and reformation.

The new Exco has so much to work with, given the laudable efforts of the Usoro-led administration in the critical areas of financial transparency and the completion of the NBA National Secretariat. So then, 24 hours will not be enough for the President and his team, but there is enough goodwill to succeed. I wish them well. (To be continued).

Last June, the Federation Accounts Allocation Committee (FAAC) shared a total of N696 billion to the three tiers of the Government of Nigeria, the bulk of which was generated from taxes paid by citizens.

For government’s chief tax collector, paying taxes to sustain the machinery of state is an age -long practice that had contributed to the development of many nations which he would like Nigerians to emulate especially now that the COVID-19 pandemic has disrupted revenues from crude oil sales.

Executive Chairman of Federal Inland Revenue Service (FIRS), Muhammad Nami, who at a recent media interaction lamented the negative impact of the COVID-19 pandemic on government’s revenue sources disclosed that the FIRS alone accounted for 70 per cent of the amount shared while other revenue generating agencies collectively contributed the remaining 30 per cent.

He pointed out that government would not be able to fund its programmes and activities without revenue from taxes, while shedding more light on why paying Stamp Duty on tenancy agreement shouldn’t lead to increase house rentals

Task

Well, so far so good. I give glory to God. I am not in a new terrain. Before I was appointed the Executive Chairman of the Federal Inland Revenue Service (FIRS), I had practised tax for 26 years. So, in the tax terrain, this should be my 27th year. This fact confirms what I have been engaged in since 1991 when I graduated from the University. I started tax practice in 1993, some few months after I completed my National Youth Service. This is the path God has carved for me; little did I know that I would be talking to you today as the Executive Chairman of the FIRS.

Stamp duty controversies

We are in a period of economic downturn occasioned by the COVID-19 pandemic. However, let me clarify that Stamp Duties are not new in Nigeria. Stamp Duties came into effect in Nigeria as a result of Ordinance 41 of 1939. There have been several amendments to the Stamp Duties law over the years up to the Finance Act of 2019. The most recent amendment recognised technology, e-commerce and cross border transactions in line with global best practices and current economic realities. Stamp Duty is a tax payable in respect of dutiable instrument as provided under the Stamp Duties Act, CAP S8, LFN 2004 (as amended). Such instruments include agreements, contracts, receipts, Memorandum of Understanding (MOU), promissory notes, insurance policies and others stipulated in the schedule to the Stamp Duties Act. What is happening now is that we are looking into the tax laws and implementing the Stamp Duties Act, which is a form of indirect tax that is more viable in the economic situation we find ourselves today. It may interest you to know that the economic situation has increased the Government’s demand for funding.

The annual target for Stamp Duties that was pegged at N17billion has been revised up to N446billion for FIRS to collect. Please note that this happened before the pandemic. We collected as much as N18 billion in 2019. Presently, the Finance Act, 2019 has taken away 60 per cent of our tax base. That is, 60 per cent of the people who are supposed to pay Companies Income Tax will not do so. Sixty per cent of the people who are supposed to act as agents and pay Value Added Tax monthly will also not do so because their annual turnover is not more than N25million. So, a large number of Small and Micro Enterprises in Nigeria today do not pay taxes. What this means is that these companies will no longer act as agents for collecting VAT. The implication of this is that 60 per cent of Nigerian taxpayers will neither pay VAT nor CIT. Nigerians may note that the Federal Government is so mindful of the taxpayers that the Finance Act, 2019 was passed long before the COVID-19 lockdown in Nigeria. It seemed that the government foresaw the pandemic and quickly passed the Act to give the palliatives contained in the Act. Now that our target on Stamp Duties is about 3000 per cent more than the previous years’, we have to inform taxpayers that Stamp Duties are not only payable at the point of incorporating companies but also on other items that are chargeable. Chargeable items are more than a hundred. This is what we have done. We did not take these decisions from a communiqué after a management meeting. This is in the tax law. People keep asking, what is Stamp Duties, what are the rates, who are they paid to? We consulted the tax law to be able to explain and clarify to Nigerians what it is all about.

Stamp Duty on tenancy agreement

Our public notice on tenancy agreement captured only the last band which is 6 per cent It does not mean that it has a flat rate of 6 per cent. It was a publication error and we sincerely apologise for that. The Stamp Duty on Tenancy is charged on a graduated rate, so that if your rent is from one year to seven years, the Stamp Duty payable is 0.78 percent This is not up to 1 percent The implication of what I have said is that if your rent is N100,000 per annum, the stamp duty due at 0.78 per cent is just N780.00. The second category is the Tenant whose agreement is above seven years and up to 21 years. If an individual can afford to pay rent for 21 years, the Stamp Duty chargeable is three per cent Such a person is not going to pay rent for a long time, so, three per cent is deducted to provide social amenities and fund infrastructure. There are people who would comfortably pay rent for above 21 years; for 22 or 25 years, such people will not go back to their landlords to pay rent again. Therefore, the law states that such people should pay 6 percent of the rent as Stamp Duty. That is the information that generated controversy across board. This is another opportunity we have to clarify it.

Who remits the Stamp Duty?

In VAT administration, the service provider collects the VAT component from the consumer. For ease of administration of Stamp Duties, in the case of individual to individual agreement, the tenant is the agent of collection. The tenant is not expected to pay the Stamp Duty component of rent to the landlord who is also an individual. What the tenant is expected to do is, once an agreement is reached with the landlord or agent, he takes 0.78 per cent of the rent sum to the bank and pays into the Stamp Duties account (for instance, 0.78 percent of 100,000 is N780.00). The bank gives him a teller or an e-ticket as evidence of payment. The tenant presents the payment evidence to the landlord, before he is entitled to the copy of the rental agreement.

For emphasis, the tenant does not pay to the individual landlord; he must insist on going to a bank nearby to remit the Stamp Duty element of the rent. It is equally the responsibility of the landlord to ensure that the Stamp Duty element of the rent is paid to the bank before he issues receipt or a copy of the agreement to the tenant. The evidence of payment of the Stamp Duty should be made available to him. This decision is taken because if an individual landlord is asked to collect the money and pay into the Stamp Duty account, some of them can take the money from the tenants and fail to remit same to the Stamp Duty account in the bank. If a landlord fails to ensure that the Stamp Duty element is remitted before an agreement is signed, such a landlord will bear the burden of payment.

If the transaction is between entities or between entities and an individual or a body of individuals, the landlord is the agent of collection and should ensure that the tenant pays to the FIRS account which is a Federation Account. That money is collected and shared among the three tiers of Government. If the rent is between me (an individual) and another individual, the Stamp Duty element will be paid to the State Government where the property is situated. If I am a tenant living in Suleija, Niger State, the Stamp Duty element of my rent will be paid to the Niger State Stamp Duty account. This has nothing to do with someone who is living in his own house even if it is a ten-storey building. You are not going to pay Stamp Duty on your own house. The essence of it is to legalise the agreement between you and the landlord.

Utilisation of tax revenues

The responsibility of the FIRS is to assess, collect and account for the taxes it has collected. What happens to the money that has been collected is unknown to me. But the little I can assure you is that the money we collect does not belong to the Federal Government alone. The revenue collected by the FIRS is paid into the Federation Account.

The Federation Account belongs to the three tiers of Government: the Local Government where you come from, the State Government where your colleague comes from and the Federal Government that has its headquarters in Abuja. What happens to such money; for instance, the N18 billion collected as Stamp Duties in 2019, is that, certain percentage of the money is paid to the Local Government, a certain percentage is paid to the State Government and the Federal Government takes the balance. It is possible that out of the N18 billion you made reference to, only about N700 million or less than that goes to the Federal Government.

Thenigerialawyer

THE Senate on Monday urged the Northern Elders Forum (NEF) to send the views of its members to the Senate Committee on the Review of the 1999 Constitution for consideration.

The NEF had described the current efforts to alter the provisions of the Constitution as a waste of time.

Its Publicity Secretary, Dr. Hakeem Baba-Ahmed, had urged the Senate to join hands in seeking permanent solution to insurgency, banditry and other forms of violence in the country.

But Chairman of Senate Committee on Media and Public Affairs, Surajudeen Ajibola Basiru (Osun Central), said it was not correct to say that because previous constitutional amendments did not yield tangible result, that the present process would also fail.

Basiru said: “Even though they are entitled to their views, the question to ask is: does it mean that if former legislatures cum Executive (administrations) have possibly or allegedly failed in this regard, then it can never be achieved?

“Their statement even implied an agreement by them that there is need for fundamental restructuring, which is the purpose of the present endeavor of the Ninth National Assembly.”

“Their views can be encapsulated in a memorandum to the Constitution Review Committee.

“The thematic areas advertised for constitutional reforms cut across some of the concerns they raised and, therefore, we shall be glad to engage them through proper legislative channel rather than news media.”

Thenigerialawyer

The Federal Government on Monday said it would not tolerate any move by South African company, Multi­Choice, to lay off Nigerian workers in its employ under any guise.

This followed a meeting between the management of the National Broadcast­ing Commission (NBC) and the management of Multi­Choice on Monday.

The commission had summoned MultiChoice over the planned increase on some DStv and GOtv packages which takes effect from today despite a similar increase three months ago.

According to Multi­Choice, in a message to sub­scribers, DSTV Premium would move from N16, 200 to N18,400; Compact Plus from N10,925 to N12,400; Compact from 6,975 to 7,900, and for users of GOtv Max, they would have to pay the sum of N3,600 from 3,280.

The latest increase comes amid a subsisting order of the House of Representa­tives seeking a stay of action on the earlier hike which the company blamed on the Federal Government’s 2.5 percent increase in Value Added Tax (VAT) from five to 7.5 percent.

John Ugbe, the Chief Ex­ecutive Officer of the com­pany, said the decision to in­crease the prices was made after a careful consideration of the market and a review of its business operations.

He noted that the com­pany reviewed its prices while considering financial impacts, including inflation, increased content and oper­ational costs, so they could continue to survive as a business and bring quality entertainment to custom­ers.

He said: “To arrive at the decision to adjust prices, we took into account many fac­tors, including the impact on the customer, current inflation, which stands at 12.82 percent, the highest in 27 months, content costs and efficiencies within the company.

“Only the prices of some of the bouquets have been reviewed upwards while the lower bouquets have been left untouched.”

The planned increase, which did not go down well with many Nigerians, had prompted the NBC to sum­mon the management of MultiChoice and Startimes, which also increased its tar­iff in August, to a meeting yesterday.

Speaking exclusively with Daily Independent on what transpired at the meeting yesterday, Arm­strong Idachaba, the Director-General of the National Broadcasting Commission (NBC), said the manage­ment of the MultiChoice cited currency devaluation and inflation rate as some of the reasons that necessitat­ed the increase.

He also said the compa­ny said it might be forced to sack Nigerian workers in its employ, a development the Nigerian government vehe­mently kicked against.

According to Idachaba, “They said they are com­mitted to keeping their business in Nigeria but are affected by currency devalu­ation and inflation rate.

“They said their fears are that they may lay off Nige­rians in their employment if they have to remain in business.

“They gave examples of other companies that are folding up because of eco­nomic challenges.

“At the end of the day, we told them that no matter the excuse they have, we are not going to tolerate any loss of jobs. We frown heavily at any attempt to lay off Ni­gerians because of these excuses.

“Secondly, we are not tolerating any unnecessary price hike. We asked them how they intend to do the increase and they said they wanted to start with the Pre­mium and then move gradu­ally to the other packages.”

ORGANISED Labour and Benue State Governor Samuel Ortom on Monday opposed Federal Government’s plan to pass the National Water Resources Bill into law.

The leadership of the Nigeria Labour Congress (NLC) urged the National Assembly not to ambush Nigerians by secretly passing the Bill, which it said the public had rejected in 2018.

In a statement, titled: Do Not Ambush Nigerians, by its President, Ayuba Wabba, the NLC said it joined “patriotic voices across the country in calling on the leadership of the National Assembly not to resurrect or cause to be passed into law the Water Bill because of the danger it portends to national unity”.

It added: “Information in the public domain has it that the National Assembly leadership is working surreptitiously with vested interests outside the Assembly anxious to pass the Bill without due legislative process.

“Although the National Assembly is constitutionally vested with law-making, we warn against the National Assembly ambushing Nigerians…”

Ortom urged the National Assembly to reject the Bill, which seeks to give the Federal Government, through its agencies, the power to control all water sources – surface and underground – as well as river banks.

Gov. Abdullahi Ganduje of Kano State has urged the state’s Public Complaint and Anti Corruption Commission not to compromise in the fight against corruption no matter who is involved.

Mr Ganduje said this while on a visit to the commission’s office in Kano on Saturday.

According to him, the Federal Government cannot fight corruption alone, hence the replication of the anti-graft agency at the state and local government levels.

He said: “Whosoever falls into the commission’s trap should face the consequence. I will have nothing to do with it. I will not interfere with any case whosoever might be involved.

“With the way corruption is fighting back and the fight against corruption being an agenda of President Muhammad Buhari, the federal government cannot fight it alone.

“It needs domestication in the states and the local governments to succeed,” the governor said.

In his address of welcome, the Chairman of the commission, Muhyi Magaji, commended Mr Ganduje’s determination to fight corruption in the state.

“It is your will and support that has made this anti-graft agency among the best in the country.

“We have set benchmarks in the country and are being emulated by other states,” he said.

The commission recently recovered N310,000 meant for Imams that participated in a special prayer against COVID-19 and insecurity, from an aide to the governor.

In 2018, Mr Ganduje was seen in a video, collecting cash in dollars from a contractor in the state.

The Kano governor later secured a court injunction to stop the probe.

Mr Ganduje, who as governor enjoys immunity from prosecution, won a re-election last year despite the bribery scandal. (NAN)