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Adenike Adetifa: Bail in Nigeria (3): A Matter Of Right or Not

Adenike Adetifa: Bail in Nigeria (3): A Matter Of Right or Not

by | May 23, 2016 | Uncategorized

Credit – eightballbail.com

“If a person accused of felony talk
less of a capital offence, can hide under the canopy of Section 35 of the
Constitution to escape lawful detention, then, a flood gate of escape routes to
freedom is easily made available to suspected felons and capital offenders
which will not augur well for the peace, tranquility and progress of
society”. 
  • His
    Lordship IRIKEFE JSC in ECHEAZU V C.O.P. (1974) NMLR 308 PG.314
The principle upon which an accused
person standing trial in Nigeria can be granted bail is laid out by the 1999
Constitution (as amended), statutory laws such as the Criminal Procedure Act
(“CPA”), Criminal Procedure Code (“CPC”), the Administration of Criminal
Justice Act 2015 (applicable in the Federal Capital Territory and Federal High
Court of Nigeria) which have been judicially interpreted widely in numerous
case laws, serving as a guide to Judges in the granting of applications for
bail .
The statutory provisions of CPA, CPC
& ACJA cumulatively provides that a person charged with an offence other
than capital offence which is punishable with death is entitled to be admitted
to bail. Where the offence is a capital offence, the accused is not entitled to
and would not be released on bail except by a Judge of the High Court in
certain circumstance. See Sections 340 (1), 341 (1-3) CPC; Sections 118, 119
CPA; and Sections 158 ACJA.
A person’s right to personal liberty
will be deprived where for example he has been charged with an offence and
lawfully detained in custody and is brought before a court upon reasonable
suspicion of his having committed a criminal offence; or to such extent as may
be reasonably necessary to prevent his committing a criminal offence. It is
imperative to note that the limit on such an accused person’s right to personal
liberty must be within a reasonable time and he must not be kept in such
detention for a period longer than the maximum period of imprisonment
prescribed for the offence he is being charged with. This is a constitution
guaranteed protection. This guarantee can however be curtailed if such accused
person is arrested or detained upon reasonable suspicion of having committed a
capital offence. See Section 35(7) of the 1999 Constitution (as amended).
As stated earlier, though bail is a
constitutional right, it is trite law that the grant or refusal of bail is at
the unfettered discretion of the court and such discretion must be exercised
judicially and judiciously. A person charged with a capital offence in Nigeria
punishable with death will not ordinarily be entitled to bail except he places
materials before the court to persuade the court to the exercise of its
discretion in his favour. Sections 35 (1) (c ) and 35(7) of the 1999
Constitution (as amended) clearly intended to make the provision of the
Constitution on the right to liberty of a citizen not absolute. Notwithstanding
this provision, a court can exercise its discretionary powers to grant bail
even in capital offenses where certain laid down criteria are met by the
accused. Some of the criteria the court could consider include:
  • The
    prejudice of the proper investigation of the offence if granted bail;
  • The
    serious risk of the accused escaping from justice;
  • That
    no grounds exist for believing that the accused if released would commit
    an offence;
  • The
    nature of the charge;
  • The
    strength of the exhibit which supports the charge;
  • The
    gravity of the offense allegedly committed by the accused;
  • The
    gravity of the punishment in the event of conviction;
  • The
    previous criminal record of the accused, if any;
  • The
    probability that the accused may not surrender himself for trial;
  • The
    likelihood of the accused interfering with witnesses or may suppress any
    evidence that may incriminate him;
  • The
    likelihood of further charge being brought against the accused;
  • The
    probability of guilt;
  • Detention
    for the protection of the accused;
  • The
    necessity to procure medical or social report pending final disposal of
    the case;
  • The
    prevalence of the alleged offence;
  • The
    presence of special circumstance such as prosecution’s delay; failure to
    prepare the proof of service; failure to file information against the
    accused for the alleged offence
  • The
    accused suffering from serious health disability which may occasion health
    hazard, calamity or even death if no proper medical attention is given
    etc.
All these are likely special
circumstances in which may exist to warrant the grant of bail pending trial for
a capital offense. In an application for bail, mere denial of the commission of
the offence without more is not helpful to such application. There must be
convincing facts in the application for bail sufficient to sway the court’s
mind to granting the application.
What invariably guides the courts in
granting or refusing an accused person bail is the potency or otherwise of the
proof of evidence. Surely, it is the proof of evidence, that a court will be
persuaded or dissuaded with regard to whether or not to grant or refuse bail to
an accused person; that is to see whether or not there is prima facie
evidence against the accused. In the absence of proof of evidence being place
before a court of competent jurisdiction, which will prima facie disclose the
level of culpability or otherwise of the accused person in the alleged offence
be it conspiracy and culpable homicide, such accused will most likely be
granted bail.
I hope this write up was beneficial to
you. You are welcomed to leave your questions, comments, constructive
criticism, suggestions, new ideas, contributions etc in the comment section or
my email address which is thelawdenike@gmail.com I look forward to reading
from your comments.
LEGAL AUTHORITIES USED:
  • 1999
    CONSTITUTION (AS AMENDED) OF THE FEDERAL REPUBLIC OF NIGERIA
  • CRIMINAL
    PROCEDURE ACT CAP C41 LAWS OF THE FEDERATION OF NIGERIA 2004 VOLUME 4
  • CRIMINAL
    PROCEDURE CODE
  • ADMINISTRATION
    OF CRIMINAL JUSTICE ACT 2015
  • HAMISU
    AHMED V COMMISSIONER OF POLICE, BAUCHI STATE (2012) 9 NWLR PART 1304 P.
    104
  • UGBEDE
    ALI V. THE STATE (2012) 10 NWLR PART 1309 P.589
DISCLAIMER NOTICE: This blog is a free
education material, for your general information and enlightenment purposes
ONLY. This write up, by itself does not create a Client/Attorney relationship
between yourself and the author of this blog. Readers are therefore advised to
seek professional legal counseling to their specific situation when they do
arise. This blog is protected by Intellectual Property Law and Regulations. It
may however be shared with others parties or person provided the writer’s
Authorship is always acknowledged and this disclaimer notice attached.


Ed’s Note- this article was posted by the author via thelawdenike.wordpress.com

Adenike Adetifa: Bail in Nigeria (2): Presumption Of Innocence Until Proven Guilty

Adenike Adetifa: Bail in Nigeria (2): Presumption Of Innocence Until Proven Guilty

by | May 23, 2016 | Uncategorized

Credit – cortniwaltonbailbonds.com

There is no doubt and the law is trite
as enunciated by Ba’Aba, JSC in Gwandu v. C.O.P. KEBBI STATE (2006) ALL FWLR
PT. 294 P. 537-538 that trial courts should not delve into the substantive case
at interlocutory stage because if the court is allowed to revisit the
substantive issue at any stage of the trial, it will be tantamount to the Judge
sitting on appeal on his earlier decision on the substantive matter there by
outraging the sense of justice of an independent dispassionate observer sitting
in court. 

  • His
    Lordship AGUBE JCA in ALI V. STATE (2012) 10 NWLR PT. 1309 P. 624 PARA D-E
It is trite law that an accused is
presumed innocent until his guilt is established by credible evidence. The
presumption of innocence is a constitutional right of every person as provided
in section 36(5) of the 1999 Constitution (as amended) which states that: “Every
person who is charged with a criminal offence shall be presumed to be innocent
until he is proved guilty”. In Nigeria, personal liberty of everyone is
guaranteed and can only be deprived in exceptional circumstances. These
exceptional circumstances are in Sections 35(1) (a-f) of the 1999
Constitution (as amended). Though this personal liberty guaranteed under the
constitution can be deprived in exceptional circumstances, such accused person
is not supposed to be detained for an undeterminable or endless period. The
Nigerian constitution makes provision for bail.
Bail is meant to secure the release of
a person arrested, detained or charged with the commission of a criminal
offense, in such a manner that will ensure his further attendance or appearance
in court for his trial. There have been several arguments on whether the court
should look into the fact of a case before it or proof of evidence before it in
determining an application for bail. While some lawyers have argued that
visiting the substantial issue which is the allegation of the commission of the
crime will create bias in the mind of the Judge even before the case against
him is heard, others seem to have divergent opinions about this.
Whilst not going into the merit of the
arguments canvassed by either side, it will be safe to say that there are
plethora of case law authorities which have laid down criteria for the grant of
application for bail especially in capital offenses, and there is no way those
criteria can be determined by the court if the court does not first of all look
at the strength of the evidence which supports the charge before it and
secondly, consider the probability of guilty of the accused. It is however
advised that courts should not delve into the substantive case otherwise; the
appellate court will have no option than to order a retrial before another
judge of the same jurisdiction.
The constitutional guaranteed
presumption of innocence is extant and avails an accused person, until properly
arraigned, tried and rightly convicted by a court with competent jurisdiction.
The law also imposes the duty on the prosecution to contract or controvert the
claim of an applicant for bail. Where the prosecution fails to produce strong
evidence to contradict the applicant’s claim, the court would have no bases to
refuse bail. It must however be noted that the mere fact that the prosecution
does not file a counter affidavit to oppose an application for bail is not
conclusive to admit the accused to bail on a matter of course.
The granting of bail or a refusal lies
within the discretionary power of the court which must be exercised judicially
and judiciously. The exercise of this power of court cannot be prejudiced
simply by the failure of the prosecution to file a counter affidavit or oppose
the said application for bail. Similarly, the fact that the prosecution has
filed a counter affidavit or opposed the application for bail does not conclude
the matter. Rather, these acts or omissions are mere indices that will assist
in the exercise of the said discretionary power of the court, one way or the
other.
 Finally, if it appears to the
court that there is no reasonable ground for believing that the accused person
has committed the alleged offence, but that there are stipulated basis for
further inquiry, such an accused person may not be released on bail except upon
satisfying the stipulated conditions.
I hope this write up was beneficial to
you. You are welcomed to leave your questions, comments, constructive
criticism, suggestions, new ideas, contributions etc in the comment section or
my email address which is thelawdenike@gmail.com I look forward to reading
from your comments.
DISCLAIMER NOTICE: This blog is a free
education material, for your general information and enlightenment purposes
ONLY. This write up, by itself does not create a Client/Attorney relationship
between yourself and the author of this blog. Readers are therefore advised to
seek professional legal counseling to their specific situation when they do
arise. This blog is protected by Intellectual Property Law and Regulations. It
may however be shared with others parties or person provided the writer’s
Authorship is always acknowledged and this disclaimer notice attached.

Ed’s Note: This article was published by the author via thelawdenike.wordpress.com
Adenike Adetifa – Bail in Nigeria (1): Discretionary Power Of The Court, How Exercised

Adenike Adetifa – Bail in Nigeria (1): Discretionary Power Of The Court, How Exercised

by | May 23, 2016 | Uncategorized

Credit – iuncuff.com 

“Courts are recognized and renowned
as the hallowed chambers of justice, where even-handed justice is meted out to
all and sundry, without sentiment, emotion, favoritism or being unnecessarily
embroiled in crass legalism. Additionally, constitutional and statutory
provisions which pertained to presumption of innocence and liberty of citizens
are meant to be applied and not treated as totem poles, left untouched in
sanctified and sacred deification”.

  • His
    Lordship Oredola JCA in AHMED V. C.O.P., BAUCHI STATE (2012) 9 NWLR PT.
    1304 P. 133 PARA A-B
Basically, Bail pending trial is a
constitutional right enshrined under the 1999 Constitution of the Federal
Republic of Nigeria (As Amended) to every individual. Section 35 (1) of the
Constitution provides that “ Every person shall be entitled to his personal
liberty and no person shall be deprived of such liberty save in the following
cases and in accordance with the procedure permitted by law…(quotation
continues)”.
The issue of whether or not to grant
bail to an applicant applying for bail in a court in Nigeria is entirely a
discretionary one, depending on the court hearing the application and with due
considerations being given to the materials placed before it either in the
affidavit evidence in support of the application or in opposition thereto.
Notwithstanding that the grant of bail is at the unfettered discretion of the
court, it is trite law that such discretion must however be exercise judicially
and judiciously. The term “judicially and judiciously” will be better explained
in a subsequent post but let me explain what the discretionary power of the
court means as a better understanding of same may assist an applicant in
understanding how the mind of the court works and what to expect in a his/her
given case.
The discretionary power of the court
means: a) the exercise of the judgment by a judge or a court based on what is
fair under the circumstance and guided by the rules and principles of law; (b)
a court’s power to act or not to act when a litigant is not entitled to demand
for the act as a matter of right. A judicial and judicious discretion is one
which is dictated on sound judgment, honesty, pure reason, surrounding
circumstances of the case and good conscience of the judge based on facts and
guided by the law or equitable decisions.
It is therefore safe to say that a
discretion which is not exercised judicially and judiciously is a discretion
exercised subject to the whims and caprices of the judge; based on sentiments
and extraneous conditions; fettered by the dictates of others which an
applicant can appeal against at a court of superior jurisdiction.
Let me point this out that normally in
Nigeria, where a court has exercised its discretion, an appellate court as a
matter of practice will not peremptorily or readily intervene or interfere with
the decision of the lower court, not even if it would have exercised it
discretion differently or come to a direct conclusion than the trial court. An
appellate court will only interfere with the exercise of the discretion of the
court in certain stringent circumstances which are:

1.To inquire whether or
not such discretion was exercised in accordance with the Law, the rules and
existing binding precedents on the subject matter.

2.Where such discretion
was exercised wrongly or wrongfully, to the extent that the trial court acted
under a misconception or misapprehension of law or fact by attaching weight to
irrelevant and unapproved facts;

3.Where the court
omitted to take into account factors relevant or where the discretion was
exercised or not exercised based on wrong and insufficient materials and
thereby occasioned miscarriage of justice;

4. In all other
circumstances where such exercise would have occasioned a miscarriage of
justice.

Simply put, if as an applicant, you
have reasons to believe a judge failed to exercise this discretion judicially
and judiciously, such decision can be appealed against for setting aside. 
The principle of law is that court must always maintain its prime position as
an impartial umpire and should not descend into the arena for whatever reason,
so as to favour or make a case for one of the parties before it. It is not the
function of the court to act on speculation or dabble into the realm of
conjecture.
I hope this write up was beneficial to
you. You are welcomed to leave your questions, comments, constructive
criticism, suggestions, new ideas, contributions etc in the comment section or
my email address which is thelawdenike@gmail.com I look forward to reading
from your comments.
DISCLAIMER NOTICE: This blog is a free
education material, for your general information and enlightenment purposes
ONLY. This write up, by itself does not create a Client/Attorney relationship
between yourself and the author of this blog. Readers are therefore advised to
seek professional legal counseling to their specific situation when they do
arise. This blog is protected by Intellectual Property Law and Regulations. It
may however be shared with others parties or persons provided the writer’s
Authorship is always acknowledged and this disclaimer notice attached.


Ed’s Note: This article was published by the author via thelawdenike.wordpress.com
Lammy Review of Black, Asian and Minority Ethnic (BAME) representation in the Criminal Justice System

Lammy Review of Black, Asian and Minority Ethnic (BAME) representation in the Criminal Justice System

by | May 20, 2016 | Uncategorized

In
January 2016 the Prime Minister invited David Lammy MP to find out why official
figures show that Black, Asian and Minority Ethnic (BAME) groups appear to be
over-represented at most stages of the criminal justice system, and what can be
done about it.
This
is an independent review. It aims to make sure that everyone is treated
equally, whatever their ethnicity.

 

credit – google

The
review will look at the way the CJS deals with young people and adults from
BAME backgrounds. It will address issues arising from the Crown Prosecution
Service onwards, including the court system, prisons and young offender
institutions and rehabilitation in the community. The findings should be
published in spring 2017.
The
review will be evidence-based. It will draw on the significant work already
published in this area; it will produce new statistical analysis to shed light
on the issue; and it will provide an opportunity for people to convey their
personal experiences and insights.

David Lammy wants to hear from a diverse range of voices:

  • victims
    and witnesses
  • ex-offenders
  • those
    working in the CJS
  • academics
    and NGOs
  • different
    BAME communities and
  • different
    parts of both England and Wales.

How you can take part

The
Call for Evidence provides the main way for organisations and individuals to
share views, evidence and insights. Everything submitted to the Call for
Evidence will be read.
Alternatively,
there is a Twitter hashtag – #lammyreview – which will allow people to make
more informal contributions. This hashtag will be monitored throughout the
review.
Call
for evidence
Source: www.gov.uk

Faruq Abbas – How to avoid Disputes arising from the services of an Estate Agent

Faruq Abbas – How to avoid Disputes arising from the services of an Estate Agent

by | May 20, 2016 | Uncategorized


Credit – google.com

Introduction
It is not
unusual for most adults and corporate bodies in Nigeria to have had a business
dealing with an Estate Agent for the sale, purchase or lease of a property. In
Nigeria, the fees/commission for most Estate Agents is usually 10% of the total
proceeds of sale or purchase price or rental value of the property. 

As a result of
the remuneration accruable to Estate Agents in Nigeria, it is not surprising
that Estate Agency in Nigeria is populated by all manner of characters. In
point of fact, Estate Agency in Nigeria is not regulated and anybody (including
Legal Practitioners and make-up artistes) can hold himself out to members of
the public as an Estate Agent. 
Although the
Nigerian Institution of Estate Surveyors and Valuers (NIESV) and the
Association of Estate Agents of Nigeria (AEAN) are making efforts to regulate
Estate Agency in Nigeria through the protection of property purchasers and
vendors by preventing quacks from holding out themselves as Estate Agents,
the efforts of these organizations have not achieved any significant effect.
Given that
almost everyone has to engage the services of an Estate Agent at some point, I
intend to give a bird’s eye view of how members of the public can avoid
disputes arising from the services of an Estate Agent especially with regards
to the payment of estate agency fees. In discussing this important issue, I
shall review the recent decision of the Court of Appeal in the case of S.D.V.
Nigeria Limited v. P.K.O. Ojo & Anor (2016) LPELR-40323 (“SDV’s case”). 
SUMMARY OF THE
FACTS OF S.D.V. NIGERIA LIMITED v. P.K.O. OJO & ANOR 
P.K.O. Ojo was
the 1st Respondent in this appeal and Claimant at the High Court of Lagos State
(“lower Court”). SDV Nigeria Limited was the Appellant and 1st Defendant at the
lower Court, whilst SCOA Nigeria Limited was the 2nd Respondent in the appeal
and 2nd Defendant at the lower Court.
P.K.O. Ojo, a
registered Estate Agent, claimed that he introduced a property, which was up
for sale to one Adebola Adejobi who subsequently brought the property to the
attention of the Managing Director of SDV Nigeria Limited. According to P.K.O.
Ojo, Adebola Adejobi was an employee of SDV Nigeria Limited, but in the course
of the trial of the suit, SDV Nigeria Limited established that Adebola Adejobi
was the Managing Director of its sister company (a separate legal entity) and
not its employee. SDV Nigeria Limited subsequently bought the property from
SCOA Nigeria Limited and P.K.O. Ojo requested for his Agency Fees in the sum of
$1,250,000.00 (One million, two hundred and fifty thousand US Dollars) from SDV
Nigeria Limited, but SDV Nigeria Limited rejected the request on the ground
that it did not appoint P.K.O. Ojo as its Estate Agent and P.K.O. Ojo was not
responsible for its purchase of the property.
P.K.O. Ojo
subsequently commenced an action for his agency fees against SDV Nigeria
Limited and SCOA Nigeria Limited at the High Court of Lagos State and
Honourable Justice Gbajabiamila delivered judgment in his favour by awarding
him the sum of $1,250,000.00 (One million, two hundred and fifty thousand US
Dollars) as his agency fees in respect of the purchase transaction.
SDV Nigeria
Limited (“SDV”) was dissatisfied with the decision of the High Court of Lagos
State and it filed this appeal against the said decision. The fulcrum of SDV’s
argument at the Court of Appeal was that it was not obliged to pay P.K.O. Ojo
any sum as agency fees since it did not appoint P.K.O. Ojo as its agent and it
did not become aware of the property by virtue of P.K.O. Ojo’s introduction.
SDV also contended that Adebola Adejobi was not its employee and he had no
mandate to engage the services of P.K.O Ojo as its Estate Agent. SDV further
argued that P.K.O. Ojo was unable to present any documentary or credible oral
evidence showing that he was duly appointed as an agent of SDV.
The Court of
Appeal agreed with SDV’s arguments and it consequently set aside the lower
Court’s decision principally on the following grounds:
1.    
Agency cannot be created through a third party in
between the agent and principal, and P.K.O. Ojo could not establish a credible
and direct link between himself and SDV;
2. The issue of estate agency fees is an important
element of agency relationship and P.K.O. Ojo was unable to establish that he
agreed on a particular agency fees with SDV.
  3. K.O. Ojo was unable to show that his introduction of
the property to SDV was the efficient cause that brought about the purchase of
the property by SDV.
Nimpar, JCA who
read the lead judgment of the Court of Appeal particularly held as follows: 
“Continuing on
the defect of the 1st Respondent’s case, the issue of fees was undecided
throughout the period he claimed to have acted for the Appellant. The issue of
fees is one important element which must be settled in agency relationship. In
estate agency the important element is the commission to be paid. That cannot
remain fluid or uncertain.”
Nimpar, JCA
further held thus:
“To be entitled
to commission an agent needs to go beyond merely introducing a property, I rely
on the old English case of Miller, Son & Co. v. Co. v. Ratford (1903) 19
TLR 575 where the court held thus:
“It is
important to point out that the right to commission not arise (sic) out of mere
fact that the agent had introduced a tenant or purchaser. It is not sufficient
that the introduction was causa sine qua a non. It is necessary to show that
the introduction was the efficient cause in bringing about the letting and the
sale.” 
TAKE AWAY FROM
THE COURT OF APPEAL’S DECISION IN SDV’S CASE 
The first and
major lesson from the Court of Appeal’s decision in SDV’s case is that a
Principal must have agreed on the agency fees payable to the Estate Agent prior
to the appointment of the Estate Agent and this must be documented. This is
because a Principal can shirk his obligation to pay agency fees where there was
no agreement as to the agency fees payable prior to the closing of the
transaction.
Second, where
an Estate Agent is dealing with a Principal who is a corporate body, it is
important that the Estate Agent obtains a letter of instruction from the
company, as against dealing informally with an employee/representative of the
company. This is because agency cannot be created through a third party in
between agent and principal.
In addition, in
the case of Nigeria Dynamic Ltd v. Ibrahim (2002) 8 NWLR (Pt. 768) 63
the Court of Appeal held that the mere fact that the Respondent had a
discussion with officers of the Appellant on the sale of an asphalt plant was
not enough to establish a contractual relationship between the Respondent and the
Appellant. The Court of Appeal further held that for a contractual relationship
to exist, the Respondent must prove that the officers of the company had the
authority to create a contractual relationship on behalf of the company.
Mangaji, JCA explained this point beautifully at page 86 Paragraph A-D of the
judgment where he held thus: 
“In order to
establish a legal relationship with a legal entity it takes more than a common
discussion between a party and an officer of the company in order that it may be
bound by its officer’s representation.”
It should be
noted that the Court of Appeal in SDV’s case did not make any reference to its
decision in Nigeria Dynamic Ltd v. Ibrahim (Supra), but the decision in
this case supports the decision in SDV’s case.
Third, for an
Estate Agent to be entitled to his fees, he must be able to establish that his
introduction of the property to his principal was the efficient cause that
brought about the purchase or letting of the property by the principal.
Therefore, where the principal is able to establish that he purchased the
property as a result of an external factor, the Estate Agent will not be
entitled to receive agency fees in respect of the transaction. 
Lastly,
although the law permits parties to establish an agency relationship in five
different ways, it is important for parties to always ensure that their
appointment of an Estate Agent is documented and duly acknowledged by both the
Principal and Estate Agent before the commencement of the provision of estate
agency services.
Conclusion
It is expected
that the decision in SDV’s case would help to ensure that parties who intend to
enter into an Estate Agency relationship are explicit with regards to the terms
governing their relationship. 
It should be
noted that this article is for general information only. It is not offered as
advice, on any particular matter, whether legal, procedural or otherwise. If
you have any questions about this article, please contact the author on
foa@abdu-salaamabbasandco.com
Ed’s Note – This article was originally
posted by the author here
I’m just a tenant, why do I have to tidy the premises?

I’m just a tenant, why do I have to tidy the premises?

by | May 20, 2016 | Uncategorized


The weather had
been very hot for several weeks and they all prayed and wished for rain to fall
and dampen the grounds. So when the downpour started, everyone was excited and
the relief could be felt in the air. And then the rains continued, and
continued…
…and refused to
stop. The winds also joined forces and blew ferociously. The joy residents felt
began to turn into fear, afraid that God had decided to punish them with flood
just as it happened in the days of Noah.

Anyways,
prayers were answered and the storm and rain passed.
And residents
were left to deal with the aftermath of the storm. A resident of the neighbourhood,
Mr. Ayoka’s roofs had been peeled off by the storm and his beautiful garden had
been turned into an ugly mess.
Mr. Ayoka was angry at the wind, the storm, the rain and nature in general and
stubbornly refused to clean up the mess. He insisted that nature come clean up
the mess it had caused. Mr. Ayoka’s roof had fallen on his lawn and onto the
road and 7-year old Peter who was innocently riding his bicycle fell on the
roof and sustained some injuries. Of course, Peter’s parents sued and Mr. Ayoka
was unable to avoid liability as an occupier of the property.
Occupiers’ liability is
an aspect of tort law that places a duty of care on the occupier of a property
to people who visit or trespass on his property. This means the occupier of the
premises will be held liable for any accident or incident that happens due to
his negligence, such as leaving the premises in a defective or dangerous
condition. So an occupier is responsible for people who visit his property with
or without his permission; he is liable for their safety except if the person
is a criminal.
Simply put,
occupiers’ liability helps to ensure that occupiers put their properties in
safe conditions. Where an occupier fails to do this and an innocent party
sustains an injury on his premises or property as a result of his negligence,
the occupier will be held liable.
Ed’s Note: This article was originally posted here
on the TYlegal blog.
Abimbola Laoye- Petroleum Industry Bill (P.I.B), Movement For The Eradication Of Gas Flaring In Nigeria

Abimbola Laoye- Petroleum Industry Bill (P.I.B), Movement For The Eradication Of Gas Flaring In Nigeria

by | May 19, 2016 | Uncategorized


 

Credit – www.guardian.ng

Nigeria is one of Africa’s top oil
producers and largest holder of natural gas reserves with about 187 Trillion
Cubic Feet (TCF) of proven gas reserves and 600 TCf of unproven gas
reserves[1]. This translates to the fact that Nigeria possesses huge resources,
sufficient to cover both domestic and international demand alike.  However
Nigeria’s potential and ability to harness and exploit the use of gas in its
energy sector is crippled many factors including (and not surprisingly)
political bureaucracy.[2]

Gas flaring is the burning of natural
gas produced in the process of exploration and extraction of crude oil from the
ground for the purpose of disposal of gases that are not useful (waste gas) or
because it is difficult and uneconomical to store and/or transport.
Unfortunately however, Nigeria flares 17.2 billion m3 of natural useful and
waste gas alike per year which is equivalent to approximately one quarter of
the current power consumption of the African continent.[3]
Factors responsible for gas flaring
include among others:
1.     Fiscal uncertainties
2.     Poor Energy market
3.     Lack of
infrastructure
4.     Unenforceable Anti
flaring laws and regulations
EFFECTS OF GAS FLARING
Gas flaring has been established as the
number one culprit for global warming according to the Intergovernmental Panel
on Climate Change (IPCC)[4].  Climate change also exposes us to various
health hazards ranging from cancer, respiratory problems, food poisoning to
mental disorders caused either directly or and indirectly arising from living
close to gas flaring sites. Gas flaring has also been proved to be directly
connected to the death of the agricultural sector due to chronic
atmospheric contaminants which acidify the soil and atmosphere. The impact of
pollution caused by gas flaring has spiralled into a vicious and poisonous
cycle which has a catastrophic ripple effect on the economy including loss of
funds and poor quality of life.[5]
PUTTING AN END TO GAS FLARING IN
NIGERIA.
Besides the visible decay on the
atmosphere and agriculture in the oil and gas rich regions  and on a
national level, the issue of the obvious and avoidable large scale wastage must
also be tackled.
Attempts at curbing or/and putting a
final stop to gas flaring in Nigeria have been frustrated by the Oil Companies
who simply ignore the appeals of the federal government on the issue.[6] It is
therefore trite to say that the efforts of past government regimes in putting
an end to gas flaring has been dubbed futile. It is also evident that what is
needed is not a change in laws, or mere huffs and puffs, but a change in approach
and attitude of the Federal Government and oil companies in order to achieve
better results as follows:[7]
1.     Accountability: Oil
companies must be held accountable for the amount of gas flared. In order to
achieve this, a proposal has been made for the adoption of “a satellite based
tracking system” which will monitor the amount of flared gas to among other
things put a commensurate cost to the revenue loss arising from flared gas
and estimate fines due to be paid by operators. The tracking system is also supposed
to be able to calculate the amount of unpaid fines by facility owners[8].
 In addition, the Petroleum
Industry Bill (PIB)(2012), which has been in the works for a number of years,
seeks to address the issue of gas flaring. In particular,  the Bill provides
for gas flaring measurement, as well as a specified number of days for
which a permit would be issued to an applicant company to flare gas, and the
requirement for a gas flaring plan to be submitted by all oil and gas operating
companies. 
On another note there is a
recommendation that every oil company must be required to identify and outline
the measures it has put in place to ensure that environmental damage from gas
flaring is minimal. Such policies have been adopted in the Netherlands and Norway
which have gas-flaring policies which force oil companies to cater for the
environment where they carry out exploration and exploitation of oil and gas.
Such policies will directly impact on the gas flaring by oil companies and
possibly put an end to gas flaring. [9]
1.     Passage and
enforcement of regulatory laws: The passage of the Petroleum Industry Bill
(PIB) has been pending for a long time. Although the PIB is far from being the
perfected to put an end to gas flaring in Nigeria, it is definitely a step in
the right direction.
The only exceptions to the gas flaring
rule as stated in the PIB that may be granted by the Minister of Petroleum
Resources for a period not longer than 100 days include cases of start-up
operations in an oil field, equipment failure, shut down, safety flaring or due
to inability of gas customer to off-take[10]
Although the PIB permits gas flaring in
the limited circumstances as stated above, the PIB will discourage gas flaring
by imposing stiffer penalties, and encouraging investments for utilising or
re-injecting gas.  The PIB will also put into effect modern petroleum
legal framework and align operation of the Nigerian gas sector to international
best practices and also enhance transparency in the sector.[11] The PIB is also
focused on putting in place effective measures to ensure that the laws on gas
flaring are properly implemented such that the law will not simply ignored with
impunity.[12]
 CONCLUSION.
The Nigerian oil and gas are sufficient
to cover both domestic demand and exports. The optimum exploitation of every
last drop of oil and gas resources can be achieved although the process may be
slow, it is not impossible. The passage of the PIB will be a step in the right
direction on the journey to end gas flaring; not just for to curb economic
loss, but also to put an end to the massive destruction of the land and its
people.
The time to stop is long overdue.
However putting an end to gas flaring in Nigeria has proven to be more
difficult than anticipated by the Nigerian government. This difficulty can be
said to be prolonged by the lack of political will to put an end to gas
flaring. What is required is not the mere passage or upgrade in laws but a
change in focus and attitude of the upstream sector and the government.
By: Abimbola Laoye 
       Managing Partner, H.B Balogun & Co., 
References 
[1]     Femi Asu; Nigeria
loses N170bn to gas flaring;
http://www.punchng.com/business/business-economy/nigeria-loses-n170bn-to-gas-flaring/
[2]     ibid
[3]     GAS Flaring: The
Nigerian Experience;
http://www.nigerianobservernews.com/2015/01/10/gas-flaring-nigerian-experience/#sthash.jYIjCfU7.62dWfp3a.dpbs
[4]    
ibid
[5]    
ibid
[6] By Ifeanyi Izeze; New PIB’s Dec
2012 Deadline: Why Permit Gas Flaring At All?;  http://saharareporters.com/2012/07/24/new-pib%E2%80%99s-dec-2012-deadline-why-permit-gas-flaring-all-ifeanyi-izeze
[7] Olaseni Durojaiye; Changing
Approach to Campaign against Gas Flaring in Nigeria;
http://www.thisdaylive.com/articles/changing-approach-to-campaign-against-gas-flaring-in-nigeria/209502/
[8]   ibid
[9]   Aderonke Adejugbe and Bayo Onamade; Nigeria: Gas
Flaring In Nigeria: Challenges & Investment
Opportunities;http://www.mondaq.com/Nigeria/x/331578/Oil+Gas+Electricity/Gas+Flaring+In+Nigeria+Challenges+Investment+Opportunities
[10]  By Ifeanyi Izeze; op cit
[11]  Emeka Ugwuanyi;  op cit
[12] Aderonke Adejugbe and Bayo Onamade; op cit