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Review of Retail Supermarket Nig. Ltd v. Citibank Nig Ltd & CBN

by Legalnaija | Mar 24, 2017 | Uncategorized

Background

Following a decision of the Federal High
Court in Suit No: FHC/L/CS/1710/2013: Kasmal International Ltd v.
Central Bank Nigeria, the Central Bank of Nigeria (CBN) issued a circular
dated January 15, 2016 to all Deposit Money Banks to the effect that stamp
duties at the rate of N50 for every payment of N1000 and above would be
applicable to all receiving accounts in the country with immediate effect.

The drastic decline in the price of crude
in the international market has adversely affected Nigeria’s economy in the
last few years due to its dependence on revenue from sale of crude oil to fund
its budget. Revenue from non-oil sectors have not been significant enough to
mitigate this harsh effect of fall in crude prices as the Federal and State
Governments have not been able to successfully diversify the nation’s economy
after decades of dependence on oil.

One of the major sources of non-oil revenue
for the Country is taxes and levies by Government at all levels. Accordingly,
the directive of the CBN is clearly an attempt to shore up revenue for the
Federal Government.

In 2013, Kasmal International Services Ltd
sued the CBN in Suit No: FHC/L/CS/1710/2013: Kasmal International Ltd
v. Central Bank Nigeria and the Deposit Money Banks in Suit
No: FHC/L/CS/1462/2013. In both cases, judgement was awarded in favour of
Kasmal International Services Ltd to the effect that stamp duty of N50 was payable
on every deposit or fund transfer of N1000 and above; and the CBN and Deposit
Money Banks were obliged to implement the deduction.

Following the decision in
FHC/L/CS/1462/2013, Standard Chartered Bank Nigeria Ltd brought an appeal vide Suit
no: CA/L/437A/2017: Standard Chartered Bank Nigeria Limited v. Kasmal
International Services Ltd & 22 Others challenging the decision of
the lower court. The Court of Appeal upheld the Appeal of Standard Chartered
Bank and set aside the decision in Suit No: FHC/L/CS/1462/2013.

Despite these decisions, the policy of
deducting N50 for every bank transaction above N1000 has continued unabated. In
2016, Retail Supermarkets Nigeria Limited brought a fresh action against
Citibank and Central Bank of Nigeria vide Suit No: FHC/L/CS/126/2016:
Retail Supermarkets Nigeria Limited v. Citibank Nigeria Limited & Central
Bank of Nigeria wherein it challenged the collection of N50 surcharge
for every N1000 transaction. A summary of the case which is the subject of this
review follows.

Facts of the case

Retail Supermarkets Nigeria Ltd
(owners/operators of Shoprite retail outlets across Nigeria) instituted an
action against Citibank and Central Bank of Nigeria on the 8th of July, 2016
praying the Federal High Court for the following orders:

1.
A
declaration that the provisions of the 2nd Defendant’s (CBN) circular reference
GEN/CBN/DMB/02/006 of 15th January, 2016 are inconsistent with Schedule 1 of
the Stamp Duties Act, Cap S8 Laws of the Federation of Nigeria and are invalid,
null and void;

2.
An
order setting aside the provisions of the circular reference GEN/CBN/DMB/02/006
of 15th January, 2016;

3.
An
order of perpetual injunction restraining the first Defendant (Citibank) either
by itself, its agents, servants, privies, assigns or any person claiming
through or deriving authority from it from taking any step to implement or from
further implementing the 2nd Defendant’s circular reference GEN/CBN/DMB/02/006
of 15th January, 2016 in relation to the Plaintiff’s bank accounts.

The argument of the Plaintiff was that
implementation of the 2nd Defendants circular reference GEN/CBN/DMB/02/006 of
15th January, 2016 by the 1st Defendant i.e. deduction of the sum of N50 for
every deposit into its account from N1000 upwards would expose it to several
financial losses.

Decision

In arriving at its decision, the Federal
High Court (Coram: Obiozor J.) relied heavily on the Court of Appeal decision
in Suit no: CA/L/437A/2017: Standard Chartered Bank Nigeria Limited v.
Kasmal International Services Ltd & 22 Others based on the
settled principle of stare decisis i.e. that lower courts are
bound by decisions of Superior Courts. In its decision, the Court of Appeal
held inter alia as follows (paraphrased):

1.
A
court of law can only enforce and apply provisions of the law which are in
existence and in force in Nigeria;

2.
There
is no provision in the Stamp Duties Act nor the Amendment to the Act conferring
powers on licensed banks in Nigeria to collect the sum of N50 for teller deposit
or fund transfer of N1000 and above. Accordingly, in the absence of any
contrary provision, the provisions of the Schedule to the Stamp Duties Act
especially item 4 clearly show that documents which evidence receipts of
monetary deposits by a bank are exempted from Stamp Duties Act. Thus, there is
no obligation to deduct stamp duty from deposits or transfers at all.

In view of the above decision of the Court
of Appeal, the Federal High Court in the case under review decided as follows:

1.
A
declaration that the provisions of the 2nd Defendants circular reference
GEN/CBN/DMB/02/006 of 15th January, 2016 are inconsistent with the provisions
of the Stamp Duties Act Cap S8 Laws of the Federation of Nigeria, 2004 and are
invalid, null and void.

2.
An
order setting aside the provisions of the 2nd Defendant’s circular reference
GEN/CBN/DMB/02/006 of 15th January, 2016.

Comment

Nigerians have been moaning since the
commencement of the implementation of the CBN circular reference
GEN/CBN/DMB/02/006 of 15th January, 2016. Although the policy has been
perceived by many as bad, insensitive and illegal, there appears to have been
no public interest law suit challenging the implementation of the directive
which has now gone on for over one year. It is important to note that the case
in review is only for the benefit of Retail Supermarkets Nigeria Limited and so
no one else can benefit from the judgement as it was not a class action.
Invariably the deduction of illegal stamp duty charges will continue on all
other accounts in the Country. It is hoped that this decision will spur a more
definitive action on this issue to restrain all the banks from continuing with
the directive of CBN with regards to illegal stamp duties deduction from all
bank accounts. A class action by citizens will be more encompassing.

Teingo
Inko-Tariah

Corporate Governance & AML Practitioner

@iamtennygee

Ed’s Note – Article was first published here.

Expansion Of Business Visa Activities in Nigeria | Dayo Adu

by Legalnaija | Mar 21, 2017 | Uncategorized

Background: This memo seeks to enlighten
Partners, business visitors to

Nigeria, companies, investors and human
resource experts on the new policy direction of the Nigeria Immigration Service
(“NIS”) in line with the 60-day national action plan for ease of doing business
in Nigeria that was approved recently by the Presidential Enabling Business
Environment Council (PEBEC).

The Policy expands on the category of
persons and activities that can be

undertaken when issued a visa at entry
point. It further allows those visiting from countries where Nigeria does not
have an embassy to obtain visas at the port of entry. The aim of the policy is
to remove bureaucratic bottleneck and encourage business travellers and
tourists.

Permissible Activities on the Business Visa
on Arrival; The permissible activities have been revised and expanded by the
NIS to cater for foreign travellers who wish to travel to Nigeria for Old
Activities: meetings, conferences, seminars.

New Activities: contract negotiation,
marketing, sales, purchase and distribution of Nigerian goods, trade fairs, job
interviews, training of Nigerians, emergency/relief work, crew members, staff
of NGOs, staff of NGOs, researchers and musical concerts”

Who qualifies; foreign travellers, Artist,
High net worth Individuals, Businessmen, business visitors, and Investors
coming to Nigeria

Implementation time frame: Immediate

New Developments further introduced by the
NIS:

· The harmonization
of multiplicity of airport arrival and departure form/cards into a single form
for all agencies of government to save foreign visitors from the current
frustrating practice of filling three different forms or more and the
decentralization of immigration services to the state commands.

· Re-issuance of
passports for change of names due to marital reasons or lost cases have been
decentralized to all state commands and foreign missions to save passport
holders from additional costs and inconvenience of travelling to the service
headquarters in Abuja.

· Additional 28
offices have been opened for issuance of residence permits in Nigeria, bringing
the issuance of Combined Expatriate Residence Permit And Aliens Cards (CERPAC)
closer to the doorstep of employers of expatriates at all 36 states and FCT.

Dayo Adu,

Partner -Famsville Solicitors

Ed’s Note – This article was first
published here.

Key Takeaways From The National Industrial Court Of Nigeria Civil Procedure Rules 2017

by Legalnaija | Mar 20, 2017 | Uncategorized

Background:

Recently, the National Industrial Court of
Nigeria (Civil Procedure) Rules, 2017 “the Rules” replaced the National
Industrial Court Rules 2007 and the Practice Direction 2012, which previously
guided procedures in the National Industrial Court. With the new Rules, the
National Industrial Court “the Court” aims to improve the administration of
justice in its proceedings. In line with this objective, the Rules incorporate
new provisions considered below.

Fast-Track
Proceedings

In keeping with the aim of achieving
quicker dispensation of justice, Fast-track proceedings have been introduced
into the Rules. Order 25 of the Rules lists the qualities required for a matter
to be placed on the Fast-track and the procedures after such placement.
However, the majority of the types of cases which qualify for Fast-track
proceedings seem to be those touching on public interest.

Deceased
Employees (Testate & Intestate)

Under the Rules, a distinction is made
between those who died testate(leaving a valid will) and those who died
intestate (without a will). For the former, the filing of any process relating
to their entitlements would attract only 25% of the filing fees. For the
latter, no discount is given. Rather, kinship would have to be proved by the
dependants. Consequently, it will be wise for employees (especially in
high-risk jobs) to draft their wills so as not to aggravate any disputes in
case of their demise. Note that an employee’s dependant may commence an action
at the Court for compensation on any matter relating to death, injury, illness
or disease that occurs in the course of the employee’s employment.

This action may be commenced at the Court
in so far as an appeal has not been filed to the Board implementing the
Employee’s Compensation Act, 2010.

Limitation
on Media Coverage of Court Proceedings

The Rules limit media coverage of the
Court’s proceedings to only matters of national importance as allowed by the
presiding Judge or the President of the Court. Legal practitioners are
prohibited from granting any press interview or making comments on any matter
which is still before the Court. These provisions are geared towards protecting
parties in cases before the Court in view of the usually sensitive nature of
the disputes.

Introduction
of Pre-Trial Conference

To promote amicable settlement of disputes,
the use of pre-trial conferences has been added to the procedural requirements
in the Court. Pre-trial proceedings can be initiated suo motu by the Court or
by any of the parties. Other Innovations: Electronic filing of processes,
Promotion of the adoption of ADR, Guidelines for sexual harassment/ Workplace
discrimination claims.

Hopefully, these new provisions will be
implemented optimally to meet their raison d’etre.

This article is written by Dayo Adu –
Partner @ Famsville Solicitors

dayo.adu@famsvillesolicitors.com

Ed’s Note – This article was first posted
here

Jurisdiction over Maritime Labour Claims – the Federal High Court or the National Industrial Court?

by Legalnaija | Mar 20, 2017 | Uncategorized

Legal jurisprudence
continues to develop and there is always an ever-growing need to fine tune the
process of dispensation of justice. The aim, more often than not, is to ensure
that the dispensation of justice is not sacrificed in the temple of justice as
a result of technicality. It is on this basis that it becomes imperative for
the substratum for maritime labour claims – jurisdiction – be discussed. The
debate herein lies in whether the Federal High Court has exclusive jurisdiction
or if the National Industrial Court has exclusive jurisdiction. There is also
the issue of what forum will best serve the objectives of the relevant party
instituting the action.

Pursuant to Section 251(G)
of the Constitution, the Federal High Court has exclusive Jurisdiction over
admiralty actions-

“any admiralty
jurisdiction, including shipping and navigation on the River Niger or River
Benue and their affluents and on such other inland waterway as may be
designated by any enactment to be an international waterway, all Federal ports,
(including the constitution and powers of the ports authorities for Federal
ports) and carriage by sea”

Section 2(3) (r) of the
Admiralty Jurisdiction Act 1991 expressly includes maritime labour claims as
part of general maritime claims. This simply means that where a crew or master
of a ship has a claim related to wages or any amount that a person is entitled
to under a contract of employment, such persons will be able to bring an action
at the Federal High Court, Nigeria. Section 5(3)(b) of the Admiralty
Jurisdiction Act 1991 empowers the master or crew member of a ship to bring an
action in rem against the ship in cases of unpaid wages. In rem proceedings
remain under the exclusive jurisdiction of the Federal High Court.

However, pursuant to the Constitution
of the Federal Republic of Nigeria (Third Alteration) 1999 (the “Constitution”)
jurisdiction over labour related matters has now been vested in the National
Industrial Court (NIC). It is however, important to note that the jurisdiction
vested on the NIC appears to be exclusive. Section 254(c) (1) of the
Constitution states that:

“Notwithstanding the
provisions of sections 251(FHC), 257 (High Court FCT), 272 (State
High Court) and anything contained in this Constitution and in
addition to such other jurisdiction as may be conferred upon it by an Act of
the National Assembly, the National Industrial Court shall have and exercise
jurisdiction to the exclusion of any other court in civil causes and matters
(a) relating to or connected with any labour, employment ….” (emphasis
mine)

From the foregoing, it is
clear that the Federal High and the NIC seem to have jurisdiction over labour
related matters in relation to maritime labour claims. This begs the question –
do the Federal High Court and NIC both have jurisdiction over maritime labour
related claims or does one have jurisdiction to the exclusion of the other.

It is trite law that the
Constitution is fons et origo; that is the provenance from which
all sub-constitutional norms derive their source and sustenance. In the event
of any conflict, it operates proprio vigore to invalidate them
as stated in Section 1(3) of the Constitution. See the case of Gov,
Ekiti State v Olubunmo pt 1551 [2017] 3 NWLR.

It is also settled law
that the language of the Constitution, where clear and unambiguous must be
given its plain and evident meaning. See PDP v Saror Court of Appeal
2012. The constitution in this case has clearly states in Section 254(c)
(1) that: Notwithstanding the provisions of sections 251(FHC),
257 (High Court FCT), 272 (State High Court …”

A careful reading and
examination of the provision of Section 254(c) of the Constitution shows that
the amendment to vest jurisdiction over labour related matters is to operate as
to exclude all courts to exercise jurisdiction in civil courses and matters to
labour related matters, and by implication maritime labour related claims.

In view of the foregoing,
and by virtue of the constitutional provision of Sections 254C(1)(a) to (m)) of
the Constitution, the provisions of the Admiralty Jurisdiction Act are null and
void to the extent that they are inconsistent with the provisions of the
Constitution by vesting jurisdiction over any labour-related issues in the
Federal High Court. It is pertinent to note that judicial pronouncement is yet
to be made in this regard. However, until a decision is made on this, legal
practitioners will continue to test the law and maybe forum shop for the best
option which will best serve the interest of their clients.

Damilola Osinuga is an
Associate in the Shipping and Oil Services practice group of Bloomfield
Law Practice, Nigeria

Ed’s Note – This article
was first published here

Legal Opinion on Whether the Comptroller General of the Nigerian Customs must wear uniform

by Legalnaija | Mar 20, 2017 | Uncategorized

Background

Upon appointment as the Nigerian Customs
Service Comptroller General by the President, Comptroller-General Hameed
Ibrahim Ali has refused to wear the uniform of the paramilitary establishment[1]
– the Nigerian Customs Service.

The attitude is a continuing one, but met a
rather strong force capable of changing it recently when the National Assembly
(exercising its power under section 89 of the 1999 Constitution) summoned the
Comptroller General to appear before it, and explain some policy put in place by
the customs service as regards custom duties to be paid by vehicles owners. It was like the National Assembly was
waiting for the Customs Comptroller
General to default in appearing in his uniform. Senator Dino Melaye (APC –
Kogi), with the support of his colleagues,
posed the question why the Comptroller General has chosen not to appear before
them in uniform to answer their questions. On Thursday, 16^th of
March, the Comptroller General was asked to leave the National Assembly, to
return next week Wednesday – 22^nd March – but by then in his
uniform. The Comptroller General has expressed his interest in seeking legal advice on whether he must wear his
uniform or otherwise in a letter he addressed to the National Assembly – dated
14^th March, 2017.

Paragraph 3 of the letter reads: “Regarding the wearing of uniform, I wish to advise that the Senate avails
itself of the legal basis of its decision to compel me to wear uniform. I am similarly seeking legal advice on
this issue, so that both the Senate and I
will operate within the proper legal framework”.

Analysis and arguments

The question this article tries to answer
is whether the Comptroller General as the (highest) Head of the Nigerian
Customs must or can be forced to wear his uniform. It must be noted that the
Comptroller General’s refusal to wear his uniform is not an attitude developed
for the purpose of his summon before the National Assembly alone. As according
to him, he has no desire to wear the uniform now or ever because “I am not
aware of any law that states I should wear uniform…”[2].

The National Assembly while reprimanding
the Comptroller General (hereinafter referred to as CG) referred to some
provisions in the Customs and Excise Management Act, 1959 (hereinafter referred
to as CEMA), and the Regulations made pursuant to it (by the President),
pursuant to section 194 of the Act. These relevant provisions would be examined
in determining whether the CG must or can be forced to wear his uniform. The
foremost relevant provision is the “Interpretation section” – section 2 of
CEMA. The term “Officer” was defined as “…any person employed in the Department
of Customs and Excise, or for the time being performing duties in relation to
customs or excise”. This provision makes the CG an officer of the Nigerian
Customs Service. Thus, arguments he, and some of his agitators are propounding
that he was “appointed” from the outside and not commissioned as the CG, and
thus not an officer of the agency is not only false, it cannot be substantiated
within legal provisions. The CG is an officer of the Nigerian Customs Service.

Other relevant provisions are in the
Customs & Excise (Preventive) Service Regulations, 1962. Now, contrary to
the references made by the National Assembly, especially Hon. Mohammed Mahmud
to Regulation 13 or 31, those provisions do not expressly mandate the CG to
wear a uniform. In fact, construing the whole of CEMA and the 1962 Regulation,
there is nowhere it was stated that the
CG must wear his uniform. This represents the strength of the CG’s argument
refusing to wear his uniform. No legal provision requires him to wear his
uniform. An argument as that he is a retired colonel of the Nigerian Army, and ‘tradition’
does not allow him to wear a paramilitary
uniform lacks merit. One Bello Haliru (a former CG) had been in the same
situation (albeit not previously in the army), and he wore the Nigerian Customs
Service uniform. Also, a former Corps Marshal of the Federal Road Safety Corps,
Haladu Hananiya who was a former Major General wore the FRSC uniform following
his appointment. So, the argument that as a retired colonel he can’t be found
wearing the Customs uniform is not a good argument, a better argument is that
there is no law expressly compelling him to wear the Customs uniform.

Despite the ongoing argument, and lack of
an express provision in the law or Regulation mandating that the CG wear a
uniform, the combined effect and interpretation of some of the provisions in the
Regulation (especially) shows that wearing of uniform
by the CG was contemplated. For example, Regulation 31 on “Clothing and
equipment” states that “Clothing and equipment shall be of such pattern and
worn in such manner as the Board shall determine.” The said board had
already mandated a uniform, and it is that uniform that the CG has refused to
wear. This provision must be understood in the light that the Regulation was
made for customs officer, and the CG has earlier been characterized as an
officer of the Nigeria Customs Service.

Also, examining Regulation 13 on “Offences
against discipline”, that Regulation states that “any member of the Service
(hereinafter referred to as “defaulter”) who is guilty of an offence
specified in the Second Schedule to these Regulations shall suffer punishment
according to the degree and nature of the offence as may be awarded in
accordance with these Regulations.” Unfortunately, in the said Schedule 2 –
which enlists likely offenses punishable
under the Regulations – refusal to wear a uniform
is not enlisted. However, section 9 of the Second Schedule describes as
indiscipline “appearing on duty, dirty or untidy in his person, arms, clothing
or accouterments.” Although this
provision does not necessitate a
mandatory wearing of uniform, it
nevertheless contemplates wearing of uniform first, followed by making it an
indiscipline not to wear a tidy one. There are other provisions in the
Regulation suggesting the wearing of the Nigerian Customs Service uniform, see
for example Regulation 22, 24, 31, and section 6 of the Second Schedule to the
Regulation.

In conclusion, the CG can be forced to wear
his uniform, the fact that same is not expressly mentioned in the Act or
Regulation does not obviate the necessity
of wearing the uniform. Although, one might be fast to chastise the legislature
for creating such lacuna, but such chastisement is rather overbroad, as the
legislature cannot be expected to have aforethought
that an officer of a paramilitary agency would refuse to wear the military garb
of the agency. Truly, there is no express provision mandating the CG to wear
his uniform, but the Regulation made pursuant to the Act regulating the Nigeria
Customs Service anticipates, contemplates, and supposes that an officer of the
agency would and should wear a uniform. This argument is further bolstered by
the idea of the meaning of the word “paramilitary” which the Nigerian Customs
Service is characterized as. At the mention of the word “military”, certain
words as “discipline”, and “uniform” pops in the mind. How can the Head of a
paramilitary body then portray ‘discipline’ when he has refused to wear a
uniform – showing allegiance and affiliation to those he heads or directs?. An
effort to ask for legal advice on whether
to wear a uniform or otherwise by the CG
is not only dead on arrival, such attitude is capable of breeding similar
attitude amongst the Nigerian Customs. The long-term
consequence would be a confusion amongst the populace of who belongs to a
military agency and who is a civilian, and insubordination might just creep in.
The CG must understand that he now has a bi-persona in the society – a civilian
and an officer of a paramilitary body. Thus, the ego falsely smuggled into the
army tradition to negate affiliation by wearing a uniform is baseless.

On the issue of illegality and radicalism,
it must be noted that while arguing for the necessity of wearing a uniform by
the CG, such argument is only viable under a Regulation, and not a law. There
is a difference between a Regulation and a law. The Customs & Excise
(Preventive) Service Regulations, 1962 is made pursuant to the President’s
power in section 194 of the CEMA, the Regulation is therefore not a law, since laws are conventionally made by the
legislature. The President is an executive. It is,
therefore, safe to say the CG’s refusal to wear a uniform is not illegal, although it might contravene the
intendment of an associated Regulation. Regulations do not have the same effect
as laws. All these supposes that the CG’s attitude is just an expression of
radicalism, and egoism, although not illegal, but contrary to regulatory
expectations.

Gbenga Odugbemi.

[1]
The today Nigerian Customs Service was moved from Ministry of Internal Affairs
back to the Ministry of Finance (where it was earlier moved) in 1992, and was
subsequently in the same year recognized as a para-military organization under
the then Head of State leadership – General Ibrahim Babangida. See: https://www.customs.gov.ng/About/historical_information.php

[2] https://www.google.com/amp/s/www.naij.com/amp/1094066-breaking-nigerian-senate-tells-customs-boss-uniform-video.html

Beyond Boko Haram: Exploring the Crisis of Definition in Nigeria’s Counter-Terrorism Legislations

by Legalnaija | Mar 15, 2017 | Uncategorized

“Let
it be told to the future world, that in the depth of winter, when nothing but hope
and virtue could survive, that the city and country, alarmed at one common
danger, came forth to meet and to repulse it” Thomas Paine, December 23, 1776

“Above
the gate of hell is the warning that all that enter should abandon hope. Less
dire but to the same effect is the warning given to those who try to define terrorism”

-David Tucker, Skirmishes at the Edge of
Empire: The United States and International Terrorism 1997

INTRODUCTION

Starting from 9/11, terrorism evolved to
new levels of savagery unheard of in history. The magnitudes of the acts (9/11)
went beyond terrorism as was

known, and statements from various capitals
around the world pointed to a need to develop new strategies to confront a new
reality (Maogoto, 2003).

Groups long contented with hijacking planes
became emboldened to launch multiple attacks at world capitals and major cities.
These attacks succeeded in in banding States together in what is now known as
the global war on terror.

Within eight years of 9/11, the world
witnessed the birth of Jama’atu Ahlis

Sunnah Lidd awatiwal Jihad (Popularly known
as Boko haram). Nigeria, long respected as a regional power, especially in ensuring
peace and stability in West Africa was ensnared in a vicious circle of violence.
At the height of its infernal reign, boko haram was able to project power
beyond its base in Sambisa forest, even into Nigeria’s capital. Despite being a
signatory to several counter-terrorism Conventions, Nigeria was legally
ill-equipped to confront terrorism. It took the country almost two years after
the first boko haram attack to enact a national legislation to punish acts of
terrorism.

The question, what is terrorism is perhaps
as old as the first terror attack. This paper explores this question,
particularly, within the Nigerian legal framework. Understanding what
constitutes terrorism is the first step in the war against terror, as it will
be futile in fighting what we don’t understand. It is our argument that the
definition of terrorism within the Nigerian legal framework leaves much to be
desired. It is our submission that there is need for a total overhaul of the
prevailing legal framework on terrorism in Nigeria.

THE CRISIS OF DEFINITION: WHAT IS TERRORISM

Growing interest in the field of terrorism
and increased funding allotted to

academic research and teachings budgets
post 9/11 has spurred and supported the publication of hundreds of books and
articles in the past few

years, many professional and academic
conferences and a general flourishing of the field (Ganor, 2009). Despite the
growth of interests in terrorism, a universally acceptable definition of terrorism
continues to elude the international community. The unanimity of States in the
fight against terrorism has not been rewarded with unanimity of definition.

The absence of a consensus definition has
precipitated what we refer to as ‘the crisis of definition’. Attempts by the
international community to define

terrorism can be traced to the League of
Nations’ 1938 Convention for the

Prevention and punishment of Terrorism.
Adopting a State-centric view, the CPPT defined terrorism as ‘criminal acts
directed against a state and intended or calculated to create a state of terror
in the minds of particular persons, or group of persons or the general public
(CPPT, 1938).

Schmid and Jongman define terrorism as “an
anxiety-inspiring method of

repeated violent action, employed by
(semi-) clandestine individual, group or state actors, for idiosyncratic,
criminal or political reasons, whereby in contrast to assassinations, the
direct targets of violence are not the main target” (Schmid & Jongman,
1988).

The United Nations General Assembly in a
1994 resolution opted to describe what terrorism is rather than offer a definition.
The Resolution described terrorism as “criminal acts intended or calculated to
provoke a state of terror in the public, a group or persons or particular persons
for political purposes”( A/RES/49/60). The definition by the General Assembly
is limited when compared to the definition offered by the UN Security Council,
which sees terrorism as “ criminal acts, including against civilians, committed
with the intent to cause death or serious bodily injury or taking of hostages,
with the purpose to provoke a state of terror in the general public, or in a
group of persons or particular persons, intimidate a population or compel a
government or an international organization to do or to abstain from doing an
act (UNSCS/RES/1566R ) .

The definition by the Security Council
eliminates the controversial elements of political or religious motivations.
This definition mirrors the position contained in the Arab League Convention
for the Suppression of Terrorism 1998. The Convention defines terrorism as “any
act of violence, whatever its motives or purposes, that occurs in advancement
of an individual or collective criminal agenda and seeking to sow panic among people,
causing fear by harming them, or placing their lives, liberty or security in
danger or seeking to cause damage to the environment, or to public or private
installations or property or to occupy or seizing them, or seeking to jeopardize
national resources”. Evolving variants of terrorism like cyber terrorism which
is devoid of violence continue to exacerbate the crisis of definition. The
availability of conflicting and competing standards further widens the rift,
thereby ensuring that attempts at advancing a consensus definition in the
nearest future remains impossible.

Definition of Terrorism within the Nigerian
Legal System

The legal framework for the suppression of
terrorism in Nigeria is essentially codified in two enactments: The Terrorism
(Prevention) Act 2011 (hereinafter TPA, 2011) and the Terrorism (Prevention)
(Amendment) 2013 (hereinafter TPA 2013). As the dreaded boko haram fanned out
from its hideouts, annexing territories in Nigeria and boldly declaring war,
policy makers in Abuja found themselves at wits end on how to stem the
dangerous tide. Having been spared the wrath of mainstream terrorism since
independence, the country had no legal framework to combat the boko haram
menace. The military offensive against the sect created a legal problem for
Nigeria. Under what laws were captured members of boko haram to be tried?
Charging them under the Criminal Code Act would have produced an absurdity as
the group had already been designated as a terrorist group by the UN Security
Council and the United States. The TPA 2011 came to create the offence of terrorism
and a myriad of related offences. The Act in an unprecedented contains no
description or definition of terrorism. The act simply defines what it considers
as ‘acts of terrorism’ which for the purposes of this work will be taken as a
definition of terrorism. Section 1 (2) of the TPA, 2011 defines “act of
terrorism” (terrorism) as an act which is deliberately done with malice
aforethought and which: (a) may seriously harm or damage a country or an
international organization;

(b) is intended or can reasonably be
regarded as having been intended

to—

(i) unduly compel a government or
international organization to perform or abstain from performing any act;

(ii) seriously intimidate a population;

(iii) seriously destabilize or destroy the
fundamental political, constitutional, economic or social structures of a
country or an international organization; or

(iv) otherwise influence such government or
international organization by intimidation or coercion; and

(i) an attack upon a person’s life which may
cause serious bodily harm or death;

(ii) kidnapping of a person;

(iii) destruction to a Government or public
facility, a transport system, an infrastructure facility, including an
information system, a fixed platform located on the continental shelf, a public
place or private property, likely to endanger human life or result in major
economic loss;

(iv) the seizure of an aircraft, ship or
other means of public or goods transport and diversion or the use of such means
of transportation for any of the purposes in paragraph (b)(iv) of this
subsection.

(v) the manufacture, possession,
acquisition, transport, supply or use of weapons, explosives or of nuclear, biological
or chemical weapons, as well as research into, and development of biological
and chemical weapons without lawful authority ;

(vi) the release of dangerous substance or
causing of fire, explosions or floods, the effect of which is to endanger human
life;

(vii) interference with or disruption of
the supply of water, power or any other fundamental natural resource, the
effect of which is to endanger human life ;

(d) an act or omission in or outside
Nigeria which constitutes an office within the scope of a counter terrorism protocols
and conventions duly ratified by Nigeria.

(1) An act which disrupts a service but is
committed in pursuance of a protest. However, demonstration or stoppage of work
is not a terrorist act within the meaning of this definition provided that the
act is not intended to result in any harm referred to in subsection (2) (b)(i),
(ii) or (iv) of this section.

The above definition extends to encompass
criminal conducts prohibited in other legislations. Hence the justified but one
–sided exclusive equation of boko haram with terrorism in Nigeria is at variance
with the TPA 2011.

The Act does not entertain the
controversial religious or political motives

usually associated with terrorism. For
instance, the crime of hostage taking which is mostly motivated by financial considerations
is designated as an act of terror by the Act. By dispensing with religious and
political considerations, the TPA2011 seeks to avoid the controversial
profiling approach adopted by Western experts in their definition of terrorism.
The TPA 2011 subjects certain persons and groups whose agenda, tactics and
ideologies differ significantly from that of book haram to its jurisdiction. It
follows that the destruction of oil installations by Niger-Delta militants (who
also engage in hostage taking) constitutes an act of terrorism under the TPA 2011.
Either by seeking to compel the government to perform an act (pay amnesty
allowances) or abstain from performing any act (withdrawal of troops from the
Niger-Delta), militants have assumed the status of terrorist within under the
Act.

The above position is evidenced by
Nigeria’s refusal to adopt the international norm which embodies a distinction
between national liberation fighters (insurgents) and terrorists. TheTPA 2011
repudiates the age-long aphorism that one man’s terrorist is another man’s freedom
fighter by advancing the argument that line between terrorism and national
liberation is invisibly thin, if not non-existent. Flowing from this, we can safely
argue that members of the Indigenous People of Biafra (IPOB) and other active
separatist groups in Nigeria are engaged in acts of terrorism. The ultimate
goal of IPOB which is secession of Biafra would seriously destabilize or
destroy the fundamental political, constitutional, economic or social structures
of Nigeria, contrary to Section 1(2) (b) iii of the TPA, 2011.

Nigeria’s approach to the crises of
definition [of terrorism] leaves much to be desired. If terrorism was a complex
phenomenon, the TPA’s definition of the term produced an even more twisted
dimension to it. Are we permitted to designate attacks by Fulani herdsmen in
Nigeria as acts of

terrorism? The answer will be in the
affirmative insofar as attacks by herdsmen intimidate a population and includes
attacks upon peoples’ lives which may cause serious bodily harm or death.

CONCLUSION

The TPAs, 2O11 and 2013 are far from
perfect. These legislations aptly represent the times in which they were enacted;
when the threat of boko haram had to be countered with everything and anything
(including hurriedly enacted counter-terrorism legislations) at Nigeria’s
disposal.

Though boko haram has been degraded, the
threat of terrorism is ever present. The war on terrorism should be waged with the
mindset of eternal vigilance. Overhauling the existing legal framework and
representing it with a comprehensive unified legislation would be a good place
to start. Such amendments should whittle down the definition of what
constitutes ‘acts of terrorism’. The present state of the TPAs, 2011, 2013
makes reading difficult. With numerous deletions, insertions and renumbering,
the Acts stand out as one of Nigeria’s most disjointed legislations.

References

Convention for the Prevention and
Punishment of Terrorism

(1938) 19 League of Journal Official Manual
23 (not in force).

Schmid, Jongman et al. Political terrorism:
a new guide to actors,

authors, concepts, data bases, theories,
and literature.

Amsterdam: North Holland, Transaction
Books, 1988.

Ganor Boaz (2009) Trends in Modern
International Terrorism,

in D. Weisburd et al. (eds.), To Protect
and To Serve: Policing in

an Age of Terrorism, Springer New York.

Maogoto Jackson, (2003) War on the Enemy:
Self-Defence and State- Sponsored

Terrorism. 4 Melbourne Journal of
International Law

United Nations General Assembly Declaration
on Measures to

Eliminate International Terrorism (1994) ,
49/

United Nations Security Council resolution
1566 (2004)

By: –

Uduak
Nsungwara

awittyud@yahoo.com

Anemuyem Akpan

aloyanem@gmail.com

www.linkedin.com/in/anemuyem-akpan-71b922120

Photo Credit – www.naij.com

Profile – Hon. Justice Walter Onnoghen GCON CJN

by Legalnaija | Mar 15, 2017 | Uncategorized

Hon. Justice W.S. Nkanu Onnoghen was born
on the 22nd December, 1950 at Okurike Town, Biase L.G.A. of Cross Rivers State.He
attended the Presbyterian Primary School, Okurike Town between 1959 and 1965.
He later proceeded to Accra, Ghana to attend Odorgorno Secondary School,
Adabraka, Accra, Ghana between 1967 and 1972 for his West African Examination
Council (WAEC) Exams.

He was at Accra Academy, Accra Ghana
between 1972 and 1974 for his WAEC (A-Levels) before proceeding to the
University of Ghana, Legon, Ghana between 1974 and 1977 to obtain his Bachelor
of Law Degree (LL.B (Hons)) and graduated with 2nd Class Upper Division.

He attended the Nigerian Law School, Victoria Island, Lagos between 1977 and
1978 for his B.L certificate.

Her previous professional appointments/positions held include:

Pupil State Counsel, Ministry of Justice,
Ikeja, Lagos, Ogun State (1978 – 1979)
Partner in the Law Firm of Effiom Ekong
& Company, Calabar (1979 – 1988)
Principal Partner/Head of Chamber of Walter
Onneghen & Associates, Calabar (1988 -1989)
High Court Judge, Cross Rivers State
Judiciary (1989 – 1998)
Chairman, Cross Rivers State Armed Robbery
and Fire Arms Tribunal (1990 – 1993)
Chairman, Judicial Enquiry into the Crisis
between Student of the University of Calabar and Obufa Esuk Orok Community,
Calabar (1996)
Chairman, Failed Bank Tribunal, Ibadan Zone (1998)
Judge, High Court of Rivers State (1992 –
2004)
Justice of the Court of Appeal (1998 – 2005)

A Fellow, Chaterred Institute of
Arbitrators, Hon. Justice W.S. Nkanu Onnoghen has attended several conferences
and seminars around the world. He is a member of the Body of Bencher and Life
Bencher.
Hon. Justice W.S. Nkanu Onnoghen was appointed a Justice of the Supreme Court
of Nigeria (JSC) since 2005 and further appointed as the Chief Justice of
Nigeria in 2017.

Infograph on Medical Negligence

by Legalnaija | Mar 15, 2017 | Uncategorized

5 Misconceptions about Tenancy Law in Nigeria | Adedunmade Onibokun

by Legalnaija | Mar 13, 2017 | Uncategorized

A lot of Nigerians have misconceptions about
some of the principles and laws regarding tenancy law. Having received quite a
number of emails over some of these areas of tenancy law, this topic will in no
small way help shed light on questions regarding tenancy laws and practice which
a number of readers might have. Here are
five misconceptions about Tenancy Law in Nigeria;

1.
Notice to Quit is
to be served after rent has expired

The first
misconception many tenants have, is that a Notice to Quit should be served
after the expiration of the tenancy, thus allowing them appropriate notice to
vacate the premises. Most who may have received
a Notice to Quit during the term of the tenancy are thus surprised and often
wonder if this is the right practice.

The Court in Akpokiniovo
v. Air Liquide Nigeria Plc. (2012) LPELR-9582(CA) held that –

“In order to be
effective a notice to quit should terminate the tenancy at the end of the
current term of the tenancy. Thus any notice given and due to end at the middle
of the term of the tenancy will be invalid.”

The above decision
in essence means that a Notice to Quit can be served at any time, the only
condition stipulated by the law is that the length of notice must terminate at
the expiry of the tenancy and not a even day before. Therefore, a Notice to Quit served within the
duration of tenancy but stated to expire after the date the tenancy is proper
and in line with the provisions of the law.

2.
Tenant is not
supposed to pay rent during the period within Notice

Another
misconception is that a tenant is not meant to pay rent within the period of Notice
given to handover possession of the property. This is not true but is generally
believed to be true by many. A property owner is entitled to collect rent when
due for the occupation of his premises and this right is also recognized by the
courts.

3.
Landlord can
recover possession by self help

Many Landlords or
property owners often result to self-help in evicting tenants which is a wrong
procedure as a Landlord may be liable to the tenant for payment of damages. Even
where a tenancy has come to an end, the landlord is not entitled to go out into
the premises and physically throw out the tenant but must give the statutory
notice required to the person in possession. Neither can such landlord try to
frustrate the tenant out the premises by actions such a removing the roof,
disconnecting water and power supply e.t.c.

4.
It is the Sheriff’s
Department of the High Court that decides tenancy issues.

The Sheriff’s
department is not a court of law and therefore cannot adjudicate over legal
matters. They are however empowered to carry out and institute court orders.

5.
A Notice to Quit
can be back dated

Many tenants have
often complained of being served a backdated Notice to Quit by their landlords
or agents. It should be noted that a Notice to Quit cannot be backdated and it
begins to count on the date the tenant was served.

All tenants and landlords must note to
always get professional advice from a lawyer as it concerns their tenancy
agreements.

Adedunmade
Onibokun, Esq.

Principal Partner

Adedunmade Onibokun & Co.

www.adedunmadeonibokun.com

Dunmade’s legal practice focuses on
corporate and commercial law, regulatory compliance, due diligence, corporate
advice and commercial transactions.

Life of a Lagos Lawyer – Silk (Episode 8)

by Legalnaija | Mar 10, 2017 | Uncategorized

I
am rounding up my workout when a phone rings, it’s my iphone so I am wondering
who has been calling me continously at 6.30am in the morning, both my home and
work phones had also rang in quick succession 3 minutes ago. The caller id says
Alhaji, one of the select few who have all my 3 numbers outside close family
members.

“Good
morning Alhaji, how are you today sir”

“Learned Silk, I am doing fine”

“How
are Hajia and the rest of the family?”

”No
problem sir, can I drop by on my way to the office this morning”

“No,
I am on my way to the airport as we speak, the President is arriving from his
vacation this morning and I may be occupied for some considerable time, can you
make dinner at the house at 7pm?”

“Yes
I can sir”

“Ok,
see you then”

“Most
obliged sir”.

Alhaji
is one of my biggest clients; he is worth over Forty Billion Dollars and made
his money from investments in companies and properties all over the world. He had
ventured into business as a young man after receiving a loan of N500,000 from his uncle and forty years
later, he had built that sum of into one of the largest companies in Africa. I
always look forward to dinner at his house in Maitama, it was custom to sit on
the floor with other members of the family and eat together. Moreover, whenever
Alhaji called, big money was involved and the retainership he was paying had earned him a right to call
me 247, even if I had to connect the call in my dreams. After texting my
Personal Assistant to ensure Enrique gets the Lear ready for 4pm. I can’t wait
to hit the office, obviously, today was going to be a great day.

Though,
I have lived in Lagos most of my life, I have never been able to get used to
the traffic and the long distance from Bourdillon to my office in VI, so for
ease of transportation, I had to buy a Boat. There is something about the sea
that keeps me upbeat during the day. As we sail over the waves, along the Lagos
Marina, my mind drifts to my 10am meeting with The Rear Admiral, as the Honourable
Ex-Minister of Defence, the CPCC was prosecuting him for a series of financial
irregularities that occurred under his watch, we had spent most of the week
conducting mock trials and judgment from the mock was to be delivered at 11am today.
He was facing up to 15 years in prison if convicted and he had made it clear,
that was not an option, so all hands were on deck for this trial, moreover, the
media coverage had been huge and there was no way my firm was going to lose
this one. Thankfully, the prosecution had done a good job of presenting little
evidence to support their 150 count charge but we were leaving no stone
unturned.

Five
hours, three meetings and one interview later. I am glad to have the office to
myself when the intercom comes on and my P.A informs me that the car is waiting
to head to the Airport. ‘Yes, Alhaji, I sigh”. Dinner at Alhaji’s residence is splendid
as always, I am quickly filled from the variety of delicacies spread across the
living room floor and Alhaji invites me to his libary. After lighting his Cuban
and settling into his arm chair, Alhaji moves on to the business of the day”

“Learned
Silk, a group of German investors are interested
in investing in my business”

‘Which
one sir?”

“The
Oil block, they hope to invest 150 million dollars if we are able to enter a
partnership”

“Are
you interested in partnering with them”

“That’s
why I called you, I want you to do a due diligence on the company and their
financials”

“No
problem sir, hope the details can be forwarded to the office in the morning”

“Yes,
first thing, also i want you to oversee the sale of my property in Houston, Texas,
it’s a gated community of condos and Mr.
Grump’s company is interested in buying, details will also be forwarded to the office”

“Consider
them done, anything else”

“That
will be all for now, let’s join the rest of the family in the movie room”

One and a half hours later at 70,000 ft above
sea level blazing back to Lagos, the hostess hands me the Satellite phone, the
President of Guinea is on the line, after a brief conversation with His
Excellency, I drop the phone and sigh deeply, like my father said ‘the only
reward for good and hard work is more work”. Grudgingly, I pick up the phone
and jasmine, the Egyptian hostess picks up, “Tell Enrique to turn around and
head for Ivory Coast”.

It’s
been a long day I say to myself as I lie back to catch some sleep.

Join us next time for
another episode of “Life of a Lagos Lawyer”. An exclusive Legalnaija series.

PLESE
NOTE: This is a work of fiction. Names, characters, places and incidents either
are products of the author’s imagination or are used fictitiously. Any
resemblance to actual events or locales or persons, living or dead, is entirely
coincidental.

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