ABSTRACT

In the
words of Beverly Agbakoba-Onyejianya; “There has been an explosion in
the Entertainment industry. It is time for the sporting industry to begin to
add value. We are a populous country, we have a young population, so there is
no reason why sports should not be bigger than it is now”.[1]The
introduction of sports law as a field has gained a lot of prominence around the
world, especially in Europe. In Nigeria however, it is yet to spread its wings,
owing to certain factors, most of which are based on the structure of the
sporting associations in the country. Also, It is yet to be realized that
sports has gone beyond mere recreational activity and is now a highly lucrative
business and a means of making money across the board,  for clubs, sponsors, footballers, agents, and
even lawyers.[2]This
Article highlights the current issues in the Sports sector and provides an
insight to the profitability and potential of sports law in Nigeria and its
possible effect on the Nigerian economy if duly exploited.

1.0 
INTRODUCTION

Sports has the capacity to be one of
the most lucrative areas for the Nigerian economy if properly explored. The
constant neglect and manipulation in that space has however limited its
potential. According to Sport for Development and Peace International
Working Group, sport has the potential to promote social integration,
gender equality, and social capital development amongst others.[3]
Sports Law touches on a variety of matters, including contract, tort, agency,
constitutional, labor, trademark, copyright, discrimination based on sex,
criminal, and tax issues.[4]
These laws vary, depending on the status of the athlete, the kind of sport, and
some laws vary for other reasons.

Sports has always been an important
part of human social existence. They have been used as forms of exercise,
sometimes just for leisure, or as a hobby. They are so ingrained in our lives
and have thus become an exciting part of our daily lives. However, in recent
time sports has transcended from pure entertainment or leisure and has now
gained commercial and economic significance, especially in the United States,
the United Kingdom and all through the European Union. Through marketing,
promotion, franchising, merchandising and brand building of professional sports
teams, teams in these countries have become more economically significant,
viable and have assumed the influences associated only with multi- national
companies. Sportsmen and women have also become more commercially important
surpassing previously existing notions with respect to their financial worth,[5]
thereby bringing value to their respective localities or countries, thus
inviting investors. There has been an evolution of the most popular sports,
such as football, tennis, basketball, cricket, car- racing, and so on into mega
international events. They have also evolved into profitable domestic sports
events like; Major League Soccer (MLS), the English Premier League (EPL) and
the Spanish La Liga. The organizers of these sporting events on the
international level have been able to reap immense financial rewards by inter
alia exploiting and leveraging on aggressive marketing campaign, taking
advantage of the marketable potential resident in these sports.[6]

According to PricewaterhouseCoopers,
the North American sports industry generated $60.5 billion in 2014, and is
expected to reach $73.5 billion by 2019. Sources of revenue include
merchandizing, sponsorship, media rights and gate receipts, which is the
biggest source of revenue. But revenue derived from media rights deals is
projected to surpass gate revenues. The industry also provides employment in
different areas ranging from the athletes to coaches, scouts, umpires,
referees, commentators, amongst others.^[7]

In Europe, the data is even
more compelling. The sports industry’s contribution to the European economy is
enormous. The industry contributes more to the European economy than
agriculture, forestry and fisheries combined. If other sectors that benefit
from sports are included, the share of the continent’s sports GVA jumps to
2.98% or 300 billion Euros. 

In terms of jobs, the sports
labour market accounts for 2.12% of the total employment in Europe, equivalent
to about 4.5 million sports-related jobs. The largest number of sports-related
jobs is in Germany, estimated at 1.5 million jobs. Sports and sport-related
activities are estimated to supply over 400,000 full-time jobs in England, or
2.3% of the country’s jobs market.[8]
Nigeria should really tap into the huge prospects of the sports sector.

2.0   LIMITING FACTORS TO THE POTENTIAL OF SPORTS IN
NIGERIA

2.1                         
Lack of Sporting and Recreational Facilities

Poor management of facilities and
lack of adequate ones are said to be largely responsible for the poor
performance of the nation’s sports men and women in both continental and world
championships, making it difficult to develop and inject fresh blood into Team
Nigeria’s contingent. It has made a country like Nigeria, with a population of
over 167million people, to keep recycling athletes for major international
competitions.[9]

2.2                         
Lack of Medical Care and Insurance

The unavailability of adequate
medical care and insurance packages for athletes on national and club
assignments has negatively affected sports in Nigeria. At the Namibian 2014
African Women’s Cup of Nations, Gloria Ofoegbu, a Nigerian player, suffered a
career-threatening injury, as reported by the Punch Newspaper, which ruled her
out of the game for two years. The player’s club could not afford the cost of
the surgery required to ensure she returned to football and Ofoegbu was left on
the sidelines for two years until a “Good Samaritan” paid for the surgery in
2016.

2.3                         
Poor Remuneration

Most football clubs take on players
from academies without the proper contractual agreements between the clubs and
the players, thus meaning that the clubs do not own the players and can
therefore lay no claim to the profits whenever a player is being sold. By
virtue of section 9(4) of the Nigeria Labour Act: “No contract shall
provide for the payment of wages at intervals exceeding one month unless the
written consent of the State Authority has been previously obtained.”

Also following is the issue of
professional footballers being owed months/years of salaries without being able
to enforce payment of their salaries, as agreed initially. One of the reasons
would be their inability to acquire the services of a lawyer, who would be able
to secure a favorable contract on their behalf, with Nigerian football clubs.

Similarly, the reluctance of clubs to
pay off players whose contracts have been terminated is also a bug wonder.  The Labour Act provides in section
11(7) that: “All wages payable in money shall be paid on or before the
expiry of any period of notice”. However, in Nigeria, most players are
rarely paid their wages after being offloaded by their clubs and that is due to
their inability to make sure they signed enforceable contracts. This has become
a major problem for Nigerian players, who are thus unable to make ends meet.[10]

2.4                         
Recycling of Old Athletes

It is not a surprise that the
country’s habit of recycling old and past athletes contributes to the lack of
improvement and growth in the Sports sector. This recycling results from the
lack of recreational and sporting facilities in primary and  secondary schools which stifles talent
discovery. It can also be as a result of the poor remuneration thereby
discouraging the youths from the consideration of participating in sports
within the country. Hence, the reason we see natives of the country playing for
other countries is attributable to the fact that it is more secure and
profitable for them. The Government should show interest and encourage the
youths by providing the necessary training facilities and opportunities and
select new athletes or players, thereby refreshing the sporting  community and expelling the aged among them
so as to enhance quality performance and create a more competitive team.

2.5                         
Insufficient Policy Regulations

The National Sports Commission
(NSC), established in 2007,[11]
is the apex Federal Government Agency charged with the responsibility of
implementing the policy and programs of the Federal Government with respect to
sports administration, management and 
facilities development, with a vision statement; “To Develop Sports
Sector to a World Class Level”.

As a commission, it has its primary
objectives enshrined in the National Sports Policy of 1989, but the
sports management structure suffered some setbacks as a result of poor or
non-implementation of the 1989 policies. Since 2007, an Executive Bill has been
put to the National Assembly for an Act in respect of the establishment of the
N.S.C. Up to this moment, this Bill has not been passed into law. The impact of
the non-passage of this Bill into law is weighty and ramifying and does not
make the NSC to be as strong as it would have been with its enabling law is in
place.[12]
It has been argued that the Nigerian National Sports Policy is a richly crafted
document which, if followed to the letter, could catapult the country into
being a sports giant. Some of the key aspects of the policy include the
co-ordination of sports development programs at all levels of government. For
instance, the Federal Government, through the National Sports Commission, is
expected to initiate programs aimed at identifying, nurturing and developing
talents through a national elite development program. This is to be done
through state sports festivals, the national sports festival, national youth
games, etc. 

2.6                         
Poor Funding/ Corruption:

Poor funding
is one of the problems inhibiting the growth of Nigerian sports.

And most
times, when funds are even made available, officials siphon the

money, leaving the athletes underfed,
underpaid and under motivated.[13]

3.0 
RECOMMENDATIONS; THE WAY FORWARD.

Fairly speaking, Sports has had an
appreciable impact on national development in Nigeria.[14]
However, there is no denying the fact that there is still more to be done in
terms of administration and providing the enabling environment for sports to
thrive. As the saying goes; Rome was not built in a day.

From the investment in sporting
facilities in the wake of the oil boom to the African Nations Cup successes in
1980 and 1994, Olympic gold medals in 1996, sport has frequently been regarded
as perhaps the most potent unifying factor in the multi-ethnic country.[15]
With the recent failures in sports competitions, there have been calls for a
revamp of sports administration.

As of 2017, the Nigerian population
was estimated to be 190.9 million.[16]
For both males and females, the median age of the country is 18.4 years of age.[17]
Agreeably, a high percentage of the population is of sport-able age.
Considering that Nigeria is ranked 7^th most populous country in the
world, it is clear that with provision and maintenance of more sporting and
recreational facilities, with improved technical competence and a clear cut and
enforceable government policy on sports development as well as government
policies encouraging parents , the sporting sector will flourish.

It becomes imperative that
professional sports clubs and sports events organizers within Nigeria not only
join this highly profitable global bandwagon but also take into consideration
the various areas of Law that have a nexus with Sports. The role of skilled
lawyers in the media, sports and entertainment sector in Nigeria cannot be
overemphasized. The most eminent legal scholars have always unanimously held
that law is necessary to keep the world running. Without law, there would be a
state of chaos. In the same vein, Sports without the governance of a body of
laws can be comparable to a football match without a referee; havoc.[18]

It would be important for
professional players, as well as clubs in Nigeria, to acquire the services of
lawyers, in order to make the footballing environment comfortable for  clubs and players as well.[19]

The National Assembly should revisit
the National Sports Commission Act, giving it the necessary organizational
empowerment to exercise discretion on matters concerning it, allowing it
exercise creativity and initiative as sports operations demand without any
unnecessary encumbrance. It is however important to note that Sports law does
not control the rules within games, this is left to the internal governing
bodies to make rules for enforcement. For example, FIFA(  stands for Federation Internationale de
Football Association, in French…put this in the footnote….use the full
English name) makes the majority of rules and regulations for football.[20]

It is argued that Nigeria would be
better served by the introduction of a sui generis intellectual
property law that will solely protect aspects of intellectual property in
Nigerian sports. This Law would be in the shape of a unique sports proprietary
rights to protect innovation and creativity in Nigerian sports. This would
ensure that Nigerian sports associations, sports events organizers, as well as
sports professionals would have a one-stop-shop for the protection of their
intellectual property rights and innovations rather than having to rely on
piecemeal protection.[21]

4.0  CONCLUSION

Nelson Mandela’s speech in 2000, that “Sport has the power to
change the world … to inspire … to unite people … create hope … is more
powerful than governments …”[22]
is reflective of the immense potential of sport in the modern day.

From a football club making profit
from commercial partnerships, sale of match day tickets, players, and other
sources of club revenue, to the kit and sporting goods manufacturers making
profit from the sale of replica kits, down to the match day steward who earns
income with his back to the game, it can be seen that the economic benefits of
commercialization of sport reach beyond the athlete and the sports club only.[23]

---

The Warri Branch of the Nigerian Bar Association (NBA) hosted its annual dinner for 2019 yesterday, 7th December. 

Distinguished members of the bar and bench as well as other distinguished guests attended the dinner, including Templars’ Senior Partner and immediate past chairman of the NBA Section on Business Law (SBL), Mr. Olumide Akpata. 

Mr  Akpata, who co-chaired the Technical Committee on Conference Planning that organised the 2019 Annual General Conference (AGC) of the NBA, commended the Warri Branch for hosting a successful dinner. He used the opportunity to highlight the sterling role of the Warri Branch under the leadership of Mike Asugo Esq. in securing the huge successes recorded by the TCCP in the 2019 AGC. 

In his reaction, Mike Asugo Esq, Chairman of the Branch, referred to Mr. Akpata as a Warri-bred lawyer who will always be a part of the Warri Branch. 

The Branch also seized the opportunity to present an award to Mr Akpata, in recognition of his stewardship and long-standing contributions to the Branch. The award was presented by G.O.K. Ebowe Esq, former Chairman of the Branch, on behalf of the leadership and membership of the Branch.

The President of the Nigerian
Bar Association, Paul Usoro SAN has presented the Quarterly score card for the Nigerian
Bar Association at its 2019 Quarter 4 NEC Meeting curren at its 2019 Quarter 4
NEC Meeting currently holding at the NBA Secretariat in Abuja today 5^th
December, 2019. 

In his speech, the President
covered some of the many victories the NBA has achieved since its last NEC
Meeting including the Annual General Conference which had a record registration
of over 12,000 delegates and the Annual General Meeting, during which the NBA Constitution
was amended to incorporate sustainable governance processes which in the
President’s words if faithfully implemented, would, amongst others, entrench
accountability and transparency in the management of the Association’s
finances. Other achievements include regularizing the Association’s Annual
Returns which had been unattended at the CAC and filing the particulars of the new
Trustees.

Furthermore, the NBA has
been able to revive the Life Assurance Policy for Lawyers, commissioned a fast
speed internet service for the NBA Secretariat and instituted both the NBA
Women’s Forum and the Young Lawyers Forum. 

Mention must also be made of
the successful Election Monitoring teams who earned a well deserving reputation
for the routinely published election monitoring reports which are now used as
reference materials by researchers, scholars, election petitioners, social
activists and the general public. 

More good news is the role
being played by the NBA in the AfCFTA Trade Negotiations being spearheaded by
the Nigerian Office for Trade Negotiations (NOTN) which set up a Nigerian Coalition
of Services Industry for the negotiation of Trade Services, same of which is Co
– Chaired by Mr. Seni Adio SAN and Irene Robinson – Ayanwale, two outstanding
legal professionals. Most certainly the inclusion of Mrs. Mfon Usoro as the
Trade Expert in those negotiations is also worthy of mention as Mfon USoro has
always carried the flag high for the NBA in the past years. 

Most certainly, the NBA is
going in the right direction with the Honorable President, Paul Usoro SAN.

Did you know it is an offence for hospitals and health care givers to refuse a person emergency medical treatment for any reason.

Also such act can be a ground for medical negligence.

Learn and share

#nigerianlawyers #nigerianblawg #medicalnegligence 

@Legalnaija 

Nigeria is not a party to the Apostille Convention which specifies the modalities through which a document issued in one of the signatory countries (to the Apostille Convention) can be certified for legal purposes in all the other signatory states.

We have highlighted below what a typical document legalization exercise will entail for use abroad:

• Notarization: notarization is the official fraud-deterrent process that assures the parties of a transaction that a document is authentic, and can be trusted. It is a three-part process, performed by a Notary Public, that includes vetting, certifying and record-keeping of the document. Some embassies require that the document sought to legalized be first notarized by a notary public in Nigeria. It is pertinent to state that certain embassies have a list of certified notaries public that must be used.

• Translation: some countries will also require that the relevant document be translated to the official language of the country in which the document is sought to be used before approaching the embassy for legalization. It is also noteworthy that certain embassies have their list of certified translators that must be used as well.

• Authentication by Ministry of Foreign Affairs (MOFA): the final step of certifying the authenticity of Nigerian issued document before approaching the embassy of the foreign country is certification by MOFA. MOFA will upon payment of the prescribed fees and verification of the document, engrave its seal on the document, thereby certifying the authenticity of the relevant document.

• Authentication by Ministry of Education (MoE): In addition to authentication by MOFA, education certificates are required to be authenticated by the MoE. The MoE requirement for education document is required to be done before the MOFA authentication above. The process at the MoE is similar to that at MOFA.

• Legalization at the embassy: this is usually the final stage in the legalization cycle and it entails the embassy ensuring all the previous attestation the document has gone through are genuine. This is done by trained inhouse personnel of the embassy or by consulting external investigators. Once the embassy is satisfied of the authenticity of the document and the prescribed fees are paid, the embassy will legalize the document, thereby certifying it appropriate for use abroad.

Conclusion

As straight forward as attesting/legalizing a document may seem, it is always best to employ the services of trained practitioners who are familiar with the process in other to avoid potential pitfalls. 

Important notes:

• Different countries have different requirements for legalization. Some countries may require some or all of the steps highlighted above. Others may even have additional requirements;

• Legalization fees at the embassy may be subject to foreign exchange rates; and

• Certain documents have a timeline within which they must be legalized once issued.

For questions and clarifications, please do not hesitate to contact Busayo Adedeji at:

Busayo.adedeji@newedege-consultants.com and +2348034476429.

I left my house 5.30am this morning and arrived High Court premises at Igbosere at about 7.30am. It is is my regular practice to arrive court at least an hour before 9am. I have asked my client to arrive court before 8.30am which he, like me, had to wade through this terrible Lagos traffic to make it to court at the appointed time.

Registrar finally arrives after 9am and announces *”the court is not sitting, please listen for your matters for date”.* 

To leave home at 5.30am I had to wake up 4am. Between 5.30 and 7.30/7.50am I am in Lagos traffic burning fuel with stress building up as to why I must be made to go through this stress. The same goes for the litigant who must leave early and wade through traffic to make it to court.

Had the court considered the challenge and wasted manhours and resources it takes to be on Lagos roads, it would have done the simple task of sending messages to parties if it will not sit for any reason. 

While counsel are required to put their functional email address and phone number, on each processes to be file, this requirement is for a reason but it appears that the court that made it a requirement is not keen at making it an important tool for effective dispensation of justice.

Last week I had a matter at Federal High Court Lagos Division and we had to wait for Registrar till after 9 for a court that normally sits 9 on the dot. On arrival the Registrar announced that the court will not be sitting. On enquiry as to why no message was sent like the last time the Registrar responded that the last messages sent were sent from his pocket and that when they made a proposal to the CR for funds for such messages it was turned down, hence he can’t continue funding it from his pocket.

Just last Thursday a had a matter for trial before a judge in TBS Annex. Arriving court, when it was 9am Registrar started giving dates that the court is not sitting. When counsel present demanded for explanation as to why message was not and the Registrar responded that counsel and litigants should always call a day before the court day to find out if court will be sitting or not.

Can the Bar take this up with the Bench and insist that courtesy be accorded lawyers and litigants in this regards so the court can be taken seriously.

This practice is not rocket science, at least National Industrial Court carries it out effortlessly, why not the State High Courts and Federal High Courts?

 *#JUSTMINDINGMYBUSINESS* 

– copied 

CASE REVIEW OF SEC V. BIG TREAT
PLC & ORS (2019) LPELR-46520 (CA) ON THE POWER OF THE SECURITIES AND EXCHANGE COMMISSION TO INTERVENE
IN THE MANAGEMENT AND CONTROL OF FAILING CAPITAL MARKET OPERATORS 

The Securities and
Exchange Commission (SEC) is statutorily mandated as the apex regulator of the
Nigerian capital market to ensure the protection of investors, and to maintain
a fair, efficient and transparent market. One of the ways in which the
commission carries out this function is intervening in the management and
control of public companies which are ‘failing’, ‘failed’ or ‘in cirsis’.

A recent
judicial precedent that affirms the powers of the commission in this respect is
the case of SEC v. BIG TREAT PLC & ORS (2019) LPELR-46520 (CA). On 31^st January, 2019, the Court of
Appeal, in overruling the decision of the trial court, held that the Securities
and Exchange Commission, being the ‘beacon light of the powers of the Appellant
under the Investment and Securities Act’ had the power to intervene the
management and control of Big Treat Plc, a public listed company.

Brief Facts:

Upon assessing
the 2008 audited accounts of Big Treat Plc (1st respondent), the Securities and
Exchange Commission (appellant) discovered that the 1st respondent was drifting
into deplorable financial state, and therefore decided to intervene in the
affairs of the 1st respondent to ascertain its true financial position and prevent
further depletion of the company’s assets, thereby protecting the interest of the
investors.

Consequently,
the appellant instituted an action at the Federal High Court in the course of
which it applied ex-parte for a preservatory order of injunction to restrain
the 2nd – 6th respondents from obstructing the appellant in the appointment of
an interim management to take charge of the day-to-day administration of the
1st respondent, with a view to preserving its assets and the interests of its
stakeholders. The trial court however refused to grant the application on the
ground that the 1st respondent was not a capital market operator and could
therefore not be under the control and management of the appellant in times of
financial distress. The appellant being dissatisfied with the order of the
trial court appealed to the Court of Appeal.

Court of
Appeal’s Decision:

Allowing the
appeal, the Court of Appeal held in favour of the appellant that the 1^st
Respondent was a capital market operator having registered itself with the
appellant as an operator in the Nigerian capital market. The learned justices
maintained this position by relying heavily on section 315 of the Investment
and Securities Act (ISA) which defines a capital market operator as any person,
individual or corporate, duly registered by the Securities and Exchange
Commission to perform specific functions in the capital market. The court also held
in favour of the appellant that it (the appellant) had the statutory power to
intervene in the management and control of the 1^st Respondent, if in
the appellant’s opinion; the company had failed, was failing or was in crisis
by doing whatsoever it considered necessary to protect the interest of the
investors. The court reached this decision by relying on Section 13(v) of the
Investment and Securities Act which states that the Commission shall
“…intervene in the management and control of capital market operators which it
considers has failed, is failing or in crisis including entering into the
premises and doing whatsoever the Commission deems necessary for the protection
of investors”.

The Court of
Appeal held thus:

“That the 1st Respondent, an issuer of securities,
having been duly registered with the Appellants and was at all material times
performing the specific function of issuing securities in the capital market
was subject to the intervention of the statutory powers of the Appellant as the
pinnacle regulatory authority for the Nigerian capital market whose sole
purpose is to ensure the protection of investors and to maintain fair,
efficient and transparent capital market as well as reduction of systemic risk
as stated in the preamble of the ISA- the beacon light to the powers of the
Appellant under the ISA.”

Comments:

The court’s
decision in this case reveals the extent of interpretation of the provisions of
the Investment and Securities Act on the definition of capital market operators
and the responsibilities of the Securities and Exchange Commission in relation
to the control and management of failing capital market operators.

This recent
judgment of the Court of Appeal therefore serves as a warning signal to many
public companies in the capital market. Every capital market operator owes its
investors a duty to thrive trade wisely in the capital market, and to continue
to operate as a going concern by all means legally possible. Accordingly, as
required by section 61 of the Investment and Securities Act, capital market
operators need to take more practical steps to establish a system of internal
controls over their financial reporting and security of their assets to ensure
the integrity of their companies’ financial controls and reporting by means of
policies, procedures and practices to ensure safety of assets, accuracy of
financial records and reports, achievement of corporate objectives and compliance
with laws and regulations.

The judgment
also serves as a great beacon light of hope to millions of investors in
Nigeria. Investors can feel safer to invest in the capital market, knowing full
well that there is a watchdog commission which constantly monitors market
activities to forestall manipulative, illegal or unfavourable practices.

Ayodeji Ayolola is an Adjunct Lecturer of Corporate
Law Practice at the Nigerian Law School, Lagos campus; and an Associate Counsel
at Wole Olanipekun & Co., Lagos, Nigeria. Email:ayolola@lawschoollagos.org,
ayodeji.a@woleolanipekun.com

Case Review of Raji v. Truck Sabinos (NIG) Ltd
(2018) LPELR-45011(ca) on the jurisdiction of the Federal High Court over the
removal of Company Secretaries; a shift in Corporate Law Practice? 

There are some
interesting court decisions which have the potential of shifting long-standing
jurisprudence of certain issues in corporate law practice in Nigeria. One of
such developments is the issue of the jurisdiction of the Federal High Court
over the removal of a company secretary. A legal practitioner of few years
post-call or even almost every Nigerian corporate lawyer would reason that
there is no legal argument worthy of contesting the jurisdiction of the Federal
High Court over the removal of a company secretary, as such jurisdiction is statutorily
vested on the Federal High Court under Section 251(e) of the 1999
Constitution which states thus:

251. (1) Notwithstanding anything to the 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 Federal High Court
shall have and exercise jurisdiction to the exclusion of any other court in
civil causes and matters:

…

(e) arising from the operation
of the Companies and Allied Matters Act or any other enactment replacing the
Act or regulating the operation of companies incorporated under the Companies
and Allied Matters Act;

A literal
interpretation of the foregoing provision is that the Federal High Court has
exclusive jurisdiction over every matter that arises from the operation of the
Companies and Allied Matters Act, and that should obviously include matters
bordering on the removal of company secretaries. However, the Court of Appeal in
RAJI v. TRUCK SABINOS (NIG) LTD (2018)
LPELR-45011(CA) has adopted a more constructive interpretation which is to
the effect that the Federal High Court does not have jurisdiction over the
removal of the company secretary of a private company. The foregoing
interpretation is supported by the finding of the Court that the Companies and
Allied Matters Act (CAMA) does not have any provisions on the removal of the
company secretary of a private company; as section 296(2) of CAMA, which
only provides for the removal of the company secretary of a public company, states
thus:

“Where it is intended to remove the secretary of a public company, the board of directors shall…”

Let us briefly review the case of RAJI v. TRUCK SABINOS (NIG) LTD (2018)
LPELR-45011(CA) in order to fully
understand the reasoning of the Court.

Brief Facts:

The Plaintiff
was the company secretary of the Defendant under a solicitor’s retainer
agreement between the Plaintiff and the Defendant. The agreed fee for the
retainer was N300,000.00 (Three Hundred
Thousand Naira) per annum payable on a quarterly installment of N75,000.00 (Seventy-five Thousand Naira
each). The said Agreement dated 1st July, 2003 was executed between the parties
to ratify the appointment of the Plaintiff as Company Secretary/Legal Adviser.

The Defendant had been paying the amount due under the agreement until the last
quarter of the year 2006 when it refused to pay as agreed by both parties in
the retainer agreement. The Plaintiff thereafter sent several demand letters
requesting for the payment of the sum due. When no response was received from
the Defendant, a final demand letter dated 21st November, 2006 was sent to the
Defendant in respect of the quarterly fee due. The Defendant, in a reply letter,
stated that the Plaintiff was not entitled to the demanded fees having not
performed its part of the agreement.

The Plaintiff
consequently brought an action before the Federal High Court claiming a
declaration that the unilateral termination of the retainership agreement
between the appellant and the respondent, as solicitor and client respectively,
in the running of the corporate affairs/engagements of the respondent was
wrongful and occasioned pecuniary damages of N300,000
annual retainer fee; N75,000 being the
4th quarter 2006 retainer fee; and N400,000
being general damages for the breach of the retainership agreement together
with N200,000 being cost of the action.

Decision of the Lower Court

The Federal High
Court held that it had no jurisdiction to entertain the action. The court also
refused to transfer the action to the High Court of Lagos State on the ground
that it (High Court of Lagos State) had also struck out the matter believing it
lacked the jurisdiction to entertain same. The Federal High Court therefore
struck out the matter for lack of jurisdiction. The counter claim which the
Court below held was in negligence was also struck out for lack of
jurisdiction. The appellant, dissatisfied with the decision of the Court below
appealed to the Court of Appeal.

Appellant’s Argument

The appellant
was dissatisfied with the decision of the Court below and filed a notice of
appeal with three grounds of appeal and subsequently filed a brief of argument
in which it contended that, considering the claim in the writ of summons and
the statement of claim which was on the duties of the appellant as the company
secretary, the Court below had the exclusive jurisdiction to entertain the
action and should not have struck it out.

Respondent’s Argument

The respondent, on
the other hand, contended that there is no provision in Section 22(2) of the
Federal High Court Act empowering it to transfer any matter which ordinarily
ought to have been commenced in the High Court of a State to that Court where
the case had already been struck out by the High Court for want of jurisdiction.
The respondent relied on the case of Adetayo v. Ademola (2010) 15 NWLR
(pt.1215) 169 at 195. The respondent therefore urged that the appeal be
dismissed for lacking in merit.

Decision of the Court of Appeal

In reaching its decision,
the Court of Appeal relied on the fact that here was no indication in the processes
filed in the action indicating that the Respondent is a public company.
Following the fact that the respondent is a private company which is outside
the purview of 296(2) of CAMA, the court held that the matter could be decided
without recourse to CAMA or any enactment regulating operation of companies
under CAMA; which further removes the matter from under the purview of section
251(e) of the 1999 Constitution. The court held that actions founded on a
contractual relationship between a company and its employees as well as claims
for recovery of debts though concerning a company are not matters arising from
the operation of CAMA or any other enactment relating to CAMA or regulating the
operation of companies incorporated under CAMA which is outside the
jurisdiction of the Federal High Court as enshrined in Section 251(e) of the
1999 Constitution. The appellate court therefore affirmed the decision of the
lower court that the Federal High Court does not have the jurisdiction to
entertain the suit, having regard to the fact that it is a matter of simple
contract of employment and a claim for damages arising from alleged wrongful
termination of the contract. The appeal was therefore dismissed.

The Court of Appeal however noted in its decision that the matter was a pending
action in 2010 when Section 254C of the Third Alteration Act amending the 1999
Constitution (which provides for the exclusive jurisdiction of the National
Industrial Court) was made by the National Assembly in 2010. Consequently,
section 24(3) of the National Industrial Court Act would still apply to save
the action for its transfer to the National Industrial Court. The order
striking out the action was therefore varied to an order transferring the
action to the National Industrial Court Lagos for determination.

Comments:
The decision of the Court of Appeal in this matter is indeed a welcome
precedent. The courts have always transcended from giving only literal judicial
interpretation of the Constitution to embarking on more constructive
interpretations and holistic interpretations. Section 251(e) of the 1999
Constitution which is germane to the present case states that the Federal High
Court shall have exclusive jurisdiction in civil causes or matters arising from
the operation of CAMA and any other enactment replacing that Act or regulating
the operation of companies incorporated under the CAMA. It is therefore
axiomatic that the removal of the company secretary of a private company does
not fall under the jurisdiction of the Federal High Court as CAMA has no
provisions for such procedure. Accordingly, the matter should be treated as a
simple employment matter which under the exclusive original jurisdiction of the
National Industrial Court.

However, the
precedent created by the Court of Appeal in this matter will be difficult to
enforce due to the fact that section 22 of the Federal High Court Act does not
provide for the transfer of cases from the Federal High Court to the National
Industrial Court. The problem caused by the lacuna is that labour/employment
matters of this nature which are filed at the Federal High Court after the
coming into force of Section 254C of the (Third Alteration) Act, 2010 cannot be
transferred by the Federal High Court to the National Industrial Court which
now has the exclusive original jurisdiction over such matters. It is therefore
important that the National Assembly fills the lacuna by an amendment of
Section 22 of the Federal High Court Act to accommodate the transfer of cases
of this nature by the Federal High Court to the National Industrial Court which
has exclusive original jurisdiction to determine such cases. 

Ayodeji Ayolola is an Adjunct
Lecturer of Corporate Law Practice at the Nigerian Law School, Lagos campus;
and an Associate Counsel at Wole Olanipekun & Co., Lagos, Nigeria. Email:ayolola@lawschoollagos.org, ayodeji.a@woleolanipekun.com

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Earlier today, while the NBA President, Paul Usoro SAN was appearing in court, his attention was drawn by the court to a criminal matter, after proceedings the NBA President paid the fine for the convict. See details below as tweeted by @munamike