BEVERLY HILLS, August 17, (THEWILL) – Nigerian airports will resume international flight operations on August 29, 2020, Aviation Minister, Hadi Sirika announced Monday in a tweet.
NBA Losing Its Value, It Can’t Bite Anymore — Okutepa, SAN
A Senior Advocate of Nigeria, Mr. J.S Okutepa has questioned the place of the Nigerian Bar Association and its value to the Legal Profession, stating that it is in a very sad state.
This is contained in a statement issued by him which was made available to TheNigeriaLawyer.
“What is the value of the Nigerian Bar Association to the legal profession. I want to know.” He said.
Meanwhile, he noted that NBA appears not to be promoting the rule of law, the motto with which the Association is being driven.
“The motto of the Association is promoting the rule of law. Is NBA really as an association promoting the rule of law or destroying the rule of law.” He said.
Furthermore, he noted that the NBA did nothing while the recently amended CAMA was signed into Law, which has displaced Lawyers’ jobs.
“The newly amended CAMA seems to have made lawyers to lose many job opportunities.
“Where was NBA when that law was being amended.” He said.
In addition, he stated that the NBA is doing nothing in ensuring effective justice delivery system in Nigeria.
“Currently the Supreme Court has only 12 Justices and their lordships are overwhelming with work, what has NBA done to make the power that be fund the judiciary adequately for quick dispensation of justice and appoint more Justices to that court, instead of watching recommendations for appointments gathering dust in executive archives.” He said.
Furthermore, he questioned the value of the Annual General Conference (AGC) of NBA stating that huge amounts are being budgeted for the process.
“What has been the utilitarian value of NBA to majority of lawyers at the annual rituals called conferences of NBA.
“Year in year out humongous amount of money are budgeted and spent on these near no value conferences and yet Nigerian lawyers who have been cheated by their own association cannot do anything.” He said.
Also, he stated that NBA has not done anything for Lawyers who are in need of financial support.
“Many lawyers are sick and needed financial help from their own association, what has NBA done for them. I am forced to ask, what is the value of NBA to the vast majority of Nigerian lawyers and the legal profession.”
Meanwhile, he noted that the profession has lost its pride of place in the Nigerian society.
“The legal profession and legal education is almost loosing its core values in Nigerian society, what is NBA doing to restore these core values. NBA used to bark and bite before.
“But today it has lost it barking and bitting power. Again I ask what is the value of NBA to the legal profession.” He said.
Finally, the learned silk stated that there are several anachronistic principles that are still driven by the judgements of our Courts, thus, what has NBA done.
“Many archaic and anachronistic legal road blocks have been set on the road to justice in Nigeria by some decisions of our courts.
“What has NBA done to see that judgments rooted in anachronistic principles that give no justice to our people are done away with or departed from in the overall interest of the society and the legal profession.” He said.
“I ask again what is the value of NBA to the legal profession and vast majority of the members of the Bar.” He concluded.
Lawyer Who Was Remanded For Writing Petition Against A Top Immigration Officer, Daniel Makolo, Has Been Released From Detention
A constitutional lawyer and principal partner, Mackay Chambers and Associates, Daniel D. Makolo, has regained freedom.
This is contained in a statement signed by the Chairman, Nigerian Bar Association, Abuja (Unity) Branch, Mr. Bulus Y. Atsen
“I am pleased to announce that Mr. Daniel Makolo, Esq. has regained his freedom today the 17th August, 2020.” Atsen said.
He appreciated members of the Human Rights Committe of the Branch and other members who showed up during the representation of Makolo in court.
Atsen said “I wish to thank the members of the Branch Human Rights Committee led by the Vice-Chairman, Mofe Ogbe as well as Isaac Ebikwo and the fantastic members of the Branch who showed up in solidarity to put up a befitting representation for Mr. Makolo.”
Atsen also thanked the President-Elect, Mr. Olumide Akpata, A. A. Malik SAN, the current Publicity Secretary, Barr. Kunle Edun, Chairs Emeritus, Mr. Ezenwa Anumnu and Folarin Aluko, Mr. Kayode Ajulo, and Mr. Adesina Ogunlana for their several interventions towards resolving this incident.
“I will undoubtedly get to the bottom of this matter to ensure that justice is done.”
TNL recalls that FCT Magistrate Court ordered for two weeks remand of Daniel D. Makolo for allegedly petitioning the Minister of Interior, Ogbeni Rauf Aregbesola, faulting the tenure extension granted to one of the Nigerian Immigration top shots.
Limit Of Compulsory Membership Of Nigerian Bar Association
By Femi Falana SAN
INTRODUCTION
I was the former Secretary-General of the defunct African Bar Association (2000-2002) and former President of the West African Bar Association (2004-2009). I am a current life member of the Pan African Lawyers Union. Owing to my involvement in unifying African lawyers at the continental and regional levels I have been reluctant to join the campaign for the bulkanisation of the Nigerian Bar Association (NBA). However, I am compelled to react to the debate on the compulsory membership of the Nigerian Bar Association by all Nigerian lawyers for two reasons. First, I was privileged to have handled some of the cases in which the democratic space in Africa has been expanded by municipal and regional courts. Second, I have noted that some respected colleagues who have contributed to the debate did not advert their minds to the several decisions of the Supreme Court and Court of Appeal which have upheld the fundamental right of the Nigerian people to freedom of association guaranteed by the Constitution and the African Charter on Human and People’s Rights.
ILLEGALITY OF COMPULSORY MEMBERSHIP OF NBA
In making a strong case for the compulsory membership of the Nigerian Bar Association (NBA) by all lawyers who have been called to the bar not a few colleagues have placed a high premium on the Court of Appeal case of the Nigerian Bar Association. v. Kehinde (2017) 11 NWLR (PT 1576) 225. In the leading judgment of the Court, her Ladyship NIMPAR, JCA, had held that:
“The Nigerian Bar Association (NBA) was established for the purpose of regulating the affairs and conduct of all legal practitioners in Nigeria and upon being called to the Nigerian Bar, there is automatic membership to the NBA on a lawyer. See Chinwo v. Owhonada (2008)3 NWLR (Pt.1074)341. Hence, as long as one has elected to join and remain within the noble profession, he is a member and ought to comply with the directive of the Association.”
With respect, the law does not support the statement of the Court of Appeal that the NBA has been founded “for the purpose of regulating the affairs and conduct of all legal practitioners in Nigeria”. Indeed, the NBA was founded in 1900 as a friendly society to protect the interests of the first generation of Nigerian lawyers led by the late Mr. Sapara Williams. The NBA Constitution has since been registered with the Corporate Affairs Commission as a voluntary professional body of lawyers with full and honorary membership. Under the Legal Practitioners Act it is the Legal Practitioners Disciplinary Committee, General Council of the Bar, Legal Practitioners Privileges Committee and Body of Benchers that are empowered to “regulate the affairs and conduct of all legal practitioners in Nigeria”. Even though the NBA is represented in these statutory bodies it does not have the legal capacity to regulate the conduct of any lawyer who has been called to the Bar in Nigeria.
Therefore, while the NBA is a LEGAL association of lawyers because it has been incorporated under the CAMA other associations formed by lawyers are LAWFUL whose members are entitled to associate for the protection of their interests pursuant to section 40 of the Constitution of Nigeria. The distinction between an incorporated and an unincorporated organisation was brought out vividly in the case of Fawehinmi v. N.B.A (No. 2) (1989) 2 NWLR (Part 105) 558 at 633 wherein Karibi Whyte JSC said:
“Thus the right to form any association for the protection of the interests of the members is guaranteed under this provision of the Constitution 1979 and is an entrenched right. However, such an association of persons, though recognised by the Constitution does not ipso facto vest in the association the attributes of incorporation, which alone confers legal personality… . Thus an association of persons recognised by section 37 is a lawful association simpliciter. It is a recognition of the reality that the group of persons who have formed an association has an existence in fact.”
Notwithstanding the automatic membership of the NBA by all lawyers the Constitution of the NBA has accorded recognition to other associations of lawyers representing regional, religious, ideological and other interests. Such associations include the Arewa Lawyers Association, Eastern Bar Forum and Egbe Amofin. While it may be said that the regional bodies operate within the NBA others like the Federation of Women Lawyers, National Association of Democratic Lawyers, Christian Lawyers Association and Muslim Lawyers Association have Independent existence.
Even though the NBA is affiliated to the Pan African Lawyers Union there are some Nigerian lawyers who belong to the African Bar Association. To the extent that these groups of lawyers are allowed to operate without let or hindrance the right of others to form another national lawyers’ associations cannot be challenged without infringing on the fundamental right to freedom of association. In other words, the compulsory membership of the NBA cannot debar lawyers from exercising their fundamental rights of assembly and association by forming or belonging to another national body of lawyers for the protection of their interests pursuant to sections 39 and 40 of the Constitution.
VOLUNTARY MEMBERSHIP OF NBA
It is submitted that the automatic membership of the NBA or or any other private organisation constitutes a flagrant infringement of the fundamental right to freedom of association. In Agbai v. Okogbue (1991) 7 NWLR (Part 204) 391, the Appellant had kicked against his automatic membership of an age group in his village on religious grounds and therefore challenged the power of the Respondents to induct him into the group by force. Nwokedi JSC who read the leading judgment of the apex court stated that:
“One does not automatically become a member of the association because he was so grouped. One was not under compulsion to join the age group association under which he was grouped as he had the option to join any other age group of his liking… Much as one would welcome development projects in the community, there must be caution to ensure that the fundamental rights of a citizen are not trampled upon by popular enthusiasm. These rights have been enshrined in a legislation, that is, the Constitution, which enjoys superiority over local customs.”
In concurring with the leading judgment of the Court, Karibi-Whyte JSC , emphatically stated that “the concept of age-grade per se, does not offend the provisions of the Constitution. On the other hand the idea of the automatic membership … is an infringement of the freedom of association which is the fundamental right of the individual…” Similarly, in the case of Independent National Electoral Commission v Balarabe Musa (2003) 10 WRN 1, the Supreme Court struck down the guidelines drawn up by the appellant on the grounds that they constituted a breach of the fundamental right of the Respondents to free association. Tobi JSC who dwelt in extenso on Section 40 of the Constitution stated that:
“By the section, every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.”
In view of the authoritative pronouncement of the apex court on the voluntariness of private associations the automatic membership of the NBA by all lawyers is a constitutional aberration under the current democratic dispensation. The point that I am labouring to make is that no Nigerian or group of Nigerians can be compelled to belong to or remain in any association by force. In other words, the compulsory membership of the NBA, a private body, has not obliterated or extinguished the fundamental right of lawyers to form or belong to other societies of lawyers. In Fawehinmi v NBA (supra) Obaseki JSC said that:
“The Constitution of the Nigerian Bar Association is not a statutory instrument. It is not a subsidiary legislation to the Legal Practitioners Act. It is a pure and simple private document which the members of the Nigerian Bar Association were entitled to draw up in exercise of their right to provide a constitution for the Association to regulate its affairs. It was accorded its due superior position by the Legal Practitioners Act, 1975 in the conduct of the affairs of the Nigerian Bar Association by the General Council of the Bar.”
It is trite law that members of a private association are entitled to draw up a Constitution to bind the members inter se. The voluntariness of the membership of private associations was judicially recognised by Supreme Court in Onuekwusi v The Registered Trustees of The Christ Methodist Zion Church (2011) 6 NWLR (Pt 1243) 341 where Fabiyi JSC held that:
“The representatives of the respondent belong to a domestic association in which they are only bound by their own voluntary submission. See Akintemi v Onwumechili 1985 1 NWLR (Pt 1) 68. Their liberty on the matter perpetually inheres in them. They can hardly be compelled to act in the contrary fashion.”
In Inspector General of Police v All Nigeria People’s Party (2008) 12 WRN 65, the Court of Appeal affirmed the decision of the Federal High Court which had annulled the issuance of police permit for rallies and other public meetings on the grounds that it was a breach of the fundamental rights of citizens to freedom of expression and association guaranteed by sections 39 and 40 of the Constitution.
SECURING THE FUTURE OF THE NBA
A few years ago, a group of Nigerian lawyers decided to revive the African Bar Association notwithstanding that the body had dissolved into the Pan African Lawyers Union in 2002. Some top official of the PALU had wanted me to sue the leaders of the AFBA in a Nigerian court. But I turned down the request and made them to realise that the action would not succeed in view of article 10 of the African Charter on Human and People’s Rights which has guaranteed the human right of all Africans to freedom of association. They became persuaded when I referred them to the case of the Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria (1995) 186 wherein the African Commission on Human and People’s Rights held that “Freedom of association as an individual right and is first and foremost a duty of the State to abstain from interfering with the free formation of associations. There must be a general capacity for citizens to join, without State interference, associations in order to attain various ends.
It is submitted that under the current human rights regime in Africa the compulsory membership of any lawyers’ body is an anathema. If the NBA continues to operate outside the ambit of its aims and objects lawyers have the constitutional liberty to form alternative national law societies. For instance, article 3 (9) & (11) of NBA Constitution provides that the NBA shall ensure the encouragement and protection of the right of access to courts at reasonably affordable fees and of representation by counsel before courts and tribunals as well as the promotion and protection of the principles of the rule of law and respect for the enforcement of fundamental rights, human rights, and people’s rights.To achieve the aforementioned objectives the 1st Vice President of the NBA is saddled with the responsibility to coordinate the activities of the branches including their human rights programmes while each of the 125 branches of the NBA has a human rights committee headed by the vice chair of the branch.
This means that the NBA is the most territorially spread non governmental human rights body in the country. But due to the persistent failure of the NBA to galvanise its members to address the mounting abuse of human rights in the country a number of public spirited lawyers have established human rights bodies or join existing ones to defend the human rights of the Nigerian people under the rule of law. Such bodies which are usually led by lawyers include the Socio Economic and Accountability Rights Project (SERAP), Access to Justice, Committee for the Defence of Human Rights (CDHR), Civil Liberties Organisation (CLO), National Association of Democratic Lawyers, Human Rights Defenders, Women Empowerment and Legal Aid (WELA), Network of Human Rights Lawyers etc. Without any input from the NBA some of these bodies successfully campaigned for the amendment of the Fundamental Rights Enforcement Procedure Rules 2009, National Human Rights Act and the Legal Aid Council Act which have facilitated the enforcement of fundamental rights and enhancement of access to justice for poor and vulnerable citizens.
In addition, these human rights groups have, through human rights cases filed by them convinced the Supreme Court to jettison the colonial doctrine of locus standi and endorse public interest litigation. The point that I am labouring to make is that the NBA is becoming increasingly irrelevant in the defence and promotion of human rights of the Nigerian people. Even the NBA no longer takes up cases of lawyers that are arrested and detained illegally by the police and other security agencies. For instance, the NBA has not joined the campaign for the release of Mr. Emperor Ogbonna who has been detained since March 2020 in defiance of three orders of the Federal High Court directing the SSS to restore his liberty. Therefore, the NBA cannot muster the moral will or courage to restrain lawyers from forming or joining other societies of lawyers for the protection of human rights and promotion of popular causes that will benefit the Nigerian people.
It will be recalled that the Ibrahim Babangida junta had taken advantage of the 1992 internal crisis of the NBA over election to take over the body. Thus, pursuant to the Legal Practitioners (Amendment) Decree No 21 of 1994, a caretaker committee was imposed on the NBA. The Ikeja branch of the NBA approached the Lagos State High Court to enforce the fundamental right of the members to freedom of association. The order of interim injunction granted by the High Court to restrain the junta and members of the caretaker committee from interfering in the internal affairs of the NBA was challenged at the Court of Appeal in the case of Williams v Akintunde (1998) 3 NWLR (Pt 381) 101. In its epochal judgment the special panel of 5 Justices of the Court of Appeal unanimously dismissed the appeal and set aside section 23A of the decree which had not only ousted the jurisdiction of the trial court but also criminalise the filing of any action connected to or arising from the management of the NBA.
In his contribution to the leading judgment of the Court Pats-Acholonu JCA (as he then was) said that the military junta might have enacted the decree to “restore sanity and I dare say unbridled and frightening incipience and un-lawyer-like behaviour that seemed then to envelop and overwhelm the once proud professional association.” However, his Lordship cautioned the legal profession not to wait for military dictators “to put its house in order.” No doubt, the NBA took the advice of his Lordship by putting its house in order. Regrettably, the house has been turned upside down, once again, as its foundation is under serious attack from a a cabal of bar leaders who have institutionalised the biennial imposition of national officers through e-fraud elections. Even branch elections of the NBA are also manipulated with impunity by the same reactionary forces. Hence, many branches of the NBA are managed, from time to time, by caretaker committees imposed on them by national officers whose own mandate is questionable.
If the NBA does not arrest the ugly development in a decisive manner, as soon as possible, there is going to be an implosion with dire consequences. Therefore, the lawyers who are desirous to have a united bar should be prepared to ensure that the elections of the officers of the NBA are conducted in a credible and transparent manner while the affairs of the body are managed in a democratic manner. Otherwise, the bulkanization of the NBA is a matter of time. After all, it has just been confirmed that only 18,000 out of the over 200,000 lawyers on the roll of legal practitioners in Nigeria participated in the just concluded controversial 2020 NBA election. The implication of the increasing loss of interest in the affairs of the NBA by a large majority of lawyers ought to engage the attention of those who are desirous to have a united bar. They owe it a duty to make conscious efforts to restore sanity in the bar and reposition the NBA to defend the rights of the Nigerian people which are under renewed assault under a civilian regime whose sheer contempt for the rule of law is legendary.
Lawyers who have insisted on the compulsory membership of the NBA may wish to consider the implications of certain provisions of the CAMA 2020 on freedom of association in the country. By virtue of section 839 (1) of the law the Corporate Affairs Commission may by “order suspend the trustees of an association and appoint an interim manager or managers to manage the affairs of an association where it reasonably believes that — (a) there is or has been any misconduct or mismanagement in the administration of the association; (b) it is necessary or desirable for the purpose of — (i) protecting the property of the association, (ii) securing a proper application for the property of the association towards achieving the objects of the association, the purposes of the association of that property or of the property coming to the association, (iii) public interest; or (c) the affairs of the association are being run fraudulently.” It is hoped that the axe of the CAC will not fall on the NBA since it is not prepared to stop the misconduct of conducting fraudulent elections.
CONCLUSION
It is sad to note that after 21 years of civil rule members of the legal profession are yet to demilitarize their psyche. Hence, it is being argued that every lawyer must belong to the NBA willy nilly. Even when Nigeria was under the jackboots and civil liberties were put in abeyance some of us defended the fundamental right of Nigerian lawyers to exercise their freedom of association enshrined in article 10 of the African Charter on Human and People’s Rights. It ought to be pointed out that the regimentation of lawyers espoused by some judges and lawyers is reminiscent of military rule. It cannot be justified in a democratic society. In Eperokun v University of Lagos (1986) 4 NWLR (Pt 34) 162, Irikefe CJN (as he then was) urged Nigerians to appreciate that “…constitutionally entrenched provisions, particularly those safeguarding individual rights, should not, save in a fascist system, be lightly trampled upon.”
Finally, let it be made abundantly clear that no group of Nigerians can be compelled to belong to or remain in any association by force. In other words, the compulsory membership of the NBA for the purpose of legal practice has not obliterated or extinguished the fundamental right of lawyers to form or belong to other societies of lawyers. However, since the NBA has apparently lost focus and relevance in the country the progressive extradition of Nigerian lawyers should continue to defend human rights and other public interests with renewed vigour, courage and commitment. They should continue to remember the apt words of Sapara Williams that “A lawyer lives for the direction of his people and the advancement of the cause of his country.”
CAMA 2020 AND RELIGIOUS BODIES: REASONS FOR THE ALARM
The Companies and Allied Matters Act 2020 (“CAMA 2020”) which came into force on 7 August 2020 has been described as long over due, given the many good amendments, the updates and innovations it introduced since it was earlier passed thirty years ago. The bulky piece of legislation contain certain provisions whose core objectives and effects would be better appreciated as time go on with implementation.
Suspension of trustees and appointment of interim managers
One of the new introductions into the CAMA is the provisions seeking to regulate the activities of religious bodies and other associations. Section 839 provides that the Corporate Affairs Commission (“the Commission” or “CAC”) may by order, suspend the trustees of an association or a religious body and appoint an interim manager(s) to coordinate its affairs where it reasonably believes that there has been any misconduct or mismanagement, or to secure the property of the association or religious body (or the application of the property to the objects of the association or religious body), or where the affairs of the association or religious body are being run fraudulently or where it is necessary or desirable for the purpose of public interest.
A look at the provisions clearly shows that an Order is required before the Commission can take the regulatory steps mentioned such as suspension of trustees and appointment of interim manager(s) over the affairs of an association or religious body. The order in question must be an order of a court of competent jurisdiction as Section 839(6) states and not an order by the Registrar-General of CAC or the President of Nigeria.
The process of securing the order would require the filing of an application/petition by way of a motion in court supported by a strong affidavit evidence showing reasons why a suspension order and/or order for appointment of interim managers should be made. The application may be made by the Commission or one-fifth of members of the association or religious body. See Section 839(2). Meanwhile, Section 839(6)(a) states that the suspension cannot last forever as it must not exceed 12 months
The provisions of Section 839 are robust in that the Section provides for the procedure for the possible suspension and appointment of interim managers. The court, the Commission and members of the association and religious bodies are all involved as stakeholders.
Clearly, the provisions touch on other associations. The extention to religious bodies including the churches is the cause for alarm and below are some of the reasons.
Reasons for alarm
A country where a former Chief Justice of Nigeria (Hon. Justice Walter Samuel Nkanu Onnoghen) was suspended based on an ex parte motion, brought pursuant to no known law or Rules of Court, contrary to the established procedure in the Constitution, calls for attention. Due process does not particularly enjoy a pride of place in Nigeria. Thorough investigation of allegation of facts cannot be guaranteed at all times. The provisions as it pertains to religious bodies pose worries considering the fact that Nigeria is made up of people of diverse religions, predominantly Muslims and Christians. Anything related to religion in Nigeria is considered delicate. The Commission can move against any association and there will not be much problem or agitation. But with religious bodies, care must be taken because matters of faith in Nigeria appears to be a matter of life and death. Recently, Pastor Oyedepo was reported to have expressed his reservations concerning the provisions with some less than accurate information. For example, he inadvertently failed to reckon with the fact that the order for suspension was to be made by a court. In a country where many Southern Christians have concerns over the dominance by Northern Muslims of virtually all sensitive top positions in Government today, there is growing discomfort that cannot be simply wished away.
The above are some of the reasons it is ordinarily important to avoid certain loopholes that can be easily exploited and to be more circumspect when a religious body is involved. For instance, it ought to be expressly stated in the statute that in the case of religious bodies, an interim manager must be a person who is a member of the faith and shares the same or similar religious beliefs. A Muslim cannot be made to act as interim manager in a church and vice versa. The Catholic Church cannot entertain a pentecostal acting as interim manager and vice versa. The courts are encouraged to exercise high discretion along these lines in the absence of clear express provisions.
Call to action
Beyond the above, the provisions make it clear however that the suspension of trustees and appointment of interim managers is to be invoked where there is misconduct or mismanagement, or where the affairs of the associations or religious bodies are being run fraudulently or where it is necessary or desirable for the purpose of public interest. This means that ordinarily, the State is willing to protect either the association or religious body and even the public as a whole. This is a call for religious bodies and other associations to remain on the path of righteousness and manage their affairs properly like a people who have the fear of God.
No constitutional violation
Let us quickly note that it cannot be safely concluded that the provisions gag freedom of religion. No. So, any agitation in this respect should be jettisoned. Aside the instant provisions, religious bodies are under the authority of the Government. That is why they are all registered with the Commission in the first place. Also, the Government in the wake of Covid-19 banned religious activities and the ban stood. Religious bodies also enjoy the mandate to work hand in hand with the Government. For instance, religious bodies especially the churches assist the Government to administer marriages under the Marriage Act, by issuance of valid Government marriage certificate after the celebration. Religious leaders assist the Government in making certain critical decisions.
How necessary are the provisions as it pertains to religious bodies?
On a close look, this question is pertinent in that we do not have any report establishing compelling reasons the Government wants to move against or in support religious bodies in this fashion. Whichever way one looks at it. It is common knowledge that religious bodies have effective internal mechanisms for sorting out issues of mismanagement or misconduct, even criminal allegations such as fraud. In appropriate cases, religious bodies will report allegation of criminality to the relevant authority for action. Where Dispute relating to property arises, we have seen religious bodies resort to court for determination of rights. It is submitted that whatever the good wishes of the Government might be in introducing Section 839 to apply to religious bodies, it is unnecessary! The Government should focus her attention to other important areas of governance and manage her own affairs more effectively.
Conclusion
In view of the foregoing, it is advised that the Government and its agencies should rise up to the occasion and ensure that due process is followed at all times and that the Constitution is respected and upheld. The Government and its agencies, especially the Commission, must not allow any act of dictatorship and reckless show of power. When a Government is responsible and enjoys credibility and integrity, the people will exercise more faith in its mission.
We call on the Government to take steps to expunge the provisions of Section 839 of CAMA 2020 as it relates to religious bodies.
stephenlegal.
Court stops Shoprite from divesting assets over $10m judgment debt
The planned exit from the Nigerian retail market by Shoprite, the South African retail giant has hit obstruction as a federal high court in Lagos has issued a restraining order against its plans to transfer shares and divest assets prior to exiting.
The order was necessitated by the need to stop the company from escaping a US$10 million liability from a court judgment debt the company is yet to offset.
The order was handed down by Justice Mohammed Liman in decision of a suit brought by the AIC Limited, which obtained a $10 million judgment against Shoprite in 2018 in a breach of contract.
The said judgment debt is from a decision of the Ikeja High Court that awarded $10 million in favour of the AIC by Justice Lateef Lawal-Akapo of the Lagos State High Court in Ikeja.
An appeal by Shoprite against the judgment is still pending before the Supreme Corut after Shoprite lost at the Court of Appeal also.
The restraining order by Justice Liman holds that the “debtor/1st respondent (Shoprite), and its privies are stopped ‘from transferring, assigning, charging, disposing of its trademark, franchise and intellectual property in a manner that will alter, dissipate or remove these non-cash assets and other assets, including but not limited to trade receivables, trade payables, payment for purchase of merchandise, from within the jurisdiction of this honourable court.’
The judge equally ordered Retail Supermarket Nigeria, the 2nd respondent, ‘to disclose its audited financial statements for the years ending 2018 and 2019 to enable the judgment creditor/applicant determine the judgment debtor’s/respondent’s funds in its custody in order to preserve same in satisfaction of the judgment of the Court of Appeal in Appeal No: CA/L/288/2018.’
The applicant company, AIC had told the court that it invited the South African retail supermarket operators to Nigeria and brought them in awareness of business opportunities in the country with the intention that they would go into a joint venture.
But after talks had reached an advanced stage and it had incorporated AIC-Shoprite Nigeria Limited in the hope of a joint venture for establishment, Shoprite abandoned the agreement and went ahead to set up its outfit in 2005 without its consent.
Though Shoprite claimed it had no contract with the Nigerian firm, the high court and the Court of Appeal said the series of correspondences that were exchanged between both parties showed that AIC Limited and Shoprite agreed to a joint venture.
africachinapresscentre
State Theft, Cronyism and Civil Right Violations: Inside the Hidden Horrors of the CAMA 2020 Bill
Estimated Reading Time: 7
Imagine you woke up from a bad dream yesterday, only to find out that you are in another bad dream today. Then you wake up from it tomorrow, only to find yourself in another bad dream, which gives way to yet another nightmare and so on in that manner, like an everlasting set of Russian dolls. No matter how varied the subjects of the nightmares are, they always end with the same conclusion – the Nigerian government wants to take away all economic and civil rights by hook or crook. This is one way of describing what an examination of the recently ratified Companies and Allied Matter Act 2020 reads like.
Here we go again.
Over the past year, NewsWireNGR has published at least four separate deep dives into new and proposed laws and regulations put forward under the Buhari administration, that all pursue the same holy trinity of legislative and regulatory agenda – attacking freedom of speech and the civil space, abrogating property rights and economic prospects and instituting regulators, offices and bodies that exist above the jurisdiction of the court system.
This bill, which is supposed to be a harmless bill about ease of doing business follows the exact same playbook, with the added bonus of now being the law following the President Muhammadu Buhari’s signature on August 7.
Over the course of its 870 sections spread out over 604 pages, the bill has at least four clauses containing these anti-democratic policy directions strategically hidden in plain sight.
Among other things, it empowers the government to forcefully take over civil society organisations at will and expropriate their property. It also contains an unbelievable clause that expressly names a private business belonging to an All Progressives Congress (APC) member, effectively giving state backing to the revenue-generating activity of a politically-connected private entity.
It then criminalises freelancers alongside the entire Nigerian grey economy in an audacious regulatory power grab that opens the door to Nigerian citizens having their money seized from their bank accounts at the whim of the Nigerian State. Finally it contains a clause that is as comically unconstitutional as it is brazenly anti-democratic, purportedly preventing any individual or organisation from taking legal action against it unless it gives them permission to. This is the inside scoop on CAMA 2020, the Buhari administration’s latest successful attempt to smuggle 1984 into 2020.
CAMA 2020: NGO Bill in Disguise
In 2019, one of the bills that NewsWireNGR delved into was the ‘Bill for an Act To Provide For The Establishment Of The Non-Governmental Organizations Regulatory Commission For The Supervision, Co-ordination And Monitoring Of Non Governmental Organizations,’ popularly known as the ‘NGO Bill’. Originally introduced into the House of Representatives in 2016, it generated a huge uproar and was eventually put on ice when it became politically impossible to force it through. The provision of the bill that caused the loudest uproar was the proposed ability of the government to direct or even take over the activities of NGOs and civil society organisations (CSO).
Without raising as much as a whimper however, CAMA 2020 has got this very provision of the NGO Bill passed into law. According to Section 839 of the bill, the government now has the power to remove the management of any such organisation and replace it with whoever it wants based on nothing more than what side of the bed it wakes up on.
bb
The highlighted sub-clause (iii.) can be explained in plain English as follows: “The commission may remove and replace the trustees of a CSO if it determines that it is in “the public interest” to do so – in its sole opinion and based on criteria nobody else has access to.” In other words, the Buhari Administration or any of its successors can now legally take over Amnesty Nigeria, SERAP or any similar organisations it has previously antagonised openly, if their definition of “public interest” means “the government must not be embarrassed.”
Legislative Cronyism Hiding in Plain Sight
Section 704 looks like a boring, bog-standard section about company law and the process of liquidation and insolvency practise. A closer look however reveals something very unusual that meets all the criteria for what can be described as “corruption.”
The Business Recovery and Insolvency Practitioners Association of Nigeria (BRIPAN) is expressly named as the preferred government-recognised body which insolvency practitioners must be registered with in order to practise.
The problem with this is that BRIPAN is not in fact a government-recognised professional body like the Institute of Chartered Accountants of Nigeria (ICAN), which was established Act of Parliament No 15 of 1965. BRIPAN, it turns out, is a private company limited by guarantee registered in 1994 as a non-profit association.
It also carries out revenue-generation activities including sale of membership forms and organising membership trainings and Fellow workshops for N90,000 and N250,000 respectively.
What this means is that someone somehow got their private revenue-generation activities written into law and effectively mandated as a pre-condition for Insolvency practise in Nigeria, as though their private company were a government-affiliated institution. A peek behind the veil to see who this super-connected individual behind BRIPAN is revealed this:
Once a member of President Olusegun Obasanjo’s Vision 2020 Steering Committee, Abiodun Ismail Saka-Layonu is a Senior Advocate of Nigeria (SAN) with over 38 years of experience as a lawyer. He also sits on the board of Stabilini Visinoni, a civil engineering company, and Bi-Courtney Limited, the embattled concessionaire of MM2 Airport and the Lagos – Ibadan expressway. Layonu is a card carrying member of the ruling All Progressives Congress (APC) and he took part in the 2018 Osun State gubernatorial race alongside eventual winner Gboyega Oyetola.
In other words, CAMA 2020 has taken the private business of a ruling party member and written it into law, effectively forcing anybody who wishes to become an insolvency practitioner in Nigeria to pay money to said party member’s “non-profit organisation.”
Criminalising the Informal Sector – 21,000,000 Nigerians are now Criminals
According to the Bank of Industry, Nigeria’s informal sector contributes up to 65 percent of the country’s GDP. This sector is generally made up of rural small scale farmers, urban small scale retailers, artisans and freelancers. The idea of a Nigerian government in its current situation attempting to criminalise 65 percent of the country’s economy with a stroke of a legislative pen would ordinarily be seen as somewhere between horrifying and hilarious, because it is both profoundly unwise and utterly unenforceable. Yet this is precisely what CAMA 2020 does with this clause in section 863.
As terrible as the idea of introducing potentially unenforceable legislation is, the real trouble perhaps exists because of how unenforceable it is. Specific figures from Nigeria are unavailable, but Sub-Saharan estimates put the informal sector’s share of people in employment at anything from 72 percent to 90 percent. If we conservatively extrapolate that 72 percent of working Nigerians are informally employed, and we conservatively estimate that half (36 percent) are the sole proprietors and partners described in this clause, this means that at least 36 percent of Nigeria’s 58,527,277 people currently in any kind of employment – 21,069,819 Nigerians – are now apparently committing a crime by running a private business or income-generating activity outside of the government’s control.
The ugly danger inherent in this wide criminalisation of the very backbone of Nigeria’s economy can be inferred from the specific line of the clause underlined below:
“A fine prescribed in the Commission’s regulations from time to time.”
In other words, the government is now legally empowered to impose any fine at all it wants on at least 21 million Nigerians at any point in time. Social media content creators, freelance programmers and writers, itinerant musicians, roadside hawkers – nobody is spared. By classifying all unregistered economic activity as illegal, the door has also been opened to arbitrary garnishing or expropriation of private bank accounts of any individuals criminalised by this law using their readily-accessible Bank Verification Number (BVN) information.
The CAC is Now Above the Law – Literally
Finally and most concerningly, the new law contains a clause that was also observed in the Social Media Bill, Hate Speech Bill, NCDC Bill and the recent 6th NBC Code amendment – a clause to place a Nigerian government organisation outside or above the constitutionally mandated jurisdiction of the Nigerian court system. In the case of the Social Media and Hate Speech bills, the legislation was to the effect that legal action cannot be brought against the relevant ministry, but rather an unelected bureaucrat at the ministry who has no legal jurisdiction to hear legal appeals would make all final decisions. The CAMA 2020 iteration of this unconstitutional clause is less in-your-face, but no less obnoxious.
According to the clause, the jurisdiction of the Nigerian court system to hear a legal complaint is somehow subjugated to the CAC’s unilateral directive to allow it 30 days to prepare for a lawsuit before it is filed. In other words, if any individual or organisation is affected by any of the afore-mentioned clauses, their constitutional right to immediately seek legal redress is somehow suspended and they must notify the CAC in writing of their intention to sue, their name, their home address and their desired reliefs, and then wait 30 days, presumably for the CAC to pay them a nice home visit to share tea and cookies.
Bonus Clause: All Foreign Companies Must Register. Except Chinese Ones.
You can read the full text of the CAMA 2020 bill here.
newswirengr
‘How to Use SWOT Analysis: Gain Competitive Edge in Business, Career, and Everywhere.’
In 2017, I wrote a piece titled ‘How to Use SWOT Analysis to Reposition Your Legal Career and Succeed’. At a time I was just a few months into founding a law business of my own, I was eager to share with both present and future lawyers the process I have had to undergo to practically transit from the old legal economy to the new legal economy–a new legal economy which Covid-19 appears to have significantly accelerated. That piece has since become a tool to many.
Based on popular demand from within and outside my connection and beyond the legal industry, today Sunday 16 August 2020, I’ll be speaking briefly on a similar topic ‘How to Use SWOT Analysis: Gain Competitive Edge in Business, Career, and Everywhere’.
I invite everyone to participate, especially young people looking to reposition themselves in the future that is NOW. Please feel free to invite anyone. The program is not only for lawyers and law students but everyone. The virtual venue is BuidLBlocks’ Telegram group. It starts 6pm.
23 Years Old UNICAL Law Student Makes List of Top 10 Under-30 in the African Space Industry
The nominees who are young Space innovators, engineers, entrepreneurs, teachers and enthusiasts were selected from over 100 entries and 31 unique nominations from 13 African countries through a meticulous vetting process and grading by a team of five distinguished Judges drawn from five African countries. The Judges are respected professionals across private and public institutions, with vast experience and understanding of the African space industry.
Nelly Ebruka an elected prospective member of the international institute of space law is a final year law student of the University of calabar, Nigeria with interest in space law and regulation. She was the pioneer President of the International Law student Association (ILSA), University of Calabar.
Nelly also served as the founding chairperson of the University’s space law club and organised local space law moots for students amongst other fields of international law. She was the Team Leader for the university of Calabar representatives at the 8th Regional rounds of the Manfred Lachs Space law Competition, held in Pretoria. The team won the competition with Nelly meriting the award of best orator for the rounds.They further represented Africa at the global finals of the competition and ended as first runner-up of the competition.
In 2020, she coached the University of Calabar team to emerge as runners up for the 9th regional rounds of the competition that was judged solely by written submissions. Her passion for space inspired her to co-found the Learnspace foundation, a non-governmental organization dedicated to promoting space education and awareness in Nigeria and Africa at large. Nelly attended and presented a paper at the last African Space leadership conference that was held in December last year in Addis Ababa, Ethiopia as a Scholarship Awardee of the African Union and was a member of the African space youth Forum for the conference.
Currently, she is a member of the Spacehub Team, an organisation that is building the African space ecosystem and provides a platform for Africans to get involved in space. Always willing to learn more and collaborate,she is a mentee under the UN space for Women mentorship program and also an enthusiastic volunteer of the space generation advisory council.
dnllegalandstyle
Again, DSS Invites Ex-CBN Deputy Gov, Mailafia For Questioning
By Augustine Akhilomen
Former Deputy Governor of the Central Bank of Nigeria, Obadiah Mailafia, says he has been re-invited by the Department of State Services (DSS).
Recall that last week Thursday, Mailafia was invited and released by DSS after he was grilled over some allegations he made on the security situation in the country.
Mailafia had revealed on a radio station that repentant Boko Haram insurgents told him and some leaders that a serving northern governor was a commander of the terrorist group that has held North-East geopolitical zone on the jugular since 2009.
However, his second invitation by the security agency was confirmed via a WhatsApp message.
Obadiah said he is standing with former House of Representatives Speaker, Alhaji Ghali Umar Na’Abba, who will also appear before DSS, today(Monday).
“We stand firmly with Comrade the Rt. Hon. Ghali Na’bba. Solidarity forever!
“Comrades kindly be notified that the Men in Black have invited me for a ‘chat’ yet again. I’m to appear before them at the Jos Command HQ of DSS at 12.00 noon today Monday. Solidarity forever!”
thepledge
