The Token Vol 2 Issue 3 (Anniversary Edition)

FROM THE EDITORIAL TEAM...

TAYO OYETIBO & CO IS 25 YEARS OLD! To commemorate this

landmark, this Issue of THE TOKEN has been dubbed the ‘Anniversary

Issue’. To start off this Issue, we have conducted an exclusive

interview with the Firm’s Founding Partner and Chief Counsel (The CC),

Mr Tayo Oyetibo, SAN. In his interview, the CC takes us down memory

lane and recounts the humble beginnings of Tayo Oyetibo & Co and its

twenty-five year journey so far. This Issue also covers three carefully

selected landmark cases which were handled by the Firm over the

years. These cases cover the areas of Constitutional and Administrative

law, Commercial law and Human Rights law. In one way or the other,

these cases and the decisions of the courts on them have made

indelible marks on Nigeria’s legal and socio-political landscape.

We hope you will find the contents of this Issue informative and useful.

Q u e s t i o n s o r c o m m e n t s a r e w e l c o m e a t

[email protected].

VOLUME 2 ISSUE 3 (ANNIVERSARY ISSUE)

THE

TOKEN A Newsletter of Tayo Oyetibo & Co

IN THE NEWS

Low price of oil keeps

pressure on Nigerian

banks due to significant

loans to the oil industry.

African Bar Leaders pay

courtesy visit to the office

of Tayo Oyetibo & Co as

part of activities for the

1st African Bar Leaders

Conference in Lagos.

2016 BOA Lawyers

F o o t b a l l L e a g u e

concludes with Tayo

Oyetibo & Co once again

finishing in 3rd Place and

as Best Attacking Team,

having scored the highest

number of goals.

IN THIS ISSUE

TAYO OYETIBO & CO; THE

JOURNEY SO FAR (EXCLUSIVE

INTERVIEW WITH TAYO

OYETIBO, SAN)

LEKWOT’S CASE: ESTABLISHING

THE PLACE OF THE AFRICAN

CHARTER IN NIGERIA.

UNIBIZ NIGERIA LIMITED V.

COMMERCIAL BANK CREDIT

LYONNAIS LIMITED (2003) 6

NWLR (PART 816) 402

FAWEHINMI V. INSPECTOR-

GENERAL OF POLICE: NO

IMMUNITY FROM

INVESTIGATION

WHAT OUR CLIENTS SAY ABOUT

US

2

4

5

6

7

TAYO OYETIBO & CO; THE JOURNEY SO FAR (EXCLUSIVE INTERVIEW WITH TAYO OYETIBO, SAN)

Tayo Oyetibo & Co is now 25 years old. What inspired your founding of the Firm? The Firm opened to clients sometime in February 1991. The idea was to establish a Firm that would be well grounded and

primarily focused on the area of dispute resolution, because of my background in practice. Since then, the Firm has developed to become a major Dispute Resolution Law Firm in Nigeria. How has the practice grown since then? The Practice has grown steadily. Our commercial law practice has seen the most significant growth over the years. In fact, we actually handle more commercial matters than Public Law litigation. This growth led to the restructuring of the Firm into Practice Groups. Where was the Firm’s first office location and how many staff did it start with? The first office was at number 152 Ikorodu Road, Lagos, where we occupied one wing of the top floor of the building. The Firm started with myself and one other lawyer, due to the fact that the number of briefs we had when we started were such that I could not cope alone. We also started with one litigation secretary/accountant, and an office assistant. In 2005, we moved from that location to a property acquired by the Firm at MOMOTATO HOUSE, 15 Babatunde Street, Off Ogunlana Drive, Surulere, Lagos. In 2013, we moved from Surulere to our present office location at FAITH HOUSE when MOMOTATO HOUSE could no longer comfortably accommodate the Firm’s growth. FAITH HOUSE was purpose built by the Firm for its exclusive use. It is strategically located on the Lekki-Epe Expressway in Lagos and is readily accessible to our clients and visitors. The Nigerian legal market can be very challenging. How has the Firm managed to maintain its steady growth in its first 25 years?

The most important factor has been the grace of God, which has continued to sustain the Firm all this while. But in addition to this, due to the stiff competition in the legal market, it has been important for us to ensure that we maintain our tempo in terms of our knowledge of the sector and our practice areas. We have continued to re-evaluate the services that we render and ensure that we optimise the value of what we provide to our clients. We have also made sure that we constantly review our position in terms of our contemporaries and competitors, to ensure that we remain competitive. It has equally been important for us to maintain discipline in the system and that the Firm’s core values of Integrity, Diligence, Proficiency and Professional Etiquette are not eroded along the line. We place high premium on integrity. It is number one on our core values platform. We also strive to maintain good professional relationships with the courts, colleagues and clients. How has the Firm responded to clients’ increasing need to do business across several jurisdictions as well as issues arising from cross border disputes? While we are yet to open any physical offices outside Nigeria, in order to improve service delivery to our clients with respect to their cross-border matters, Tayo Oyetibo & Co became, in 2014, the exclusive Nigerian member of PRAELEGAL, which is a network of independent law Firms in 141 countries, spread across Asia, Africa, Europe, Latin America, and North America The ultimate goal of the Network is to have membership in a total of 150 countries worldwide. Our exclusive membership of the Network enables us to effectively deal with our Clients' cross-border matters using the contacts afforded the Network. Can you tell us some memorable cases that have been handled by the Firm over the years? I will start with a case which came to us in the formative years of the Firm. It was a criminal appeal that was referred to us by a colleague. The Defendant had been convicted of armed robbery by the High Court and sentenced to death. The conviction was affirmed by the Court of Appeal and we were briefed to handle the appeal to the Supreme Court. It was a seemingly hopeless case at the time it was brought to us.

THE TOKEN VOLUME 2 ISSUE 3 (ANNIVERSARY ISSUE)

“The most

important factor has

been the grace of

God, which has

continued to sustain

the Firm all this

while”

EXCLUSIVE INTERVIEW WITH THE CHIEF COUNSEL, MR TAYO OYETIBO, SAN CONTINUED

The armed robbery was said to have been committed somewhere in Ikeja, Lagos State, but the Defendant had been arrested in Ibadan, Oyo State. At that time, armed robbery was very rampant in Nigeria, so we had the tough issue which arose from having to balance our morals, based on the perception of armed robbery, and professional ethics, which requires us not to discriminate when it comes to taking up the defence of a person accused of committing a crime. After looking at the record, we took the case and found that the identification parade that had been done was not in accordance with the law on identification parade, because the Defendant had not been paraded with other people of similar physical characteristics to his, which meant that he had stood out in the parade and was consequently picked out by the witness. We saw this as an opportunity to develop the law on identification parade and put up a very good brief at the Supreme Court. In its judgment, the Supreme Court agreed with us and held that the identification parade which had been carried out was not in accordance with the law and therefore that the Defendant had not been properly identified as the person who committed the crime. Based on this, the Defendant was discharged and acquitted. The interesting thing about this case is that, till date, we did not meet the Defendant, who at the time the case was being argued at the Supreme Court, was in prison custody.

The Firm also handled Nigeria’s first case on the enforceability of the African Charter on Human and Peoples Rights, which we did on behalf of the Constitutional Rights Project (CRP). It was the case of REGISTERED TRUSTEES OF THE CONSTITUTIONAL RIGHTS PROJECT V. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ORS. That case had to do with the conviction and condemnation of Major General Zamani Lekwot. He was to be executed after his trial at the Tribunal. In this case, a Communication was addressed to the African Commission on Human and People's Rights by the Constitutional Rights Project and on the basis of the Communication we instituted the action and got an Order, which was made by Justice Tayo Onalaja, then of the High Court of Lagos State, to restrain his execution. The Order was dispatched to the Armed Forces Ruling

Council through the Office of the Attorney General of the Federation. The case was a locus classicus on the African Charter on Human and Peoples Rights because that was the first time in Nigeria that the provisions of the Charter had been enforced by a court in terms of using a communication addressed to the Commission as a basis for instituting an action.

The acquisition of Agip oil Plc by Unipetrol was also a memorable one. There were considerable legal skirmishes which ran through the entire spectrum of the hierarchy of courts in the country. The case threw up the important question of the conditions precedent to the merger of companies under the Investment and Securities Act but unfortunately the main issues were subsumed in the technical web of the procedural issue of service of process of court by reason of which the fine issues of law of Merger and Acquisition which were raised in the case were not resolved.

Looking into the future, where do you see

Tayo Oyetibo & Co in the next 25 years?

In the short term, we are definitely looking to expand the Firm. In the future, you never can tell. Although we have a lot of space here, in the event that our present location becomes inadequate for our needs, we may start to consider moving again. Apart from that, with respect to the scope of our practice, we are looking inwards, to see how we can expand the scope of our practice to cover other areas where we have not been ‘very active’ and also improve on those areas. This involves looking at talents that we have within the Firm, who have skills in these areas that we have not maximised so far. We are also working on building our relationships with our colleagues outside Nigeria, as this strengthens our service delivery on cross-border matters. We are also working on some projects which are aimed at improving our service delivery and as time goes on, we will be unveiling some of these projects and plans. We intend to build on our strength, carry out further internal restructuring and improve on our contributions in the area of corporate social responsibility.


“In the short term,

we are definitely

looking to expand

the Firm.”

LEKWOT’S CASE: ESTABLISHING THE PLACE OF THE AFRICAN CHARTER IN NIGERIA

The African Charter on Human and Peoples Rights (the Charter) was adopted by African member states of the Organisation for African Unity (now the African Union) in 1981 with the central purpose of promoting and protecting human and peoples’ rights. In furtherance of this, the African Commission on Human and Peoples’ Rights (the Commission) was established to promote and protect human rights by, among others, investigating allegations of human rights violations as contained in Communications (i.e Complaints) by state parties and individuals and making appropriate findings and recommendations.

The Charter was domesticated into Nigerian law in 1983 via the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act Cap A9, Laws of Federation of Nigeria, 2004 (the Act) and is in force till date. By the provisions of the Act, all the provisions of the Charter have force of law and must be given full effect and be applied by all authorities and powers exercising legislative, executive or judicial powers in Nigeria.

In Nigeria, the applicability of the Charter was largely untested until the early nineties, in the

case of THE REGISTERED TRUSTEES OF THE CONSTITUTIONAL RIGHTS PROJECT V. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA: SUIT NO.M/102/93 (LEKWOT’S CASE)

In that case, Major-General Zamani Lekwot (retired), and five others had been condemned to death by the Zangon-Kataf Disturbances Tribunal for alleged civil disturbances during the Zangon-Kataf riots in Kaduna state in 1992. The Constitutional Rights Project (CRP)

dispatched a Communication to the Commission on the basis that the rights of the accused persons to a fair hearing and the presumption of innocence, as provided for by Article 7 of the African Charter, were breached by the Tribunal in its conduct of the proceedings in pursuance of which they were convicted. The Commission responded by acknowledging receipt of the Communication. The CRP also filed a suit seeking injunctive Orders of the High Court of Lagos State to restrain the FMG from carrying out the execution of the accused persons pending the decision of the Commission on the Communication.

In opposition, the FMG filed an Application to dismiss the suit, contending that the jurisdiction of the Court was ousted by virtue of the Revised Edition (Laws of the Federation of Nigeria) (Supplementary Provisions) Decree 1992 (Decree 55) which provided that no matter arising from or concerning proceedings before the Tribunal could be challenged in a High Court nor could there be any appeal from a decision of any of the Civil Disturbances Tribunals. In resolving the issue of its jurisdiction, the Court considered Decree 55 in the light of the provisions of the Act which preserved the Court’s jurisdiction and held that where there are two contradictory laws on the same issue, one ousting the jurisdiction of the Court and the other preserving the court’s jurisdiction, the court must uphold the law that preserves its jurisdiction. The Act was binding on the FMG as it had been passed into law. Moreso, ouster clauses must be construed strictly in favour of the preservation of the jurisdiction of the court.

The Court further held that that since the Charter was an international convention which created obligations for Nigeria under International law, it would prevail over any domestic legislation which was in conflict with it. The Court therefore restrained the FMG from executing the convicted persons. Lekwot’s case thus emerged as a significant interpretation of the guarantee of human rights in Nigeria at a time when human rights violations were rife in the country.

Tayo Oyetibo & Co represented the Registered Trustees of the Constitutional Rights Project in this case.


“...the court must

uphold the law that

preserves its

jurisdiction”

UNIBIZ NIGERIA LIMITED V. COMMERCIAL BANK CREDIT LYONNAIS LIMITED (2003) 6 NWLR (PART 816) 402

In this case, Unibiz Nigeria Limited (Unibiz) had obtained a secured facility from Commercial Bank Credit Lyonnais (the Bank) but had been unable to repay same despite the Bank’s repeated demands for payment. The Bank therefore appointed a Receiver in respect of Unibiz to realize the assets of the company. Due to entreaties made by Unibiz to the Bank, the Receiver did not immediately assume office. While negotiations were on-going between the parties, Unibiz instituted an action at the Federal High court claiming that it was not indebted to the Bank. Meanwhile, in a separate suit, the Bank applied ex-parte to the Federal High Court for Orders of that court directing the Receiver to take necessary steps to realize the assets of Unibiz and restraining Unibiz from preventing the Receiver from discharging his lawful duties.

The Federal High Court granted the Bank’s Application and Unibiz appealed to the Court of Appeal. The Court of Appeal entirely dismissed Unibiz’s appeal which resulted in a further appeal to the Supreme Court by Unibiz. At the Supreme Court, the issues turned on whether it was the Bank, who had appointed the Receiver, or the Receiver himself, that had the standing to sue to protect the assets forming the subject matter of the Receivership and whether the Federal High court was right to have heard and granted the Bank’s application ex-parte.

In its decision, the Supreme Court held that by the clear provisions of Section 390(1) of the Companies and Allied Matters Act, a Receiver is deemed to be an agent of the person on

whose behalf he is appointed. The Receiver having been appointed by the Bank was its agent and the Bank being the Receiver’s principal could, if it so wished, take action on behalf of its agent.

The Supreme Court, in considering the second issue as to whether the grant of the ex-parte Orders by the Federal High Court amounted to a breach of Unibiz’s right to a fair hearing, considered the provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 which is to the effect that every person is entitled to a fair hearing within a reasonable time by a court of competent jurisdiction constituted in such a manner as to secure its competence and impartiality.

The Supreme Court held that the Order made by the Federal High Court restraining Unibiz from doing anything that would prevent the Receiver from carrying out his lawful duties, being an order for interlocutory injunction, required deliberation by the court on the various issues upon which the right of the Bank to the grant of that Order depended. Furthermore, it was a final Order having been made to restrain Unibiz for an indefinite length of time. The constitutional principles of fair hearing should therefore have been observed by the Federal High Court which should have heard all the parties to be affected by the grant of the Order. Thus the Order should not have been made without hearing Unibiz or putting it on notice of the pendency of the Application.

The Apex court therefore set aside the restraining Order made against Unibiz. This case is significant because prior to this decision of the Supreme Court, upon appointment, Receivers typically rushed to court to obtain the sort of open-ended ex-parte Orders made by the Federal High Court in this case, which usually resulted in the grounding of the operations of the debtor companies. This decision essentially curtailed this practice.

Tayo Oyetibo & Co represented Unibiz in this case.


“...a Receiver is

deemed to be an

agent of the person

on whose behalf he

is appointed.”

FAWEHINMI V. INSPECTOR-GENERAL OF POLICE: NO IMMUNITY FROM INVESTIGATION

The immunity of the President and Vice-President of Nigeria as well as Governors and Deputy-Governors of the federating States from civil and criminal proceedings, arrest, imprisonment or compulsory attendance of court proceedings as enshrined in Sections 188 and 308 respectively of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) has its basis in public policy. The intention of this policy being to shield the holders of these public offices from the possible distractions that could be engendered if they had to continually defend court actions during their tenures in office. Since its inclusion in the Constitution, the immunity of these public office holders has generated unending debate, some of which was laid to rest by the Supreme Court in the landmark case of

FAWEHINMI V. INSPECTOR-GENERAL OF POLICE & ORS (2002) 7 NWLR (PT 767) 606 where the extent of the constitutional immunity was determined by that court.

In this case the Appellant, Chief Gani Fawehinmi, SAN, had written to the Inspector General of Police (IGP) requesting the IGP to investigate allegations of volunteering false information on oath, which the Appellant had levelled against the then Governor of Lagos State, Mr. Bola Ahmed Tinubu. The IGP, in his response to Appellant’s letter, relied on Sections 188 and 308 of the 1999 Constitution to decline carrying out the investigation as requested.

In reaction to the refusal of the IGP to investigate the allegations, the Appellant instituted an action in the Federal High Court (FHC) seeking, among others, a declaration that no Governor or Deputy Governor enjoyed immunity from investigation during his tenure, as well as an Order of Mandamus compelling the IGP to investigate the complaints made against Mr. Bola Ahmed Tinubu.

The FHC dismissed the suit on the basis that allegations of crime made against the Governor could not be investigated by virtue of his immunity under Section 308 of the Constitution. The Appellant's appeal to the Court of Appeal was partly upheld by that court which held that the IGP was not precluded by Section 308 of the Constitution from investigating the Governor. However, the court refused to grant an Order of Mandamus to compel the IGP to conduct the investigation, by reason of which the Appellant further appealed to the Supreme Court.

In its final judgment, the Supreme Court held that although section 308 of the Constitution grants immunity from civil and criminal proceedings to the public office holders named therein, such immunity did not completely shield them from criminal investigations, as Police investigations do not form part of criminal proceedings contemplated by the 1999 Constitution. Hence while any of the said office holders could be investigated during his term of office, he could not be prosecuted during his tenure.

This case marked a constitutional watershed in Nigerian legal landscape as it settled with finality, the debate as to whether a President, Vice-President, State Governor or Deputy-Governor could be investigated or probed in connection with an allegation of crime during his tenure in office.

Tayo Oyetibo & Co represented the Appellant, Chief Gani Fawehinmi, in this case.


“...police

investigations do

not form part of

criminal

proceedings

contemplated by

the 1999

Constitution.”

WHAT OUR CLIENTS SAY ABOUT US


“I have come to know Tayo Oyetibo

& Co, led by the seasoned Senior

Advocate, to be a Firm of

uncompromisable integrity. The

quality of service I have received over

the years has been excellent. I will

continue to recommend the Firm.”

- Chief Joe Adolo Okotie-Eboh

(Businessman, Politician,

Philanthropist)

“Congratulations to the Law Firm of Tayo Oyetibo

& Co on the 25 year milestone. Unilever Nigeria

Plc’s (formerly Lever Brothers Nigeria Plc.)

relationship with the Law Firm dates back to the

90s and we have found Tayo Oyetibo and Co. a

committed and valued partner. The Firm has been

consistent in resolving complex legal issues with

professionalism and high integrity. Unilever

Nigeria warmly wishes the Firm many more years

of great strides in the Legal Profession ”

Mrs. Bidemi Ademola

(Legal Director West Africa & Company Secretary,

Unilever Nigeria Plc)

“Like the story of the mustard seed in the Bible, Tayo Oyetibo & Co has

grown to become a leading International Law Firm in different spheres of

legal practice. The firm has a long standing relationship with Union Bank as

one of its external counsel and are known for prompt and efficient service

delivery. Integrity has always been their watch word and they have always

maintained excellence in the discharge of their services to the Bank.

Congratulations on this 25th Anniversary. It is no mean feat to continue

maintaining the lead in the competitive legal practice arena ”

- Mrs Nkoyo Oguamanam

(Head, Solicitors - Lagos Operations/HR, Union Bank of Nigeria Plc)

“Tayo Oyetibo & Co is a multi-

dimensional Law Firm that has written

its name in the annals of the Nigerian

Legal System. The Firm has enjoyed

my confidence over the years”

-Professor M.A. Fassassi

Professor of Architecture

FAITH HOUSE

Plot 6, Block 113 Lekki-Epe Expressway,

U- turn at 3rd roundabout,

Entrance by "The Lamboghini" corridor,

Lekki Phase 1

Lagos

P.O. Box 60244 Ikoyi Lagos.

Tel: (+234) (1) 7748659, 2954690, 2954691

EMAIL: [email protected]

Website: www.tayooyetibolaw.com

Follow us on twitter: @tayooyetibolaw

LinkedIn : ‘Tayo Oyetibo & Co’

Issuu: ‘Tayo Oyetibo & Co’

Tayo Oyetibo & Co is a leading Law Firm in Nigeria that provides services to a wide variety of local and international

Clients, ranging from large corporate organizations to high net-worth individuals with legal issues that require close

attention and utmost confidentiality.

The Firm is well known as one of the leading Law Firms in the area of Dispute Resolution, particularly Litigation and

Arbitration and is renowned for the strength of its Litigation practice. The practice is structured into 5 Practice Groups

namely: the Dispute Resolution Practice Group, Commercial Law Practice Group, Energy, Technology and Infrastruc-

ture (ETI) Practice Group, Legislative and Media Practice Group and Regulatory Compliance and Business Advisory

(RCBA) Practice Group and our lawyers regularly advise and represent Clients on a wide range of matters including,

amongst others, banking and finance, contracts, corporate, employment and pensions, immigration, insurance, invest-

ments, oil & gas, power, real estate and telecommunications.

Tayo Oyetibo & Co is the exclusive member of ‘PraeLegal’ in Nigeria, a global network of independent Law Firms with

membership in over 120 countries spanning five continents of Africa, Asia, Europe, North America and South America.

Our exclusive membership of ‘PraeLegal’ enables us to effectively deal with our Clients’ cross border matters using the

contacts afforded by the ‘PraeLegal’ network, in providing our Clients with a blend of local and international expertise.


THE TOKEN is designed to provide information of a general nature and is not intended as a substitute for professional or le-gal consultation or advice in a particular matter. The opinions and interpretations expressed within are those of the author only and may not reflect those of other identified parties. In no event will Tayo Oyetibo & Co be liable for any damages whatsoever arising out of the use of or reliance on the contents of this Newsletter. The Newsletter is for private circulation to the addressees only and not for re-circulation. Any form of reproduction, dissemination, copying, disclosure, modification, distribution and/or publication of this Newsletter is strictly prohibited. This Newsletter is not intended to be an advertisement or solicitation.

Editor: Mobisola Akerele, Deputy Editor: Mofesomo Tayo-Oyetibo Copyright © Tayo Oyetibo & Co. All rights reserved. Replication or redistribution of content, including by caching, framing or similar means, without the prior written consent of Tayo Oyetibo & Co, is expressly prohibited . Any questions on this Newsletter may be addressed to: [email protected]

http://www.tayooyetibolaw.com/

The Token Vol 2 Issue 3 (Anniversary Edition)

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Transcript of The Token Vol 2 Issue 3 (Anniversary Edition)