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.

INTRODUCTION
I woke today to the news item that Shoprite was leaving Nigeria, not because it’s not doing well here, but the profits lose value when changed to the South African Rand, and transferred to South Africa. And then we saw another release saying Shoprite wasn’t leaving, but was considering a few options to help them manage the same challenge. To be fair, the retailer has the liberty. If transferring your profits will reduce them to a loss because of the exchange rate, then it’s time to cut the same losses and implement your exit plan. The only thing Shoprite will not tell us is that in the last 14 years it’s made uncommon profits in Nigeria, encouraging the rapid opening of branches all over. The only time we hear the complaint is when the business is bad; no one says anything when carting the profits away.

This got me thinking and I decided to do this lengthy piece on my further perspectives on the Shoprite situation and what as Nigerians we can learn from it. I will treat it as a lecture, give it chapters and present my position. I will be prepared to receive opinions on it when someone has read it. I am afraid it a long one.

CHAPTER 1
I will like to spool back and take our minds to many years ago when we had the Leventis, Kingsway, UTC etc., very vibrant and successful retail outlets, aka supermarkets in Nigeria. They sold everything including the “moinmoin” which I faithfully went to eat at Kingsway. The shops were well stocked and everything worked well. And the point I am coming to is that they were largely managed by Nigerians.

Take Kingsway. The Merchandise Manager was a Nigerian, a certain Ayo Ajayi who would become the MD/CEO of the UAC Group. I was in Lintas, and he was my Client and I interacted with him very regularly. Being the Merchandise Manager meant he was in charge of what Kingsway stored and sold, an awesome task. He interacted with suppliers, agreed prices and commissions etc. I am sure the same thing happened in the other stores.

What am I saying, the Kingsways of this world produced many experienced Nigerians like Ayo Ajayi. We will come back to this.

CHAPTER 2
Then the era of import licences came and with massive corruption. Girl friends of those in power were casually given the licences while UAC, and Kingsway were frustrated because they refused to bribe. They could have bought the ones given to the girlfriends, but not UAC, the owners of Kingsway; they believed in high ethical standards. So the stores, Kingsway, UTC and the rest of them fell victims and died. That the government would allow this to happen is part of our unhappy history and story in terms of policy management. The same government should have encouraged local producers to fill the gaps created when importation was stopped. As soon as oil became our top earner we opened the floodgates to imported items again.

Other entrepreneurs tried to fill the gap that the exit of Kingsway and co created; no more megastores, but plenty of smaller supermarkets. Welcome to their era. Again they were well managed by Nigerians.

CHAPTER 3
Fast forward to the last 15/20 years. Shoprite and others came in. Suddenly South Africa found out its companies could make a lot of money in Nigeria and indeed dominate this market. And they have made money. Plenty of it. However, in the last two years or so, the Nigerian economy slowed down, even as the biggest economy in Africa. But it didn’t slow down our consumption taste. Most times, Shoprite and GAME and SPAR are still brimming; with goods and customers. Cash register still ringing. But now transferring profits out has become an issue because of our exchange rate. A huge profit in Naira would usually lose substantial value when transferred to the Dollar. While a company like Shoprite would be awash with Naira here, the money wouldn’t amount to much when taken out where it’s really needed. This is the point where we are.

CHAPTER 4
I have been scanning the environment. Some local supermarkets have been doing very well. Ebeano is one. It started as a corner shop where it couldn’t accommodate more than a few customers at a time; the rest of us stood outside! In the last 10 years its grown and expanded into many branches, easily holding its own with the GAMES, Shoprites, SPARS etc. Its fully Nigerian owned and managed; no expatriate at all. So I am thinking. Why will Nigerian entrepreneurs fold our hands, and allow foreign supermarket brands dominate such a huge market? Surely it cannot be for the lack of capital; Ebeano has proven this. And at any rate, the money bags spend more on Private Jets, Rolls Royces, apartments in Dubai, Europe and the US than what it would cost to set up a shop like Shoprite. Why can’t we have more Ebeanos? What is the owner of SPAR doing that many experienced Nigerians who managed Kingsway and UTC and Leventis stores cannot do? Where are all the Nigerian billionaires flying PJs all over the place and changing Rolls Royces every few months? Why can’t one of them, or a group come together, use the experienced services of an Ayo Ajayi to consult for them, and set up chains of these stores? It should be good business, and they will not have to worry about the repatriation of profits like Shoprite.

CHAPTER 5
I have done some research of this market. Most of the supermarkets don’t even have to import too many items directly. Many of them have products from the local Unilever, PZ, WAMCO, Cadbury, Nestle etc. Whatever they can’t source locally, they depend on suppliers who agree prices and then bring them in. I have therefore always wondered why we don’t have more of the Ebeanos in this promising market!

FINALLY…
Friends, until we begin to think this way, we may be subjected to manipulations of foreign “investors”, and those whose principal aim and objective is to cart away as much of the profits as possible. When this is not happening, like now, they simply pack their bags and go. Ebeano has nowhere to go. When more Nigerians begin to see what Indians, South Africans, Chinese etc. see, and are prepared to be serious entrepreneurs, then things will begin to change in this country. We are even prepared to forgive those who steal money, if they will at least invest here to create employment and wealth, and not simply buying PJs and transferring the monies to London and Dubai to fund the property markets. Plus, we will be in a better position to call the bluffs of those who will be quiet when they make mega profits, but become crybabies when things slip.

May God help us and give us direction!