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Remedies Available To A Person Who Is Unlawfully Arrested Or Detained

By Legalpedia

NIGERIA CUSTOMS SERVICE BOARD & ANOR V. DR. D. RUDRAKHOSERE HARGAAL GAR

suit no: CA/B/420/2014

Legalpedia Electronic Citation: (2021) Legalpedia (CA) 11190

Areas Of Law:

Appeal, Constitutional Law, Criminal Law And Procedure, Fundamental Rights, Practice And Procedure

Summary Of Facts:

The Respondent commenced this Fundamental Rights action against his unlawful arrest and detention before the Federal High Court, Benin Division wherein the Respondent took out a Writ of Summons against the Appellants seeking for the Sum of N5,000,000.00 (Five-Million) Naira as General Damages and $50,000.00 (Fifty Thousand US Dollars) as Special Damages.

In its defence, the Appellants contended that the alleged arrest and detention of the Respondent was done in the exercise of a lawful duty.

In its judgment, the lower Court entered judgment for the Respondent and awarded the sums of N5, 000,000.00 (Five-Million) naira only as general damages and N50, 000.00 (Fifty-Thousand) Naira cost against the Appellants. Dissatisfied with the judgment, the Appellants appealed against the judgment to the Court of Appeal, Benin Division vide their Notice of Appeal raising two Grounds of Appeal.

HELD:
Appeal Dismissed
ISSUES FOR DETERMINATION

Ø Whether the learned trial Judge was right to hold that the alleged arrest and detention of the Plaintiff was unlawful, even when the arrest and detention were done in furtherance of the lawful duty to prosecute the Plaintiff for evading payment of custom duty.

Ø Whether the learned trial Judge was right to award the sum of N5,000,000.00 (Five Million naira) as general damages to the Plaintiff even when the Plaintiff had not established unlawful arrest, detention, mental agony and malicious prosecution or any other acts that impugned his reputation.

RATIONES

RIGHT TO PERSONAL LIBERTY – WHETHER THERE IS AN ABSOLUTE GUARANTEE OF THE RIGHT TO PERSONAL LIBERTY OF AN INDIVIDUAL

“In deciding, however, if only for a brief moment to subject the provision of Section 35(1) of the Nigerian Constitution 1999 as amended, to a microscopic examination, since the Appellants seem here to have taken solace under the said provision, in buttressing their arguments in support of the illogicality of their claims, that there are no such things as an absolute guarantee of the liberty of the individual, so long as it can at anytime be curtailed under any of the circumstances permitted under the law, it is apposite, perhaps, to state here that the test of “reasonableness” as to what is of “reasonable belief”, is an objective one. It is usually not what the arresting authority considers reasonable, but whether the facts within their knowledge at the time of the arrest disclosed circumstances from which it could easily have been inferred that the person committed the offence alleged. See the case of Ekpu & Ors vs. A.G. (Federation) & Ors (1998) 1 HRLRA 391 at 419 – 420″. – PER F. O. OHO, J.C.A

UNLAWFUL ARREST – REMEDIES AVAILABLE TO A PERSON WHO IS UNLAWFULLY ARRESTED OR DETAINED

Section 35(6) of the Constitution (as amended) provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. See the cases of Skye Bank vs. Njoku & Ors (2016) LPELR – 40447 (CA); Arulogun vs. COP, Lagos State & Ors. (2016) LPELR -40190 (CA).

The settled position of the law is that when once the arrest and detention of a person is adjudged to be wrongful and unlawful, he is entitled to the remedy stipulated by the Constitution. He needs not specifically ask for it. See Skye Bank Plc vs. Njoku & Ors (Supra); Nemi vs. A. G. Lagos State (1996) 6 NWLR (PT. 452) 42 AT 55 (D – E); Okoro vs. COP, Enugu State & Anor (2016) LPELR – 41025 (CA); and Att-Gen. Of Lagos State vs. Keita (2016) LPELR – 40163. Perhaps, to make matters worse for the Appellants, at paragraph 10 of their averment in their Amended Statement of Defence and paragraph 13 of their deposition on Oath, the Appellants admitted that they were responsible for the harassment, arrest, detention, remand of the Respondent at Oko prison, so that the regime of humiliation, physical and mental torture, agony anxiety, inconveniences and loss of income of the Respondent referred to at paragraphs 12, 16, 17, 19, 20 and 22 of the Plaintiffs written deposition on Oath, were caused by the reckless, corrupt and nefarious display of power by the Appellants. See pages 228 to 233 of the records. It is further settled in law that an unlawful arrest and detention, no matter how short entitles the applicant to compensation. See Arulogun vs. COP (Supra).- PER F. O. OHO, J.C.A

UNLAWFUL ARREST AND DETENTION – WHETHER AN APPLICANT IS ENTITLED TO COMPENSATION WHERE HIS UNLAWFUL ARREST AND DETENTION IS SHORT

“It is further settled in law that an unlawful arrest and detention, no matter how short entitles the applicant to compensation. See Arulogun vs. COP (Supra)”. PER F. O. OHO, J.C.A

Statutes Referred To:

Evidence Act 2011
Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria

Whether A Willing Beneficiary Can Challenge The Legality Of The Transaction

In the Supreme Court of Nigeria Holden at Abuja On Friday, the 19th day of February, 2021

Before Their Lordships
Nwali Sylvester Ngwuta
John Inyang Okoro
Uwani Musa Abba Aji
Ibrahim Mohammed Musa Saulawa
Adamu Jauro
Justices, Supreme Court
SC.475/2014

Between

PASSCO INTERNATIONAL LIMITED APPELLANT
(SUING THROUGH ITS ATTORNEY – CHUKA IFEZUE)

And

UNITY BANK PLC RESPONDENT

(Lead Judgement delivered by Honourable Ibrahim Mohammed Musa Saulawa, JSC)

Facts

The Appellant instituted an action against the Respondent, in which it sought against the Respondent, the recovery of the sum of N150 million which it deposited into its current account with the Respondent. In reaction, the Respondent filed its statement of defence and urged the trial court to dismiss the claim for being ex facie illegal, and punishable by law. The case proceeded to trial, and in the course of the trial, counsel for the Appellant who also doubled as the Appellant’s attorney admitted in open court that the said sum had been effectively transferred and paid by the Respondent into the Appellant’s Union Bank Plc United Kingdom account. At the end of trial, the trial court delivered its judgement, in which it came to the conclusion the Appellant’s claim was devoid of merit and accordingly dismissed same.
Aggrieved, the Appellant appealed to the Court of Appeal. The Court of Appeal dismissed the appeal, and affirmed the judgement of the trial court. The Appellant filed a further appeal at the Supreme Court.

Issues for Determination

In its resolution of the appeal, the Supreme Court considered the following issues submitted for determination by the Appellant:

  1. Whether the Court of Appeal was right in affirming the judgement of the trial court on pleaded facts of acts which are ex facie illegal and punishable by law.
  2. Whether having regard to Sections 24, 34(1) and (2), 37(a) and (b), and 126 of the Evidence Act 2011 and the settled principle of Stare Decisis, the Court of Appeal was right in law to affirm the decision of the trial court which was anchored on evidence rendered inadmissible by law.

Arguments

On the 1st issue, counsel for the Appellant argued that the culmination of all the facts pleaded by the Respondent in its statement of defence in the record of appeal, are on acts that are ex-facie illegal and punishable by law. He submitted that the transfer of the N150 million into the Appellant’s UK Union Bank account was done through ex facie illegal methods, and the Court of Appeal ought not to have close its eyes to the illegal transaction, but nullify it and affirm the Appellant’s claims.

In reaction, counsel for the Respondent argued that the allegations of ex facie illegality raised by the Appellant, were issues that were not raised at the trial court or at the court below by the Appellant. He argued that there was no specific pleading by the Appellant on the alleged illegality and no evidence was led in that regard, and the supposed illegality was only belatedly alluded to in the Appellant’s final written address and thereafter, sequel to the leave granted to it by the Apex Court to amend its notice of appeal.

Counsel for the Respondent equally posited that from the documentary evidence before the trial court, it was apparent that the Appellant had consented to, and authorised the transaction, and even furnished the names of the recipients of the funds in question. He submitted that having taken benefit of the funds, the only proper order the court could make would be an order compelling the Appellant to return the monies to the Respondent.
On the 2nd issue, counsel for the Appellant argued that the Appellant’s attorney’s oral admission relied upon by the trial court and upheld by the Court of Appeal, is ineffectual in law, in view of the fact that the beneficiaries of the manager’s cheques which the Respondent purported in its statement of defence to have been disbursed by the Appellant, were not called as witnesses during the trial.

On the other hand, counsel for the Respondent argued that by the provisions of Sections 20 and 21 of the Evidence Act, 2011, the admission made by the Appellant’s attorney in court was binding on the Appellant. He submitted that the oral admission of the Appellant’s attorney was admissible and rightly acted upon by the trial court, going by the provisions of Section 21 of the Evidence Act, 2011 that a statement made by a party to the proceedings or by an agent to any such party, whom the court regards in the circumstances of the case as expressly or impliedly authorised by him to make amounts to an admission.

Court’s Judgement and Rationale

In its determination of the 1st issue, the Court held that an issue of fact cannot be rightly raised in counsel’s final address or brief as the case may be. The reason being that in a trial court, where pleadings are filed and exchanged, issues or questions of fact can only be raised in the pleadings of the respective parties.

The Court held that the defence of illegality being an issue of fact is not merely a matter of course, it must be expressly set forth (pleaded) in the response to the opponent’s pleadings. The Court further held that a party who willingly and actively participated in some ex facie illegal or fraudulent transaction, cannot in law be granted a relief to the prejudice of the partner or co-conspirator thereof. The Court placed reliance on OYEGOKE v IRIGUNA (2001) ALL FWLR (Pr. 75) 448 at 460 PARAGRAPH F and DIAMOND BANK LTD v UGOCHUKWU (2007) ALL FWLR (Pt. 384) 290 at 315-316, PARAGRAPHS A-B. The court as a court of equity and good conscience, has an onerous duty not to allow a party get away with what will amount to constructive fraud. Relying on NOCTION v LORD ASHBURTON (1914) AC 932 and AG FEDERATION v SODE (1990) NWLR (Pt. 128) 500, the court held that it is against public interest to allow a person who has benefitted from an agreement, to turn around and claim that the agreement is illegal, null and void.

The Court held that the issue of illegality was belatedly raised by the Appellant, the same not having being pleaded in the Appellant’s pleadings before the trial court. Furthermore, the Appellant, having willingly had the N150 million transferred to its UK account, could not turn around under the alleged illegalities, to impugn the transaction.

On the second issue, the Apex Court held that it is trite that in civil cases, admissions by a party are formidable evidence of facts asserted against, albeit not in favour of such party. Unless very cogent and credible explanations are given, thereby satisfying the court, such admissions should not be so regarded, due weight ought to be accorded thereto as such by the court. It is also an established doctrine, that a fact which is not denied by a party is deemed to have been admitted by such a party.

The Court held that the Appellant’s attorney’s admission in open court that the said sum was indeed remitted by the Respondent into the Appellant’s UK Union Bank Plc account was made freely and voluntarily, hence, it was relevant and rightly acted upon by the court. The Court referred to UBA PLC v JARGARBA (2007) 11 NWLR (Pt. 1045) 247. Having admitted receiving the said sum in its UK account, the Appellant could not come to the court to ask it to direct the Respondent to ensure that the Appellant’s account with the Respondent, from which the said sum was transferred, reflects the original balance of N150 million.

The Court held further that it is ludicrous that the Appellant was contending that the transactions leading to the said sum being transferred to its UK account were ex facie illegal, especially when such was not pleaded in their pleadings at the trial court. Equity will not allow the Appellant to challenge the legality of the transactions from which it has immensely benefitted. The Court referred to its decision in the cases of BULET INT’L (NIG) LTD & ANOR. v OLANIYI & ANOR. (2017) LPELR – 42575 (SC); B. B. APUGO & SONS v OHMB (2016) LPELR – 40598 (SC).

Appeal Dismissed.

Representation
Somtochukwu Ifezue, Esq. for the Appellant.
Victor U. Opara Esq. for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)

Kano Hisbah: A Clear And Present Danger?

By Onikepo Brathwaite

“First they came for the Socialists, and I did not speak out –
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out –
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out –
Because I was not a Jew.

Then they came for me – and there was no one left to speak for me.”
Martin Niemöller, 1946

This poem by Martin Niemöller, pretty much embodies the attitude of Nigerians to many things – we feel totally unconcerned about things which do not affect us directly, oblivious of the fact that one day, we too could be faced with a similar situation. “Boko Haram is in the North East, far away from me in Benin or Lagos, so it doesn’t concern me whether the military annihilates the insurgents or not; Maiduguri is also thousands of kilometres away from Owerri”. By the time insecurity gradually spread all over the country in different forms – whether by kidnapping, herdsmen crisis or otherwise, everyone suddenly felt concerned about insecurity. As far as religion is concerned, “they are operating Sharia law in the Northern States, I’m in Abeokuta, it doesn’t concern me”. But, it does! Because, gradually this is how it starts, and then it spreads like wild fire. When you give the enemy an inch (in the context of this discussion, by enemy, I mean those who disobey the Constitution), he not only takes a yard, he takes uncountable miles. After all, there are plenty of Muslim faithfuls in the South West (both Northerners and Southerners), even in Edo State. Spurred on by the declaration of Sharia law by Zamfara State in 1999, in the early 2000s, there was a push for the establishment of Sharia Courts in Lagos. And, in 2002, a private arbitration panel, the Independent Sharia Panel of Lagos State (ISP) was established for Muslims to take their disputes to, for adjudication (there’s nothing wrong with that, as long as it is lawful).

The moral of Martin Niemöller’s poem, is that we should be our brother’s keeper and love our neighbours as ourselves; therefore, we must speak out, even if the injustice is not done to us directly, so that those who are directly affected are not consumed by the injustice; and in the event that injustice finally reaches us, there will still be others left to speak out and support us. I would go a step further to add that, we must also take into consideration our neighbours when we make certain decisions. It seems that Kano State Government/Kano State Hisbah Board (KSHB) has not taken the non-Muslims in Kano and their fundamental rights into consideration, nor the constitutional provisions, in issuing some of its directives.

1999 Constitution: The Grundnorm

The 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) is the supreme law of our country, and is binding on all persons and authorities in Nigeria, including the KSHB (Section 1(1)). Furthermore, any other law that is inconsistent with this grundnorm, is void to the extent of its inconsistency (Section 1(3)). See AGF v Abubakar 2007 8 N.W.L.R. Part 1035 Page 117. I submit that, several of the KSHB and Sharia Court actions are inconsistent with the Constitution, and therefore, null and void ab initio. For example, sentencing Yusuf Sharif Aminu to death for blasphemy, when the Sharia court doesn’t have criminal jurisdiction in the first place (and the Holy Quran does not even prescribe the death penalty for blasphemy).

Section 6(6)(b) of the Constitution confers jurisdiction on the courts to determine all matters (except those excluded by Section 6(6)(c)). It is the duty of the courts to interpret the Constitution when called upon to do so, and to rule against any law that conflicts with the Constitution. Also see AG Ondo State v AGF 2002 9 N.W.L.R. Part 772 Page 222; Balonwu v Governor, Anambra State S.C.233/2008 2009 18 N.W.L.R. Part 1172 Page 13 at 39-40. I think the time has come for Constitutional Law gurus and Human Rights Activists to proceed to court to seek the interpretation of Sections 10, 38(1),(2) & (3), 262(1) & (2)(a)-(e), and 277(1) & (2)(a)-(e) of the Constitution once and for all, and for the courts to fulfil their constitutional mandate of nullifying the laws, directives and actions which conflict with the grundnorm, before the issue of religion becomes an additional catalyst that divides us as a country completely.

As far as I’m concerned, the constitutional provisions in respect of the jurisdiction of the courts are crystal clear and unambiguous. But, since controversies have arisen with the observance of the Constitution in its breach, especially on the issue of Sharia law and the extent of its jurisdiction, questions like whether Sections 262, 277, 282 of Constitution endow Sharia and Customary Courts with criminal jurisdiction, must be answered. I have searched the Constitution high and low, and I have failed to find any provision in this document which confers Sharia and Customary Courts with criminal jurisdiction; because they simply are not vested with criminal jurisdiction. My dear colleagues, I stand to be corrected.

‘One Nigeria’

This is my country, Nigeria, and I firmly believe in ‘One Nigeria’ on the basis of respect for fundamental rights and the rule of law, equity, equality, equal opportunity and justice. I do not want to wake up one day, and become the last victim in Martin Niemöller’s poem. So, forgive me for being tiresome or repetitive or sounding like a broken record, but, I must be brutally honest when I say this issue of religion in Nigeria seems to be escalating, and if Government is not willing to put a stop to the illegality, we, the people should speak out and insist that it is unacceptable for religion to be anywhere other than where the Constitution, the grundnorm, allows it to be; if not, the consequences of non-adherence may be grave for us all. Religious disagreements and intolerance, can end up destroying any entity. And in a multi-ethnic, multi-religious country like ours, it is dangerous for Government to allow any one religion to take precedence over others when the Constitution donates no such rights, and maintains that neither our nation or any State is permitted to adopt a National or State religion.

A State religion, is simply a religion that is endorsed or favoured by the State. I need not bother to state the obvious – that the Northern States that are implementing Sharia law have endorsed Islam, and favoured this faith over and above all others. Here lies the issue – Islamic law does not separate State from religion, and that is why it can only be workable in a country where everyone is of the Muslim faith and there is a ‘consensus ad idem’ (meeting of the minds).

Customary Law and Islamic Law are different. It was the British by virtue of Section 2 of Native Courts Ordinance of 1914, that grouped Islamic law as Native law and custom. In Alkamawa v Hassan Bello & Anor 1998 6 SCNJ 127 the Supreme Court held that “Islamic law is not the same as Customary law, as it does not belong to any particular tribe. While Customary law differs from tribe to tribe, community to community, Islamic law has a more unified system”. Customary law is not uniform, it is flexible and elastic, derived from the usages of a particular people. Islamic law is religious law. It does not change. It is based on the teachings of the Holy Quran and the Hadith.

Kano State Hisbah Board

When it comes to some of the activities of the KSHB, you see that because there is no separation between the State and religion in the Muslim faith, the KSHB is trying to apply Sharia law to most facets of their lives seeing as Islam is a way of life. But, some of the activities of the KSHB are clearly unconstitutional, and we must speak out against them – first, as Nigerians, whether Muslim or Christian; second, as Lawyers, who in order to qualify to become legal practitioners, were all students of Nigerian Constitutional law at one time or the other, and are therefore, familiar with Section 10 of our Constitution which prohibits Nigeria or any State herein from adopting a National or State religion. The drafters of the Constitution, were wise enough to realise that adopting any religion, whether State or National, would not only be problematic, but result in the fundamental rights of citizens being breached, especially those who do not belong to whichever faith is adopted. They went a step further to include Section 42 in the Constitution, which prohibits discrimination against any person on the basis of religion.

Recently, the KSHB banned the use of mannequins “to display clothes by tailors, supermarkets and boutique owners”, in shops and even private homes in the State, on the ground that it violates Islamic provisions and could be a fertile ground for breeding immoral thoughts. Aside from the fact that Section 37 of the Constitution guarantees the privacy of citizens, their homes, correspondence, telephone and telegraphic communication, therefore, making it unconstitutional for Hisbah to decide that people cannot have mannequins in their homes, such pronouncement runs foul of Sections 16 and 41 of the Constitution, as such directive will impact negatively on the clothes selling business in Kano; and with the draconian directives that are being given these days, Southerners and non-Muslims who enjoy freedom of movement and have made their homes in Kano and other Sharia States through several generations, may be constrained to leave for more conducive environments, seeing as their fundamental rights are being infringed upon, more and more.

I have relatives who live in Kano; octogenarians, Christians, who have lived in Kano for over 50 years. That is their home. As the Hisbah directives get more and more stringent, there is pressure from family members for them to relocate down South. Are they expected to leave their life long home in Kano, and head to unfamiliar places like Lagos or Ibadan to start a new life at this age? What of the clothes sellers in Kano, whose businesses have been truncated with the clamp down on cosmopolitan wears which they sell, and now the ban on mannequins which is the tool used worldwide to advertise clothes for sale? What about those that are arrested on the streets by Hisbah for non-compliant haircuts, hairstyles and dressing?

Conclusion

The bottom line is that, just as true Federalism is possibly the most appropriate system for a heterogeneous country like Nigeria as opposed to the Unitary system which we are running, so also political secularism (“separation of State from religious institutions”) is the best system to adopt in a multi-religious society like ours. That does not preclude anybody, from practicing his or her religion. In fact, that is the spirit and purport of Section 38 of the Constitution – that every person is entitled to freedom of thought, conscience and religion (as long as it is lawful), and to propagate same in worship, teaching, practice and observance.

Tribalism destroyed Rwanda in the 1990s. The incessant conflict between the Israelis and Palestinians, apart from being political and territorial, is religious. By the time the other Sharia States decide to follow Kano and implement these directives, more non-Muslims and Southerners may be forced to relocate down South. If this happens, this may in turn, make the cries for secession louder. We should learn from the mistakes of others, instead of taking active steps towards a path, which we have observed from their own experiences, will only lead to destruction.

Your ‘Euroclydon’

‘A tempestuous head wind arose, called Euroclydon.’
Acts 27:14 NKJV

The ship Paul was sailing on to Rome was wrecked by a storm named Euroclydon, meaning typhoon, tempest, or cyclone. Here are some valuable lessons we can learn from his experience.

1) God can make a bad situation work for your good. Because of this shipwreck, Paul ended up on Malta, where the people heard the gospel for the first time. Plus, when he and his followers ‘departed, they provided such things as were necessary’ (Acts 28:10 NKJV). Sometimes your problem can provide a platform for God to work in ways that’ll amaze you. Your future isn’t, nor ever will be, in the hands of people. It’s in God’s hands, and what He owns He protects and provides for.

2) To reach your God-ordained destination you’ll have to sail through storms. Paul said, ‘All hope that we would be saved was finally given up’ (Acts 27:20 NKJV). There’ll be days when you wonder how you’re going to make it, but by God’s grace you will (see Psalm 37:34).

3) Storms reveal how well you know the Lord. Paul said, ‘Last night an angel of the God to whom I belong and whom I serve stood beside me and said, “Do not be afraid, Paul”’ (Acts 27:23-24 NIV). In hard times you discover the strength of your connection to God.

4) He can bring success from what looks like failure. Notice two particular things in this story: a) You may have to throw some things overboard to reach your destination (see v. 18). b)

Despite your best efforts, occasionally you’ll run aground (see v. 26). That’s when you must remember what God promised you – and stand on it (see v. 25).

Bible in a Year: Proverbs 13-15, 1 Corinthians 14:20-40

The Word For Today

Akpata – Care: A Memo For More

By Akorede Habeeb Lawal

His name is Francis Eluaka. Young and versatile lawyer, he is of my branch – Asaba. Francis is severely sick and to survive this illness, he needs to undergo a bone marrow transplant. This means a whole lot of money.

Nigeria has been frequently described as a failed nation and one reason this fact is indubitable is the palpable state of the nation’s healthcare system. At the moment, resident doctors have downed tools because the Government has failed to keep to its end of some particular bargains they both had. But in actual sense, Nigerian doctors and hospitals lack the necessary tools to save lives. The citizens know this, hence tourism for most Nigerians is mainly medical.

It is the Government’s failure and irresponsibility that has pushed persons to look somewhere else. For many lawyers, the first place to look at is the Nigerian Bar Association. For the patent reason that no association should and could take the place of Government, the NBA has over the years been unable to live up to the expectation of her sick members and their relatives. The consequence of this incapability is the frequent round of messages we behold on social media of lawyers needing financial help to attend to some life threatening illnesses. Francis’s message is the latest, before his, it was Adesola’s – another lawyer from Ikeja Branch – who needed14 million Naira for kidney transplant, while some of our colleagues had passed away without a whimper of their health challenges.

The only indication of the fact that the NBA was aware of this tertiary healthcare need of some of her members and was responsive to same is the insurance policy it maintained. However, the fact that the policy was only a life assurance scheme that gave 1 million Naira in cases of death and accidental permanent total disability underscores the abysmal level of responsibility that the NBA had opted to accept in this regard. In fact, an NBA administration failed to pay requisite premium amounts in 2017 and 2018 and while the last administration paid the premiums in 2019 and 2020, it beggars reasoning that the scheme only became benefitting upon a lawyer’s death or permanent disability. We certainly needed more. And Mr. Olumide Akpata has commendably come with more.

Olumide Akpata – the NBA presidential candidate – made many popular and populist remarks as well as some personal ones. Chief of such personal remarks was that his administration would ensure affordable health insurance scheme for lawyers. Mr. Akpata hardly spared any opportunity to tell whoever was listening that he was and remains a testimony of an efficient health insurance policy. True to his words, the Akpata administration has improved on the existing insurance policy structure by negotiating a 100% increase and raising the life assurance cover to N2 million while introducing a novel N1 million cover for critical illness.

However, the most telling of the present administration’s efforts in this regard is the NBA National Health Insurance Scheme. This negotiated coverage provides NBA members and their families with the Health Insurance Scheme operated by NHIS at a subsidized rate of N15,000 per annum. The NHIS scheme which covers various primary and secondary health concerns is mainly available to civil servants and salary earners whose premiums are deducted from their salaries. Therefore, to negotiate this coverage for all NBA members, majority of whom are unsalaried private practitioners, fully earns the Akpata leadership the right to have this initiative christened ‘Akpata-care’ as aptly expressed by the Chairman of the NBA Welfare Committee – Y.C. Maikyau, SAN – at the last NEC meeting in Abuja.

‘Akpata-care’ is undoubtedly the most significant members’ welfare endeavour ever undertaken by any NBA administration. In its essence, it fully answers the recurring and popular question “what has NBA done for me?” To pay the sum of N15, 000 for a healthcare coverage that offers maternity care, out-patient care, eye examination and care, afford prostheses, dental care, 6 sessions of dialysis, 50% cost of CT Scan and MRI Scan amongst other benefits is a momentous deal under the present and foreseeable future Nigerian economic circumstances.

Olumide Akpata’s NBA Presidency would be remembered for many reasons, but seeing Mr. Akpata’s dedication to this NBA-NHIS, evidenced by sanctioning the pilot scheme to afford free health insurance scheme to 1000 members, Akpata-care would most likely be at the top of the pile. But Francis and other members hanging on the faint thread of life and in urgent need of help would hardly blink an eye at Akpata-care. They need more. And this NBA leadership has shown that they could get more.

It is high time the NBA set up a medical aid fund to provide financial help for deserving and eligible lawyers with urgent and critical medical needs. It would mean that if Mr. A needs N50 million for urgent medical attention, the NBA could dig into the purse and grant him all or part of the sum he needs. Raising this fund is a valid concern, but the NBA enjoys a whole lot of goodwill both from her privileged members and outside the Bar that could be transformed into millions of Naira. Also, the activities of the NBA like the annual conference when well managed could turn into huge commercial success. Few persons are adept at working this out than Mr. Olumide Akpata who was the co-chair at the 2019 annual general conference that saw NBA recorded almost N200 million in profit.

The medical aid fund might not answer all the questions and concerns. Truth is, it must not answer it all. The fund may not save the lives of every eligible lawyer deserving of aid. No, it may not. But if a single lawyer’s life is saved for the simple reason that the NBA avails him or her medical aid when it is needed, then, it would make it all worthwhile. It will not be a straight and smooth ride, but with a driver that has the will, we shall find the way. Mr. Olumide Akpata has definitely shown the will.

Meanwhile, young Francis Eluaka, Esq still needs our help. Please be kind to donate by sending whatever amount to his account – Francis Eluaka ; 2084263056 ; Zenith Bank .Thank you as you do.

Akorede Habeeb Lawal is the immediate past National Assistant Publicity Secretary of the Nigerian Bar Association

National Conference Against Impunity In Nigeria (1)

By Ebun-Olu Adegboruwa SAN

Some weeks back, I was invited as a guest speaker at the 24th Wole Soyinka Lecture Series. It was a golden opportunity to x-ray some of the core issues plaguing our nation. Given the personality of the person for whom the lecture was packaged, nothing less than a stormy session was expected from the lectures delivered, especially from the main speaker, Professor Patrick Lumumba. Permit me to share my thoughts on that occasion.

Introduction

At a time when the Nigerian polity is ravaged with unending insecurity, endemic poverty and heightened tyrannical disregard for the rule of law, one cannot but salute any opportunity geared towards fostering true Democracy, Good Governance and enthronement of Justice and the Rule of Law in Nigeria. The choice of this theme: ‘National Conference Against Impunity in Nigeria’ is therefore not accidental but borne out of the deep yearnings and conviction to reverse the state of debauchery and rot found in almost every annal of the contemporary system of the sovereign entity known as the Federal Republic of Nigeria. Regardless of the explosive population growth, rising unemployment rate and unprecedented inflation in the country, it is still without a doubt that our country’s human capital remains its strongest asset when put to productive use. I therefore make bold to say that the stand against lawlessness, corruption and impunity in Nigeria lies in the strength of our numbers. The minority in positions of authority who repeatedly abuse their rank to destroy the fabrics of our democratic experience should not be left to continue to ride roughshod over the rest of us.

The other point is that the topic reflects the character of the person for whom we are all gathered, a thorn in the flesh of bad governance and all shades of impunity. In this regard, one can safely say that no other person fits this discourse than Professor Wole Soyinka himself, given his endless and selfless struggles against dictatorship and all forms of totalitarian regimes, not only in Nigeria but also the world at large. As the Professor opined through one of his many books, the man dies in him who keeps silent in the face of tyranny.

In doing justice to this discourse, one must highlight some key terms in the context of the theme which are as follows:

The nature of impunity

It has been said that impunity is as old as the society itself. It is thus expected that a larger number of us, if not all members of this audience today, are familiar with the word ‘impunity’. As defined by the learned authors of Black’s Law Dictionary 8th Edition, ‘impunity is an exemption or protection from penalty or punishment’. The Cambridge Advanced Learner’s Dictionary defines the aforesaid term (impunity) as ‘freedom from punishment or from the unpleasant results of something that has been done’. The Oxford Online Dictionary explains it (impunity) as ‘an exemption from punishment or freedom from the injurious consequences of an action’. The United Nations Commission on Human Rights (UNHCR) best puts the term ‘impunity’ as follows:

“The impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.”

One common phenomenon found in the seemingly diverse definitions of impunity is the outright disregard and abuse of law without any reprimand. As such, impunity can be considered a global phenomenon, minute in the government structures of some developed countries and permeating all structures of a society in another country. As rightly observed by Louis Joinet, impunity is a consequence of the ‘failure of states to meet their constitutional obligations to their subjects, investigate violations and take appropriate measures against perpetrators, particularly in the area of justice, to ensure that they are prosecuted, tried and duly punished; to provide the victims with the effective remedies and reparation for injuries suffered, and to take steps to prevent any recurrence of such violation’.

Impunity in Nigeria

From the Nigerian parlance, impunity is commonly referred to in the layman sayings as ‘nothing go happen’ or ‘nothing go sele’. It is seen to manifest in blatant acts of corruption, bad governance, executive malfeasance, corruption of judicial powers, compromise of official responsibilities by those in positions of power especially the law enforcement agencies, the civil service, amongst a host of others. It is gradually extending to the people themselves, unfortunately. Whilst it has become a norm for occupants of public offices to see their tenure as an avenue for personal aggrandizement and as a means of sharing the national cake; from the advent of the extant Government in power, the Executive through the machinery of the security agencies has fallen to the lowly times of outright disregard and disobedience of subsisting court orders and decisions. The significant culture of impunity in Nigeria is inequality before the law and the lack of accountability. It is the culture of being above the law and even the State itself, wherein an individual lives larger than the rest of society. It is a situation in which institutions of State are unable to perform their statutory responsibilities. In practical terms therefore, impunity takes place when a felon is not apprehended and prosecuted for the brazen violation of ethics, laws or responsibilities imposed upon him; when might is right in the face of express legal restraints and when the law itself becomes helpless to arrest the deliberate drift to constant deviations.

Speaking at the 2018/2019 legal year of the Supreme Court and the swearing in of new Senior Advocates of Nigeria, former Chief Justice of Nigeria, The Honourable Justice Walter Onnoghen, gave a vivid illustration of the consequences of impunity as follows:

“Corruption or any other form of injustice, for that matter, thrives in a culture of impunity. To carry out a successful campaign against corruption, we have to fight the culture of impunity, which is an attitudinal phenomenon.

“If we allow and respect the rule of law, then there will be a dramatic reduction in corruption and injustice. Corruption starts with a decision by an individual or a group of individuals to do the wrong thing. It is as simple as that. Corruption is never an accidental act. The person who commits a corrupt act has an option to do the right thing.”

Impunity within the Nigerian security forces

The culture of impunity within the Nigerian security forces has continued in setting the pace in which extra-judicial killings and other human rights abuses are committed by the security forces in Nigeria. Hundreds of people are unlawfully arrested, tortured and killed. A good example is the clash between security agencies and youths/protesters clamouring for better government and respect for their dignity of persons, which many claim to be a reflection of the continuous deteriorating state of the rule of law in the Nigerian polity. It is therefore not the first time that the security agencies have been accused of using such brutal force against ordinary citizens with deadly consequences, as the former have displayed wide-ranging impunity. On the 12th to 14th December, 2015, Nigeria witnessed the unjustified slaughter/ killings of members of the Islamic Movement of Nigeria (IMN) by the Nigerian Army wherein it was reported that over 300 persons were killed and buried in mass graves. Till this day, no Army official has been held accountable for such extra-judicial carnage that terminated the lives of hundreds of citizens. Despite the guaranty of the Fundamental Right of her citizens as founded under Chapter IV of the 1999 Constitution and the African Charter on Human and Peoples’ Rights Act, the present government, through the security agencies, seems to have carved a niche for brazen infringement upon the rights of citizens to freedom of expression and the press.

In the course of proceedings at the ENDSARS Judicial Panel, I have listened to gory tales of the abuses that citizens endure in the hands of security agencies and it breaks the heart that in some of the concluded cases, those involved have been ‘rewarded’ with promotions, which when properly dissected, translates into a subtle official endorsement of such cases of brazen impunity. Part of the reason for the enthronement of the administration of justice is to send a strong signal to deviants that impunity is not profitable. Thus, when those in positions of authority are found culpable but left off the hook, the wrong impression is thus created, albeit unwittingly, that society does not abhor deviations. This cannot promote law and order.

Advertisement In The Legal Profession; Latitudes And Prohibitions In The RPC

By Kenneth Chibueze M

Introduction

Central to order and stability in every social system is a set of prescriptive codes – implicit or explicit. Social disorder occurs when a social element acts in a way that is perilous to either other parts of the system or the whole system in itself. To put it into perspective, in Nigeria, the legal profession has as one of its objectives – the protection of its status and to that end, the legal profession has employed the mechanism of explicit rules that regulate the conduct of its members, ultimately ensuring that they do not act in a way that is inimical to the legal profession per se. These rules copiously exist in the Rules of Professional Conduct 2007 (to be subsequently referred to as RPC 2007). Amongst these rules is one that regulates the commercial aspect of the profession, namely, advertisement of the lawyer’s trade. In Nigeria it is largely believed that advertisements are totally prohibited by the RPC 2007. In what follows explications shall be made as to whether Nigerian laws prohibit, in totality, lawyers from advertising their trade.

To be reiterated is the fact that the legal profession has very visible markings of prestige and it has a working mechanism primed to maintain this prestige. It encompasses of penal codes in the RPC 2007, these codes are enforced by bodies like the Legal Practitioners Disciplinary Committee (LPDC). They constitute the penal structure of the profession, ultimately guarding against infamous conduct, described in OKIKE v LPDC (2005) 15 NWLR (Pt.949) Pg. 471 at 591, “to be in any professional respect, an act or omission, which in the opinion of the disciplinary committee is such that will bring the profession into disrepute”.

In terms of infamous conduct, advertisement persists as the fulcrum of a controversy bedeviling the legal profession. Diverse opinions are existent as to whether a lawyer can advance the cause of his trade through advertisement. However a perusal of rule 39 of the RPC reveals the true position of the law on the issue. It goes thus:

Subject to paragraphs (2) and (3) of this rule a lawyer may engage in advertising or promotion in connection with his practice of law, provided that it—-
is fair and proper in all circumstances; and
complies with the provisions of these rules
It therefore becomes visible that, contrary to popular belief, a lawyer can advertise his trade, albeit, in line with part (a) and (b) of paragraph (1) of the RPC 2007 and subject to paragraph (2) and (3) of the RPC 2007. In paragraphs (2) and (3) of the RPC 2007, the law further provides for instances when an advertisement shall constitute improper conduct in provisos outlined in paragraphs (2) and (3) of rule 39 of the RPC 2007. It goes as follows:

A lawyer shall not engage or be involved in any advertising or promotion of his practice of the law which —–
is inaccurate or likely to mislead;
is likely to diminish public confidence in the legal profession, or the administration of justice, or otherwise bring the legal profession into disrepute;
makes comparison with or criticizes other lawyers or professions or professionals
includes any statement about the quality of the lawyer’s work, the size or success of his practice or his success rate; or
is so frequent or obstructive as to cause annoyance to those to whom it is directed
Hence, it becomes visible, that whereas paragraph (1) of the RPC 2007 leaves a lawyer with the latitude to advertise, paragraph (2) of the RPC 2007 stipulates that such advertisement must not be of misleading or inaccurate import, have demeaning effect on or scuttle the image of the profession, juxtapose oneself with other lawyers or professionals on the scale of comparison, indicate an appraisal of his success or constitute nuisance to his target audience. paragraph (2) (d) of the RPC 2007 played out in the case of LPDC v FAWHEHINMI (1985) 2 NWLR (PT. 7) 300 where Chief Gani Fawehinmi described himself as “the famous reputable and controversial Nigerian lawyer…” in so doing, he had gone contrary to the provisions of rule 33 of the RPC 1979, which provisions are similar to the provisions of part (d) of the paragraph under consideration. In essence, paragraph (2) of the RPC 2007 holistically provides that the advertisement of a lawyer ought not to be of such nature that may spell adverse effects for his colleagues, his clients, the legal profession and the society at large.

Furthermore, paragraph (3) of the RPC 2007 also restricts the latitude a lawyer has to advertise, by prohibiting him from soliciting for professional employment either directly or indirectly by:

circulars, handbills, advertisement, through touts or by personal communication or interview;
furnishing, permitting or inspiring newspaper, radio or television comments in relation to his practice of law;
procuring his photograph to be published in connection with the matter in which he has been or is engaged, or concerning the manner of their conduct, the magnitude of their interest involved or the importance of the lawyers position
permitting or inspiring sound recording in relation to his practice of law; or
such similar self-aggrandizement
The operative word in paragraph (3) of the RPC 2007 is “solicit”. paragraph (3) of the RPC 2007 suggests that a lawyer ought not to solicit to be taken under the employ of any client in his professional capacity. For avoidance of doubt, Merriam Webster explicates the word “Solicit” in different ways such as “to urge strongly”, “to make petition to”, “to try to obtain by usually urgent requests or pleas”. The same dictionary also outlines its synonyms to include: “beg” “importune” “pray”. It then appears that central to all these explications is the fact of begging a target audience. By logical implication, it follows that any lawyer makes a lawful advertisement in all the circumstances listed in paragraph (3) of the RPC 2007, if in such advertisement, he does not appeal to or beg his audience to take him into their employ but merely brings it to their knowledge that he is a lawyer, even if he includes his area of practice.

Paragraph 4 of the RPC 2007 further provides thus:

“Nothing in this rule shall preclude a lawyer from publishing in a reputable law list or Law Directory, a brief biographical or informative data of himself, including all or any of the following matters —–

his name or names of his professional association;
his address, telephone number, telex number, e-mail address, etc. ;
the school, colleges, or other institutions attended with dates of graduation, degree and other educational or academic qualifications or distinctions ;
date and place of birth and admission to practice law ;
any public or quasi-public office, post of honour, legal authority, etc;
any legal teaching position ;
any national Honours ;
membership and office in the Bar Association and duties thereon ; and (i) any position held in legal scientific societies”
A holistic construction of rule 39 of the RPC 2007 shows that advertisements are allowed, however contingent on the conditions that they do not that they do not prove to be adverse to other lawyers, the legal profession, other professions or to the general public, and also provided that lawyers do not beg to have their services procured. But however, they are not barred from providing informative data about themselves or their services, provided that it does not run foul to the provisions in paragraphs (2) and (3) of the rule under consideration. Founded on the mischief rule of interpretation and the extant social advancements which features breakthroughs in science and technology, it may also be implied that the provisions of paragraph (3) of the RPC 2007 may also apply in circumstances where one advertises on social media.

Conclusion

The true position of the law in Nigeria, premised on the foregoing, as to the extent that a lawyer can go in advertising his trade is that any Nigerian lawyer who practices within the Nigerian jurisdiction may advertise his trade as a lawyer, provided that the form or content of such advertisement does not go contrary to the stipulations of rule 39 of the RPC 2007 which purports to protect the status of the legal profession while protecting the interest of the members of the legal profession, other professions and the general society.

About the writer:

Kenneth Chibueze M, is a brilliant part two (200 level) law student in University of Uyo, Nigeria. He is an award winning writer with a strong penchant for legal writing, drafting and research. He can be reached on Email via [email protected], on WhatsApp via 07018550463, on phone via 09078697524.

Can The Economic And Financial Crime Commission (EFCC) Prosecute Offences At Magistrate Court?

Have you ever seen counsel from the department of the EFCC prosecuting matters at the magistrate courts? Have you ever seen where the commission is filing charges at the magistrate courts? Have you taken time to consider the possible reason behind their failure to file charges at magistrate courts? Do you think they are right to avoid magistrate courts for all matters involving financial crimes?

The Economic and financial crime commission (EFCC) is saddled with the primary responsibility of prosecuting all financial crimes in Nigeria. Section 6 of the Act provides in clear terms the powers and functions of the commission. Paragraph b of section 6 of the commission provides that the commission shall be responsible for the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, future market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.

A careful and holistic reading of section 6 of the Act, shows that the commission is saddled with wide powers as far as financial crime is involved irrespective of where the crime is or was committed. This wide powers of the commission has in some aspects, generated some heat and controversies as a result of the overlapping functions provided in the Act and other relevant codes of various states. One of such controversies is the issue as to whether the commission can validly prosecute offences under the penal code and other criminal code laws of various states. While Some legal expert were of the opinion that the commission only has the power to prosecute offences under the EFCC Act and any other Act where the National Assembly prescribe that the commission shall have the power to prosecute, some were of the view that the commission by virtue of section 6 of the Act can validly prosecute any offence that involves financial crime under the penal code. While both school of thought are good in their reasoning, the court has in some already decides cases held that the commission can validly prosecute offences under the penal code even without a fiat from the Attorney General of the state see the case of shema & 3 Ors v FRN (2018)1 SC (PT.1)1, Amah v FRN (2019)LPELR SC.567/2016 among others.

While it is now a settled principle that the commission can prosecute offences under the penal and criminal code of various states, the question is whether the commission can validly prosecute offences at the magistrate courts in Nigeria?

Section 19 of the EFCC Act 2004 being the establishment Act, provides that the federal high court, state high court and the high court of the federal capital territory possess the jurisdiction to try offenders under the Act. It is worthy to note that the above section 19 of the Act didn’t give the three courts stated therein exclusive jurisdiction to try offences under the Act but however, under the rules of interpretation, the express mentioning of a particular class of things, means that others not mention are excluded. This could actually justify the commission of not prosecuting cases at the magistrate court for offences under the EFCC Act 2004.

Question

Since the EFCC prosecutes offences under the establishment Act at the high courts or the federal high court simply because it is expressly provided for by an Act such as section 19 of the EFCC Act 2004, section 18 of the Money Laundering Act and section 14 of the Advance Fee Fraud and other Fraud Related Offences Act 2006, why still approach the high court even when the charges are brought under the penal code when the magistrate court can actually entertain same?

Section 19 of the EFCC Act provides that the commission shall have the power to prosecute its matter at either federal or state’s high court or that of the federal capital territory for offences under the Act without more. Section 18 of the Money laundering Act states that the federal high court shall have the exclusive jurisdiction to try offences under the Act. Section14 of the Advance fee fraud and other related offences Act, states that the high court of a state or of the federal capital territory or the federal high court shall have jurisdiction to try offences under the Act.

A careful reading of the above mentioned Acts, shows that there is no link anywhere to offences committed under the penal code or criminal code of various states. In that regard, one begins to wonder why EFCC will run to the high court to prosecute a simple financial crime under the penal code without recourse to the Magistrate courts.

Offences under the penal code are usually prosecuted at the magistrate courts of the state or high court depending on the gravity and financial worth of the offence.

Offences such as stealing, obtaining by false pretenses and fraudulent breach of trust that involves the misappropriation of money should ordinarily be filed at the magistrate court depending on the financial worth. Unfortunately, this is not the case. Findings and experience shows that all financial crimes no matter the amount find its way straight to the high court for trial. This is totally inappropriate.

No doubt,both the magistrate and the high court can entertain all sort of criminal matters under the penal code unless expressly provided against, minor criminal charges that involves misappropriation of funds should be filed at the magistrate court to at least lessen the work load of the high court being a court of unlimited jurisdiction and usually over burdened with cases. Judges of the high courts are also human beings who are subjected to the natural law of nature like every other person.

BRAINSTORMING: could it be that EFCC are not aware that they can actually prosecute matters at the magistrate court when the charge is framed under the penal code or could it be that they unilaterally prefer the high court as against the magistrate court? Are there special factors that propel them to the high court or are they doing that out of sheer ignorance and misinterpretation of the EFCC establishment Act 2004?

Recently, I was involved in a criminal matter at the FCT high court as a defense counsel. It was a charge under the penal code filed by the EFCC over the offence of cheating and obtaining by false pretenses. The defendant was accused of obtaining a sum less than #100.000 (one hundred thousand naira) from an alleged victim. Upon arraignment and plea, the court looked at the charge and the plea bargain agreement attached and asked the prosecution why the matter was not filed at the magistrate court instead considering the amount and even the content of the plea bargain agreement. The prosecution being the counsel to Efcc defended the charge by telling the court that according to the EFCC establishment Act 2004, they are bound to prosecute all their matters at the high court of federal high court. Including charges brought under the penal code? The court asked. At that moment, the other EFCC counsel made reference to the plea bargain agreement as one of the reason. The court laughed and so did i.

From the above case, it is obvious that the EFCC misconstrued the provisions of the establishment act as limiting its powers to high court and federal high court whenever it is prosecuting any offence. Only offences prosecuted under the EFCC Act, Money laundering and the Advance fee fraud Act can be prosecuted at the high court of a state or the federal high court. Once it is under a penal code, depending on the financial worth, a magistrate court should be approached instead of giving the high court unnecessary head ache. No law prohibits the EFCC from prosecuting matters at the magistrate courts. It is immaterial whether there is a plea bargain agreement or not. The magistrate court can take same and act accordingly.

In summary, it is advised that EFCC should stop stressing judges of high court with minor offences that should go to the magistrate courts. There is nothing special about the EFCC as a body not to appear before magistrate courts.

Stanley Maduabuchi Ofoegbu Esq, Whatsapp 08068515340, 08181689769 email; [email protected], Abuja.

Petroleum Industry Saviour: A Terse Breakdown Of The Petroleum Industry Act

By Okediya Peter O., ACIArb

The world’s biggest oil company, Saudi Aramco, recently revealed its plans to build a nearly $1 billion solar power plant [1]. This is a part of their steps to expand renewable energy supply. During the course of the week, I completed an online course with the Chartered Institute of Arbitrators and I was sent an e-certificate instead of a paper one because they aim ‘to reduce their carbon footprints.” Well, I could keep identifying instances portraying global economy’s transition to green energy however, this paper is to serve another imminent purpose. The question is, where does Nigeria stand in the global scheme of things as regards the energy industry?

The ‘newly’ passed Petroleum Industry Act 2021 has been portrayed as Nigeria’s saviour from economic woes and the crippling oil and gas industry, however the Act started off as a bill which was dragged and delayed for nearly twenty years. This directly means the application of the Act was due twenty years ago, save for amendments and modifications by various administrations.

On August 16 2021, President Buhari signed the 5-chapter bill into law. This was met with heart-warming jubilations and self-aggrandizement by the political class, and while there is a reason to celebrate, it is quite unfortunate to note that what should have been done thirteen years ago when the bill was first presented to the House, is just being done today. Major oil producing countries have exceeded these stages and are taking up new advancements that will open their economies to global prosperity. The ineluctability of future upheavals is a core reason why we cannot dwell long on this ecstasy-cloned catastrophe, as much is still left undone.

We must as such, as a country, seek to forge ahead. On this backdrop, I will extrapolate some germane topics in the Petroleum Industry Act in order to provide clarity, expunge misconceptions, proffer proper recommendations and save us from a show of international opprobrium.

THE NEW REGULATORS: COMMISSION AND AUTHORITY.

Prior to the enactment of the Petroleum Industries Act (hereafter referred to as the ‘PIA’), the Nigerian National Petroleum Corporation (NNPC) was a body that stood and acted as an operator and a regulator. This made the roles of the NNPC nebulous and susceptible to maladministration and exponential losses.

The PIA 2021 now provides for the bifurcation of regulation duties in two regulating bodies, namely, the Nigeria Upstream Regulatory Commission and the Nigeria Midstream and Downstream Petroleum Regulating Authority. The former is with respect to the upstream petroleum operations while the latter is for the midstream and downstream operations. This is an impressive initiative from the drafters of the PIA because the arrangement ensures accountability, coordination and transparency in the oil and gas sector.

PRIVATIZATION OR COMMERCIALIZATION: THE NNPC LTD.

For the record, by the virtue of section 53(1) of the PIA 2021, the NNPC will be renamed Nigerian National Petroleum Company Limited (NNPC Ltd).

It is now pertinent to draw the distinction between privatization and commercialization because this has led to some misleading interpretations of the Act. Privatization means a private company taking over some or all operational responsibilities, compensated either through user fees or a fee-for-service paid by the government. On the other hand, commercialization is the process of transforming a transaction into a commercial activity in which goods or services acquire monetary value. [2]

Upon sighting the words “…Company Limited” for the NNPC Ltd, the spontaneous reaction of most people was a conclusion that the NNPC has been privatized. The appropriate meaning in line with the statutory provision is that NNPC Ltd will be formed from the NNPC but will be incorporated under the Companies and Allied Matters Act and commercially focused. The government owns the shares in the company, held by the Ministry of Finance Incorporated and the Ministry of Petroleum Incorporated on its behalf. [3]

For the sake of emphasis, the provision of Section 53(3) is reproduced below:

Ownership of all shares in NNPC Limited shall be vested in the Government at incorporation and held by the Ministry of Finance Incorporated and the Ministry of Petroleum Incorporated in equal portions on behalf of the federation and the Ministry of Petroleum Incorporated is incorporated under the provisions of the eight schedule to this Act.

While some people may frown at this development, it is pertinent to note that the NNPC had not been working with a lucid strategy on whether to make profits or serve the public’s interest. Amidst this confusion, we have seen the price of fuel increase rapidly despite millions of naira spent on subsidies. The path to sustainable efficiency is productivity. When losses are made annually by the NNPC, their services will no longer serve the public’s interest but will only bring about hardship and indecisiveness in the economy as we have seen in the previous years. Commercialization ensures that the oil and gas sector is productive and profitable to the economy. Market-oriented solutions such as this have proven to be more effective.

Saudi Arabia has been operating with this model through Saudi Aramco, the official Saudi Arabian oil company with a net income of 49 billion dollars in 2020. [4] Therefore, the PIA Act is in concinnity with international best practices in this respect.

THE END OF SUBSIDY ERA?

Subsidies on fuel may not stay for long anymore. Over the years, it has been realized that subsidy only takes from our pocket and does not add any working value to the economy. It puts us in debts as it pushes the country to take loans. This does not sound like proper management in any form. Citizens still buy fuel at exorbitant rates and subsidies don’t even regulate prices anymore.

When the PIA 2021 commences, we may likely not have subsidies on petroleum products anymore. Private oil companies and operators will be able to determine the price of petroleum products using the market forces of demand and supply and other economic variables. In order to prevent inordinate increase in fuel price by private operators, this will only take effect under the supervision and control of the two regulatory bodies earlier mentioned.

THE FRONTIER EXPLORATION FUND EXPLAINED.

This brings us closer to the root of the brouhaha that has occasioned the PIA 2021. The provisions concerning the frontier exploration fund in the PIA has been met with criticisms and rancour orchestrated by people sowing seeds of discord among Nigerians.

In basic terms, the PIA says that 30% of “profit oil and profit gas” earned shall be invested in frontier exploration. Frontier exploration refers to the process of exploring hydrocarbons such as crude oil, natural gas, coal and other energy sources in the inland basins such as the Anambra basin, the south-eastern sector of the Chad basin, the mid-Niger basin and the Sokoto basin.

It is pertinent to note that the frontier exploration encapsulates the whole of Nigeria and not to a particular sect or tribe. This does not preclude any geopolitical zone. The objective is to develop new areas for oil exploration in the country.

THE 3 PER CENT VENTS: HOST COMMUNITIES’ LEMON JUICE

This has to be the most misconstrued provision in the PIA 2021. The Act, in Section 240(2), stipulates that 3% of the actual annual operating expenses of an oil company must be paid to the host communities. This contribution makes up the host communities trust fund. Note that this does not mean 3% of profits or revenue generated by oil companies. The 3% of the operating expense by an oil company is quite reasonable for both investors and the host communities. This is because the host communities will get paid whether or not an oil company makes profits and it’s an affordable fee for oil companies such that it attracts more investments.

This ushers in another tricky issue, who are the host communities?

According to Section 318 of the Act, host communities are communities situated in or appurtenant to the area of operation of a settlor, and any other community as a settlor may determine.

If an operator (an oil company) commences drilling operation in a community and passes the pipeline and other equipment for oil exploration through two other communities, such company will have three communities in its host communities trust fund which he has to pay 3% of its annual operating expenses into.

More so, addressing the challenge of mismanagement of funds by host communities, the Act directs the operator to set up a Board of Trustees who shall manage the host communities trust fund for the benefits of the host communities.

From the 3% contributed to the communities, 75% of it must go into infrastructure and projects within the communities, 20% of it will serve as a reserve fund and 5% will be used to running the trust by the Board of Trustees.

If there are more than one operator in a community, the operators cannot validly consolidate their expenses and pay 3%. Each operator will create their own trust fund, Board of trustees, and pay 3% separately to such community.

It is my belief that if the PIA Act is strictly implemented, the host communities will be in a better position to experience massive development unlike before. It aptly correlates with the saying that when life gives you lemons, you make lemon juice.

FATE OF CURRENT NNPC’S WORKERS.

As against popular misconception by the public that the implementation of the PIA will lead to mass retrenchment of workers, the PIA actually expressly provides for the retention of workers.

Section 57 of the Act states:

Upon incorporation of NNPC Limited under Section 53 of this Act, employees of NNPC and its subsidiaries shall be deemed to be employees of NNPC Limited on terms and conditions not less favourable than that enjoyed prior to the transfer of service and shall be deemed to be service for employment related entitlements as specified under any applicable law.

KEY OBSERVATIONS AND RECOMMENDATIONS

The PIA has been passed into law. We wait patiently for its commencement, and of course, its implementation. Taking a cue from the introductory paragraph in this paper, it is palpable that we have been left behind, or better said, we let ourselves stay behind. At this moment, we should be deliberating on harnessing renewable energy for economic growth and creating a legal framework for sustainable environment.

Interesting to note is the fact that the Economic Community of West African States in its document on ECOWAS Renewable Energy Policy, set year 2030 as a target for renewable energy penetration at the regional level to ensure ‘ECOWAS universal access’. [5]

While 2030 seems far from now, there is no gainsaying that the Nigerian government is not prepared to reduce its investment in petroleum and betting on it for a stable economy. Hence, the target is utopian for the Nigerian government. In fact, majority of the IOCs (International Oil Companies) have set up mechanisms for investments into renewable energy. Nigeria will be in a delirious position if the government does not invest in the renewable energy sector early enough.

To this end, the implementation of the PIA should be expanded to enable investments into renewable energy sources. By so doing, investors will be attracted, and there will be a smooth transition to clean energy.

Written By Okediya Peter O., ACIArb, Email: [email protected]

END NOTES

[1] Bloomberg, ‘Aramco Joins Group Building Giant Solar Plant in Saudi Arabia [2021] https://www.bloomberg.com/news/articles/2021-08-15/aramco-joins-group-building-giant-solar-plant-in-saudi-arabia accessed 19 August 2021

[2] K Bayliss and T. Kessler, Can Privatization and Commercialization of Public Services Help Achieve the MDGs?’, GSRDC Publications, 2006, https://gsdrc.org/document-library/can-privatisation-and-commercialisation-of-public-services-help-achieve-the-mdgs/ accessed 19 August 2021

[3] TheCable, ‘Commercialization of NNPC, two regulatory bodies …what you need to know about the new Petroleum Act’ [2021], https://www.thecable.ng/commercialisation-of-nnpc-two-regulatory-agencies-what-you-need-to-know-about-the-new-petroleum-act accessed 19 August 2021

[4] Wikipedia, Saudi Aramco, https://en.wikipedia.org/wiki/Saudi_Aramco accessed 19 August 2021

[5] ECOWAS Renewable Energy Policy (EREP), 2012, https://www.aecid.es/Centro-Documentacion/Documentos/Instrumentos%20de%20pol%C3%ADtica%20exterior/151012_ecowas_renewable_energy_policy_final.pdf accessed 19 August 2021

How Nigerian won £3,200 harassment claim in the UK.

LONDON – An English court has awarded a Nigerian man, Temitayo Ajala £3,520 (about N1, 809,280) in compensation following derogatory harassment from his boss.

Ajala took his boss, Lyndon Parker to court for religiously harassing him.

Ajala, who is a car salesman at Doves Vauxhall dealership in Southampton, won the religious harassment claim after his boss told him he believed “Allah is the devil”.


The court also ordered his boss to tender an apology. The Nigerian man said Lyndon Parker, his manager at Doves Vauxhall dealership was told to say sorry but did a loud fart and giggled during the apology.

He was, therefore, awarded £3,520 (about N1,809,280). (New Telegraph)

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