20.09.2016A weekly pull-out

Mrs. Chinelo Bob-Osamor

‘Buhari Needs a stroNg ecoNomic team, Not emergeNcy Powers’

‘Buhari Needs a stroNg ecoNomic team, Not emergeNcy Powers’

2/dashBoard 20.09.2016

may agBamuche-mBu eDItoR Jude igBaNoi Deputy eDItoR toBi soNiyi ASSIStANt eDItoR aKiNwaLe aKiNtude RepoRteR tuNde Busari GRoup HeAD

ochi ogBuaKu ii ARt DIReCtoR

where it involves an issue of Law, Prior Leave to raise Fresh issues on appeal Need Not be soughtpAGe 3

QuotaBLes

coLumNists

'the current federal appropriation system has bred laziness across many states of the federation. Nigerians must be brave in addressing the grievances and injustices committed on all sides that have pervaded the Nigerian society.’– Former Chief Justice of Nigeria, Hon. Justice Dahiru Musdapher

MICHAEL JONATHAN NUMA The word “Canvass” in legal parlance means to discuss thoroughly, to advance an issue, to examine a question in details.This column will attempt to critically analyse trending legal issues across several jurisdictions bordering on topics making rounds at the material time, ranging from judicial decisions to policy statements guided politi-cal simulations and socio-economic matters to statutory interpretations by commentators within and outside the legal profession, proffering

constructive criticism based on different well thought out perspectives.The writer, Michael obtained his LL.B (Hons) and LL.M (Hons) from Delta State Univer-sity and Queen Mary University of London respectively.He is a member of the School of International Arbitration London, Member of the Char-tered institute of Arbitration UK, Member of the Chartered Institute of Patent Attorneys U.K. He is the Managing Associate of Messrs Karina Tunyan (San) & Co in F.C.T, Abuja. He is an Intellectual Property and a Private international law practitioner.

ADERINSOLA FAGBUREAderinsola is a keen writer having written her first article which was published by the junior section of a national daily, at the age of five. She is a graduate of Igbinedion Univer-sity Okada and has just completed a Master’s degree in Corporate Law at the University College London. She

is a member of the Nigerian Bar Association. Her col-umn, “In black and white” discusses the need for in-novation in the Nigerian legal scene particularly in the fields of Mergers and Acquisitions, Corporate Finance, Corporate Governance and Energy Law.

Former icPc chairman, oldest Female Judge, others Bag Nigerian Legal awards 2016pAGe 4

arbitration: a Potent Platform for dispute resolutionpAGe 4

‘a Lawyer driven By Passion can do exploits’pAGe 5

abia governorship tussle, waiting on supreme court to decide pAGe 6

Justice abang’s ruling on abia: a rape of rule of Law?pAGe 7

25 years after - chief samuel olasupo morohundiya Lives onpAGe 5

Law rePort/3

In the Court of Appeal lagos Judicial Division

Holden at lagoson Friday the 12th Day of july, 2016

Before their LordshipsChinwe eugenia Iyizoba

Samuel Chukwudumebi osejiJamilu yammama tukur

Justices, Court of AppealCA/l/08/2012

Between1. Allcomp Computers limited

2. engr. emeka ezenwann .... Appellants

and union Bank of Nigeria plc ....Respondent

(Judgment Delivered by Chinwe Eugenia Iyizoba, JCA)

Where it Involves an Issue of Law, Prior Leave to Raise Fresh Issues on Appeal Need Not be Sought

It is settled law that it is not necessary to seek leave of the appellate court to raise a fresh point on appeal where same involves a substantial issue of law. In the instant appeal, the Court of Appeal held that the issue of competence to sign a court process is a fundamental legal issue and as such, failure by the Respondent to seek prior leave to raise this issue will not prevent the Court from entertaining same, as it is a substantial legal question.

FACTSThe Appellants applied for and to the Respondent for a share

trading facility (“the facility”) in the sum of N500,000,000.00 to enable them purchase and trade in the shares of Blue Chip Companies. Following the application, the Respondent offered the 1st Appellant the requested facility. The Appellants failed to repay the outstanding amount upon the maturity of the facility. The Respondent therefore caused its Solicitor to write to the Appellants demanding payment of the outstanding sum which as at 13 May 2010 had accrued to N713, 385, 387 .65. The Appellants through their solicitor responded denying the facility and alleging that same was solely managed by the Respondent and Union Capital and as such owed no liability to the Respondent.

Meanwhile, due to the sudden and sharp depreciation in value of the shares purchased with the facility as a result of the capital market crash, the Respondent sold the shares purchased, which formed part of the security for the facility granted, and realised the sum of N125, 210, 005 .00. This sum was deducted from the sum claimed by the Respondent leaving a balance of N676, 407, 968 .12 outstanding as at 31 August 2010.

By an Originating Summons the Respondent as Claimant in the High Court of Lagos State (the “Trial Court”) instituted an action against the Appellant as Defendant. The Appellants in opposition filed a Notice of Preliminary Objection challenging the mode of commencement of the action averring that the facts were highly contested. In its ruling delivered on 22 March 2011, the Trial Court ordered that pleadings be filed by parties. The Respondent subsequently filed its Statement of Claim and other frontloaded processes, along with a Motion for summary judgment. The Appellant on its part filed a Statement of Defence and Counter-Claim and also filed a Counter-Affidavit and Written Address in opposition to the Respondent’s Motion for Summary Judgment.

The Trial Court entered judgment in favour of the Respondent in the sum of N676,407,968.12 being the total outstanding sum due to the Claimant as at 31 August 2010 until final liquidation. Dissatisfied with the Judgment the appellants appealed against it at the Court of Appeal, Lagos Judicial Division. In their brief the Appellants formulated a sole issue for determination of the appeal:

(i) Whether the trial court prejudged the case of the Appellants by entering a summary judgment in favour of the Respondent without hearing and determining the issues raised on the merits.

The Respondent filed it’s Brief of argument and a Notice of Preliminary Objection (“PO”). In it’s PO, the Respondent raised the following issue for determination: (i) Whether the Appellants’ Statement of Defence and Counter-Claim and their Written Address in support of their Counter-Affidavit in opposition to the Respondent’s Motion for Summary Judgment (“the processes”) were incurably defective, incompetent and liable to be struck out, having not been signed by a Legal Practitioner in accordance with the provisions of the Legal Practitioners Act 1962.

With respect to the PO, the Respondent submitted that a simple inspection of the signature appended to the said processes would determine that the name and designation of the person who appended the signature to the processes is not stated anywhere in the processes. He further submitted that this contradicted the laid down principle as relates to the signing of court processes, enunciated in the celebrated cases of OKAFOR v NWEKE (2007) 10NWLR (pt.1043) 521 and SLB CONSORTIUM LTD v NNPC (2011) 9NWLR (pt.1252) 317. Thereafter he submitted that this issue was fundamental to the determination of the appeal as it went to the root competency of the processes, thus a jurisdictional issue, which could be raised at any time, even at the Supreme Court for the first time. He relied on: ADESOLA v ABIOYE (1999) 14NWLR (pt.637) 28 @ 52, B-C; BRONIK MOTORS LTD & ANOR v WEMA BANK LTD. (1983) 1SCNLR 296.

The Respondent submitted that if the processes were struck out, it would follow that there was no valid and reasonable defence before the Trial Court, capable of entitling the Appellants leave to defend the action in the first place and therefore the appeal against the error of the Trial Court in discountenancing their defence would become nothing more than an academic exercise. He relied on: ABE v SKYE BANK (2015) 4NWLR (pt. 1450) and P.M.B v NDIC (2011) 12NWLR (pt. 1261) 253.

The Appellants in response submitted that the objection was a misconception of the law and submitted that the only process a Court was entitled to look at in order to determine questions challenging its jurisdiction or otherwise was the originating process or claim and not the Statement of Defence and/or Counter-Claim. He relied on: ADEYEMI v OPEYORI (1976) 9-10 S.C 18 @ 31 and THE GOVERNOR OF CROSS RIVER STATE & ANOR v NTA & ORS (2013) LPELR- 19987 (CA).

He submitted that the Respondent had failed to canvass this issue at the trial court and based on this it was a fresh issue that

@ 322.In response, the Respondent argued that:(a) The determination of its claim without the Appellants’

Counter-Claim did not breach their right to fair hearing because the issues involved in the Respondent’s claim at the Trial court and ‘those of the Appellants’ Counter-Claim were quite different and independent of each other. Its claim was for an outstanding debt, while the Appellant’s Counter-Claim was for an alleged refund of the sum of N65,000,000.00 which the Appellant’s claim they were threatened and coerced into paying to the Respondent;

(b) The purpose of the summary judgment was to prevent sham defenses from defeating the right of parties by delaying and at the same time, causing great loss to the Plaintiff who was endeavoring to enforce his rights. Cases relied on: MACAULAY v NAL MERCHANT BANK LIMITED (1990) 4NWLR (pt.144) 283;

(c) The defence to be put up by the Defendant to a summary judgment application should be one that addresses the specific claims of the Claimant and not one of a general denial of the claim. Respondent stated that its claim was clear and straight forward, that upon maturity of the facility, the Appellant failed to repay the sum outstanding even after the personal guarantee of the 2nd Appellant was called in by the Respondent; and

(d) This cannot be a valid defence to the action, when there was no evidence anywhere that the Respondent managed the facility and the management of the facility by Union Capital was pursuant to the agreement between the parties. That the terms were accepted unconditionally by the Appellants and that the shift of liability for their contract to Union Capital was quite unconscionable and portrays them as persons, who having taken benefit of a contract now sought to run away from its liabilities. Cases relied on: Dr. K.O. SOSAN v. HFP ENGINEERING NIG. LTD (2004) 3NWLR (pt.861) 546; EMMANUEL O. ADEDEJI v NATIONAL BANK OF NIG. LTD & ANOR (1989) 1NWLr (pt.96) 212 @ 226 & 227.

COURT’S RATIONALE AND JUDGMENTOn the PO, the Court observed that:a. It was not in dispute that the processes filed in opposition to

the Respondent’s motion for summary judgment without the name and designation of the person who appended the signature to the processes clearly offended the well-established principle as relates to signing of court processes;

b. The Respondent ought to have raised this issue at the Trial Court as it didn’t go to the competence of the action and so would not affect the jurisdiction of Trial Court; and

c. The said processes filed in opposition to the Respondent’s motion for summary judgment form the foundation of this appeal, the objection raised goes to the root of the appeal and jurisdiction of the Court to determine same.

In view of this, the Court held that failure of the Respondent to seek prior leave to raise this issue would not prevent it from entertaining the same, as it was a substantial legal question.

The Court traced the author of the signatures in issue to Callistus Kayode Alabi, a legal practitioner in the firm representing the Appellants in the case as one and the same legal practitioner that appended his signature in both the Statement of Defence, counter-claim and the counter-affidavit to the Respondent’s motion for summary judgment. In view of these facts and in the interest of justice, it held that since the object of a Court of Law was to adjudicate the dispute between parties before it with the aim of doing substantial justice and not merely hinging on technicality, the said processes were indeed signed by an identifiable legal practitioner. The Court therefore overruled the Respondent’s objection and held that the appeal before it was competent.

With respect to the appeal, the Court examined the defence raised by the Appellants in the case with a view to finding out whether it indeed constituted a triable issue with reference to the contract between the parties. The Court stated that in light of the transaction dynamics set out in the terms of the offer letter agreed between parties, the Respondent was not responsible for the management of the account but that of Union Capital Marketers Ltd which the Appellant agreed to appoint to do so. Based on this, the Court held that the Appellants needed to plead facts which demonstrated that the Respondent usurped the responsibility of the said Union Capital Marketers Ltd and that in absence of such fact the Appellants had failed to raise any triable issue against the Respondent.

The Court consequently, held that the Trial Court was right in holding that the issue did not constitute a good defence on the merits answering the claim of the Respondent for the loan admittedly granted to the Appellants. The Court further held that the Appellants who admitted taking the share trading loan from the Respondent could not deny being indebted to the Respondent without showing in its pleadings how the loan was repaid or indeed valid grounds against the Respondent on which they contend that they are not liable to repay the loan.

The Court dismissed the appeal and affirmed the judgment of the Trial Court.

REPRESENTATIONFor the Appellants – Chidinma Okoronwo (Miss)

For the Respondent - O. Sofola SAN with O. Ogunnaike EsqReported by Adenike Adedolapo Afun, Aluko & Oyebode,

Lagos.

required leave of court before proceeding. He submitted further that failure to seek leave of Court before raising the issue rendered the Respondent’s objection incompetent and liable to be struck out. He relied on: ADAKE v AKUN (2003) 7S.C. 26 at 30; FAWEHINMI CONST CO. LTD v O.A.U (1998) 5 S.C 43 at 57.

The Appellants contended that the cases cited by the Respondent were incompetent because by the provisions of the Legal Practitioners Act and the relevant rules of Court, a court process must be signed by an identifiable legal practitioner- not by a law firm. He submitted that unlike in all those cases cited by the Respondent, the author of the signatures in issue in this case could be identified. He thereafter invited the Court to look through and beyond the shades of technicality projected by the Respondent in his objection and they will find that the Statement of Defence and Counter-Claim sought to be impugned in the appeal were signed by an identifiable legal practitioner as contemplated by law. He also emphasised that the object of a court of law is to seek and attain justice of every case before it. He relied on: INEC v OSHIOMOLE (200) 4NWLR (pt.1132) 607

On the appeal, the Appellant submitted that the appeal raised the substantial issue of lack of fair hearing and ought to be allowed for four simple reasons:

(a) The determination of the Respondent’s claim by way of a summary judgment effectively foreclosed the determination on the merits of the Appellants’ counter-claim which was intrinsically based on the same facts as the whole basis of the Respondent’s allegation of indebtedness by the Appellants;

(b) A Counter-Claim is considered as a separated claim from the plaintiff’s claim, the peculiar facts and circumstances of instant case enjoined that the issues raised in the Counter-Claim are not overreached and or prematurely determined without hearing on the merits.;

(c) The determination of Respondent’s Motion on Notice for summary judgment without hearing and determination of the issues raised on the merits in effect foreclosed any further determination of the Appellants Counter-Claim.;

(d) By the approach adopted by it, the learned trial court rendered nugatory its earlier determination that the parties file pleadings in this suit and thereby denied the Appellants their right to fair hearing.

He thereafter contended that:(a) It is trite that the object of Order 11 of the Civil Procedure Rules

of Lagos State 2012 is to accord the Claimant the opportunity of obtaining a summary judgment without the need for a full-fledged trial of the case on the merits. However, that where the Defendant establishes a defence that would necessitate trial, the Court would order full trial;

(b) The Trial Court had previously determined that the issues raised by the Appellants in answer to the Motion on Notice for summary judgment were substantial and necessitated the filing of pleadings by the parties, but the Trial Court without determining the issues raised in the pleadings filed by order of court proceeded to determine the case in favour of Respondent thereby altering the effect of its own ruling; and

(c) In showing cause why a defendant should be allowed to defend the action, a complete defence need not have been shown. That one needs only to show that there was a triable issue or that for some other reason, there ought to be a trial, which the Trial Court had found existed in this case.

He relied on: UNIVERSITY OF BENIN v KRAUS THOMPSON ORGANISATION (2007) AFWLR (pt.362), 1910 and MACAULAY v NAL MERCHANT BANK LTD (1990) 4 NWLR (pt.144) p.283

4/News 20.09.2016

L-R: Director, Lagos Court of Arbitration (LCA), Mrs. Oyinkansola Badejo-Okusanya, Vice President, LCA, Pro-fessor Fabian Ajogwu SAN, Director, LCA, Mrs. May Agbamuche-Mbu, President, LCA, Mr. Yemi Candide-John-son SAN, Director, LCA, Mrs. Funke Adekoya SAN and former President, LCA, Mr. Olasupo Shasore SAN at the Annual General Meeting, lecture/exhibition of LCA in Lagos, recently Photos: ETOP UKUTT

Akinwale Akintunde

Retired Justice of the Supreme Court of Nigeria and former Chairman of the Independent Corrupt Practices and other related Offences Commission (ICPC), Hon. Justice Emmanuel Ayoola CON and Second Female Judge in Nigeria and the oldest living Female Judge in Nigeria, Honourable Justice Dulcie Ethel Adunola Oguntoye OFR, a British woman who relinquished her British Citizenship in order to serve Nigeria meritoriously are among the honourees for this year’s Nigerian Legal Awards.

This was disclosed last Thurs-day by Mr. Lere Fashola, CEO of Legal Blitz Limited, Publisher of ESQ Legal Practice Magazine, and convener of the award at a press briefing to herald the forth coming event.

Fashola stressed the significance of the event which is slated for October 7, 2016 at the Grandball Room, Civic Centre, Lago, in the life of the country, the legal profession and businesses.

According to him, other repu-table Nigerians who have made cutting-edge contribution to the legal profession and the country at large to be honoured include, Chief Mrs Hairat Balogun, the oldest and first female Attorney General of Lagos, a Bar woman per excellence and former General Secretary of the Nigerian Bar As-sociation whose record of service to the NBA remains ever green,

Mr Razaq Yemi Adeola, the Managing Director and Chief Executive Officer of Sterling Bank Plc., one of the leading commercial banks in Nigeria, which has been championing employee satisfaction through reforms in working conditions of employees and also the One Bank Customer practice thereby making the Bank’s Customer King, Mr. Augustine Alegeh SAN, immediate past President of the Nigerian Bar Association, who led innovative reforms in the Nigerian Bar Association and is today celebrated by many progressive lawyers in Nigeria.

Others are Chief Adebayo Ojo SAN, former Attorney General of the Federation and Minister of Justice who has made out-standing contributions to the development of Arbitration and Alternative Dispute Resolution in Africa, Mr. Audu Maikori, President, Chocolate City, a foremost youth advocate, lawyer and Entertainment Investor who has made considerable contributions to the develop-ment of the Entertainment law practice in Nigeria. Channels Television, a Television station that has been committed to the promotion of the legal profession through the weekly bulleting known as The Law Weekly a programme which showcases legal development in Nigeria.

“This year’s award also recognises the invaluable contributions of the THISDAY

News paper to the development of the Legal Profession in Nigeria through the weekly pool-out known as THISDAY LAWYER and the Business Day Newspaper through the Business Law Weekly publication.

As a consortium, we are happy to recognize and be recognized with excellence.

“This is our own way of giving back to the society: knowing those who have sweated it out to uphold the legal institution in our country. We understand that generally, people conceive legal practitioners only as those who are in private practice. But there are many lawyers in industries: entertainment, corporates, media, publishing, art, etc and our effort is to recognize these people”, Fashola stated.

Fashola said the event is simply a bridge between economy and law, adding that since its maiden edition, the NLA has expanded in focus, scope and fanfare, with the introduction of the ‘40 Under 40 category, the Awards has opened a novel chapter in the life of the country, especially by organizing a unique platform committed to celebrating impactful and value-added young lawyers who are cutting their teeth in the profession.

“Beyond the fun that comes with the event, this year’s award has been taken a step further by organising a platform for discus-sion. Consequently, a value-added and solution-proffering panel

discussion has been organised to bring together professionals, experts and economic regulators to brainstorm on charting a new course for the economic recovery of Nigeria.

“The discussion, which will have in attendance, captains of industry and leading legal icons will focus on the theme: “Restructuring vs Rebuilding: Bringing Life Back to the Ni-gerian Economy.” This theme will explore the economic imperatives to restructuring of Nigeria beyond the political rhetoric”, he said.

According to Fashola, every positive minded Nigerian understands the most urgent and pressing challenges of the country but it is irksome to find that once people attain the position of leadership in the country, they always seek to avoid the needful. Yet no nation has ever survived its own self-inflicted crisis.

“Nigeria is blessed with all that many nations spend billions of dollars to seek yet over 60 years after independence, the country has not being able to step beyond some of the most mundane challenges. What does the future hold for the Nigerian child? Nigeria beyond Oil? What are those legal and regulatory challenges hindering investments and how do we overcome those challenges that are setting us against ourselves?”, Fashola

Former ICPC Chairman, Oldest Female Judge, Others Bag Nigerian Legal Awards 2016

Peter Uzoho

The President of the Lagos State Court of Arbitration, Mr. Yemi Candide-Johnson, has advocated the use of arbitration platforms for efficient dispute resolu-tion in Nigeria’s business environment.

Johnson noted that arbitration was the pri-mary means by which traditional institutions in Nigeria settleddisputes, adding that “the structure of litigation which has become highly complicated, highly formalised and very distinct from the people only begun with the colonisation of Nigeria by the British. These are the courts of the king of England. So we have a distinctive understanding of arbitration”.

He said “So what we’re doing is reawakening that in the context of how arbi-tration is now operated at the international level. It’s a more sophisticated system. There are many more rules to guarantee independence, impartiality and effective-ness, and all those rules are required so that we can have the opportunity for the king’s court to enforce these decisions. So basically what

we’re teaching people is how to operate within a traditional system with modern means. We’re activating a long fallow respect and affection for the informal dispute resolution”.

Candide-Johnson who was speaking at the an-nual general meeting of the Lagos State Court of Arbitration, held week-end in Lagos, noted that members had approved the works of the board for the year ending.

“It means they liked the way we’re operating. We will continue to acquire money for the mandate for us to vigorously pursue the mission of promoting arbitration and alternative dispute resolution as a governance mechanism within Nigeria, because if disputes in business are not resolved peacefully, efficiently and promptly, then there is going to be damage to the business environment in Nigeria. People are not going to do business in Nigeria if they’re not sure that when the dispute arises it cannot be quickly solved the way they can have confident”, Candide-Johnson added.

Arbitration: A Potent Platform for Dispute Resolution

Akinwale Akintunde

A Lagos-based lawyer and taxation expert, Mr. Donald Egho, has faulted Government’s failure to reconstitute Tax Appeal Tribunal (TAT), saying this failure has resulted in huge amount trapping at the panel.

Speaking in Lagos, Egho said over $5 billion taxes due to the federation are currently lying fallow, in the various divisions of the tribunal.

According to him, the funds are disputed taxes, currently subject to litigation and pending before TAT.

"The continued failure of the

Federal Government to urgently reconstitute the various panels of TAT means those taxes due to the Federal Government will remain suspended for as long as there are no panels to adjudicate on the disputes; thereby robbing both the states and the Federal Government of urgently needed revenue.

"As long as taxes are disputed, they remain in a state of abey-ance, pending the determination, one way or the other by the tribunal, "he said.

Egho cited the case of FED-ERAL BOARD OF INLAND REVENUE v CADBURY, a

Lawyer Faults FG’s Failure to Reconstitute Tax Appeal Tribunal, Says $5bn Trapped

matter which arose from the operations of the Value Added Tax law, which was still pending before the Supreme Court; nearly fifteen years after the tax dispute arose, with the taxes remaining unpaid.

He noted that the habit of using litigation to frustrate the collection of taxes, was further emboldened with the apparent negligence of the government to urgently reconstitute the panels of TAT.

"Unless the government takes the business of taxation and its operations seriously, all the talk of diversifying the national economy

from its sole dependence on revenue from the sale of crude oil, will remain a dream," the legal practitioner said.

He also flayed some state boards of internal revenue for imposing arbitrary and illegal taxes and levies on the public, knowing fully well, that tax pay-ers currently had no avenue to take their frustrations to.

Egho said this could lead to a breakdown of law and order if these antics are not checked by the government.

It will be recalled that the various panels of TAT recently wound up their operations in

L-R: Mrs. Iyabode Oshodi, Lagos State Attorney General and Commissioner for Justice, Mr. Adeniji Kazeem and Justice Lateef Lawal-Akapo of the Lagos State High Court at the NBA Conference held in Port Harcourt, recently

the month of May 2016, having completed their constitutionally mandated tenure of six years.

The TAT was established further to Section 59 (1) of the Federal Inland Revenue Service (Establishment) Act 2007.

The tribunal is empowered to settle disputes arising from the operations of the Act and others as spelt out in the fifth schedule to the FIRS Establishment Act.

Specifically, and in accordance with Section 59 (2) of the FIRS Act, the TAT has jurisdiction to entertain disputes arising from the Companies Income Tax Act; Petroleum Profit Tax Act,

Personal Income Tax Act, Capital Gains Tax Act, Value Added Tax Act; Stamp Duties Act; Taxes and Levies (Approved list for collection) Act; as well as other laws, regulations, proclamations, government notices or rules related to these Acts. Appeals lie from the decisions of the TAT to the Federal High Court (FHC).

The TAT is meant to ensure fairness and transparency of the tax system, minimise the delays and bottlenecks in adjudication of tax matters in the traditional court system and generally improve taxpayer's confidence in the tax system in Nigeria.

20.09.2016 triBute/5

My name is Chukwuemeka Eze. I am a native of Mgbom Okposi in Ohaozara L.G.A. of Ebonyi State. I was called to the Bar in March 1995. I obtained my LL.B. from the University of Nigeria, Nsukka and my LL.M. from the University of Lagos. I have a PGD in Mass Communication as well as a professional certificate in taxation from the Chartered Institute of Taxation of Nigeria (CITN). I am a private legal practitioner with my law firm located in Ikeja, Lagos. I am into media practice too. I publish the Media Law Reports and I am the Editor of Joint Tax Board Newsletter. I am the Secretary of NBA Lawyers in the Media; the Chairman of Association of Ebonyi Lawyers in Lagos; the Legal Adviser of Association of African Tax Institutes (AATI), and that of the West African Union of Tax Institutes (WAUTI).

Have you had any challenges in your career as a lawyer and if so what were the challenges?

I have had many challenges as a legal practitioner but I will mention just two. One occurred during one of my appearances at the Court of Appeal, Ibadan Division about 14 years ago. I filed an ap-plication with TRINITY prayers for leave to appeal a judgment obtained by a bank against my client six years earlier. I sweated profusely to convince the learned justices on the reasons for delay for 6 years before deciding to appeal the judgment. I felt like a man pinned to the wall as I could not withstand the barrage of questions. When I noticed that my effort was not yielding the desired result, I withdrew the application.

In a particular appeal at the Supreme Court, where I appeared as a junior to Dele Adesina, SAN, I had the challenge of making an input on whether to convince the Supreme Court to accept the Terms of Settlement of the parties as judgment

of the Supreme Court or otherwise, and the consequence of the eventual decision on the Memorandum of Understanding executed by the Appellant and the Respondent.

What was your worst day as a lawyer?My worst day as a lawyer was when I

could not withstand the barrage of questions of the learned justices of the Court of Appeal at Ibadan about 14 years ago and I withdrew my application without knowing, at that moment, how to communicate my failure to my client.

What was your most memorable experi-ence?

My most memorable experience occurred at the Jos Division of the Plateau State High Court about 16 years ago. My client, a Jos-based company, had been sued by a lawyer, who was also based in Jos, for the recovery of his professional fee for services he rendered to the company. My client claimed that the fee was exploitative and refused to pay. The lawyer made a demand for the fee as required under the Legal Practitioners Act. The new Managing Director of the company had just been recruited from Lagos and he was afraid that briefing another lawyer in Jos might be a mistake hence he invited me to come from Lagos to do the case. After studying the originating processes, I discovered with a shout of “eureka!” that the plaintiff instituted the action after 29 days (instead of the 30 days required under the Legal Practitioners Act) of service of the demand letter. I filed a notice of preliminary objection and that sounded the death-knell on the suit just after two court sittings. The plaintiff was dazed and the story went out among our learned colleagues that a “certain lawyer” came from Lagos to win the case. I felt elated like a boxer who gave his opponent a technical knock-out in the second round of a boxing bout/match.

Who has been the most influential person in your career?

Among the dead, the Late Gani Fawehinmi and Late Justice Oputa were the most influential persons in my career. As for the living, Wole Olanipekun SAN and Dele Adesina SAN have influenced me in their dexterity and consistency in full-time legal practice.

Why did you become a lawyer?I became a lawyer in order to acquire the knowl-

edge, skill and boldness to speak for myself and for those who are weak to speak for themselves.

What would your advice be to anyone wanting a career in law?

My advice is that the person should ascertain whether he/she has passion for the profession. There are embarrassing moments in the profession, especially in a situation where many people assume that a lawyer knows everything. It is passion that will drive a lawyer to learn more and be in a vantage position to use the knowledge to do exploits in the society, whether he/she is in practice or not.

If you had not become a lawyer, what would you have chosen?

I would have been a full-time journalist or Mathematics lecturer. I obtained a National Certificate of Education (NCE) in Mathematics & Chemistry from the Federal College of Education, Abeokuta with a Distinction Grade in 1989. My lecturers then advised that I should proceed to the University of Ibadan for a 2-year degree program for a Bachelor in Education and progress to do M.Ed. and Ph.D. If I had heeded that piece of advice, I might have become a lecturing professor by today. Besides that, I have profound passion for journalism hence I could have found myself in either of these two professions if I had not become a lawyer.

Where do you see yourself in ten years?I see myself becoming an eminent lawyer, a

reputable author and publisher; and an intellectual resource person in law and taxation practice in Nigeria and Africa.

Legal Personality of the week Chukwuemeka eze

‘A Lawyer Driven By Passion Can Do Exploits’

Chukwuemeka Eze

richard oma ahonaruogho

25 Years After - Chief Samuel Olasupo Morohundiya Lives On

On Tuesday 13th September, 2016 (while remembering the tenth anniversary of the demise of my younger brother, Michael Ekpeme Ahonaruogho 8th October, 1962 – 13th September, 2006), I decided once again to write a tribute in memory of my dearly beloved late

Principal, Chief Samuel Olasupo Morohundiya (4th October, 1924 – 17th September, 1991), whose twenty fifth year remembrance is only four days away.

In my quest on what to write on, I decided to do a search on the web and I came across an article from the website of ‘The Nation’ newspaper authored by Sola Adeyemo, captioned “Eso deplores Obasanjo/Atiku rift” which was published on 22nd October, 2006, almost ten years ago; – it reads -

Former Supreme Court Justice, Kayode Eso, has deplored the face-off between President Olusegun Obasanjo and Vice President Atiku Abubakar, saying, "I never knew that Nigeria was so wealthy until the two of them started to sing."

Eso, however, commended Obasanjo for the establish-ment of the Independent Corrupt Practices and Other Related Offences Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) which he described as "the greatest things to have happened to us in the last 46 years."

"Whatever anybody says about Obasanjo and his government, none can take away from him the credit of the establishment of the two anti-corruption agencies. They are necessary in our society because the greatest monster we have in our society is corruption."

Eso spoke in Ibadan, Oyo State, during the Olasupo Morohundiya Memorial Symposium 2006 held at the Faculty of Law, University of Ibadan. The annual symposium organised by the law faculty of the institution and tagged: "Law and the promotion of societal values," was held under the chairmanship of Justice Emmanuel Olayinka Ayoola, the Chairman of ICPC.

Eso while commending ICPC and EFCC for revo-lutionising and re-orienting Nigerians against corrupt practices, lamented the face-off between Obasanjo and Atiku, saying. "This was how the late Chief Samuel Akintola and Chief Obafemi Awolowo started during

their time." He urged Nigerians to allow the duo to continue exposing each other "because through it, we shall know what to do soon."

Expressing displeasure that vices have become a way of life with most Nigerians, Eso said that, "It is only in this country that a governor who stole N11 billion would be asked to be taken to court when in actual fact it is known he has immunity from criminal prosecution. It is in Nigeria that the Head of the Police stole N18 billion and was jailed for only six months only for him to come back to the society”.

Corroborating the need for Nigerians to turn their country around, Ayoola emphasised the need for integrity and transparency in public affairs, noting that corruption is a dangerous path which everybody must shun.

He urged people to enlist in the Anti-Corruption Volunteer Corps aimed at chasing away corrupt people wherever they may be, "be it in the village, in the city, in the church, mosque, government circles. We are going to make life difficult for them. We should be ready to celebrate selflessness, love of others, honesty, integrity, and this is why we are celebrating the late Morohundiya for the legacy he left behind. There is an urgent need for value shift.

"Widespread lack of integrity in our nation today can easily be attributed to decay in societal values whereby there is enthronement of wealth above honour and power above virtue."

Among dignitaries at the event were relations of the late Morohundiya, Mr. Richard Ahonaruogho, the International Bar Association (IBA) representative in Nigeria, Professor Femi Bamiro, Vice-Chancellor, UI, Professor Yinka Omoregbe, Dean, Law Faculty, Justice Afolabi Adeniran, Oyo State Acting Chief Judge and Mr. Olurotimi Akeredolu (SAN).

Records available shows that Chief Bola Ige, SAN and later his amiable wife, the Honourable Justice Atinuke Ige, (nee Oloko) Justice of the Court of Appeal worked with Chief Morohundiya at Ibadan in the Law Offices of Durosaro and Morohundiya. Some other Lawyers who passed through Chief Morohundiya’s Chambers in Lagos include Honourable Justice Olulade Oladapo Obadina, Justice of the Court of Appeal; Honourable Justice Oye Iyande, a Judge of the Osun State Judiciary; Honourable Justice Niyi Adebajo (rtd.), a Judge of the Lagos State Judiciary; Mr. J. O. Omole (former Chief Registrar of the High Court of Justice of Lagos State), Chief Adewale Gbeleyi, Chief Olu Akintunde, Chief Abimbola Awosika, Mr. Sola

O. Olatunbosun, Chief Akinlabi Kuponiyi (former Speaker of the House of Assembly of Osun State), Chief Michael Olunwa, Mr. S. A. Afolabi, Mrs. Joke Opeyokun (nee Adekoya), Mr. Andrew Bamidele Chukwuemeka (ABC) Ogbogbo, Mrs. Bisi Awonuga, Ms. Eniola Olatunji Makanjuola (also known as Mrs. Tunji Oluwa), Mr. Akin Olatunji, Mrs. Christine Awoloto (nee Aina), Yemisi Wilton-Waddel, Mrs. Ayodele Ayobolu (nee Oduyemi), Mr. Olakunle Morohundiya, Mr. Akin Edward Falade, Chief Richard Oma Ahonaruogho and Mr. Victor Aigbogun.

To live in the hearts of those who love you, is to live forever. Even though some of the Lawyers who passed through the law stable of Chief Samuel Olasupo Morohundiya have since passed-on, those of us living continue to cherish their fond memories. For example writing in the Saturday Magazine of ‘The Guardian’ of 9th May, 2015, in an article titled, “Adieu, Eniola Makanjuola”, Anthony Akinola and Kayode Oladipupo in the first four paragraphs had this to say –

“THE death of Ms. Eniola (Olatunji) Makanjuola (also known as Mrs. Tunji Oluwa), a Barrister at Law has been announced. The sad event occurred on Sunday April 26, 2015.

She was born to the late Engr. A. Ayodele Makanjuola and Mrs. Christiana Adetoun Makanjuola on May 17, 1962. Ms. Makanjuola is a product of St. Theresa’s College, Oke Ado, Ibadan. She graduated from the University of Ife (now Obafemi Awolowo University), Ile Ife, with a Bachelor of Laws degree (LLB) in 1981.

She was called to the Nigerian Bar in 1982 having been certified as a Barrister at Law (BL). As a youth corps member, she served in Lagos State and lectured at the Nigerian Police College, Ikeja.

Makanjuola worked in various capacities over the years. She cut her teeth in private practice, served in chambers both in Lagos and Ibadan. She also held her own briefs. She served at Chief S. O. Moroundiya’s Chambers, Ikeja and worked alongside Justice Niyi Adebajo”.

One can therefore imagine the several persons whose biographies would be incomplete without the name of Chief Samuel Olasupo Morohundiya.

Recently, while on holidays in the United Kingdom, Victor Aigbogun paid me a visit and narrated how upon getting married in Nigeria, his wife wanted him to move over to the United Kingdom. Having a successful law practice in Nigeria he was reluctant to take the plunge. He was not willing to subject himself to doing menial jobs in the

United Kingdom. He sat and passed the qualifying examination which enabled him practice in the United Kingdom and then it was time to go job hunting. He applied to a law firm and submitted his curriculum vitae wherein he made reference to having worked with Chief Samuel Olasupo Morohundiya whilst in Nigeria. He was invited by Mr. Roderick Palling Bouldi who happened to have known Chief Morohundiya several years ago in London. That was all Victor Aigbogun needed to be employed in the United Kingdom – the name of Chief Samuel Olasupo Morohundiya.

So as we remember Chief Samuel Olasupo Morohundiya of Gray’s Inn on the twenty fifth anniversary of his transition, let us be assured that good people do not die. They rest from the earthly labours in the Lord.

I join your wife and pillar of support, Chief (Deaconess) Mrs. Christiana Ayodele Morohundiya; your children, grandchildren and great grandchildren; the Morohundiya dynasty at home and in diaspora; the Nigerian Bar Association (NBA); the First Baptist Church Ikeja; the First Baptist Church, Idikan, Ibadan; the Nigerian Baptist Convention; The Boys Scout Movement of Nigeria, the Nigerian Red Cross; the Morohundiya Foundation for Legal Development of the Faculty of Law of the University of Ibadan in remembering a good man – Chief Samuel Olasupo Morohundiya.

Sleep on my beloved boss and mentor, Chief Samuel Olasupo Morohundiya - Member Distinguished Body of Benchers, Maiyegun of Ikeja, Bamofin of Ibadanland, Bada Olubadan of Ibadanland, First Chairman and Patron of the Nigerian Bar Association (NBA) Ikeja Branch and many others too numerous to mention.

The Late Chief Samuel Olasupo Morohundiya

6/ 20.09.2016

tobi soniyi in Abuja

Abia Governorship Tussle, Waiting on Supreme Court to Decide

based legal practitioner, Abdumalik Isah is of the opinion that the judgement of the Court of Appeal is unassailable and will be upheld by the apex court. He identified two errors in the judgment of the trial court which he said were fundamental. First, is the refusal of the judge to allow the case to be decided on writ of summons. "The nature of the issues raised is such that will require evidence and originating summons is not suitable to resolve such controversies." He said.

Secondly, Isah also faulted the decision of the trial judge to calculate in his chambers how much taxes Ikpeazu should have paid or not have paid. On these two grounds alone, he concluded that the appeal should be thrown out.

The lawyer could also not understand the basis for Ogah's asking the Appeal Court not to revoke the certificate of return issued to him by INEC. He explained: "Once the judgment upon which the commission relied on to issue the certificate of return has been set aside, the certificate itself collapses. You can not put something on nothing and expect it to stand."

Another lawyer, Ade Olowonfela said the attitude of the Supreme Court is to allow politi-cal parties to determine who their candidates would be in an election. He reasoned that if the PDP was satisfied with the tax receipts submitted by Ikpeazu, the governor should be deemed to have fulfilled the requirements of his party for nomination.

Another legal practitioner, Chinedu Uba cannot understand why a court of law would declare someone who did not participate in an election a governor. To him, that is a coup against democracy.

He suggested that the time has come for judges to be lectured on what democracy is all about: allowing the people to choose who governs them not for the courts to impose someone on them without the people having a say.

For Yemisi Adebayo, she will rather wait for the apex court to decide the appeal one way or the other. She was however uncomfortable with the appellate court taken a swipe at the trial judge. She said: "The judge is expected to decide the case as he thinks fit. That is why there are appellate courts to decide whether he is wrong on not. A judge should not be castigated for doing his work."

Appeal Court had in a unanimous judgment set aside the Justice Abang's decision which removed Ikpeazu from office.

Five justices of the court: Ibrahim Shatta

Bdliya, Philomena Buwa Ekpe, Morenikeji Ogunwumiju, Abubakar Datti Yahaya and Saidu Tanko Huseni had unanimously reversed the trial court's judgment.

Although, there were five appeals in all, the appeals filed by Ikpeazu and PDP were on the substantive issues while others dealt with preliminary issues.

Such preliminary issues included whether the trial judge was right to have assumed jurisdiction on a motion for stay of execution of his earlier judgments delivered on June 27 after the appeals against the judgments had been entered.

Justice Philomina Ekpe, who read the lead judgment on that appeal held that the judge ought to have transferred the motion to the Court of Appeal in line with time-honoured doctrine of “stari decisis”

The court held that the trial judge went beyond his powers as a judge, became bias and also turned the law upside down.

The court held that the matter was hostile, controversial and contentious and should not have been commenced by originating summons.

In the views of the justices, the proper mode of commencement of the case should have been writ of summons.

On this point, Justice Morenike Ogunwumiju who delivered the lead judgement in the appeal by Ikpeazu, held thus: "It seems to me that the learned trial judge with due respect did not understand the state of the law with regard to originating summons procedure."

But the Court of Appeal agreed with Justice Abang that the case was not an abuse of the processes of the court. The justices held that because Sir Sunday Nwosu had filed a similar case in which Ogah was a party did not extinguish Ogah's right to challenge the emergence of Ikpeazu as governor.

In this regard, the court rightly held that, "In the first instance, every citizen is entitled to ventilate their grievances and the courts are obliged by section (6)(6) of the 1999 constitution to give opportunity to each litigant so to do."

But the appellate court disagreed with the trial judge in holding that the governor gave false information regarding his tax receipts. For instance, the court of appeal found that the PDP Guidelines 2014 which required a contestant to show evidence of tax payment did not contain the phrase, 'as at when due'. However, the judge kept on making reference to that phrase.

Consequently, Justice Ogunwumiju held:

"Such deliberate importation of strange phrases or clauses into an instrument to be considered by the court is the reason where there has always been necessity to attach said instrument to the originating summons."

The court found that the critical instrument, that is, the 2014 PDP Guidelines upon which Justice Abang based his judgment was not even attached to the originating summons filed before him.

According to the court, the judgement of Justice Abang was grossly erroneous because it was based on inadequacy of tax receipts that cannot be visited on the appellant (Ikpeazu).

Justice Ogunwumiju held: "After reading through the judgement several times, I was amazed at how the trial Judge arrived at his conclusion of perjury against the appellant when there was no evidence of forgery. His findings are ludicrous.

"The judge must have sat in his chambers, unilaterally assessed and computed the tax of the appellant and came to the conclusion that he did not pay the required tax.

"Courts are not allowed to speculate as the trial judge did in the instant case.

"In one breath, the trial judge spoke from the two sides of his mouth when he claimed that he based his findings on supply of false information and in another breath he came to the conclusion that the appellant committed perjury even when there was no allegation of forgery and no allegation that he did not pay tax."

Justice Ogunwumiju also held that ‎the trial judge turned the head of the law upside down in his conclusion that it was the appellant that should bear the burden of proof of an allegation made by Ogar.

She held: "With respect, we disagree with him because it is the person that makes allegation of falsehood that must prove it.

"From whatever angles one looks at the judgment of the trial court, the decision of the court is grossly erroneous," she held.

She further held that the inadequacies of the tax receipts of the appellant who scored the highest votes at the election could not be visited on him, adding that, "doing so will amount to a rape of democracy."

The court held that Justice Abang erred in law and occasioned a miscarriage of justice against the governor when he refused to give him a fair hearing.

The court further held that the judge pre-judged the matter when he touched on the substantive issues at the preliminary stage without hearing the appellant.

With the beginning of a new legal year this week, all is now set for the Supreme Court to resolve fi-nally the logjam in Abia created by the judgment of Justice Okon Abang of the Federal High

Court but made worse by the decision of the Independent National Electoral Commission to hurriedly issue a certificate of return to Dr. Samson Ogah while appeal by the incumbent governor, Dr. Okezie Ikpeazu was pending.

With both sides now having a judgment each in their favour. Only the Supreme Court can break the stalemate.

Following the judgment of the Court of Appeal which set aside the judgment of the Federal High Court, Ogah did not waste time in showing his dissatisfaction with the judgment and consequently instructed his team of lawyers to file an appeal at the Supreme Court.

In a notice of appeal filed by his lead counsel, Dr Alex Izinyon, SAN, Ogah raised seven grounds of appeal upon which he relied on to ask the apex court to affirm the decision of the trial court and set aside that of the Appeal Court.

Among others, he said the Court of Appeal judgment was against the weight of evidence.

Apart from the appeal to the Supreme Court, he asked the Court of Appeal for an order of injunction restraining the Abia State Governor, Dr Okezie Ikpeazu from applying for any certificate of return from INEC pending the hearing and determination of the appeal at the apex court.

Ogah also asked the Appeal Court for an order of injunction restraining INEC from issuing any certificate of return to Ikpeazu pending the determination of the appeal.

He also asked the court to issue an injunction restraining INEC from retrieving or revoking or cancelling the certificate of return issued to him on June 27, 2016 in relation to the office of the Governor of Abia State pending the hearing of his appeal to the Supreme Court.

Ogah said the justices of the Court of Appeal erred in law when they held that he was wrong to have commenced the suit by way of originating summons.

According to him, his case bordered on simple interpretation of the Peoples Democratic Party's constitution and the Guideline and provisions of the Electoral Act.

He also faulted the Appeal Court justices for holding that the trial judge imported the phrase, 'as at when due' into the 2014 PDP Guidelines and that it was immaterial that facts of the documents were admitted when the said documents was not presented before the court.

He explained that his case was for the interpretation of Section 14(a) of the PDP Guidelines, 2014 and sections 31(5) and (6) of the Electoral Act, 2010.

"The said provision in Paragraph 14(a) of the said PDP Guidelines were reproduced easing the requirement of tax by Ikpeazu as an aspirant for gubernatorial primaries of PDP and the consequent election."

He also faulted the judgment of the Court of Appeal where the justices held that the false information envisaged under section 31(2) of the Electoral Act must not go outside the constitutional provision of sections 177 and 182 of the constitution.

He argues that the Court of Appeal failed to understand the difference between pre election qualification/ disqualification. He stated that the provision of Section 31 of the Electoral Act and challenge on grounds of false information was a pre-election matter.

"Failure of the Court of Appeal to appreciate this manifest dichotomy led to a miscarriage of justice," he added.

But does Ogah stand a chance at the Supreme Court? Not many lawyers think so. A Kano

Dr. Uche OgahAbia State Governor, Dr. Okezie Ikpeazu

20.09.2016 right oF rePLy/7

ikenna okoli and uche obiorah

Justice Abang’s Ruling on Abia: A Rape of Rule of Law?

empowered by section 87(9) of the Electoral Act, 2010 (as amended) to ventilate his complaint before the Federal High Court or High Court of a State or of the Federal Capital Territory.

Further, there are other Supreme Court decisions (all decided under the Electoral Act 2010 (as amended) which held that the Federal High Court has jurisdic-tion in matters similar to Ogah’s case. See EKAG-BARA v IKPEAZU (2016) 4 NWLR (Pt. 1503)411; UKACHUKWU v PDP (2014) 17 NWLR (Pt.1435) 134 at 185; GWEDE v INEC (2014) 18 NWLR (PT. 1438) 56 and GBILEVE v ADDINGI (2014) 16 NWLR (PT. 1433) 394.

It is interesting that Professor Nwabueze did not refer to any of the above Supreme Court cases. Under the doctrine of stare decisis, decisions of superior courts are binding on inferior courts. See SULEMAN v COP, PLATEAU STATE (2008) 8 NWLR (Pt.1089) 298 at 330. Therefore, if the Supreme Court has in several decisions held that the Federal High Court has jurisdiction in the matters similar to the case of OGAH v IKPEAZU, then the Federal High Court was right to assume jurisdiction in the Ikpeazu case.

Professor Nwabueze further argued that by virtue of section 75(1)&(2) of the Electoral Act, 2010 (as Amended), that even where the Court of Appeal or the Supreme Court nullifies an election and the Certificate of Return, as the final Appellate Court in any election petition, the court is not empowered to make an order specifically directing INEC to issue a Certificate of Return to the person successful in such appeal. He further submitted that the issuance of a Certificate of Return in such a case is left at the discretion of INEC, which may refuse to issue it. As interesting as this argument may seem to be, it is pertinent to mention that the learned Senior Advocate’s interpretation of section 75(1)&(2) of the Electoral Act is totally misleading, with due respect.

First, we must emphasise the point that section 75(1) of the Electoral Act clearly refers to election petition. It therefore does not apply to pre-election matters; and Ogah’s case is not an election petition but a pre-election matter.

Further, assuming that section 75(1) applies to pre-election matters, there is nothing in section 75(1) & (2) that suggests such inference of power vested in INEC to refuse to issue a Certificate of Return. Such inference is unfounded and a clear attempt to negate the spirit and necessary intendment of the law. The proviso to section 75(1) of the Electoral Act states that where the “Court of Appeal or the Supreme Court, being the final appellate court in any election petition as the case may be, nullifies the Certificate of Return of any candidate, the Commission shall, within 48 hours after the receipt of the order of such Court, issue the successful candidate with a valid Certificate of Return”. The use of the word “shall” in the proviso to section 75(1) suggests a mandatory provision, not discretionary as argued by Professor Nwabueze.

In supporting his argument that the INEC has the

discretion not to issue certificate of return under the proviso to section 75(1), Professor Nwabueze relied on section 75(2) of the Electoral Act which states that “where the Commission refuses or neglects to issue a Certificate of Return, a certified true copy of the order of a court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing-in a candidate declared as the winner by that Court”.

Reading section 75(2) of the Electoral Act, there is nothing in that subsection that bars the court from making a specific order directing INEC to issue certificate of return to a successful party. Section 75(2) simply provides an alternative solution in a situation where there is an undue delay by INEC to issue the certificate of return after the court’s judgment. In the event of such a delay, section 75(2) empowers who-ever is responsible for swearing-in the successful party to go on with the swearing-in on the mere production of the certified true copy of the judgment without waiting for the certificate of return from INEC.

Assuming (without conceding) that the court cannot make a specific order directing INEC to issue certifi-cate of return, Justice Abang simply followed judicial precedents in making such order. Similar orders have been made by the Supreme Court in several cases. It is surprising that Professor Nwabueze referred to and relied on the Supreme Court’s decision in AMAECHI v INEC (2008) 5 NWLR (PT. 1080) 227 and argued that the Supreme Court in Amaechi’s case “… stopped short of making such an order, merely order-ing that he “be sworn-in forthwith”. There is no ratio in Amaechi’s case stating that Courts cannot make a specific order. We shall refer to some recent decisions where the Supreme Court specifically directed INEC to issue certificate of return to the successful party.

In GBILEVE v ADDINGI (2014) 16 NWLR (PT. 1433) 394 at 423, the 1st respondent’s name, Mrs. Addingi, was unlawfully substituted by her party with the name of the appellant for the general elec-tion. She filed an action at the Federal High Court before the general election which took place on 6 April 2011, but the judgment of the Federal High Court was delivered after the general election on 9 April 2011. The Supreme Court in its judgment in favour of Mrs. Addingi made a consequential order as follows: “… It is further directed that the 2nd respondent [INEC] should forthwith issue a certificate of return to the 1st respondent as the winner of the election for the Buruku Constituency in Benue State House of Assembly…”

Also, in GWEDE V. INEC (2014) 18 NWLR (PT. 1438) 56 at 104 -105, and in JEV v IYORTOM (No.2)(2015)15 NWLR (PT. 1483) 484 at 506, the Supreme Court made specific orders directing INEC to issue certificates of return to the successful parties in the appeals.

Professor Nawbueze went on to say that Hon Justice Okon Abang’s order directing INEC to issue a Certificate of Return with immediate effect to Dr. Uche Ogah is, “not only a coup against the Electoral Act, it is also a brazen exhibition of judicial reckless-ness, of judicial activism run riot; for, it defies, in a reckless manner, the prohibition in section 141 of the Act that “an election tribunal or court shall not under any circumstances declare any person a winner at an election in which such a person has not fully participated in all stages of the said election.”

Professor Nwabueze’s reliance on section 141 of the Electoral Act shows that he may not have read Justice Abang’s judgment before criticising same. In the judgment, Justice Abang referred to and relied on the Supreme Court’s decision in JEV v IYORTOM (No.2) (supra). In the said Iyortom’s case, the Supreme Court was unequivocal in holding that section 141 of the Electoral Act, by virtue of section 133(2) of the Electoral Act applies only to the Election Tribunal and the Court of Appeal in Presidential and Governorship elections; and does not apply to the regular courts including the Federal High Court. The Supreme Court in that case directed INEC to issue a certificate of return to Jev, the successful party in the appeal, notwithstanding that he did not participate in the general election. Professor Nwabueze in his article did not make any reference to the Supreme Court’s decision in Iyortom’s case (supra).

We believe that Justice Abang is bound to follow the Supreme Court’s decision under the doctrine of stare decisis. Thus, if the learned professor of law has misgivings towards the non-compliance with section 141 of the Electoral Act, he should direct his criticism to the Supreme Court’s decision, which rendered that section inapplicable to regular courts.

Ikenna Okoli, FCIArb(UK) and Uche Obiorah, FCIS.

On the 9 August 2016, THISDAY Newspaper published an article by the legal luminary, Professor Ben Nwabueze, at page 17 of the Newspaper, captioned “ABANG RULING ON ABIA: A RAPE OF RULE OF LAW”. In the article, the author was emphatic in concluding that Justice Okon Abang’s ruling on the Abia State

governorship election was a coup against the Electoral Act and a rape of the rule of law. We are not unaware of the judgment just delivered by the Court of Appeal overturning the judgment of the Federal High Court. However, this article is not about the Court of Appeal judgment, the details of which we have not seen, but a response to the issues raised in the aforementioned article by Professor Nwabueze.

After going through the article by Professor Nwabueze, we were, with respect, left with no doubt that the reasoning behind the arguments he made in the article are flawed on many grounds. It therefore became imperative to write this rejoinder. In this article, we shall highlight some salient points raised by the learned Professor which formed the basis for the conclusion reached in his article. We shall then address those points, relying on the applicable extant laws and subsisting binding Supreme Court’s deci-sions that are directly applicable on those points.

Professor Nwabueze, in his article, argued that the Federal High Court had no jurisdiction to entertain the matter. According to him, the matter was sup-posed to be an election petition of which only the election tribunal has jurisdiction to entertain. He also argued that the Federal High Court has no power to make an order directing INEC to issue a certificate of return to the successful party. Further, he was of the view that section 141 of the Electoral Act prohibits the Court from declaring Ogah as a winner of the election.

It should be mentioned that the case of OGAH v IKPEAZU was brought pursuant to sections 31(4)(5)(6) and 87(9) of Electoral Act 2010 (as amended). In the suit, Ogah claimed, inter alia, for a declaration that Ikpeazu was not eligible nor qualified to be nominat-ed or to participate in the PDP gubernatorial primary election for Abia State conducted on 8 December 2014. He also claimed for an order declaring him (Ogah) as the winner of the PDP primary election. Further, in the suit, Ogah claimed for an order pursuant to section 31 of the Electoral Act 2010 (as amended) disqualifying Ikpeazu from contesting the gubernato-rial election for Abia State as the candidate for PDP. Ogah’s case was based on the ground that Ikpeazu declared false information regarding the payment of his personal income tax in INEC Form CF001. Thus, the suit centered on the application of the provisions of Article 14(a) of the People’s Democratic Party Guidelines for primary elections and sections 31(5) (6) and 87(9) of the Electoral Act 2010 (as amended).

In addressing the points raised by Professor Nwabueze, we must state with due respect, that the learned professor’s argument is very misleading and do not represent the correct position of the law on the issues discussed in his article. First, Professor Nwabueze contended (though wrongly) that the case of OGAH v IKPEAZU ought to come as an election petition. He repeatedly referred to Ogah’s case as that of an election matter that can only be raised by means of an election petition. He was of the view that the Federal High Court had no jurisdiction to entertain the matter in the first place. With due respect to Professor Nwabueze, Ogah’s case is not within the category of matters that can come by election peti-tion. It is not necessary to consider in this article the individual grounds upon which an election petition can be brought as provided for under section 138(1) of the Electoral Act. None of those grounds applies in this case. By force of stronger reasoning, even section 138(1)(a) cannot be relied upon to bring Ogah’ case as an election petition because the case was instituted before the general election took place. Election peti-tions can only be instituted after the election.

The case of OGAH v IKPEAZU is a pre-election matter and the jurisdiction of the Federal High Court to handle such matters was affirmed by the Supreme Court in JEV v IYORTOM (2014) 14 NWLR (PT.1428) 575, where the Supreme Court considered the provisions of section 87(9) of the Electoral Act, 2010, (as amended), and held that a dissatisfied contestant at any political party primary election is

Justice Okon Abang

8/coVer 20.09.2016

Currently, President Buhari is seeking emergency powers to pursue his economic stimulus plan for the economy. The objectives of the action-plan on the economy, include shoring up the value

of the Naira, creation of more jobs, boosting of foreign reserves, reviving the manufacturing sector and improv-ing power. Some of the powers include Virement of Budgetary Allocation to projects that are urgent, Amendment of certain laws such as the Universal Basic Education Commission (UBEC) Act. These powers seem to be a usurpation of the powers of the National Assembly. In your opinion does the Government need these emergency powers?

I think that all the powers, except the virement of budgetary allocation, are already within the competence of the

plagued by allegations of corruption which is exacerbated by conflicting judgments from courts of co-ordinate jurisdiction on the same subject matter. It seems that “black market” injunctions have become pervasive.

There is no doubt that Nigerian bench

‘Buhari Needs a Strong Economic Team, Not Emergency Powers’

president as Executive President. They are all matters that properly formulated and articulated economic policies, backed by a strong fiscal framework can achieve. It is noteworthy that an emergency power to enable the government engage in virement of budgetary allocation is a violation of extant legislation prohibiting virement. Such powers will put the President above the law. What the President needs is a strong, focused and driven economic team with emphasis on monetary regulation, job creation and diversification of the economy and not emergency powers.

The new President of the Nigerian Bar Association, Mr. A.B. Mahmoud SAN has just assumed office on the wave of his campaign for a “Brave New Bar”, a call to arms for Nigerian Lawyers to reinvent the profession positively and proactively. What are your expectations of the new administration of the NBA?

These are indeed trying times for the legal profession. The Bar and the Bench have never had it so bad. The Bench has been

is made up of courageous, competent and incorrigible judicial officers (a few bad apples notwithstanding).I suspect the bench has been infiltrated by politics and there is urgent need for the heads of the various courts to take active steps to ensure that justice is not only done but is seen to be done

The Bar is not without blemish in this matter, indeed all originating processes and interim applications are initiated by members of the Bar. That is where I expect the Nigerian Bar Association President to actualize the mantra of a “Brave New Bar.” He should re-invigorate the disciplinary committee of the Bar to ensure that as many legal practitioners as lead judicial officers into the temptation of granting “black market” injunctions are brought to book by the disciplinary committee of the Bar.

Similarly, a brave New Bar should be one that champions the cause of obedience to court orders. As a Union, the Bar can decide to withhold its services from those

That Nigeria’s economy is in recession is no longer news. But whether President Buhari needs emergency powers to fix the troublesome state of affairs has been in debate since the Presidency expressed its intention to approach the National Assembly to seek emergency powers to tackle the economy. In a chat with May Agbamuche-Mbu, Jude Igbanoi and Tobi Soniyi, Mrs. Chinelo Bob-Osamor suggests ways through which the nation can get out of its present economic doldrums. The season journalist, TV personality, lawyer and rights activist who turns 50 next week expressed her views on sundry other issues, including her passion for philanthropy.

Mrs. Chinelo Bob-Osamor PHOTOS: Sunday Adigun

"WHAT THE PRESIDENT NEEDS IS A STRONG, FOCUSED AND DRIVEN ECONOMIC TEAM WITH EMPHASIS ON MONETARY REGULATION, JOB CREATION AND DIVERSIFICATION OF THE ECONOMY AND NOT EMERGENCY POWERS"

20.09.2016 coVer/9

who disobey court orders. On Monday 24th June 2013 in Edo

State, after six years of observing a United Nations Resolution 62/149 on the Moratorium on the use of the Death Penalty, four men were hanged to death in compliance with a court imposed Death Sentence. With that, Nigeria’s relatively brief moratorium on the death penalty ended and we have seen the re-introduced Capital Punishment since then. Although you have been a strong proponent for the Abolition of the Death Penalty, many have argued that the Death Penalty is a necessary deterrent to the perpetration of heinous crimes or crimes that threaten the security of the state. How do you reconcile these very pressing needs, the protection of the state against the life of an individual convicted of heinous or threatening crimes?

Up till recently I could be described as a Pro-life Activist/Lawyer. I was completely against death penalty. In my article on the PETER NEMI v THE STATE, I not only supported the argument that condemned criminal’s human rights should not be compromised on account of his sentence but I questioned the rationale behind death sentence in its entirety. You know all the argument of its not being a deterrent; the possibility of taking the life of an innocent person amongst others.

However, recent happenings globally have really affected my position. An example is the rise and spread of terrorism worldwide. A suicide bomber who obviously has rejected his right to life embarks on a mission to kill as many innocent people as possible. For him it is a case of the more the merrier. It is unlikely such a person can be reformed by incarceration. I think the state should assist convicted terrorists achieve death which is their goal. Death penalty will ensure that they do not take others as casualties with them.

After so many years of lobbying, the Violence Against Persons Bill was eventually passed into law only last year. But there appear to be many challenges in its implementation already. It has not been tested in our courts with any great consideration, despite the growing incidence of domestic violence. What should be the approach to addressing this issue?

Indeed violence against persons has been on the increase. Unlawful killings on mere allegation of blasphemy or suspicion of having committed an offence (Lynching) and general religious intolerance have all conspired to upstage domestic violence which seems to be the main target of the Violence against Persons Act. The law is timely and welcome. The law seeks to address clearly identifiable violent conducts. However, the implementation by law enforcement agents and the interpretation by the law courts will eventually expose the lapses in the law while crystallizing the positive aspects of the law, by way of decided cases. We should be patient and allow this piece of legislation to be tested in the courts thereafter the legislature will have the opportunity to make amend-ments where necessary to bring the law in

conformity with the needs of the society.Nigeria has still not passed the

Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) into national law, in spite of the fact that we have long since signed the convention’s protocol and accession treaty. Does this explain the current difficulties faced in the protection of Women’s rights in Nigeria?

The convention on the Elimination of All forms of Discrimination against Women (CEDAW) is a laudable piece of legislation that has very noble inten-tions. Before CEDAW, our laws contain Copious provisions that guarantee and protect the rights of women, primarily as human beings and particularly as women. It seems to me that the Challenge is not just in the domestication of CEDAW but in the practical implementation of the provi-sions in our extant laws that guarantee protection of human and women rights. For example there is no written law that prohibits women from standing surety for bail but in practice it is not done despite the clear provision of the Administration of Justice Law that guarantees that right to women. More should be done in the implementation of the provisions in our extant laws even as we await the domestication of CEDAW.

Statistics from the United Nations Office on Drugs and Crime (UNODC) has revealed that out of the 67,000 prisoners held in the various Nigerian prisons, Awaiting Trial Persons make up to 72 percent of that total population. Furthermore there has been a significant increase in the incidents of jail break in the country. In your opinion how can government and other stakeholders improve Prisons Administration?

The challenges facing our detention facilities are multi-faceted. First of all, the detention facilities Nationwide were built to accommodate less than 20% of their present occupants (inmates). Consequently, they are overcrowded and the warders are overworked. It is only logical that a prison facility that is overstretched is prone to bursting occasionally at the seams. The administration of criminal justice system grinds slowly but surely. Trials are slow and protracted, when they commence at all. This has led to a backlog of persons awaiting trial. They currently outnumber the convicts whom the prisons were built for in the first place.

We need to build bigger and better equipped prisons that will achieve the reformation and rehabilitation of prisoners envisaged by the law.

Also, suspects should not be arrested at random without proper investigation. The law enforcement agents should be ready to go to court soon after an arrest of a suspect. This will in no small way will reduce the number of persons awaiting trial.

Lastly all the laws that militate against speedy trials of suspected persons must either be repealed or amended. The ad-ministration of Criminal Justice Act 2015 has made giant strides in this respect, for instance it has put a limit to the number of adjournments that is allowed in one case

CONTINUED ON PAGE 10

and restrained interlocutory applications.There have been allegations that anti-

corruption agencies under this present administration are not respecting human rights in the fight against corruption by detaining suspects for long periods clearly prohibited in national laws and ignoring court orders. Do you share this view?

There is no doubt that the fight against Corruption is a battle for the very soul of the nation and I commend the government for its political will in this direction. In prosecuting that war however, the govern-ment must endeavor to do so within the ambits of the law. Due process must be adhered to strictly.

The Constitution presumes every accused person innocent until proven otherwise by a court of Competent jurisdiction. Consequently media trials are in bad taste and a violation of the presumption of innocence. Similarly charging suspects to court and denying them bail because investigation is ongoing is a violation of their right to personal liberty. While the denial of adequate time and facilities to a suspect to prepare for their defence, caused by a denial of bail, is a violation of the Constitutional safeguard in that regard.

Despite the fact that some states have passed the Child Rights Act into state law, children are still being abused and denied their basic rights to dignity and healthcare. How should this adminis-tration be looking to improve on the welfare of children? What steps need to be taken to make this a reality?

There is no dearth of laws in Nigeria. We have multiplicity of laws addressing several and same issues at the same time. Before the Child rights Act, The National Agency for the Prohibition of Trafficking in Persons Act (NAPTIP) made adequate provisions against Child labour, and related offences, ditto for other legislations, the challenge has always been enforcement. The government should embark on massive re-orientation for our law enforcement agencies. They need to be taught the importance of these laws, the traumatic and psychological effect of these offences on children and the long term effect on the larger society. In many parts of Nigeria, violence against children is merely seen as corporal punishment which is for their

"HE SHOULD RE-INVIGORATE THE DISCIPLINARY COMMITTEE OF THE BAR TO ENSURE THAT AS MANY LEGAL PRACTITIONERS AS LEAD JUDICIAL OFFICERS INTO THE TEMPTATION OF GRANTING “BLACK MARKET” INJUNCTIONS ARE BROUGHT TO BOOK BY THE DISCIPLINARY COMMITTEE OF THE BAR"

own good. Just as victims of rape are often perceived as having brought it upon themselves. This mindset has to change and that’s why we need re-orientation.

Closely related to the rights of children in Nigeria are the challenges faced by the girl child in Nigeria. For instance we have little to no statistical informa-tion of the rates of sexual abuse, and the same is true for the investigation and prosecution of offences that fall under this area. How can we change the attitude of law enforcement agencies to the prosecution of sexual offences?

Sexual offences are usually victimless crimes because the victim, faced with stigmatization and the odium associated with the offence, is usually unwilling to prosecute or be a witness in the prosecution of the alleged offender. Beyond the re-orientation of our law enforcement agents, government need to amend the laws to allow the victims of rape and other sexual offences to testify in camera .We also need an express provision that sexual offences cannot be plea-bargained.

The human rights community seems to have accepted the non-justiciability of socio-economic rights such as the rights to shelter, health and to engage in economic activity. How then do we hold the Government accountable to the Directive Principles of State Policy as enshrined in Chapter II of the Constitu-tion and ensure that government takes these rights seriously?

Chapter II of the 1999 Constitution adequately provides for fundamental objectives and directive principles of state policy. These are ideal goals and objec-tives that any well-meaning government should take seriously. This is what is fondly referred to as social and economic rights. By their nature economic and social rights are nebulous. How do you guarantee the right to work in an economy in recession, the right to adequate health services in a country with dilapidated health facilities, the right to education in a country that can barely admit 30 percent of qualified candidates. They will remain non-justiciable for a long time. However this does not absolve government of its duty to cre-ate enabling environment for economic and social rights to be achievable and subsequently justiciable.

In spite of the enactment of the Freedom of Information Act which requires public institutions to make information available to the public espe-cially through the concept of proactive disclosure. It now appears that nearly all public institutions are in breach of this law. The consequence is a lack of transparency in governance and an environment where impunity thrives. How can we change this attitude and create a more open one in compliance with the FOI Act?

I find it strange that after the vigorous agitation that led to the enactment of freedom of Information Act, the media and others who want information from government are waiting for the law to implement itself. It is human activities that

10/coVer 20.09.2016

‘Buhari Needs a stroNg ecoNomic team, Not emergeNcy Powers’ CoNtINueD FRom pAGe 9

breathe life into laws. Do we expect the government agencies that have so long hoarded information to, all of a sudden invite people to come and get information? We must knock on the doors of government agencies for information and continue to knock until they answer and if need be approach the court to compel them to comply.

The former Minister for Communi-cations Technology Omobola Johnson during the previous administration revealed plans to lower taxes on Telecommunications infrastructure to make it easier and more attrac-tive for Telecommunication operators to invest in long term infrastructure development. The current administration has emphasised at various times the imperative need to make Nigeria a more attractive investment destina-tion by various means. However the 8th National Assembly in the face of this important policy is entertaining a bill which seeks to enforce a nine per cent Communication Service Tax (CST) on charges payable by a user of an Electronic Communication Service including Text Messages, Video Messaging and data usage, all areas capable of generating new economic activity. Considering the devastating effects this will likely have on internet penetration and future investments in the Telecommunications industry, is there any long-term benefit to such a piece of legislation going against the idea of an attractive Nigerian market current economic conditions?

The Telecommunications Sector is one sector of the economy that has been a win win situation for the operators. The operators have been making super-profits and have only been compelled by adverse public opinion to improve service to the end users. The telecommunication companies are all privately owned or owned by a select few who shut out members of the public from participating in investment in telecommunication. It is only recently that MTN started making moves to make a public offer of its shares. I do not think the proposed law will slow down the impetus for diversification and expansion of telecommunication industry in Nigeria.

Much has been reported in recent years of the falling standards of Legal Education in Nigeria and what ought to be done about this. Unfortunately those standards have only seen marginal improvement in the overgeneralised annual Nigerian Law School results. Some writers have even gone so far as to say that the Bar only pays lip service to the gradually deteriorating metrics in the quality of legal ser-vices and performance of young/new lawyers in the market. The Nigerian Bar Association has a Legal Education Committee, how can it begin to work with the Council of Legal Education to create the world class legal training that is necessary to change the poor state of Legal Education in Nigeria?

There is a positive correlation between the standard of education in Nigeria gen-erally and legal education in particular. The perceived fall in the standard of legal Education owes its cause to the general decline in the standard of Education.

In Nigeria, any student at the law school would have passed through 6 years in primary school, 6 years in secondary and 4 years in a University to obtain a law degree (L.L.B). The law school programme is for one academic session, hardly long enough to repair whatever damage our defective academic system would have done. I am aware and it is noteworthy that the Nigerian Law School has a new curriculum which is more practice oriented and which seeks to refocus the students. However, after the law school, there is the need for legal practitioners to engage in continued legal education. This is a task that needs to be done if we are to build on the laudable efforts of the Nigerian Law School. It is the Nigerian Law School that has the capacity to provide continued legal Education. The Nigerian Law School already has lecturers, libraries, classrooms and other facilities necessary for continued legal education. Consequently the activities

of the legal Education Committee should be under the auspices of the Nigeria Law School as partners in the improvement of the standard of legal practice.

As a student’s union leader and the Vice President of the University of Jos Students’ Union, your boldness and sagacity leading students was well applauded. What is your assessment of students’ unionism today?

Students Unionism has lost its focus in Nigeria. Gone are the days when student unions defined National discourse. They held strong opinions about sovereignty, National Unity, activities of government and government policies. They were not shy to express their opinions strongly on National Issues. The NANS the umbrella body of students’ Union was cohesive and when they sneezed, the government of the day catches cold. Sadly, not anymore, they are now in splinters and their views are politicized and tribalised. They have been infiltrated by politicians who now use them as and when they please. I miss the days of strong, objective, well informed and articulate student unionism.

With a first degree in Political Science before your degree in Law, would you subscribe to the school of thought that a first degree should be a prerequisite for admission to study Law in Nigeria?

Law is a profession and like all profes-sions, you must have burning desire for the profession. It is that motivation that will see you overcome whatever obstacle that stands between you and the attainment of your Call to Bar. In my case I wanted to study law, political science happened; I completed a degree in political science in 1988 from University of Jos. I went ahead to apply for direct entry to study law at the University of Lagos. That year, the government of the day commenced a policy that refused graduates direct entry admission to study law. By that policy only candidates with A’Levels were entitled to direct entry admission to study law. Yours sincerely with a B.sc in Political Science went ahead to sit for A ‘Level exams, got the requisite number of points and was admitted to study law at University of Lagos. I was finally called to Bar in 1996 No thanks to all the ASUU Strikes and consequent closure of Universities.

Aside burning desire, you must have the right aptitude; a sound mind and the right training you must have a sound mind

because law is a product of reasoning and reasoning is a product of the mind. You must attend good schools with competent faculties. Attending a university that has one or two visiting professors and mostly junior lecturers can hardly give one ad-equate training to be a lawyer. Therefore 1st degree without these pre-requites will not necessarily confer an advantage on a graduate over a non-graduate in the study of law.

We live in a society with many in-adequacies and many prevalent needs admittedly. However many times too much attention is devoted to these inadequacies and gaps in planning rather than to filling and catering to them according to what we as individuals can contribute to society. You founded the Chike Okagbue Foundation (COF) in the memory of your late father Chike Nwankwo Okagbue presumably to meet some of those needs in your immediate environment. What does the Chike Okagbue Foundation focus on achieving? How is the Foundation managing to meet these needs and lastly how is it bringing these needs to the attention of those responsible for creating a societal framework for proactively catering to them?

The Chike Okagbue Foundation (COF) was set up to honor the memory of my late father, Chike Okagbue. An accom-plished businessman, a lover of education who pursued education informally. His

library could boast of the works of great philosophers, politicians and historians of our time. His love for education informed our decision to make education the main focus of COF. The Foundation awards scholarship on merit to students who have excelled in Common Entrance Examinations. Ten students are taken annually. The ten students are chosen on merit. They are offered full scholarship through Junior and Senior Secondary School Education. Twenty students have so far graduated under the auspices of the foundation; Ten last year and ten this year. We have currently 50 students in our chosen school. It is our hope that if funds are available, we will take them beyond secondary school in future. Presently the Foundation is mainly funded by me. It is also our hope and expectation that other well-meaning Nigerians will borrow a leaf from our humble effort and touch lives accordingly. Apart from Education, the Foundation also engages in other philanthropic works.

Your TV show Discourse with Chinelo has been running for more than 10 years now focusing on how the activities of government, government agencies, the organised private sector and individuals impact society. How does your platform affect or offer remedies of our prevalent societal ills?

“Healthwise” which started in 2000 was actually the forerunner of “Discourse with Chinelo.” Then it was the only Health talk show in Abuja. Healthwise made so much impact, educating and enlightening viewers on all forms of Health related issues that the Association of Resident doctors gave us an Award in 2003.

Discourse with Chinelo debuted in 2004. It was to enable us discuss issues other than health. So in addition to health related issues we now discuss law, economic and other aspects of daily living. We X-ray the activities of government agencies, ministries among others. The impact has been enormous. Take the Ombudsman for instance, so many did not know that Nigerian Ombudsman the Public Complaints Commission is up and running and that they could handle their complaints free and they get remedies. Ditto for other agencies and parastatals. On a daily basis, we are inundated by comments and inquiries from viewers seeking information. Like our slogan goes it is “public enlightenment at its best.”

"CONSEqUENTLY MEDIA TRIALS ARE IN BAD TASTE AND A VIOLATION OF THE PRESUMPTION OF INNOCENCE. SIMILARLY CHARGING SUSPECTS TO COURT AND DENYING THEM BAIL BECAUSE INVESTIGATION IS ONGOING IS A VIOLATION OF THEIR RIGHT TO PERSONAL LIBERTY"

20.09.2016 /11

michael adeniyi abiiba

Lagos State Law Prohibiting Land Related Exploitation Would Stem Violence

identified earlier above and decisively stipulates punitive sanctions for offenders.

Section 2 of the Law criminalizes the use of self-help by any person or group of persons in taking over any landed property in Lagos State. In fact, the said section covers cases where such forceful take-over had occurred before the commencement of the Law and continues three (3) months after the commencement of the Law. Where an offender is found guilty under this section, such offender is liable to ten (10) years imprisonment.

Also, under Section 3 of the Law, it is now an offence to, without lawful authority, use or threaten violence for the purpose of securing entry into any landed property either for oneself or on behalf of another. The offence carries a ten (10) year imprisonment sanction upon conviction. The section also prohibits forceful

entry with firearms, offensive weapons or any obnoxious or chemical materials. It is equally punishable to accompany such armed person into unlawful entry of a landed property or cause the injury or violation of any person in connection with the unlawful entry.

While Section 4 prohibits encroachment of a landed property and punishes same with a fine of N5,000,000.00 (Five Million Naira) or to five (5) years imprisonment or both fine and imprisonment, Section 5 prohibits the use of land agents and/or any person on a landed property for the purpose of forcefully taking over a property.

An encroacher on a landed property who is in possession of firearms, dangerous/offensive weapons thereupon is liable to ten (10) years imprisonment upon conviction under Section 7.

The challenges that come with buying and/or sell-ing of landed property are now well known in our society. In fact, scarcely will a landed property transaction and/or construction thereupon go on without one dispute/violence or

the other. It has become so customary to find more

than one person buying or purchasing a property from one or more conflicting source.

It is not strange anymore to be sacked on a lawfully purchased property where your ejectors are armed and/or portend imminent violence. One may not live to tell the tale if one is adamant.

Perhaps, your experience is milder, you have paid heavily to secure possession of a lawfully purchased property and still need to pay through your nose upon recurrent demands by the popular land owners (Omo-Oniles) for other aspects of developing your property (i.e money for foundation, “german” flooring, fencing, decking, roofing, etc.). It is more than unbearable, you will hear many say.

The bane of this menace has been the subtle thriving and unconscious institutionalization of the place/role of land grabbers and/or Omo-Oniles in the scheme of things. If you ask me, I will say they are not to blame. It is commonly said that the society without laws cannot have and/or punish any offender (ilu ti o sofin, ese o si nibe).

In Lagos State, the tide has changed and many can nurse the hope of relief as a new law emerged to ensure the protection of lawful purchasers and/or occupants of landed property from land related exploitations within the State. The Lagos State Properties Protection Law (“the Law”) became operative on August 15, 2016.

The fifteen (15) section Law covers a wide range of concerns that have been

It is criminally punishable under Section 8 to offer for sale any landed property in which the seller has no lawful title or authority to sell. A convicted offender will be punished with a fine of N500,000.00 (Five Hundred Thousand Naira) or six (6) months imprisonment or both.

Also, under Section 8, it is now an offence to sell a property to more than one buyer by the same seller/privies or to sell a land entrusted to you without the authorization of the owner. A convicted offender is liable to punishment by fine not exceeding 100% of the value of the property or to imprisonment for five (5) years or both. It should be noted that the property in this case will revert to the original owner.

Furthermore, Section 8 prohibits the sale of a family land without the concurrence of the family head and principal family members. Equally, it is unlawful to sell a government land or property without State consent. Also, it is illegal to resell a landed property, without a Court judgment nullifying an earlier sale. A convicted offender under these acts will be liable to twenty (21) years imprisonment.

Section 11 criminalizes the acts of demanding for fees or levy prior to undertaking a construction activity (i.e money for foundation, german flooring, fencing, decking, roofing, etc.) on a law-fully purchased landed property. Any such person, agent or land owning family found culpable under this section will be punished by a fine of N1,000,000.00 (One Million Naira) or two (2) years imprisonment or both.

Indeed, this Law is a right step in the right direction and an answer to the cry of many.

What must be hoped for is a conscious and sincere enforcement of the Law in Lagos State (the Task Force Unit and other Law Enforcement Agencies in the State have been saddled with the enforcement duties under Sections 12 & 13) and where other States of the Country take cue and emulate this laudable idea, our society will sure be a better place for it.

Michael Adeniyi Abiiba is a Lagos based Legal Practitioner

Lagos State Governor, Akinwunmi Ambode

emeka eze

The Media, the Law and Economic Development

by the National Assembly.For instance, the 2016 Appropriation

Act has received adequate media highlights thereby increasing citizens' participation in the budgetary process.

The media, especially the social media, has been awash with the chal-lenges arising from the budget before and after its passage. The challenges of budget padding, constituency projects, sectoral allocations and others, have been consistently brought to the public space for the contributions of Nigerians.

The recent introduction of the EMER-GENCY ECONOMIC STABILISATION BILL, 2016 by the executive for the consideration of the National Assembly in order to assume emergency powers needed to tackle some clogs in the wheel of economic development, is cur-rently trending in both the traditional and social media. The increased par-ticipation of the citizens in the analyses of the various laws that are capable of stimulating economic development are given free rein in a democracy. Free speech or freedom of expression is a fundamental right guaranteed in our constitution and one of the hallmarks of our democratic practice. It has

improved citizens' input in the legisla-tive process during public hearings and in national discourse. Under military rule, the media is gagged and the society suffers the miasma of profound societal flux that inhibits economic development.

In the build-up to the passage of the 2016 Appropriation Act, the media was awash with the alleged exclusion of the Lagos-Calabar rail project from and the inclusion of the Lagos-Kano rail project in the budget. Many representatives of the primary beneficiaries of the excluded project cried out in the media and subsequently obtained guarantees that the government will correct the anomaly. Were it not for the media exposure, and democracy, the conces-sion granted the aggrieved persons might not have been possible.

Also, currently trending in the media is the approval by the Federal Executive Council of the Medium Term Expenditure Framework (MTEF) in which the oil benchmark for the 2017 budget has been pegged at USD42.5 per barrel. The MTEF provides a content platform for appropriation for three years and the current MTEF will run

The media, which was once regarded as newspapers, jour-nals, newsletters, radio and television (otherwise known as the traditional media), has been re-defined by the social

media which includes blogs, facebook, instagram, whatsapp, tweeter, etc.

Section 22 of the 1999 Constitution (as amended) has mandated the media to hold the government responsible and accountable in matters of governance. The media has used its processes to perform its agenda-setting, surveillance and monitoring roles in order to ensure that the three estates of the realm are kept in check. Relevant laws made by the legislature, executed by the execu-tive and interpreted by the judiciary are expected to be geared towards realising the economic objectives of the federation as encapsulated by Section 16 of the Constitution. The media is key if we must translate these economic objectives to economic development. The transformation will be determined with by the quality of legislation made

from 2017-2019. It is a core provision in the Fiscal Responsibility Act of 2007. Without media input, the public will not make meaningful contributions to this economic strategy which, if properly implemented, will ensure economic development in the country.

Since the social media has become a veritable tool of citizens' participation in national discourse all over the world, the comprehension of economic jargons and their translation to economic realities by the political class are largely dependent on the role of the media.

There is, therefore, an important nexus linking the media, the law, and economic development in a democratic society. As we prepare for the 2017 Bar Conference, stakeholders have the duty to ensure that laws made are driven by the economic objectives contained in Section 16 of the Constitution with an enabling environment for the media to discharge its constitutional mandate. This is because it is only an accountable and responsible leadership that upholds democratic ideals that can translate these economic objectives to economic development in Nigeria.

Mr. Eze writes from Lagos

12/ 20.09.2016

abubakar d. sani

Alleged ‘Padding’ of Budget 2016 Shouldn’t Jinrin and Doggara be Prosecuted?

shorthand writer employed to take minutes of such evidence or proceedings or in respect of any of the matters specified in paragraph (b) of this section, by any person who was a witness before the Committee, shall be admissible in any pro-ceedings before a court or person authorised by law to take evidence unless the court or such last mentioned person is satisfied that permission has been given by the President or Speaker, as the case may be, of the House or the Chairman of the Committee (as the case may require) for such evidence to be given”.

“30. Courts not to exercise jurisdiction over acts of President, Speaker or Officer.

Neither the President or Speaker, as the case may be, of a Legislative House nor any officer of a Legislative House shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in him by or under this Act or the standing orders of the Legislative House, or by the Constitution.” (emphasis supplied).

Of the three, I submit that the last, i.e., Section 30, is problematic. This is because, by virtue of Section 4(8) of the Constitution Federal Republic of Nigeria 1999:

“The exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts by law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”.

This provision was affirmed by the Supreme Court, per Karibi-Whyte, JSC, in ADIGUN v ATT-GEN. OF OYO STATE (1987) 18 NSCC pt. 1 pg. 376 @ 399 (in relation to Sec. 4(8) of the 1979 Constitution, which is in pari materia with it).

In respect of Sections 3 and 23 of the Act, I submit as follows:

i. All members of the House, not just its officers, such as Speaker Dogara, Deputy Speaker Sulaimon Lasun, Hon. Abdulmumin Jibrin and the other dra-matis personae, i.e., Hon. Ado Doguwa and Leo Ogor, enjoy limited immunity from criminal prosecution for the alleged ‘padding’ of the budget or in respect of anything they might have said within or to the House or the Appropriation or any other Committee of the House;

ii. This protection extends to words written by them in a report to the House or the said Committee “or

in any petition, bill, resolution, motion or question brought or introduced” by them therein in respect of the 2016 Budget;

iii. Similarly, no evidence may be given in any court of law in respect of any debates or other proceedings in the House or of the minutes of evidence taken or documents laid before or proceedings or examination held, before the Appropriation Committee of the House in connection with the 2016 Budget.

That being the case, in my view, it is clear that while the reported threat of police investigation of the alleged ‘padding’ of the budget may be in order, anything beyond that, i.e., the criminal prosecution of any member of the House for alleged complicity therein, will have to contend with the said provisions of Sections 3, 23 and, possibly 30, of the Legislative Houses (Powers and Privileges) Act. However, such a possibility will, having regard to the provisions of Section 32 of the Act, depend on the discretion of the Hon. Attorney-General of the Federation, which he can only exercise “upon information given to him in writing” by Speaker Yakubu Dogara.

Finally, it may be observed, in passing, that were this spat to be going on in any of the State Houses of Assembly, the constitutional validity of the entire Legislative Houses (Powers & Privileges) Act could legitimately be challenged on the ground that, in relation to States, the Act is ultra vires the National Assembly. This is because, whilst the Act is expressed, vide Sections 2, 8(2), 32 & 33 (2)(c) thereof as ap-plicable to State Legislative Houses, i.e., Houses of Assembly of the 36 States and their members, by virtue of Section 4(2) and Item 47 of the Exclusive Legislative List of the Constitution, the National Assembly may only regulate its own powers and the privileges and immunities of its members; it is in-competent to exercise such powers in respect of State Houses of Assembly or their members. It follows that, to the extent that the National Assembly purports to regulate State Houses of Assembly, the aforesaid provisions of the Act are ultra vires, invalid, null and void. By virtue of Sec. 4(7)(a) of the Constitution, only those Houses of Assembly can validly regulate their own powers, as well as the privileges and immunities of their members.

Abubakar D. Sani is a lawyer practicing in Kano.

The ongoing feud between the Speaker of the House of Representatives and the erstwhile Chairman of the House Appropriation Committee, Hon. Abdulmumin Jibrin, over allegations (and counter-allegations) of padding the 2016 budget, has degenerated to the extent that each side is reportedly threatening to invite the EFCC, ICPC and DSS to investigate the other with

the ultimate possibility of criminal prosecution.In my opinion, the situation, once again, exposes

the seeming widespread ignorance of the legal status of Legislators, including the proceedings of the institution(s) itself, vis-a vis the criminal (and even civil) justice system. While there is no doubt that law enforcement agents such as the DSS, ICPC, EFCC, etc., can investigate anyone, including Legislators, it is also clear that, by virtue of the Sections 3, 23 & 30 of the Legislative Houses (Powers & Privileges) Act, Cap. L. 12, LFN 2004, all Legislators enjoy limited immunity from criminal and civil process while they hold that status.

In this regard, it is important to outline the aforesaid provisions of the said law herein, as follows:

“3. Immunity from proceedings.No civil or criminal proceedings may be instituted against

any member of a Legislative House - a. In respect of words spoken before that House or a

Committee thereof;b. In respect of words written in a report to that House or

to any Committee or in any petition, bill, resolution, motion or question brought or introduced by him therein”.

“23. Restriction on evidence as to certain mat-ters.

No evidence relating to any of the following matters, that is to say -

a. Debates or other proceedings in a Legislative House;b. The contents of the minutes of evidence taken or any

documents laid before a Committee of a Legislative House or any proceedings or examinations held before any such Committee, by a member or officer of the House or any

Speaker, House of Representatives, Hon. Yakubu Dogara Former Chairman, House Appropriation Committee, Hon. Abdulmumin Jibrin

20.09.2016 the Lighter side/13

court-room dramaA defendant was not happy with the way

things were going in court. So, he decided to give the judge a hard time.

Judge: where do you work?Defendant: Here and there.Judge: what do you do for a living?Defendant: this and that.Judge: take him away.Defendant: wait; when will I get out?Judge: Sooner or later.

court shorts1. lawyer: Can you see him from where

you are standing?witness: I can see his head.lawyer: Alright, where is his head?witness: Just above his shoulders.2. Judge: If this trial is interrupted by

anyone, that person will be thrown right out of this courtroom.

prisoner: Hooray for the Judge!3. prosecutor: what were you doing on

July 15 at 9 o'clock in the evening?prisoner: I was eating a hamburger.prosecutor: what were you doing at 9:30

p.m.?prisoner: I was taking a bicarbonate of

soda.prosecutor: Do you expect us to believe

you?prisoner: you would if you had eaten one

of those hamburgers.

Dear Counsel,I should have written to you earlier on this, but I didn’t

know that my problem would take this long to be solved.I worked for a foreigner and his wife as cook and steward for

six and half years. I didn’t have any problems with the couple or his children for the period I worked and lived with them.

My only worry was the very poor salary they were paying me. I got a better job in a fast-food company and told them I wanted to leave. They refused and offered to increase my salary, but I just had to leave because I also saw it as an opportunity to build a career.

To my total surprise, my former boss came with police to arrest me just three weeks in my new work place. They accused me of stealing their money, cloths and other household items. I spent four days in the cell and the police have charged the matter to court.

I am completely innocent of these accusations; they are only doing this to me out of malice, and knowing that I have no money to fight them back. They used the police to search my house and nothing was found.

What should I do? I have spent all the little savings I had on this matter. Some people advised me to beg them, but I cannot beg for a crime I didn’t commit.

L. EtukVictoria Island,Lagos.

Dear Mr. Etuk,I have heard and seen the needless pain and injustice

that some people go through due basically to ignorance.Nobody has any right to force another person to remain

in an employment against his will. When the terms of agreement are not breached or violated, an employee can lawfully and willfully leave his employment.

The law only requires that adequate notice is given by such employee to his employer as provided in the terms of his contract of employment.

You also didn’t need to spend four days in detention without bail.

But now that the police have arraigned you in court, I advice that you get a lawyer to represent you in the case. If as you hinted, you don’t have the funds to get a lawyer, there are numerous agencies and NGOs that offer pro bono legal services to indigent persons that find themselves in situations like yours.

I hereby attach with this mail a list of human rights NGOs and agencies that offer free legal services including the Legal Aid Council of Nigeria and the Office of the Public Defender (OPD) of the Lagos State Ministry of Justice.

we hold your BriefJUDE IGBANOI jude.igbanoi@thisdaylive.com

LEGAL HUMOUR

Confidentiality in Arbitration and the Freedom of Information Act 2011

The notion of confidentiality in arbitration is inherently ambiguous and potentially confusing. It has long been standard practice to include the word ‘confidentiality’ in any list of supposed benefits of arbitration. Parties agreeing to an arbitration clause therefore expect any dispute

to be resolved out of the sight of jealous competitors and inquisitive media, not to mention over-curious authorities. One wonders why many cases emanating from arbitral proceedings end up in the regular courts and why we have a lot of cases whose subject matter are arbitration ending up in the law reports in spite of the ‘confidential’ nature of arbitral proceedings.

Very little critical analysis has been brought to bear on this issue, as may readily be verified by reviewing textbooks on arbitration. Even the most comprehensive ones have little to say on this subject, except to repeat generalities which are presumed rather than proven. In recent years, a handful of cases in a number of national jurisdictions have demonstrated that the issue is indeed complex. These cases illuminate not only the absence of an explicit and absolute duty of confidentiality, but also this paradox: if they really thought it through, many parties might find it undesirable for the rule to be as comprehensive as they vaguely suppose it to be.

It is true that third parties are excluded from most types of international arbitration. But does it follow that parties are obliged not to disclose to strangers what has transpired in the arbitration? Can one really point to a positive duty on the part of participants in arbitral proceedings to maintain confidentiality? If such a duty exists what are its limits

and its practical effects? Parties may be astonished to find out that, when they actually test the matter, the rule of confidentiality is not reliable.

Although confidentiality is often cited as one of the primary advantages of arbitration, the arbitration rules of most of the best-known institutions do not require the parties to maintain the confidentiality of the arbitral proceedings, award or any documents exchanged in or created for the proceedings. The arbitration rules of some institutions do, however, impose such a confidentiality requirement on the administrator and arbitrators. Several common law countries have imposed an implied obligation of confidentiality on arbitrators and parties, while some countries’ laws (e.g. Australia and United States) impose no confidentiality requirements on parties to arbitration unless confidentiality is expressly provided for in the contract between the parties.

At one extreme, arbitral scholars believe that it is an inherent element of arbitration that there is a general duty of confidentiality. It might be seen as an important aspiration of commercial parties to deal with their disputes in a way which does not adversely affect their status in the market place through bad publicity. Many disputes also deal with confidential aspects of technology and business know-how. At the other extreme, some argue that an undue concern for confidentiality comes at the expense of transparency and the ability to promote consistency through adoption of similar logic to other arbitral tribunals.

In COMMONWEALTH OF AUSTRALIA v COCKA-TOO DOCKYARD PTY LTD [1995] 36 NSWLR 662, the Australian court concluded that whilst there was a ‘high level of confidentiality’ in arbitral proceedings, this should not prevent disclosure where the public interest was concerned. It is this concern for the public interest – and the public’s right to know’ – that has led to the erosion

of the principle of confidentiality in arbitral proceedings. Where one or both parties in an arbitral proceeding are

state parties the requirement of transparency and disclosure in the public interest will outweigh that of confidentiality. For instance it is doubtful whether it is be possible to impose a binding duty of confidentiality on government institutions in Nigeria who are parties to an arbitration in view of the enactment of the Freedom of Information Act (FOIA) 2011.

Section 1(1) of the FOIA provides that:“Notwithstanding anything contained in any other Act,

Law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in custody or possession of any public official, agency or institution howsoever described, is established.”

Section 4 of FOIA mandates a public institution, subject to some exception, to make the information available to the applicant. Where a case of wrongful denial of access is established, the defaulting officer or institution commits an offence and is liable on conviction to a fine of N500, 000.

The FOIA however provides exemption for cases where application for information will be refused. The FOIA provides that a public institution may deny an application for information that is subject to legal practitioner-client privilege; health workers-client privileges; journalism confidentiality privileges and any other professional privileges conferred by an act.

Since no Act in Nigeria has conferred any privilege or made confidentiality mandatory on parties to an arbitral proceeding, any member of the public may request to have access to an arbitral award or documents exchanged during an arbitration proceeding which are in the possession of a public official, agency or institution.

Ahmed Adetola-Kazeem, MCIArb(UK) is a member of the Chartered Institute of Arbitrators and a member of the Lagos Court of Arbitration.

ahmed adetola-Kazeem

14/ 20.09.2016

michaeL Numa michaelnuma@thecanvasscolumn.com

THE CANVASS

The Rationale behind Contractual Interpretation in International Dispute Resolution

Understanding the cultural and factual matrix of a contract is crucial to its interpreta-tion. The purpose of interpretation is a straightforward one: to understand the intention of

the parties and determine their legal rights and liabilities. However there are several jurisdictional approaches in cross-border transactions and given the multicultural composition of the various arbiters and the parties, the issue poses some interesting questions than just understanding the intention of the parties. Domestic jurisprudence will contain a set of guiding principles to be applied when deciding issues of contractual interpretation but there is considerable variation in approach in different jurisdictions. The dichotomy between legal traditions most often mentioned is the difference between the objective approach prevalent in the common law systems and the subjective approach in most civil law systems. Albeit so, two essential differences are the perspective from which the provision to be interpreted is considered, and the material that the court is permitted to consider in order to reach its decision. The subjec-tive approached is aimed at finding out the actual intention of the parties by reference to whatever evidence is available, while the objective approach is focused on identifying the objective intention of the contracting parties as expressed by the words used in the contract. This approach gives pre-em-inence to the contract document and permits only limited reference to other objective evidence of what the words used might convey to a reasonable by-stander. However many common law jurisdictions have moved away from a strict interpretation of the text of a disputed provision to permit some consideration of the wider context of the contractual arrangements. Many years ago the English Courts open the doors to permit examination of factual matrix within which the contract was signed. In the Case of PRENN v SIMMONDS (1971) 1 WLR 1381 at 1381-1384 Lord Wilberforce held thus:

“In order for the agreement … to be understood, it must be placed in its context. The time has long passed when agreements, even those under seal. Were isolated from matrix of facts which they were set and interpreted solely on internal linguistic considerations. We must … inquire beyond the language and see what the circumstances were with reference to which the words were used, and the object, appearing from those circumstances, which the person using them has in view”

This line of reasoning of applying the cultural and/or factual matrix was adopted by the Nigerian Court of Appeal, Abuja division recently in CA/A/200/2013 ATLANTIC NET-WORK LTD v ABAWA NIG LTD delivered on the 19th day of April,

2016 wherein the Court held thus:“the court did not accept that the

contract was awarded to Ericsson Company as a result of Exhibit P… the court believes that the contract was awarded to Ericsson company through the efforts of the plaintiff…”

It is instructive to note that the efforts of the plaintiff referred to in this case, is that the claimants influ-enced the award of a contract through political means, a complex telecoms contract the plaintiff had no expertise in, but the court sanctioned the enforcement of same seemingly on the premise that it is a culture in Nigeria that third parties can influence the award of contract through any means other than the laid down procurement guidelines. This much can be deduced from the Courts reasoning at Page 13 of the judgment that:

the record of appeal also does show indeed that the appellants said the respondents have connec-tions in the corridors of power, the trial court did not make that up, see DW1’S statement on oath at page 92 of the record… the plain-tiff and CSP Abdullayari Lafia (a former ADC to the Vice President) were in the corridors of power, they intimidated the 2nd respon-dent to transfer the ownership of his property situate at London as further payment….”

This decision is now on appeal to the Supreme Court, we await their attitude towards this reasoning. Similar developments have taken place in other common law jurisdic-tions, Notably Australia. Where the court looks at all extrinsic evidence to ascertain the intent of the parties, not just the documentary contract. However, two long-established areas of exclusion from admissible evidence are proving resistant to attack. The first is evidence of the parties’ pre-contract negotiations and their decla-rations of subjective intent (known in England as the exclusionary rule) and the second is evidence of the post-contract conduct of the parties (for

example, in relation to implementa-tion of the provision in question). Matters falling within these two heads are generally excluded from consideration by a court when interpreting a disputed provision. In contrast, a contextual approach , at its most extreme, involves looking at the contract as just one type of evidence of intent. In other words, a court or tribunal should be allowed to consider any extrinsic evidence that can potentially provide insight into the meaning of the provision intended by the contracting parties. Thus pre-contract negotiations and even post contract communications and conduct may be relevant.

Various policy reasons have been advanced to explain why the exclusions should remain. Such as the time and costs involved in sifting through the additional evidence relative to the parties’ use of selected pre and post contract communication to support argu-ments advanced in the case, the need for certainty and the protection of third parties who unaware of the contextual material, may understand a contractual term to mean some-thing different. Another rationale often mentioned is the safety net provided by the fact that documents excluded in relation to a dispute on contractual interpretation may be admitted in evidence via the back door in support of alternative claims for rectification of the contract (in relation to pre-contract documents) estoppel by convention (in relation to post documents). Such legal arguments are commonly used in cases involving issues of contractual interpretation albeit on the premise that, in theory, a tribunal is sup-posed to ignore that material when making a decision on the interpreta-tion issue.

Efforts have been made at an international level to agree on a common approach to interpretation. The United Nations Convention on the International Sale of Goods (CISG) contains provisions guiding

the approach to be adopted in relation to interpretation of contracts subject to the CISG. Article 8 contains the default position that the contract is to be interpreted by reference to the intention of the parties. In determining that intent, consideration is to be given to all relevant circumstances of the case including the negotiations any practices which the parties have established between themselves, usages and subse-quent conduct of the parties. Only if the common intention of the parties cannot be determined, is the court or tribunal to have recourse to an objective ap-proach, namely, the understanding that a reasonable person would have had in the same circumstances. Several com-mentaries have opined that, in practice, the primacy given to the subjective approach should not be overestimated because of the difficulty in proving actual intention.

Whether the question of interpretation is to be approached on an objective or subjective basis, parties could make submission as to the relevance of extrinsic evidence to the ascertainment of the parties’ intentions. If admitted, the tribunal could decide what weight should be attached to the material when interpreting disputed contractual provi-sions by reference to the appropriate test. Such an approach appears to meet the approval of certain members of the judiciary. In the New Zealand Case of CANTERBURY GOLD INTERNA-TIONAL LTD v YOSHIMOTO (2000) NZCA 350 at 76-77, Thomas J made the following comments when talking about the constraint imposed by the rule excluding evidence of pre-contract negotiations:

“what I am suggesting is that the rule should not be treated as an absolute and rigid rule to the point where the court is called upon to impose an interpretation which is not in accord with the parties’ actual intention. The objective basis would remain. But that basis would be enhanced by approach-ing the task of determining what the contract would convey to a reasonable person without artificially restricting the background knowledge available to the parties at the time they completed the contract…It is not remotely suggested that such evidence be received without caution. Obviously, the evidence must be reliable. No doubt documentary evidence will tend to be more reliable than oral evidence. The reason usually given to justify the exclusion of prior negotiations is that the parties’ position will change with each passing commu-nication until the final agreement which records a consensus. Those particular circumstances can be taken into account in determining the weight, if any to be given to the evidence of the prior negotiations.

The task of contractual interpretation – described as requiring the resolution of a tension between certainty and efficiency on the one hand and accuracy or fairness on the other- is an exercise in judgment. A decision as to what it is relevant or helpful to consider in exercising that judgment is just another piece of the puzzle that should be left to the arbiter to decide on the facts.

20.09.2016 /15

aderiNsoLa FagBure afagbure@yahoo.com

IN BLACK AND WHITE

Legal Advice to the CEO

In line with encouraging one’s clients in business, it may be helpful to review legislations affecting the relevant industries, with a view to identifying possible areas of reform. Companies hoping to remain competitive may constitute pressure groups towards influencing govern-ment policies which may positively affect corporate profitability and improve the operating environment. For example, indigenous shipping companies have been known to continuously champion the imple-mentation of the Cabotage Act which is expected to benefit local ship owners and the economy in general. Also, a new law is being pushed to harmonize the rules governing the activities of various arms of the insurance industry to encourage specialization. A legal adviser who can provide support to corporations along these lines will have an added advantage.

Professionals should understand that cost reduction has become even more important in recent times. No CEO will be happy to pay fines at this time and as such, would be grateful to a compliance team that ensures that the company remains up to date in its statutory obligations. It may be expedient to consider

winding up shelf subsidiaries and moribund concerns to reduce the regulatory burden on the parent company. Consolidation schemes may equally be proposed to management subsequent to a cost-benefit analysis being carried out. It is known that synergy if well managed, leads to increased performance and reduced cost. Further, it may be expedient to educate companies on the do’s and don’ts as they relate to employment. Down-sizing and salary cuts which have now become commonplace in a recession, should be handled profes-sionally to avoid the possibilities of major labour suits. Notices must be issued in accordance with the contents of the relevant employment letters. By law, employers cannot unilaterally cut an employee's pay. If, in exceptional circumstances, employees agree, they need to be aware of the implications for any subsequent redundancy payment and their pension rights. It can be worth negotiating with the Union, where one exists.

Lawyers are often responsible for drafting and reviewing agreements. Currently, it will be full hardy to adopt a hard line approach to nego-tiations, as it pays to be extremely tactical. The present may not be the

All over the world, Chief Executives are under pressure to ensure that their companies post impressive results. Being the head of an organization, no doubt comes with a great deal of

benefits as well as immense respon-sibility, particularly with the short term approach to management ap-praisals. Shareholders are constantly clamouring for improved returns keeping company executives on their toes to meet targets and projections. The current economic climate is not exactly the most favourable. Busi-nesses are struggling to remain afloat. I consequently do not particularly envy the modern CEO.

At the end of a meeting with some company top shots the other day, I came to the conclusion that there was much more than ever before, a need for consultants to truly understand the challenges of the operating environment by giving advice that would encourage the entities concerned to remain in business. This experience prompted me to put together a few tips that may be useful to management and the consultants they engage. Basically, legal opinions should not only take into consider-ation the lawfulness or otherwise of a business decision but must relate to the economic cum financial implica-tions. As external lawyers, we must not only ensure our corporate clients remain on the right side of the law, but must also be interested in the perpetuity of these establishments. This topic is relevant because profes-sionals can only hope to remain in business, if the clients being serviced are still going concerns. It is therefore most appropriate for professionals in various fields to collaborate. Lawyers, financial advisers, economists, engi-neers, doctors among others would do well to work together with the ultimate objective of ensuring client-satisfaction.

Undoubtedly, today’s CEOs will be on the lookout for consultants who can provide ingenious solutions and genuine advice. This came to play at a recent board retreat where the legal advisers of a company were asked to consider possible options for raising finance. The directors were of the view that the firm needed to raise additional capital while the legal team expressed the need for caution. Transactional advisers should be able to justify a requirement for capital injection because the solution to dwindling profit may not necessarily lie is shoring up capital. A flopped public offer is worse than none at all. In advising management on this issue therefore, it is important to choose carefully between the debt and equity options. Pro-active companies are opting for equity offers that have fixed returns, in line with investor sentiments. Bonds and preference shares have become more attractive options when compared to the typical ordinary share issues. Investors have in recent times developed a reduced risk appetite and this has taken its toll of the frequency of public offers on local and international trading floors. Clients must be made to understand the disposition of the market today.

time for an upward review in rent and other such contract consider-ation, with the slump in property prices and the increasing number of unoccupied commercial properties. Business savvy lawyers have had cause in recent times to put contract reviews on hold, in the interest of all the parties concerned. The general reluctance towards agreement reviews makes it important to ensure that water-tight contracts are drafted ab-initio. Alternative Dispute Resolu-tion Clauses should be included in all agreements, for cost effectiveness. Time-tested legal documents and codes should be drawn up such that the need for amendments is reduced, if not eliminated.

Having encouraged my colleagues as well as other professionals not to limit their interests in their clients to the fees they receive, it is necessary to appreciate the need for profes-sional advice. Even though the buck stops on the Chief Executive’s desk, it is important for the number one man to understand the importance of hav-ing a team that works, both internally and externally. Conflicts between in-house professionals and external consultants should be well-managed. Due regard should therefore be given to professional opinion.

16/ 20.09.2016

Copyright in PhotographyIntroduction

Over the years, millions of people, families, busi-nesses and even nations have used photographs to document their lives and histories. With the advent of technology, photography has be-come an increasingly lucrative business and a

primary source of income for many individu-als, with certain famous photographers such as Annie Leibovitz raking in a reported sum of 20 million US Dollars.

Despite the conspicuous growth in the industry, many photographers lose out on reaping the benefits that accrue from the legal rights in their photographs, due to sheer ignorance of the law surrounding photography and how it protects their art.

This article seeks to address the issue of legal rights in photographs as well as the protection of photographs, particularly through copyright. The article also provides information on how to determine who owns the rights to a photograph. It then proceeds to illustrate ways in which photographers can protect their works and concludes with a practical analysis of some interesting copyright cases.

Who Owns The Rights To A Photo-graph?

Firstly, in analysing copyright protection for photography, it is of paramount importance for photographers to identify the rights they have in their photographs. According to The Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC), a photographer enjoys the exclusive right to reproduce, distribute, alter, modify, publicly display, sell and publicly exhibit his work.

According to the 1887 Berne Convention for the Protection of Literary and Artistic Works (to which Nigeria is a signatory), the person who clicks the shutter of the camera is entitled to the copyright in the photograph produced. There are however two exceptions to this rule.

These are:i. Where the photographer is employed

to take the photographs (also referred to as works-for-hire), then the employer owns the copyright to the photograph (this is of course subject to the terms of the employment contract); and

ii. Where there is a contract to the contrary. That is where, for example, the photographer signs a contract or a Release Agreement with another individual granting him copyright to the photograph.

In a situation where a photographer has been commissioned to take photographs, the photographer will retain the copyright in the resulting work.

According to Sections 10 and 11 of the Nigerian Copyright Act, there are two major means of acquiring copyright in photographs- through authorship and through transmission and transfer of copyrights.

A classic and interesting case that should be brought to your attention is the case between TYSON SADLO & ANOR v B HANNAH LIMITED (2012) EWPCC 32. In this case, Tyson Sadlo, a professional photographer, was engaged by a company called Oxygen 10 Limited to conduct a photo-shoot of a popular business woman, Karren Brady. The photographs were intended for publication in Oxygen 10’s publication, Today’s Business Woman. Subsequently, a sister company to Oxygen 10 Limited called B Hannah Limited used the same photographs in its BUPA Health Magazine and on its Celebrity Angels website.

Tyson Sadlo subsequently sued B Hannah Limited for alleged infringement of copyright.

B Hannah Limited claimed that by virtue of a written document alleged to have been sent to Mr Sadlo before the photo-shoot, it owns the copyright in the photographs or alternatively that it is a joint owner. Mr Sadlo however denied receiving any such written document from B Hannah Limited

nor Oxygen 10 Limited.According to the presiding Judge, it is

important to bear in mind that it is the creativity involved in creating the photograph which is the subject of copyright. For instance, the person who sets up the scene to the photographed, the camera angles and settings, the control of the scenes at the instant at which the photograph is taken are all to be considered in determining ownership of copyright (Creation Records Limited v News Group Newspapers Limited).

The presiding Judge further held as follows:“the circumstances in the present case are

in my view insufficient to compel a finding that it is necessary to give effect to the contract Oxygen 10 should receive an assignment of the copyright. The parties had in contemplation the publication of the material in Oxygen 10’s printed publication Today’s Business Woman. It was not established that the parties had any wider use in mind at the time when the agreement was concluded by the series of emails I have referred to…. B Hannah have therefore infringed the copyrights in the photographs in that respect”.

Despite the above, photographers ought to be aware that there are certain restrictions to the use of their copyrights. One instance occurs when a person commissions a photograph for private or domestic purposes, though not the owner of the copyright, he or she has the right to object to the issuing of copies of the work to the public, broadcasting or cable-casting (Section 85(1) UK CDPA).

Another provision contained in the Berne Convention authorises persons other than the copyright owner to use the photograph in a fair way. This is also known as the ‘fair use’ doctrine.

In the 1994 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), a two-pronged test was proffered to determine and define fair use. For an act to be considered ‘fair use’, the act must be confined to certain special cases which do not:

i. Conflict with a normal exploitation of the photograph; and

ii. Unreasonably prejudice the legitimate interests of the rights holder (The Australian Law Reform Commission).

Therefore, the general public has the right to use a photograph without authorisation, as long as it is used in a fair way. An example of fair use would be a review or criticism of a photographer’s art, provided that proper recognition and credit is given to the copyright owner. Use for research, teaching and news reporting will also fall within the ambit of the doctrine.

Another area of interest as regards pho-tographic copyrights surrounds the length of time within which the photographer is entitled to enjoy his rights. According to

the Berne Convention, the photographer’s right to his photograph commences at the moment he clicks the shutter. This right is however not an indefinite one as the convention sets its lifespan at a minimum term of 25 years from the date of creation of the photograph.

Protection of Photographic CopyrightThere are a few ways by which a

photographer may protect his copyright. The first way would be to place a

copyright notification on his image. In order to do this, the photographer would need to insert the word ‘Copyright’, its abbreviation ‘Copr.’ or the symbol © on the photograph. This is then followed by the year the photograph was first published and ends with the name of the copyright owner. So for example, Mr. John E. Doe may place the following notice on his image: © 2016 John E. Doe. This may prevent unauthorised use of the photograph as it serves as a reminder that the work is protected.

Another way a photographer may protect his copyright is digitally. This is particularly relevant where such photographs would be largely accessible on the internet. The photographer may take measures making it difficult for his copyright to be infringed. In doing this, he should be careful to read the terms and conditions of the website where his images will be published to ensure that he is not giving up any rights to the photograph. The photographer can also disable the “right-click” to prevent individuals from appropriating his work without prior authorisation.

To avoid disputes over copyright ownership, it is also important for the photographer to enter into written agree-ments with their clients setting out their respective rights.

Lastly, and most importantly, the photographer may choose to register his copyright with the Nigerian Copyright Commission (NCC). Although, under Nigerian law, copyright automatically exist once an original work is created, the NCC encourages all creators of copyright works or persons who have acquired rights in such works to register the work online with the Commission. Online registration facilitates record keeping and proof of the date of creation of the work.

The certificate of notification obtained from the NCC can be used in court as evidence of ownership or proof of original content of the work.

Case AnalysisBelow are some famous and interesting

cases involving infringement on photo-graphic copyright:

1. ROGER v KOONSIn this case, Art Rogers held copyright in

a photograph he took of a couple holding some puppies. He sold the rights to use the photographs in greeting cards. Another artist, Jeff Koons proceeded to create statues based on Roger’s image. He went on to sell the statues and made significant profit on them. Rogers sued Koons for copyright infringement and Koons pleaded fair use by parody. Koons’ defense was rejected and he was ordered to pay monetary settlement to Rogers.

2. MODERN DOG DESIGN v TARGET CORPORATION

The Modern Dog case is particularly interest-ing as it is yet to be decided. The case involves a series of sketches of dogs. It was alleged that the design was used by Disney/Target on a t-shirt without authorisation. What can be said however is that using a photograph in advertising or for trade without the copyright owner’s consent may violate publishing rights, especially when it injures the economic interests of the person due to commercial exploitation.

3. ASSOCIATED PRESS v FARLEYThis case revolves around the popular Hope

poster created by the famous street artist Shephard Fairy during Barack Obama’s 2008 presidential campaign. The photograph from which the poster was derived was shot by an Associated Press freelancer named Mannie Garcia. Fairy pleaded the fair use defense. The parties eventually came to a private settlement which included splitting the profits for the work.

4. CARIOU v PRINCEForty-one photographs shot by Patrick

Cariou were modified without authorisation by appropriation artist Richard Prince for an exhibition in the Gagosian Gallery. As is common with appropriation artists, Prince claimed fair use as his defense. In 2011, the court ruled in favor of the photographer stating that the changes made by the appropriation artist were not significant enough to constitute a change in meaning.

ConclusionIn conclusion, photographers are often times

unaware of the rights and benefits that they enjoy in their photographs. In focusing on producing the art, photographers forget to explore the legal aspects of their trade. For this reason, it is important to raise awareness in the industry on copyright protection, so as to enable photographers know what rights they hold, for how long and how best to go about protecting these rights.

Yemisi Falaye and Eniola Sadare are lawyers in the entertainment law unit of the law firm of Adepetun Caxton Martins Agbor & Segun.

yemisi Falaye and eniola sadare