By Stanley Maduabuchi Ofoegbu Esq

The legal practice being a noble profession, is one of the most regulated professions if not the overall in the world. The standard of practice and conduct required of a legal practitioner in Nigeria is synonymous to the standard required of Angels who are working for God Almighty.

Rule 1 of the Rules of Professional Conduct for Legal Practitioners provides for the general responsibility of a lawyer. The rule states thus;

“A lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner”

The above rule of professional conduct operates like an omnibus clause in a motion before the court. The said rule houses every other rule guiding the conduct of the legal practitioners in Nigeria. It is the father of all other rules as it summarizes the entire duties of a legal practitioner in Nigeria. By the said rule, a high standard of professional conduct is expected of every legal practitioner in Nigeria and hence, the Establishment of the Legal Practitioners Disciplinary Committee among other regulating bodies to ensure that the needed standard in legal practice is maintained.

It is often said that in every twelve, there must be a Judas. Someone just have to betray Jesus one way or the other. The question is, who will it be? The legal practice is a noble profession meant to be practiced by noblemen. of honour. However, findings show that even in the midst of nobility, some men of the profession are not noble and hence, the need to appear before the disciplinary committee of the legal practitioners.

This is not to say that any lawyer who appears before the legal practitioner’s disciplinary committee without more, is a man without noble conduct. It will amount to a fallacious fallacy to come to that as a conclusion.

The legal Practitioners disciplinary committee is meant to entertain complaints brought against legal practitioners called and enrolled to practice as barristers and solicitors of the Supreme Court of Nigeria. The complaint could either be lodged by members of the public who by themselves are not legal practitioners or by fellow legal practitioners who allege that a legal practitioner is not operating within the confines of the law and ethics of the profession.

Upon lodging of the complaint through the appropriate bodies and channels, a charge is preferred against the said legal practitioner for him to enter his defense as a defendant. Upon the conclusion of trials, the committee is bound to publish its findings and directions as provided by the Legal Practitioners Act among others. The direction or decision could be either of the following;

Ordering the Chief Registrar of the Supreme Court to strike out the name of the affected legal practitioner where he is found guilty as charged.
Suspending the legal practitioner from practice by ordering him not to engage in practice as a legal practitioner for such period as may be specified in the direction.
Admonishing the legal practitioner over his conducts as a warning
Ordering the legal practitioner to refund any money in his possession where necessary
Striking and dismissal of the charge against the legal practitioner where the complaint was found to be frivolous and unmeritorious.
Question

Are there options available to a legal practitioner who has been found wanting by the committee?

Where a legal practitioner is found wanting, he is left with two options.

Accept his fate and move on with his life depending on what the direction says.
Lodge an appeal directly to the Supreme court of Nigeria to review and possibly upturn the decision of the committee.
Question

When a court of law convicts a defendant and sentences him accordingly, the constitutional element of being innocent is displaced. It doesn’t matter if the defendant has lodged an appeal at the appellate court. What matters is that he has been found guilty by a court of competent jurisdiction. Until his appeal is heard and determined, he is not competent to wear the garment of innocency. Even on appeal, the judgment of the court still carries the force of law and can be executed unless there is an application for stay of execution of the said judgment or that the said judgment was for the conviction on murder which an appeal operates as an automatic stay of execution. Is the above principle of Law applicable to the directions or decisions of the legal practitioner’s disciplinary committee?

The legal practitioner’s disciplinary committee is not a court of records as specifically listed in section 6 of the 1999 Constitution of Nigeria. The committee is more or less an administrative body performing a quasi-judicial function. It directions does not come into effect the moment it is delivered like that of the regular courts.

The legal Practitioners Act provide in clear terms when the direction of the committee will come into effect. According to the Act in Section 11(8) of the Legal Practitioners Act, the directions of the committee can only be activated when;

The convict hereinafter referred to as the lawyer has failed to exercise his right of appeal within the time frame allowed and same got expired
Where the convict appealed but withdrew his appeal and it is struck out or the appeal is stuck out for want of diligent prosecution, upon the striking out.
Where the convict upon the hearing of the appeal, it is dismissed
Until any of the above is exercised, the directions of the legal practitioner’s Disciplinary committee is kept in abeyance. In other words, it will continue to sleep and the legal practitioner will still be regarded as an innocent Angel in the temple of justice just like every other angel. If he appeals until the appeal is heard and determined, he is still a legal practitioner and his name will remain in the roll of legal practitioners kept by the Chief Registrar of the Supreme Court of Nigeria.

Matters Arising;

Recently, news had it that the Legal Practitioners Disciplinary Committee found one Mr Akaolisa a legal practitioner who also doubled as an attorney general of Imo state of conduct against the ethics of the legal profession and subsequently ordered that he be suspended from practicing for about five years. According to the news, he the affected legal practitioner had already lodged an appeal following the direction of the committee. While the appeal is still pending, some members of the people democratic party PDP of Imo state according to the news are of the firm view that Mr Akaolisa the present Attorney General of Imo State is no longer a legal practitioner and cannot be competent to hold the office of the attorney general and commissioner for justice in Imo state as he is no longer a lawyer following the conviction by the Legal Practitioners Disciplinary Committee (LPDC)

While I state explicitly and in clear terms, that I am not holding the brief of Mr Akaolisa of Imo State, I must submit that the submissions of the PDP members of Imo state with regards to the status of Mr Akaolisa being a lawyer is clearly misconceived. That ideology or whatever it is was birthed upon a wrong and fallacious interpretation of the law by whoever engineered it. It shows lack of proper legal understanding and is capable of throwing the state into more crisis. Until the directions of the LPDC come into effect, it is not in effect and nothing more.

God help Nigeria.

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

Daily Law Tips (Tip 818) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction:

There are several reasons to set up a social venture in the world. From fighting illiteracy, hunger, terrorism and pandemics to promoting rights, cultures, religions and fantasies. The most populous black nation (Nigeria) is home to many national, regional and international Non-Governmental and Not-For-Profit Organizations (charities, societies, associations, NGOs, NPOs, clubs, schools, professional bodies, religious bodies, community initiatives, cultural groups and any other group). The choice of Nigeria is not only because of its tax-exemptions and increasing ease of doing business. Well, as you will discover in this work, registering Non-Governmental and Not-For-Profit Organizations in Nigeria is easy, fast, predictable and open to Nigerians and foreigners.

This work reveals a short practical guide on the requirements for the formation and registration of Non-Governmental and Not-For-Profit Organizations in Nigeria. It goes beyond the provisions of the federal law (Companies and Allied Matters Act, 2020), by further exposing some requirements that are omitted in the law but often demanded by the concerned federal agency (Corporate Affairs Commission).

Corporate Affairs Commission (CAC) and the Registration of Non-Governmental and Not-For-Profit Organizations:

Corporate Affairs Commission (CAC) is a federal agency, in charge of the formation and registration of corporate beings, whether for profit and not for profit. Hence, across Nigeria, the Corporate Affairs Commission (CAC) manages the registration of businesses, registered partnership, companies, Non-Governmental Organizations and Not-For-Profit Organizations. It also houses records of all registered formations.

In the Corporate Affairs Commission (CAC), the registration of Non-Governmental and Not-For-Profit Organizations covers entities like; charities, societies, associations, NGOs, NPOs, clubs, schools, religious bodies, community initiatives, cultural groups and any other group. Such entities must be for religious, educational, literary, scientific, social, development, cultural, sporting or charitable purposes. However, it does not cover political parties, trade unions, secret cults and lawless movements.

The formation and registration of Non-Governmental and Not-For-Profit Organizations, makes such formed entities to become corporate persons/beings. As corporate beings, the entities are different from their owners and members. The entities can own and sell movable and immovable property (including lands and bank accounts), own a common seal and perpetual succession, take actions and positions in life, sue and be sued in its name, among other things. The formation and registration of entities at the Corporate Affairs Commission (CAC) is lawful and recognized across the world. Click to download a free copy of the Companies and Allied Matters Act, 2020 https://learnnigerianlaws.com/new-cama-2020-companies-allied-matters-act/

Information and Documents for the Registration of Non-Governmental and Not-For-Profit Organizations:

Expectedly, the Corporate Affairs Commission (CAC) require certain information and documents from persons seeking to form and register an entity, including; Non-Governmental and Not-For-Profit Organizations. The information must be provided timely and only guanine information should be supplied to avoid criminal prosecution and imprisonment for one year or fine. Click to download a free copy of the Companies and Allied Matters Act, 2020 https://learnnigerianlaws.com/new-cama-2020-companies-allied-matters-act/

Here are the information and documents that the federal agency (Corporate Affairs Commission) will request for the registration of Non-Governmental and Not-For-Profit Organizations.

The unique name for the organization sought to be registered. (Nigerian government through the Corporate Affairs Commission may refuse to approve a name, where a similar name exists or the name is deceitful, misleading or unlawful).
The proposed clear and lawful arms and objectives of the organization. This is the well-articulated specific vision, mission and role of the organization. This may be amended by CAC to align with the laws of Nigeria.
List of Trustees (a person of any Nationality that will be serving on the Board of Trustees of the organization being registered). Such persons must not be infants, bankrupt and convicts, rather must be persons of sound mind. There is need for the Board of Trustees to have a Chairman (President) and the Secretary, since they will sign some documents during the registration processes.
Particulars of Trustees (the members of the Board of Trustee) must be provided. This will include; Name, Home Address, Occupation, Date of birth, Email address, Telephone, Passport photograph, scanned signature and a copy of any government issued means of identification).
Oath Declarations by Trustees before a Notary Public or Commissioner of Oath.
The proposed Constitution of the Organization. This must be prepared to suit the Nigerian standard using the precedents provided by the Corporate Affairs Commission (CAC). Hence, organizations are not allowed to submit their unique (often-detailed) proposed constitutions, rather the short constitution form of about 4 pages, provided CAC are to be used. Note that the often-detailed Constitution of organization not accepted by CAC, may be later used by the organization as Bye-Laws or Operational Manuals and Guidelines but subject to the overriding powers of the Constitution approved by the CAC.
The common seal (often an iron seal bearing the name and logo of the organization).
Newspaper publications of proposed Name, Objectives and Trustees in 2 Newspapers
Physical Address within Nigeria as address of the organization. This does not stop the organization from having offices and addresses outside of Nigeria.
Application letter, Completed Application Form, Minutes of Meeting and Proof of payment of Statutory fees.
Click to download a free copy of the Companies and Allied Matters Act, 2020 https://learnnigerianlaws.com/new-cama-2020-companies-allied-matters-act/
Conclusion:

Nigeria a liberal state, allows Nigerians and foreigners to form, register, manage and run entities in Nigeria. Hence, a foreigner can register and own an entity in Nigeria without a Nigerian. This is one of the few countries that offer such privileges in Africa. To ensure this position does not change overnight, there are several federal laws that have enshrined this position. Click to download a free copy of the Companies and Allied Matters Act, 2020 https://learnnigerianlaws.com/new-cama-2020-companies-allied-matters-act/

Formation and registration of entities, whether national, regional or international Non-Governmental and Not-For-Profit Organizations (charities, societies, associations, NGOs, NPOs, clubs, schools, professional bodies, religious bodies, community initiatives, cultural groups and any other group) is a sure and predictable path in Nigeria. The services of legal practitioners are needed for the formation and registration of entities in CAC to ensure and guaranty timely and smooth process. Wont you rather register and invest in Nigeria, today?

My authorities, are:

Sections 1, 2, 3, 4, 5, 6, 318 and 319 and the Fourth Schedule to the Constitution of the Federal Republic of Nigeria, 1999.
Sections 1, 4, 8, 823 to 839, 868, 870 of the Companies and Allied Matters Act, 2020. Click to download a free copy of the Companies and Allied Matters Act, 2020 https://learnnigerianlaws.com/new-cama-2020-companies-allied-matters-act/
Onyekachi Umah, “Is Government Taking Over Unclaimed Dividend and Shares?” (LearnNigerianLaws.com, 25 March 2021) https://learnnigerianlaws.com/is-government-taking-over-unclaimed-dividend-and-shares/ accessed 4 August 2021.
Onyekachi Umah, “Does the New Finance Act Exempt Companies from CAC Annual Returns?” (LearnNigerianLaws.com, 17 March 2021) https://learnnigerianlaws.com/does-the-new-finance-act-exempt-companies-from-cac-annual-returns/ accessed 4 August 2021
Onyekachi Umah, “Why Lawyers Are No Longer Needed In The Formation Of Companies” (LearnNigerianLaws.com, 9 November 2020) https://learnnigerianlaws.com/why-lawyers-are-no-longer-needed-in-the-formation-of-companies/accessed 4 August 2021
Onyekachi Umah, “CAC Can Now Takeover Churches, Mosques, Associations and NGOs” (LearnNigerianLaws.com, 18 August 2020) https://learnnigerianlaws.com/takeover-of-not-for-profits-by-cac/accessed 4 August 2021
Onyekachi Umah, “Company Secretaries Are Not Needed In Small Companies” (LearnNigerianLaws.com, 13 August 2020) accessed 4 August 2021

By Sylvester Onyegbu

A nation or society can live with an incompetent government, said Othman Dan Fodio, but not with injustice as a way of life. Courts are called temples of justice the world over. The symbol of justice is a blindfolded maiden with a sword in her hand because the scale of justice doesn’t care whose ox is gored. But Nigerian courts have increasingly been acquiring the reputation of temples of judgments, and not justice. There is perhaps at no greater point in our national history than now when public confidence in the judiciary is at an all-time low. Even serving Supreme Court justices have been disgraced in public over allegations of unbridled graft. Things are so bad that these days when a Senior Advocate of Nigeria (SAN) wins a difficult case, people, far from congratulating him or her, often ask how much the Learned Silk paid!

Justice Chioma Nwosu-Iheme of the Court of Appeal in Awka, Anambra State, will go down in history as the proverbial Daniel who has come to judgment with her recent pronouncement on the monumental mess into which both lawyers and judges are turning the Nigerian legal system owing to filthy lucre from mostly politicians. Ruling last Monday, August 2, on the motion by Mr Chike Onyemenem (Senior Advocate of Nigeria) seeking to halt the execution of the judgment of Mr Justice Charles C. Okaa of the Anambra State High Court in Awka affirming the nomination of the erstwhile Central Bank governor, Professor Chukwuma Charles Soludo, as the candidate of the All Progressives Grand Alliance (APGA) in the November 6 gubernatorial election in the state, Mr Justice Nwosu-Iheme stated that both judges who deliver judgments on cases beyond their territorial jurisdiction and the lawyers who deliberately take such cases to them need to be sanctioned on grounds of professional misconduct.

This is the background to Justice Nwosu-Iheme’s pronouncement. On June 28, Justice Musa Ubale of the Jigawa State High Court at Birnin kudu delivered a judgment on a case brought by agents of Chukwuma Umeoji of the House of Representatives claiming that one Jude Okeke had become the APGA acting national chairman following, as they claimed, the removal of one Edozie Njoku as the substantive national chairman. Meanwhile, the Independent National Electoral Commission (INEC) has up to this moment not heard of any of these persons as the APGA chairman. The Constitution vests INEC with the power to register and regulate political parties for purposes of participating in elections.

The APGA chairman known to INEC and the public for the past four years as the APGA chairman, Chief Victor Oye, was not joined in the suit, nor was the party aware of the legal action. Umeoji, who appears to want to be the APGA candidate in the November election at all costs, had purchased his nomination form from Oye in May in recognition that Oye was the national chairman, but now claims that Oye ceased being the party chairman in 2009! The magic of it all is that Justice Ubale delivered judgment not only recognizing Okeke as the APGA acting national chairman who took over from Njoku but also giving the consequential order enabling him to send to INEC the name of the APGA candidate for the governorship election in Anambra State holding on November 6. Okeke now submitted Umeoji as the candidate.

Umeoji didn’t participate in the APGA primary election of June 23, 2021, which was broadcast live on television networks in Nigeria and which Soludo won by some 93.7%; Umeoji was disqualified because it has been reported in the media, he was found to be working in cahoots with another party to betray APGA in the November election.

Why would someone go from Awka to as far as Birnin Kudu, almost 700 kilometres apart, over an issue which happened in Anambra State or the Southeast? Who has ever done something so bizarre and succeeded in Nigeria? Apparently recognizing that they are in gross violation of the principle of territorial jurisdiction, the same people shopped for a judgment from the Imo State High Court in Owerri where Justice B. C. Iheka on July 30 delivered a judgment stating that Okeke is the APGA acting chairman. There are unconfirmed reports that the same people have moved to neighbouring Abia State to shop for another judgment!

Truly, both the judicial system and the legal profession have never stooped this low in Nigeria. But there are sometimes glimmers of hope. When one Umaru Said on July 28, 2021, claimed at the Court of Appeal in Kano to represent APGA in the suit seeking to set aside the Jigawa State High Court judgment, Justices Tsamani, Maiwada Abdullahi and Musale cautioned him against allowing himself to be used by politicians unprofessionally. The lawyer quietly left the court premises. The caution could have come from Justice Nwosu-Iheme of the Court of Appeal in Awka. In other words, it would seem there is a greater concern for professional integrity at the appellate courts which are naturally manned by more experienced and capable judges.

There are thankfully institutional mechanisms to check the professional misconduct of legal professionals. An important feature of the 1999 Constitution, as amended, is the creation of the National Judicial Council. The NJC has been doing a marvelous job, though much remains to be done. It has taken stern measures against the behavior of such judges as Wilson Egbo-Egbo, Stanley Nnaji, Okechukwu Opene and Adeleye Adedoyin who were thrown out of the Bench over the Anambra election quagmire. Why haven’t some judges learned from the experience of these former judges, especially Nnaji of the Enugu State High Court who was dismissed for ordering the removal of the then Anambra governor, Senator Chris Ngige? It was Nnaji’s tough luck that he was to be assassinated in Enugu on May 27, 2021.

The Disciplinary Committee of the Nigerian Bar Association needs to learn to be more active. There are more erring lawyers than judges, yet the NJC looks far more alive to its responsibility.

The massive corruption in most courts of first instance is a major contributor to declining direct foreign investment in Nigeria. These courts are not considered good enough, in contrast to Chinese courts which, though theoretically are under the Communist Party, are considered good enough by international investors. The few Western investors who come to Nigeria insist on the provision of arbitration in London rather than Nigeria in the memoranda of understanding (MoUs) should disputes arise.

Most Nigerians seem to underestimate the profound implications and dimensions of a corrupt judiciary. Othman Dan Fodio was really right: A society can survive an incompetent government, but not injustice. Justice Chioma Nwosu-Iheme is the modern-day Daniel who has truly come to judgment. History will be kind to her.

*Dr Onyegbu is of the University of Nigeria, Enugu Campus.

Justice Rilwan Aikawa held the anti-graft agency failed to establish any prima facie case against Usoro that could warrant him to enter a defence.

The judge made the decision while ruling on Usoro’s “no case” submission.

He noted that the penal code, under which the NBA chieftain was charged, is not applicable to southern states, i.e Lagos and Akwa-Ibom, which were said to be the locations of the alleged offences.

“On the whole, I hold that the prosecution has failed to establish any prima facie case.

“Accordingly, the defendant is hereby discharged and acquitted,” Justice Aikawa held.

The FHC found as facts the following:

1. that there was no evidence that any money belonging to the Akwa Ibom state government was stolen or missing.

2. That the investigation by EFCC was shoddy and inconclusive.

3. That there was no offence known as criminal breach of trust under the Lagos and Akwa Ibom states laws.

4. That the pw1 and pw2 contradicted themselves on material points, as they admitted that the defendant was not aware that the funds paid into his accounts were part of proceeds of unlawful act.

5. That the prosecution of the defendant was unnecessary and uncalled for.

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How Lawful is the AMAC’s Gaseous Emission Permit Limit Levy? Daily Law Tips (Tip 817) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction:

Improving internally generated revenue may include; increasing tax rates, reducing tax evasion and increasing the lawful taxation of more items/services. Although, government must provide certain services, unfortunately, government does not have adequate business to generate needed fund, so government must generate funds through taxes and levies. However, to avoid abuse among other things, laws are made to enable government to impose, demand and collect taxes, levies and penalties.

To increase internally generated revenue (and to discourage pollution), there is a new tax/levy in Abuja, the Federal Capital Territory of Nigeria. The levy (Gaseous Emission Permit Limit) by the Abuja Municipal Area Council (AMAC) seems to be targeting bakeries, industries, warehouses, bank, generators or heavy-duty, drilling, production, construction and manufacturing equipment and filling stations. This new levy is uncommon and novel to residents and companies in Abuja, hence, the avalanche of protests against the levy.

This work examines the legality of the Gaseous Emission Permit Limit Levy by Abuja Municipal Area Council (AMAC). It presents the reported demands from AMAC to residents and businesses in Abuja as well as the alleged legal argument/defence of AMAC for the Gaseous Emission Permit Limit Levy. In answering the question; “How lawful is theGaseous Emission Permit Limit Levy?”, this work analyzed several laws, regulations and cases.

Some of the laws and regulations analyzed in this work, include; the Constitution of Nigeria; the Taxes and Levies (Approved List for Collection) Act 1998; the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015; the Federal Environmental Protection Agency Act, 1988 (now repealed); the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007; the Environmental Health Officers (Registration, etc.) Act 2002; the National Environmental Health Practise Regulation 2016; and the National Environmental (Air Quality Control) Regulations 2014. Also, the landmark cases were considered; ABUJA ELECTRICITY DISTRIBUTION COMPANY (AEDC) V. KUJE AREA COUNCIL (SUIT NO. FCT/HC/CV/2030/2017) and ETI-OSA LG v. JEGEDE & ANOR (2007) LPELR-8464(CA).

The Gaseous Emission Permit Limit Levy; What it is:

It is in the public media that the Abuja Municipal Area Council (AMAC) has imposed a levy of N100,000.00 on businesses within the Area Council for Gaseous Emission Permit Limit Levy. The levy is said to focus on businesses that discharge harmful hazardous substances into the air or the land and water in Nigeria, like through the activities of industries, warehouses, bank, either from generators or heavy-duty, drilling, production, construction and manufacturing equipment, filling stations, etc. Also, the reports have it that, the failure to pay the levy, “could lead to the arrest of the operator and suspension of the bakery’s activities”.

Furthermore, AMAC is said to defend the Gaseous Emission Permit LimitLevy with the below statement; “This is in line with the provision of Section (2C) of the fourth schedule of the constitution of the Federal Republic of Nigeria as amended under the function of the Local Government Authority and Federal Environmental Protection Agency Act (FEPA) part (iii) section 25 which establish the Local Council Authority to regulate, enforce and collection of levies for the interest of public health importance (welfare) section (18), (20), (21), (26) and 27 and other relevant laws of National Environmental Health Practice Regulation 2016 which confers on the council the power to regulate, inspect, control and collection of levies/fees.”

At the time of this publication, there is no known or publicly published Bye-Law from AMAC on the the Gaseous Emission Permit LimitLevy. However, there are several demand notices from AMAC to businesses in Abuja for the Gaseous Emission Permit LimitLevy and a reported letter from AMAC defending the demand. The media has reported the levy as “the Gaseous Emission Permit Levy” and also as “the Gaseous Emission Permit Limit Levy”. Since,taxes and levies are issues that can only be created and managed by written laws, the legality of the Gaseous Emission Permit Limit Levy by AMAC will be considered below.

How lawful is the Gaseous Emission Permit Limit Levy?

Laws govern Nigeria, including the imposition, collection and demand of taxes, levies and penalties in any part of Nigeria. As such, in Nigeria, the Federal Government, the State Governments and the Local Governments (including the 6 Area Councils in the Federal Capital Territory) cannot impose, collect or demand any tax, levy or penalty, where there is no written law authorizing such. Any attempt to impose, collect or demand any tax, levy or penalty by any government, institution or person in Nigeria without any legal authority is invalid, null and void and a mere waste of resources. So, does Abuja Municipal Areas Council (AMAC) has the legal authority to impose, demand and collect the Gaseous Emission Permit Levy or Gaseous Emission Permit Limit Levy?

The legality of the AMAC’s demand for Gaseous Emission Permit Limit Levy will be analyzed in summary through on federal laws, regulations and the decisions of courts in Nigeria.

Constitution of the Federal Republic of Nigeria:
Laws are made by the legislatures in Nigeria over key issues, like taxation. In Nigeria, taxes and levies are enabled by the Constitution of the Federal Republic of Nigeria, 1999. The Constitution of Nigeria further mentioned different governments that can impose different classes/types of taxes, levies and penalties. In the Fourth Schedule to the Constitution of Nigeria, the Local Governments in Nigeria (including the 6 Area Councils in the Federal Capital Territory) have among others, the function to control and regulate shops, kiosks, restaurants, bakeries and other places for sale of food to the public, laundries and places for the sale of liquor. On this note, the Abuja Municipal Area Council (AMAC) has among its constitutional functions, the duty to regulate persons and businesses in the Abuja, that have interest in shops, kiosks, restaurants, bakeries and other places for sale of food to the public, laundries and places for the sale of liquor. This arguably covers the control and regulation of the gaseous emissions of such persons and businesses, since the Constitution did not place any limitation on the level of control and regulation to be exercised by the Local Governments and Areas Councils. As will be revealed shortly, this argument will fall where there is a federal law and agency specifically empowered to handle gaseous emission and environmental pollution, generally.

Aside the Constitution of Nigeria, the Federal Legislature has made several federal laws to further enable the imposition, collection and demand of taxes, levies and penalties by the Federal Government, State Governments and the Local Governments (including the 6 Area Councils in the Federal Capital Territory). Among the federal laws on tax are; the Taxes and Levies (Approved List for Collection) Act 1998; the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015; the Personal Income Tax Act, the Companies Income Tax Act and the Finance Act.

The Taxes and Levies (Approved List for Collection) Act 1998 and the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015:
Important to this work are the Taxes and Levies (Approved List for Collection) Act 1998 and the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015, which clearly lists the taxes and levies to be specifically collected by the respective three tiers of government in Nigeria (the Federal Government, State Government and the Local Government, [including the 6 Area Council in the FCT]).

By the way, the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015 amended the Taxes and Levies (Approved List for Collection) Act 1998 under the hand of the Federal Minister of Finance, in line with the provisions of the Taxes and Levies (Approved List for Collection) Act 1998. However, there are two (2) major conflicting judgments of the Federal High Court, on the validity of the amendment of the Taxes and Levies (Approved List for Collection) Act 1998 by a Minister (the Executive arm) instead of by the Federal Legislature. As such, the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015 has been validated and invalidated by the Federal High Courts in Lagos (and the appellate Courts are yet to decide on the issue).

In the case of RTHMAL vs Attorney- General of Lagos State and Federal Inland Revenue Service, the Federal High Court in Lagos State on 3 October 2019 upheld the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015. However, in the case of “The Registered Trustees of Hotel Owners and Managers Association of Lagos Vs. The Attorney General of the Federation & the Minister of Finance”, the Federal High Court in Lagos State, in the judgment delivered on 8 May 2020 invalidated the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015. Both courts are equal, as such none can overrule the other, not even the later decision. Hence, both Federal laws will be discussed here, in case any one of the laws is later found invalid by the appellate courts.

The Taxes and Levies (Approved List for Collection) Act 1998 empowers Local Governments (including AMAC and other Area Councils in the Federal Capital Territory [FCT]) to collect taxes and levies from shops, kiosks, restaurants, places for the sale of liquor, slaughter slabs, markets (not owned by State Government), motor parks, public convivence, sewage and refuse disposal. Obviously, by this Act, AMAC has the legal authority to collect taxes and levies from specific businesses with investments or focus in the above-mentioned areas within Abuja. However, it never mentioned environmental, ecological and gaseous emissions as a type of tax/levy to be collected by any Local Government or Area Council.

On the other hand, the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015 expanded the taxes and levies to be collected by the governments in Nigeria, by creating new taxes and levies. It added “Wharf Landing Charge” to the tax and levy to be collected by Local Governments and Area Councils that have such facilities. However, it clearly created “Environmental (Ecological) fee or Levy” among others as one of the new taxes and levies to be collected by the State Governments (in the case of the FCT, by the Federal Capital Territory Authority). Hence, under this law, Local Governments and Area Councils (including the AMAC) lack the power to collect “Gaseous Emission Permit Limit Levy” rather it is the State Governments and the Federal Capital Territory Authority that can collect such.

The Federal Environmental Protection Agency Act, 1988:
It is reported in the public media (the Punch Newspaper) that; “In a letter by the Head of Environment, AMAC, Ahmed Haruna”, AMAC relies on some federal laws in imposing the Gaseous Emission Permit Limit Levy, including the Federal Environmental Protection Agency Act (particularly, its section 25). Hence, it is important to review the Federal Environmental Protection Agency Act.

Section 25 of the Federal Environmental Protection Agency Act, provided that; “The President shall, as soon as possible after the commencement of this Act, encourage States and local government councils to set up their own environmental protection bodies for the purpose of maintaining good environmental quality in the areas of related pollutants under their control, subject to the provisions of this Act.”

The provisions of section 25 of the Federal Environmental Protection Agency Act,would have been a good basis for any State Government, Local Government or Area Council (like AMAC) to create a good environmental agency. Unfortunately, the Federal Environmental Protection Agency Act is invalid, nullified, repealed and dead since 30 July 2007. It was repealed by section 36 of the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007 (this federal law is discussed below). Hence, AMAC has no authority to rely on the Federal Environmental Protection Agency Act in imposing the Gaseous Emission Permit Levy, since there is no such law.

Assuming that the Federal Environmental Protection Agency Act is still valid, it does not seem to be a good authority for AMAC to impose any tax or levy (the Gaseous Emission Permit Levy). The repealed the Federal Environmental Protection Agency Act in its forty-two (42) sections never contemplated or provided for tax/levy rather provided fines and imprisonment for criminal breach of environmental protection regulations. Since, there is no valid law known as the Federal Environmental Protection Agency Act, the AMAC cannot rely on a non-existing law to impose the Gaseous Emission Permit Levy.

The National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007:
The National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007 is a federal legislation that established the National Environmental Standards and Regulations Enforcement Agency (NESREA). It also oversees the protection and development of the environment in Nigeria. It repealed the Federal Environmental Protection Agency Act, 1988.

The National Environmental Standards and Regulations Enforcement Agency has the powers to “… enforce compliance with laws, guidelines, policies and standards on environmental matters” and to “… enforce compliance with policies, standards, legislation and guidelines on water quality, environmental health and sanitation, including pollution abatement” in any part of Nigeria. Its function includes; “… control of atmospheric pollution originating from energy sources, including that produced by aircraft and other self-propelled vehicles, industries, factories and power generating situations or facilities”. The National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007 criminalizes the violation of regulations on air quality and atmospheric condition and made it punishable with fine or imprisonment or both.

Although, the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007 expressly provides that NESREA can corporate and collaborate with other government agencies and stakeholder. The National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007 is silent on the roles of the State Governments, Local Governments (including Area Councils) in the protection and development of the environment. To this extent, the imposition ofthe Gaseous Emission Permit Levy for the discharge harmful hazardous substances into the air or the land and water in Nigeria by the Abuja Municipal Area Council (AMAC) may be a usurpation of federal law and the powers of NESREA.

The Environmental Health Officers (Registration, etc.) Act 2002:
The Abuja Municipal Area Council (AMAC) is reported to also rely on “…section (18), (20), (21), (26) and 27 and other relevant laws of National Environmental Health Practice Regulation 2016 which confers on the council the power to regulate, inspect, control and collection of levies/fees” as the basis for its demand for Gaseous Emission Permit Levy. Well, to better understand the National Environmental Health Practice Regulation 2016, it is advisable to understand its parent law (the Environmental Health Officers (Registration, etc.) Act 2002).

The Environmental Health Officers (Registration, etc.) Act 2002is a federal law that establishes the Environmental Health Officers Registration Council of Nigeria, for the regulation of Environmental Health Officers and the control of the practice of the profession of Environmental Health in Nigeria. The Environmental Health Officers Registration Council of Nigeria sets standards for Environmental Health Officers in Nigeria, it maintains a register of such officers, conducts professional examinations

and awards certificates. The twenty-eight (28) sections of the Environmental Health Officers (Registration, etc.) Act 2002focus on the admission of Environmental Health Officers by the Council and regulation of the conducts of Environmental Health officers. However, relying on the Environmental Health Officers (Registration, etc.) Act 2002, a federal regulation (the National Environmental Health Practise Regulation 2016) was made by the Federal Minister for Environment on 10 February 2016.

Clearly, the Environmental Health Officers (Registration, etc.) Act 2002does not make any provisions for the Abuja Municipal Area Council or for the imposition of any Gaseous Emission Permit Levy by AMAC. Rather, it oversees the registration and practice of Environmental Health Officers in all parts of Nigeria, including in Abuja.

The National Environmental Health Practise Regulation 2016:
The National Environmental Health Practise Regulation 2016 is a subsidiary legislation (regulation) made pursuant to the Environmental Health Officers (Registration, etc.) Act 2002 to provide guideline for the enforcement of the regulatory powers of the Environmental Health Officers Registration Council of Nigeria. It is to prevents nuisance, reduce environmental hazards and it applies to all parts of Nigeria, including Abuja. It provides for fines and imprisonment for any person or business that contravenes any Environmental Protection Regulations or Guidelines.

Regulation 107 of the National Environmental Health Practise Regulation 2016 interprets Environmental Health Authorities to include the government departments responsible for Environmental Health Services (including the Federal Government, State Governments and the Local Governments). Regulation 80 of the of the National Environmental Health Practise Regulation 2016 mandates all governments to enforce the National Air Quality Standards issued by the Federal Ministry of Environment. This includes the Motor Vehicle/Motorcycle Emission Limit Permit. It also provides that an industry may be declared to by an air polluter by the Federal Minister of Environment and such industry must ensure that its pollution is within the permissible limit. The violation of the provisions of the Regulation is punishable with fine of not more than N50,000 for individuals and N250,000.00 for corporate bodies, after being convicted by a court.

By this, the Abuja Municipal Area Council (AMAC) has legal authority to create a department for Environmental Health Services and to enforce the National Air Quality Standards. However, it is the Federal Minister of Environment that has the powers to declare an industry/business to be an air polluter and to demand for the maintenance a minimum permissible limit. Hence, the alleged demand by AMAC for businesses to pay N100,000.00 for Gaseous Emission Permit Levy seems to be out of place and not contemplated by the National Environmental Health Practise Regulation 2016. TheNational Environmental Health Practise Regulation 2016 has room for fines and imprisonment upon conviction by court and not the administrative imposition of levies.

In the alleged letter from AMAC, the Area Council relies on “…section (18), (20), (21), (26) and 27 and other relevant laws of National Environmental Health Practice Regulation 2016…” for the imposition of Gaseous Emission Permit Levy. Unfortunately, all the above stated sections cited by AMAC, merely focus on the collection and disposal of solid waste and not on Gaseous Emission Permit Levy. Hence, while AMAC can rely on the aid sections to dispose solid waste, AMAC cannot rely on them for any gaseous waste. Issues of gaseous emissions are provided for in sections (regulations) 80 to 83 and those not contemplate the role of Local Governments and Area Councils (including AMAC). Hence, the reliance placed by AMAC on the sections (18), (20), (21), (26) and 27 to impose Gaseous Emission Permit Levy is unfounded and invalid.

By the way, the writer believes that the Environmental Health Officers (Registration, etc.) Act 2002 has no powers to sustain the regulatory powers created bythe National Environmental Health Practise Regulation 2016. The provisions of the National Environmental Health Practise Regulation 2016 are beyond the powers of the Environmental Health Officers Registration Council of Nigeria enshrined in the Environmental Health Officers (Registration, etc.) Act 2002. In making the National Environmental Health Practise Regulation 2016 under the Environmental Health Officers (Registration, etc.) Act 2002, the Federal Minister of Environment acted beyond his powers, by adding to the subsidiary legislation, matters that are beyond and not contemplated by its parent legislation. The extenders and seeming broad terms used in the Environmental Health Officers (Registration, etc.) Act 2002 cannot be source and permission for an Executive to amend the legislations of the federal legislature.

The National Environmental (Air Quality Control) Regulations 2014:
The National Environmental (Air Quality Control) Regulations 2014 is a federal regulation made pursuant to the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007. It is designed to improve national air quality and ensure access to clean air. It prohibits the installation of certain equipment in the residential areas; burning; two-stroke engines; mobile sources of emission; indoor air pollution; banned pesticides; some location of power generating sets; and the smoking in public places, among others. It sets minimum permissible limits and criminalizes violations, punishable with fines or imprisonment or both.

The Regulation 107 of the National Environmental Health Practise Regulation 2016 empowers all governments in Nigeria to enforce the National Environmental Regulations, including the National Environmental (Air Quality Control) Regulations 2014. To this end, the Abuja Municipal Area Council (AMAC) can enforce the National Environmental (Air Quality Control) Regulations 2014. However, the National Environmental (Air Quality Control) Regulations 2014 made provisions for fines and imprisonments, where there is a violation. The National Environmental (Air Quality Control) Regulations 2014 does not cover the imposition and demand for taxes ad levies for Gaseous Emission Permit Levy. Consequently, the AMAC imposition of the Gaseous Emission Permit Levy cannot rely on the National Environmental (Air Quality Control) Regulations 2014.

Case Law 1: ABUJA ELECTRICITY DISTRIBUTION COMPANY (AEDC) V. KUJE AREA COUNCIL (SUIT NO. FCT/HC/CV/2030/2017)
There are decisions of courts in Nigeria that are key to this inquiry on the legality of AMAC Gaseous Emission Permit Levy. Recently, on 14 January 2019, the High Court of the Federal Capital Territory ruled in the case of Abuja Electricity Distribution Company (AEDC) v. Kuje Area Council (SUIT NO. FCT/HC/CV/2030/2017), that Area Council or Local Government cannot amend the list of taxes and levies duly contained in the Fourth Schedule to the Constitution of Nigeria, the Taxes and Levies (Approved List for Collection) Act 1998 and the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015.

Hence, by the Constitution of Nigeria and the Taxes and Levies (Approved List for Collection) Act 1998 and the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015, no Local Government or Area Council can impose or demand a new class or type of tax (the Gaseous Emission Permit Levy). On this note, the Abuja Municipal Area Council has no powers whatsoever, to impose or demand for the payment of Gaseous Emission Permit Levy from any person or business.

Case Law 2: ETI-OSA LG v. JEGEDE & ANOR (2007) LPELR-8464(CA):
The above decision of the High Court of the FCT in the case of Abuja Electricity Distribution Company (AEDC) v. Kuje Area Council (SUIT NO. FCT/HC/CV/2030/2017), relies on the case of ETI-OSA LG v. JEGEDE & ANOR (2007) LPELR-8464(CA).

The defining words of the Court of Appeal in ETI-OSA LG v. JEGEDE & ANOR (2007) LPELR-8464(CA), are very key. They are reproduced here:“To leave taxation at large at the whim and caprice of the different tiers of government would expose the entire citizenry to undue multiple and over lapping taxes and levies. Taxation should be a tool of social engineering, of societal class structural adjustment in the hands of a responsive and sensitive government….The Appellant has no inherent powers to legislate nor create and impose taxes outside the scope of Decree No. 21 of 1998 nor the 4th schedule of the 1999 Constitution.” Per MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

Conclusion:

The dwindling crude oil prices across the world has woken the need for diversification of Nigeria’s economy. Increasing internally generated revenue has glued to the lips of government spokespersons. Governments are eager to increase taxes and levies, however, even at the risk of violating laws. Arguably, this has prompted the recent imposition and demand for the Gaseous Emission Permit Levy by the Abuja Municipal Area Council (AMAC).

No matter how just and unjust, beneficial to government or the public, innovative or not, that any tax or levy may seem, it will never be lawfully enforceable, unless there is a written legal authority for it. While AMAC may have statutory powers to regulate air pollution in Abuja and to also regulate certain specific affairs of individuals and businesses in AMAC, there is no legal authority for AMAC to impose or demand the alleged Gaseous Emission Permit Levy. Persons who violate the National

Environmental (Air Quality Control) Regulations 2014 are to pay fines or be imprisoned after being convicted by a court of law. There is no provision in the National Environmental (Air Quality Control) Regulations 2014 or any other known lawthat validates AMAC’s Gaseous Emission Permit Levy. There cannot be a payment for a Gaseous Emission Permit Levy where there is no prove of such emission and an order of court indicting the owner of the business or equipment responsible for the emission. AMAC should in line with the National Environmental (Air Quality Control) Regulations 2014 focus on avoiding and reducing emission as well as prosecuting offenders, instead of seeking to administratively demand unlawful levies.

More importantly, Gaseous Emission Permit Levy is not one of the statutorily listed taxes and levies that a Local Government or Area Council in Nigeria can impose, demand and collect. Relying on the decision of the Court of Appeal in the case of ETI-OSA LG v. JEGEDE & ANOR (2007) LPELR-8464(CA),AMAC lacks the powers and authority to impose, demand and collect any tax or levy, titled; Gaseous Emission Permit Levy or Gaseous Emission Permit Limit Levy or any other new tax head/title.

My authorities, are:

Sections 1, 2, 3, 4, 5, 6, 7, 318 and 319 and the Fourth Schedule to the Constitution of the Federal Republic of Nigeria, 1999.
Sections 4(5), 7(5), Paragraphs 7, 8 and 9, Part II of Second Schedule and Paragraph 1(J) of the Fourth Schedule to the Constitution of the Federal Republic of Nigeria, 1999.
Sections 2 and 5 as well as the Schedule to the Taxes and Levies (Approved List for Collection) Act, 1998 and the Schedule to the Taxes and Levies (Approved List for Collection) Act, (Amendment) Order 2015.
Sections 1 to 37 of the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007
Sections 1 to 29 of the Environmental Health Officers (Registration, etc.) Act 2002
Regulations 1 to 42 of the National Environmental (Air Quality Control) Regulations 2014.
Sections 1 to 42 of the Federal Environmental Protection Agency Act 1988 (REPEALED since 2007)
The judgment of the Court of Appeal (on whether Local Government or Area Council can impose tax outside the Constitutional Provisions) in the case of ETI-OSA LG v. JEGEDE & ANOR (2007) LPELR-8464(CA)
The judgment of the High Court of the Federal Capital Territory (on whether Local Government or Area Council can impose tax outside the Constitutional Provisions) in the case of ABUJA ELECTRICITY DISTRIBUTION COMPANY (AEDC) V. KUJE AREA COUNCIL (SUIT NO. FCT/HC/CV/2030/2017)
Lucy Adegbe, “Confusion as AMAC tax bakery owners N100,000 as fees for ‘gaseous emission” (TheStreetJournal, 21 July 2021) https://thestreetjournal.org/confusion-as-amac-tax-bakery-owners-n100000-as-fees-for-gaseous-emission/ accessed 29 July 2021.
Samuel Akpan, “AMAC asks bakers to pay N100K for ‘gaseous emission permit’” (TheCable, 20 July 2021) https://www.thecable.ng/amac-asks-bakers-to-pay-n100k-for-gaseous-emission-permit accessed 29 July 2021.
Solomon Adeniyi, “Outrage as Abuja council slams N100,000 levy on firms using generators, machines” (Punch, 24 July 2021) https://punchng.com/outrage-as-abuja-council-slams-n100000-levy-on-firms-using-generators-machines/ accessed 29 July 2021.
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Onyekachi Umah, “BUSINESS NAMES IN NIGERIA CANNOT PAY PERSONAL INCOME TAX” (com, 20 August 2019) https://learnnigerianlaws.com/business-names-in-nigeria-cannot-pay-personal-income-tax-daily-law-tips-tip-396-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “DEADLINES FOR PAYMENT OF PERSONAL INCOME TAX BY SELF EMPLOYED PERSONS AND EMPLOYEES” (com, 6 August 2019) https://learnnigerianlaws.com/deadlines-for-payment-of-personal-income-tax-by-self-employed-persons-and-employees-daily-law-tips-tip-388-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “WHEN PERSONS RESIDING ABROAD MUST PAY PERSONAL INCOME TAX TO NIGERIA” (com, 31 July 2019) https://learnnigerianlaws.com/when-persons-residing-abroad-must-pay-personal-income-tax-to-nigeria-daily-law-tips-tip-384-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021
Onyekachi Umah, “DURATION FOR ISSUANCE OF TAX CLEARANCE CERTIFICATE IN NIGERIA” (com, 30 July 2021) https://learnnigerianlaws.com/duration-for-issuance-of-tax-clearance-certificate-in-nigeria-daily-law-tips-tip-383-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “THINGS YOU CANNOT DO IN NIGERIA WITHOUT A TAX CLEARANCE CERTIFICATE” (com, 17 July 2019) https://learnnigerianlaws.com/things-you-cannot-do-in-nigeria-without-a-tax-clearance-certificate-daily-law-tips-tip-373-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021
Onyekachi Umah, “PUNISHMENT FOR FAILURE TO PAY PENALTY FOR NON-PAYMENT OF PERSONAL INCOME TAX” (com, 8 May 2019) https://learnnigerianlaws.com/punishment-for-failure-to-pay-penalty-for-non-payment-of-personal-income-tax-daily-law-tips-tip-326-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2019
Onyekachi Umah, “PENALTY FOR NON-PAYMENT OF PERSONAL INCOME TAX” (com, 2 may 2019) https://learnnigerianlaws.com/penalty-for-non-payment-of-personal-income-tax-daily-law-tips-tip-322-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021
Onyekachi Umah, “NO PERSON/FIRM CAN COLLECT TAX/LEVY ON BEHALF OF ANY GOVERNMENT IN ANY PART NIGERIA” (com, 2 march 2019) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-279-no-person-firm-can-collect-tax-levy-on-behalf-of-any-government-in-any-part-nigeria/ accessed 12 July 2021.
Onyekachi Umah, “EDUCATION TAX MUST BE PAID YEARLY BY EVERY COMPANY IN NIGERIA” (com, 20 November 2018) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-231-education-tax-must-be-paid-yearly-by-every-company-in-nigeria/ accessed 12 July 2021
Onyekachi Umah, “Monthly Deadline For Filling Returns On Value Added Tax (VAT)” (com, 2 August 2018) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-155-monthly-deadline-for-filling-returns-on-value-added-tax-vat/ accessed 12 July 2021
Onyekachi Umah, “Value Added Tax (VAT); Who Pays and Who Collects” (com, 13 July 2018) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-141-value-added-tax-vat-who-pays-and-who-collects/ accessed 12 July 2021
Onyekachi Umah, “Is there a Reduction of Levy for Imported Cars and Trucks?” (com, 22 March 2021) https://learnnigerianlaws.com/is-there-a-reduction-of-levy-for-imported-cars-and-trucks/ accessed 12 July 2021
Onyekachi Umah, “Does the New Finance Act Exempt Companies from CAC Annual Returns?” (com, 17 March 2021) https://learnnigerianlaws.com/does-the-new-finance-act-exempt-companies-from-cac-annual-returns/ 12 July 2021
Onyekachi Umah, “RADIO, TELEVISION AND COMMUNICATION MAST LICENSE FEE BY LOCAL GOVERNMENTS IN NIGERIA” (com, 5 March 2020) https://learnnigerianlaws.com/radio-television-and-communication-mast-license-fee-by-local-governments-in-nigeria-daily-law-tips-tip-519-by-onyekachi-umah-esq-llm-aciarbuk/ accessed 12 July 2021
Onyekachi Umah, “LATEST DEVELOPMENTS ON LIQUOR LICENSES IN KARU LGA, NASARAWA STATE” (com, 28 February 2020) https://learnnigerianlaws.com/latest-developments-on-liquor-licenses-in-karu-lga-nasarawa-state-daily-law-tips-tip-515-by-onyekachi-umah-esq-llm-aciarbuk/ accessed 12 July 2021
Onyekachi Umah, “LIST AND DETAILS OF APPROVED LOCAL GOVERNMENT LEVIES, RATES, FEES AND CHARGES FOR EDO STATE” (com, 27 September 2019) https://learnnigerianlaws.com/list-and-details-of-approved-local-government-levies-rates-fees-and-charges-for-edo-state-daily-law-tips-tip-423-by-onyekachi-umah-esq-llm-aciarb-uk-2/ accessed 12 July 2021
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{A Paper Presentation by Femi Falana SAN at the virtual consultation workshop for the development of a new Five Year Strategy for the Gambian Bar Association on Saturday, July 31st, 2021}

I received the invitation to participate in this virtual consultation workshop a few days ago. Even though I was otherwise engaged I had to accept the invitation on account of my respect for Mr. Salieu Taal, the President of the Gambian Bar Association (GBA). In thanking the entire members of the GBA for requesting me to participate in this all important workshop permit me to take the opportunity of my short address to remind this distinguished audience of our collective struggle which culminated in the restoration of democracy in The Gambia. In addition, I am going to challenge colleagues to use their privileged position to defend the Gambian people in the struggle against local and foreign forces of exploitation and oppression. It is common knowledge that due to poverty and ignorance majority of the people of Africa are not in a position to enjoy civil and political rights like the bourgeoisie and other privileged people. I am going to task the GBA to empower lawyers to promote the socioeconomic rights guaranteed by the African Charter on Human and Peoples Rights which has been ratified by the government of The Gambia.

No doubt, the GBA is one of the oldest law societies in Africa. My interaction with the GBA dates back to 2000 when we were mobilizing leaders of national bar associations in Africa to set up the Pan African Lawyers Union (PALU). In my capacity as the then Secretary-General of the African Bar Association I held positive consultations with bar leaders in the Gambia on the urgent need to unite the law societies in Africa. It is on record that the GBA played a prominent role in the subsequent formation of the PALU in 2002 and the West Africa Bar Association (WABA) in 2004. Under my leadership of the WABA we campaigned for the expansion of the jurisdiction of the Court of Justice of the Economic Community of West African States (Ecowas) to include the enforcement of human rights. The campaign succeeded in January 2005 when the Authority of Heads of State and Government unanimously adopted the Supplementary Protocol that vested the Ecowas Court with the power to hear and determine cases filed by victims of human rights abuse against the member states of the Ecowas.

I am delighted to recall that the first human rights case filed in the registry of the Ecowas Court is that of Ebrimah Manneh v Republic of The Gambia (2008) AHRLR 171 The Plaintiff was a journalist who had been detained for several months without trial. Apart from declaring the arrest and detention of the Plaintiff illegal the Court awarded him reparation of $100,000. The Manneh’s case was followed by that of Musa Saidykhan v The Republic of The Gambia (2010) CCJELR 178, another journalist who was detained and subjected to horrendous torture by security operatives. He won the case as he was awarded damages of $200,000 for the infringement of his human rights to personal liberty and human dignity. I was privileged to have handled both cases at the instance of the Media Foundation for West Africa with the support of the Gambian Journalist Association.

Having regard to the fact that the Yahya Jammeh dictatorship had captured the domestic judiciary at the material time the cases of Manneh and Saidykhan were soul lifting for the hapless people of The Gambia. From that moment the numerous victims of human rights violations in the Gambia turned to the Ecowas Court and the African Commission on Human and Peoples Rights for legal redress. During the 2017 election crisis Mr. Salieu Taal and other progressive lawyers worked with their Nigerian counterparts to frustrate former President Jammeh from using the judiciary to endorse the manipulation of the election results to extend his dictatorial regime. In particular, the Supreme Court was unable to form a quorum to determine the frivolous election petition of President Jammeh as the external members of the Court from Nigeria distanced themselves from the charade.

Notwithstanding the crisis confronting the rule of law in the Gambia the GBA has stood for the defence of the human rights of the people under the rule of law and the promotion of professional ethics and the enhancement of the legal profession. The comprehensive testimony of the GBA President, Mr. Taal before the Truth, Reconciliation and Reparation Commission has confirmed the leadership role of the GBA is in the promotion of accountability and transparency in public affairs in The Gambia. Apart from working with the GJA in respect of the case of Ebrimah Manneh who disappeared from custody I belong to a consortium of international lawyers that submitted a detailed petition to the Commission on the brutal killing of 59 West African migrants on the directive of Mr. Yahya Jammeh sometime in July 2005.

The G.B.A. should continue to lead the civil society in the defence of human rights under the rule of law. This will require the campaign for the domestication of African Charter on Human and Peoples Rights, United Nations International Covenant on Civil and Political Rights, United Nations International Covenant on Social Economic and Cultural Rights, United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) etc. In view of the forthcoming general elections in the Gambia, the GBA should challenge political parties and politicians to commit themselves to the domestication of international human rights instruments and respect for the rule of law.

In the struggle of the people for the consolidation of democracy in the Gambia the GBA should vigorously campaign for the independence of the judiciary and defence of democratic institutions. In order to achieve the patriotic objective the GBA must protect the interest of its members. The GBA should provide pro bono services for indigent citizens and other vulnerable victims of human rights abuse. To end official impunity the GBA must encourage its members to file public interest cases. I also expect the GBA to provide opportunities for lawyers to be involved in the practice of law in the ECOWAS Court, African Court on Human Rights and Peoples’ Rights, African Commission on Human and Peoples’ Rights and the International Criminal Court. The GBA must defend lawyers against harassment by the police and other law enforcement agencies. Courts should not be allowed to intimidate lawyers with contempt of court. At the same time, Judges must be accorded respect.

The record of human rights in The Gambia was one of the worst in Africa during the 22-year reign of President Jammeh. But with the restoration of democracy The Gambia is ahead of many countries in Africa in the protection of human rights and compliance with the judgments of regional courts. Today, The Gambia is one of six countries that have made a Declaration permitting individuals and Non Governmental Organisations to institute human rights cases in the African Court on Human and Peoples Rights in line with Article 34 (6) of the Protocol for the Establishment of the Court. The Gambia is also leading other member states of the Ecowas in compliance with the judgment of the regional Court. Thus, The Gambia is reported to have paid the entire monetary damages awarded to victims of human rights abuse by the Ecowas Court. However, since political and civil rights are enshrined in the 1997 Constitution of The Gambia I am compelled to call on the GBA to encourage its members to enforce the socioeconomic rights of the people guaranteed by the African Charter on Human and Peoples Rights in regional courts.

Unless this challenge is seriously taken up human rights will remain a tantalising reality for the majority of poverty stricken people. The GBA should organise seminars and workshops on the African Continental Free Trade Zone established to create a single continental market for goods and services, permit me to assure the GBA of my unalloyed commitment to continue to collaborate with Gambian lawyers in the struggle for the promotion of the socioeconomic rights of the Gambian people, the expansion of democratic space and observance of human rights. For too long, African lawyers limited legal practice to the protection of the interest of their clients without any consideration for the larger interest of the society. A former Supreme Court Justice in Nigeria, the late Justice Pats Acholonu once reminded lawyers of their role in the society when he said inter alia:

“We all agree that the attorney whose professional thoughts begin and end with his own private clients is a pitiable mockery of what a great lawyer is and that only by taking part in the movements for the betterment of the law and the profession can he practice law in the grand manner – the only way it is worth practicing” (Williams v. Akintunde (1995) 3 NWLR (Pt. 381) 101 @ 115)