SDG 8.7 In The Light Of Issues Surrounding Child Labour In Nigeria  | Eberechi May Okoh LLM, ACTI, MCIArb

by Legalnaija | Sep 2, 2022 | Law

Introduction

Child labour refers to work engaged in by children which is mentally, physically, socially or morally dangerous and harmful to the children and also interferes with their schooling.[1] Article 32 of the Convention on the Rights of the Child (CRC) recognizes the rights of children to be free from economic exploitation and works that are harzardous or interfere with their general wellbeing and development. ILO 138 prescribes the minimum age for work and ILO 182 addresses the worst forms of child labour. Recommendation 146 accompanies ILO 138 and directs state signatories to develop national policies with provisions on poverty alleviation, promotion of decent jobs for adults, free education among other factors which have a direct effect on child labour.[2] Equally relevant is the United Nations 2030 Agenda for Sustainable Development which is hinged on 17 Sustainable Developments Goals (SDG). SDG 8 is for the promotion of sustained, inclusive and economic growth, full and productive employment and decent work for all. SDG (Target) 8.7 is to take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms.

SDG 8.7 in Nigeria

Nigeria is signatory to the key UN Conventions aimed at child protection and currently has a National Action Plan on the elimination of child labour for the years 2021-2025. This action plan is intended to coincide with SDG 8.7 on eliminating all forms of child labour by the year 2025. With more than half of the current year gone by, the race to accomplish target 8.7 has barely two years and four months to go. International child right actors are concerned at the slow pace of attaining to SDG 8.7 of eliminating all forms of child labour by the year 2025 globally.[3] The Durban Call to Action[4] which followed the Fifth Global Conference on the Elimination of Child Labour held between the 15th to the 20th of May 2022 in Durban reiterated the challenge to address the elimination of all forms of child labour. Based on current statistics, the COVID pandemic caused setbacks in global efforts to eliminate child labour, shrunk previous gains and ballooned the number of children trapped in child labour.[5] UNICEF data suggests that 26% of children aged 5 to 11 in West and Central Africa are subjected to child labour.[6] The Situation Analysis of Children in Nigeria 2022 report that about 14 million children between the ages of 5 -14 are currently engaged in child labour.[7] Beyond policy and print, it is not immediately obvious how Nigeria intends to close up the gap by 2025. While Nigeria anticipates a change of government in the coming year and possibly, an improvement in its economic conditions, it is not likely that the country will be sufficiently close to SDG 8.7 by 2025.

UNICEF’s multisectoral approach to child labour identifies that an effective coordination across systems is key to ensuring protection and access to services.[8] Systems include nutrition and food, private sector, services for CAAC (children and armed conflict), social protection, empowered families, and education and skills. The coordination of these systems which do not stand alone but are intricately interwoven rests on several stakeholders but squarely on the government.

One basic system in the multisectoral approach is nutrition and food. This ties into the need for food security. The challenge of food insecurity in Nigeria is not peculiar to children but affects them greatly because of their vulnerability. The causes of food insecurity in Nigeria are easily traceable to insufficient production, inefficient policies, civil insecurity, corruption and low technology for processing and storage.[9] A few of these causes are not peculiar to Nigeria such as the effects of climate change on food production which has affected some northern states with significant desert encroachment, dwindling farmlands and water scarcity.[10] The country however needs to surmount the challenge of food insecurity if there would be any gains in eliminating child labour.

Another important system is the private sector. The Government’s efforts to achieve SDG 8.7 depends greatly on stakeholder involvement. The Unicef Guidance Note for Action on Child Labour and Responsible Business Conduct charges the business community to contribute its quota to eliminating child labour by guaranteeing decent work and living wages to employees.[11] The Nigerian business community on its part is faced with a business environment where the cost of doing business is relatively high. According to the World Bank ranking on the ease of doing business for 2020, Nigeria ranked 131 out of 190 countries considered.[12] The indices used pertain to registering businesses, obtaining permits, electricity supply, getting credit, protecting minority investors, enforcing contracts, registering property, paying taxes, resolving insolvency and trading across borders. The ranking is based on select cities and thus may not reflect the actual position of other parts of the country. There are several other challenges including security concerns, high cost of generating power and needed infrastructure, multiple layers of regulatory fees and more recently, compulsory sit-at-home exercises in some parts of the country on certain days of every week which culminate in a difficult business environment for the business community. In the face of these challenges, there is little justification for the government to charge the Nigerian business community to pitch in by guaranteeing sufficient wages for employees in the fight against child labour.

Services for CAAC is fast becoming one of the most critical systems in the elimination of child labour in Nigeria. This owes to the fact that the effect of children in armed conflict cascades into every other system and threatens to wipe out the gains the country has made in its effort to eliminate child labour. Amnesty International has reported that no fewer than 1,500 children have been abducted from schools in the last eight years.[13] Insecurity in Nigeria is convoluted and spirals into depriving children of education, denying children proper nutrition, increasing the number of children at risk of armed conflicts both as recruits and hostages and clearly forcing more children into child labour at the hand of their captors. Over 11,000 schools are reported to have been shut down owing to terrorist activities in the country.[14] Erstwhile pupils and students now forced to stay home for their safety, add to the number of children aged 5 to 17 who will have to engage in work for hours longer than is suited to their age bracket including hazardous work. Abducted children turned into child soldiers in turn cause terror that keeps farmers away from their farms and raises poverty levels. The National Action Plan for the elimination of child labour runs the risk of remaining a printed policy if the challenge of CAAC is not addressed in practical terms.

The systems of social protection and empowered families are affected by factors such as inflation, high rates of unemployment and scarcity of disposable income. Though Nigeria has slipped out of the bottom rung of the global poverty ranking, the World Poverty Clock shows that poverty levels in the country are currently rising.[15] Pre COVID, 4 in 10 Nigerians were estimated to be living in poverty.[16] The pandemic necessitated the closure of schools and loss of jobs which invariably left children with the short end of the stick. Out of jobs parents meant engaging children in menial jobs not requiring much skill or training to support the family. Post pandemic, the number of Nigerians that have slipped into poverty have increased. As households become poor, members of those households who are children become more susceptible to child labour. Many more children have been made available to assist in household chores with other families. Some of such children do not go to school at all as their parents receive monthly salaries for their work. A decent number of such children do get some level of education though the value of such education may be relatively low or attendance at school may be staggered. The lack of quality education or in some cases the lack of education at all leads to low levels of literacy and vocational skills thereby impacting on the opportunities open to such child labourers in adulthood and perpetuating the cycle of child labour.[17] Article 3 of the CRC recognizes that in all actions concerning children, the best interests of the child should be a primary consideration. Set against the backdrop of the economic reality of the families of child labourers, the decision to send off their children to work for an income or in exchange for education no matter how deficient appears to them to be the best decision for the child. The decision is nonetheless questionable.

The education and the skills systems are up against the challenges of the preceding systems and cannot be meaningfully pursued by the government, until the associated systems such as insecurity and poverty are out of the way.

Conclusion

The multisectoral approach to child labour reveals a lot of gaps in Nigeria’s quest to attain to SDG 8.7. The government must first be seen to exercise political will in the right direction to achieve the much-needed collaboration with stakeholders and industry groups. Terrorism, food insecurity and poverty will need to be addressed for any meaningful gains to be made in education and the elimination of child labour. The government thus needs to take deliberate steps towards a coordinated approach to ensure that SDG 8.7 moves from print to action. Gains may be slow, and the target of 2025 may not be feasible, but meaningful collaboration among stakeholders will guarantee the rescue of many children from child labour by 2025.

Eberechi May Okoh LLM, ACTI, MCIArb

[1] https://www.ilo.org/moscow/areas-of-work/child-labour/WCMS_249004/lang–en/index.htm, accessed 8 August 2022.

[2] https://www.ilo.org/ipec/facts/ILOconventionsonchildlabour/lang–en/index.htm accessed 8 August 2022.

[3] Guidance Note for Action, Child Labour and Responsible Business Conduct https://www.unicef.org/reports/child-labour-and-responsible-business-conduct assessed 10 August 2022.

[4] What is the Durban Call to Action? | 5th Global Conference on the Elimination of Child Labour (5thchildlabourconf.org) accessed 8 August 2022.

[5] Covid-19 Pandemic Fueling Child Labor | Human Rights Watch (hrw.org) accessed 11 August 2022.

[6] https://data.unicef.org/topic/child-protection/child-labour/ assessed 6 August 2022.

[7] Situation Analysis of Children in Nigeria https://www.unicef.org/nigeria/media/5861/file/Situation%20Analysis%20of%20Children%20in%20Nigeria%20.pdf accessed 8 August 2022.

[8] Guidance Note for Action, Child Labour and Responsible Business Conduct https://www.unicef.org/reports/child-labour-and-responsible-business-conduct assessed 10 August 2022.

[9] S. Matemilola and I. Elegbede, ‘The Challenges of Food Security in Nigeria’ (2017) 4 Open Access Library Journal 9.

[10] Bonaventure N. Nwokeoma and Amadi Kingsley Chinedu, ‘Climate Variability and Consequences for Crime, Insurgency in North East Nigeria’ 8 (2017) Mediterranean Journal of Social Sciences 173.

[11] Guidance Note for Action, Child Labour and Responsible Business Conduct https://www.unicef.org/reports/child-labour-and-responsible-business-conduct assessed 10 August 2022.

[12] NGA.pdf (doingbusiness.org) assessed 10 August 2022.

[13] https://guardian.ng/news/eight-years-after-chibok-11536-schools-closed-over-1500-pupils-abducted/ assessed 6 August 2022.

[14] https://guardian.ng/news/eight-years-after-chibok-11536-schools-closed-over-1500-pupils-abducted/  assessed 6 August 2022.

[15] https://worldpoverty.io/map accessed 8 August 2022.

[16] Nigerian Poverty Assessment 2022 https://documents1.worldbank.org/curated/en/099730003152232753/pdf/P17630107476630fa09c990da780535511c.pdf accessed 8 August 2022.

[17] Guidance Note for Action, Child Labour and Responsible Business Conduct https://www.unicef.org/reports/child-labour-and-responsible-business-conduct assessed 10 August 2022.

Admissibility Of An Unregistered Land Instrument: Dissecting Case Law | Adewale Sontan, LL.B. B.L.

by Legalnaija | Jul 21, 2021 | Law

ADMISSIBILITY OF AN UNREGISTERED LAND INSTRUMENT: DISSECTING BENJAMIN -V- KALIO (2018) 15 NWLR (Pt 1641) 38, ANAGBADO -V- FARUK (2019) 1 NWLR (Pt 1653) 292 AND ABDULLAHI & ORS -V- ADETUTU (2020) 3 NWLR (Pt 1711) 338,

INTRODUCTION

A land instrument is a vital document in proving legal title and equitable interest in land. This paper examines the current position of the law on the admissibility of an unregistered land instrument by dissecting the three Supreme Court cases of Benjamin -V- Kalio (2018) 15 NWLR (Pt 1641) 38, Anagbado -V- Faruk (2019) 1 NWLR (Pt 1653) 292 and Abdullahi & ors -V- Adetutu (2020) 3 NWLR (Pt 1711) 338.

THE POSITION OF THE LAW BEFORE 2017

The law on admissibility of an unregistered land instrument was governed by the various land instrument registration law of the states. The position was that an unregistered land instrument is not admissible to proof title to land, however, such unregistered instrument is admissible to prove payment of money, possession, or an equitable interest in land. See the cases of Ojugbele v. Olasoji (1982) 4 SC 31, Akintola & Anor. v. Solano (1986) 2 NWLR (Pt 24) 589, Ogbimi v. Niger Construction Ltd (2006) 9 NWLR (Pt. 986) 474) and Anyabunsi v. Ugwunze (1995) 6 NWLR (Pt.401) 255.

THE SUPREME COURT’S DECISION AFTER 2017.

On 15 December 2017, a full panel of the Supreme Court sitting, delivered a landmark decision in Benjamin v. Kalio (2018) 15 NWLR (Pt 1641) 38 changing the position of the law. In that case the apex Court declared unconstitutional, null and void section 20 of the Land Instruments (Preparation and Registration) Law, Cap. 74, Laws of Rivers State, 1999 and by extension similar provisions of the Land Instruments Law of the various states. The previous position of the law was based on the premise that evidence was not on the exclusive legislative list under the 1963 Constitution. It was under the constitutional scenario that the federal legislature and the regional (State) legislatures re-enacted the Evidence Ordinance of 1945 as Evidence Act and Evidence Laws respectively. However, in 1979, the situation changed. Under the 1979 Constitution, evidence was brought into the exclusive legislative list as item 23. It has remained so since then. It is currently item 23 of the exclusive legislative list in Part 1 in the Second Schedule to the extant Constitution of the Federal Republic of Nigeria, 1999 (as amended, 2011). A piece of evidence pleaded and admissible in evidence under the Evidence Act cannot be rendered unpleaded and inadmissible in evidence by a Law enacted by the House of Assembly of a State under the prevailing constitutional dispensation.

This newly informed position was followed by the Supreme Court in Anagbado v. Faruk (2019) 1 NWLR (Pt 1653) 292, where it was held as follows:

‘’The Law Cap. 85 of Kaduna State (section 15 thereof), in so far as it purports to render inadmissible any material and relevant piece of evidence that is admissible in evidence under the Evidence Act, 2011, is to that extent inconsistent with the Evidence Act, enacted by the National Assembly pursuant to the powers vested in it by section 4(2) of the Constitution and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution. Evidence is Item 23 in the Exclusive Legislative List. I am of the firm view that, in view of section 4(5) of the Constitution read with section 4(2) and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, in the event of section 15 of the Law, Cap.85 of Kaduna State being in conflict or inconsistent with any provisions of the Evidence Act, the provisions of the Evidence Act shall prevail. The sum total of all I am saying, on this issue, is that section 15 of the Kaduna State Law, Cap. 85 cannot render inadmissible exhibitP2 which evidence is material, relevant and admissible in evidence under the Evidence Act, 2011. A piece of evidence admissible in evidence under the Evidence Act cannot be rendered inadmissible in evidence by any law enacted by the House of Assembly of any State.’’

In 2019, the Supreme Court in Abdullahi & Ors v. Adetutu (2020) 3 NWLR (Pt 1711) 338 did not follow the new position of the law it laid down but applied the old principle of law that an unregistered land instrument is not admissible to proof title to land but admissible to prove payment of money, possession, or an equitable interest in land. This has led litigants to believe that the Supreme Court has overruled the earlier decision in Benjamin v. Kalio and Abdullahi v. Adetutu and that the old position of law is still valid. The principle of law that where there are two conflicting decisions of the Supreme Court, the latter in time should be followed supports this impression. see Cardoso v. Daniel (1986) 2 NWLR (Pt 20) 1, Isaac v. Obiuweubi v. CBN (2011) 3 SCNJ 166.

A closer analysis of these three cases and other principle of laws reveals that the decision in Abdulahi v. Adetutu did not overrule the decisions in Benjamin v. Kalio and Abdullahi v. Adetutu. The reasons are as follows:

First, the cases of Benjamin v. Kalio and Anagbado v. Farouk on one hand and Abdullahi & ors v. Adetutu on the other hand have one major factor that distinguishes them, which is the interpretation of the Constitution in relation to the validity of the Land Instrument law of the state. In Abdullahi & ors v. Adetutu, the Supreme Court did not determine the validity of the law. In the earlier two cases the Supreme Court effectively determined the law to be null and void while in the latter case the apex Court decided the case based on the issues and argument before the court viz: a document is admissible based on what it is pleaded for. Benjamin v. Kalio was decided by a full panel of the Supreme Court sitting which interpreted the Constitution and effectively overruled the previous position of the law. Abdullahi & Ors v. Adetutu was not decided by a full panel of the Supreme Court. If the Supreme Court intends to overrule its previous position of the law, it sits as a full Court. see Paul Odi & anor v. Gbaniyi Osafile & anor (1985) 1 NWLR (Pt 1) 17 S.C. Effiom v. State (1995) 1 NWLR (Pt 373) 565-566 S.C. A principle or rule used in arriving at a decision in a case is an important factor in deciding where the ratio of the Court lies. See N.A.B v. Barrie N.G (1995) 8 NWLR (Pt 413) 257 Sifax Nig ltd v. Migfo Nig Ltd & anor (2018) 1-2 S.C 1, Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt 105). The constitutional principle used in deciding the two earlier cases is an important factor in distinguishing these cases.

Secondly, in our hierarchy of law, the Constitution is supreme, see Section 1 of the Constitution of the Federal Republic of Nigeria, 1999; judicial precedent is lower in hierarchy. A judicial precedent cannot overrule the provisions of the constitution, except the judicial precedent is on interpretation of the Constitution (i.e., where there are conflicting interpretations of a provision of the Constitution).

Lastly, Abdullahi & Ors v. Adetutu is an anomaly. A case law that goes against an avalanche of other case law authorities must pale into significance and cannot be followed or relied upon. See Onuoha v. State (1989) 1 NSCC 411 at 421 where Oputa J.S.C stated as follows:

‘’a just decision of the case will be a decision in accord with the many many authorities and previous decisions of our Courts as well as English decisions which our Courts have followed and adopted. A decision that throws all our existing authorities to the wind, will no doubt be an alarming decision, but hardly a just decision. With respect, it was thus foolhardy for the lower Court to have followed and relied on the decision of the Court of Appeal in Otiki v. Bajehson when there are many other authorities of the Supreme Court and the Court of Appeal to the contrary. It is incumbent on, and essential for, all the players in the administration of justice system to take pains and acquaint themselves with developments in the law.’’

The statement of Oputa J.S.C has been followed in Afelumo & Ors v. Ojo & Ors (2013) LPELR-19976 C.A, and Olukosi v. Nigerian College of Aviation Technology, Zaria & anor (2014) LPELR-24009 C.A.

CONCLUSION

Abdullahi & Ors v. Adetutu is not authority that an unregistered land instrument is not admissible to proof title to land, it is good authority for the position of law that a document is admissible only for what it is pleaded and tendered for. The correct position of the law is that an unregistered instrument affecting land is admissible in evidence to prove title because an evidence rendered admissible under the Evidence Act cannot be rendered inadmissible by a state law as laid down in Benjamin v. Kalio (2018) 15 NWLR (Pt 1641) 38 and Anagbado v. Faruk (2019) 1 NWLR (Pt 1653) 292.

Adewale Sontan is a legal practitioner and has a keen interest in dispute resolution. He is a Counsel in various litigation proceedings involving corporate institutions, individuals and government agencies. He can be contacted via sontanadewale@gmail.com

The Federal High Court (Federal Inland Revenue Service) Practice Directions, 2021 and Questions of (Dis)Respect for Rule of Law, Human Rights and Access to Justice.

by Legalnaija | Jun 16, 2021 | Law

“Ultra vires” is a Latin Legal term translated (in English) to “beyond the powers”. The term is used to describe an act which requires legal authority or power but is then done/completed outside of or without the requisite legal authority (lexisnexis.co.uk). The act of a person or authority, is said to be ultra vires when the person/authority acts beyond the scope of the powers and purposes provided to him/it by law. Ultra vires acts are generally void. (see: Communities Economic Development Fund v. Canadian Pickles Corp., (1991) CarswellMan 402 (S.C.C.)) (PracixalLaw). See also, NOSDRA v. Mobil Prod. (Nig.) Unltd (2018) 13 NWLR (Pt.1636) 334. Where legal authority is required in order to /make/enact a law or take certain actions, any law made or action taken without any such enabling law or outside or in excess of the powers granted by law is said to be or to have been taken “ultra vires” and accordingly void and of no effect. The opposite of ultra vires is “intra vires”, (translated to “within the powers”), a term used to refer to an act done under/within proper legal authority. An ultra vires act is going to be totally void and it’ll not bind anyone; is not enforceable. Besides, any person with requisite locus standi (legal standing) may commence a legal action either for an injunction to restrain a planned ultra vires act or to nullify an act taken or law made ultra vires the person making the law or doing the act.

A June 14, 2021 news item in a popular online (news) media platform in Nigeria, Thenigerialawyer, comes under the headline, “50% Of Disputed Tax Amount To Be Paid Into Court Account” and carries the following report, inter alia: “Anyone who intends to challenge a tax assessment in court must pay 50 per cent of the amount in dispute into an interest-yielding account of the Federal High Court before the case can be heard.The new requirement is contained in a recent practice direction issued by the Chief Judge, Justice John Tsoho, under Order 57, Rule 3 of the Federal High Court (Civil Procedure) Rules, 2019″. I have gone through a copy of the Federal High Court (Federal Inland Revenue Service) Practice Direction 2021, which was made on May 31, 2021to take effect on June 01, 2021. In respect of applications or actions filed by the Federal Inland Revenue Service (FIRS) to enforce payment of taxes by an alleged defaulting taxable Person, Order V Rule 3 of the Practice Directions provides as follows: “Where the Respondent intends to challenge an assessment served on him, he shall pay half of the assessed amount in an interest-yielding account of the Federal High Court, pending the determination of the application”. This and some other provisions of the said Practice Directions have attracted mixed reactions from Nigeria’s legal community as well as from stakeholders in the justice sector, tax law gurus and litigation giants.The present commentary is a preliminary part of my humble opinion on questions of legality, propriety or otherwise, arising specifically in respect of the provisions of Order V Rule 3 of the new Practice Directions.

With due respect, the prescription in Order V Rule 3 of the Practice Direction appears to be ultra vires the powers of the distinguished Chief Judge (CJ) of the Federal High Court (FHC), and therefore (I respectfully submit) may not stand in a court of law, if challenged, on grounds of oppressiveness, illegality and unconstitutionality. Meanwhile, I doubt some of the heads of our courts and their advisors truly appreciate the exact limitations of Practice Directions as a source of Civil or Criminal procedure. The way I see it (unless I am wrong; after all, I am not all-knowing), a Practice Direction does no more than provide guides on how to comply with existing Rules of Court (Rules made by the person issuing the Practice Direction), or on implementation of the rules or any aspect thereof. In UNILAG v AIGORO b(184) 11 SC 152 at 159, the Supreme Court of Nigeria defined Practice Direction as “a direction given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed or obeyed”. In Nwoko v. Nzekwo (2012) 12 NWLR (PT 1313 160 at 175, the Court of Appeal stated thus: “A Practice Direction is a written explanation or guideline on how to proceed in a particular area of law or court…. Practice Directions have the force of law and parties must adhere to it”. It could be seen from the above that a practice direction is merely a supplemental protocol to rules of civil and criminal procedure in the courts, a sort of device to regulate minor procedural matters on matters already provided for by existing Rules/law. (See: ;NAA v Okoro (1995) 7 SCNJ 292 at 301). Besides, some advisory pronouncements by courts of law, providing guides on practice and procedure have also been equated or described as Practice Directions (See Abubakar v Wada). See also Nwankwo v. Yar`adua (2010) 12 NWLR (Pt 1209) 518 to appreciate the status of Practice Direction in Election Cases as well as the effect of non-compliance therewith.

Although Practice Directions are treated as law or as having the force of law, they nevertheless come/rank last in the hierarchy of laws in Nigeria (SeeBuhari v. INEC* (2008) 19 NWLR (pt 1120) 236 at 341-342). Further, Practice Directions lack the capacity to establish a court or to make substantive provisions hitherto not provided in any law. Further, it’s doubtful if a Practice Direction can even make a new provision that is not already contained in an existing law. It’s obvious from the pronouncement of the Supreme Court in UNILAG v. AIGORO that a Practice Direction has no power to introduce a new provision not contained in the Rules; cannot introduce a provision inconsistent with the Rules (or with any law) and cannot give provisions or explanations on a new subject not contemplated by the Rules or other existing law.

Now, Order 57 of the Federal High Court (Civil Procedure) Rules, 2019 contains provisions on powers of the Chief Judge of the Federal High Court to amend the Federal High Court (Civil Procedure) Rules, 2019, and to issue practice
directions “towards the realization of speedy, just and effective administration of justice”. The Order in its entirety, provides:”1. Whenever additional provisions are made to these Rules or any part thereof are amended or modified, the Chief Judge may issue directives for addition, publication or reprint of supplements to these Rules. 2. Whenever the Chief Judge makes amendment or modification to these Rules it shall be sufficient to publish same as supplemental provisions without the necessity of new body of Rules except when necessary. *3. The Chief Judge shall have the power to issue practice directions, protocols, directives and guidance towards the realization of speedy, just and effective administration of justice. Practice directions etc to be published.* 4. Such practice directions, protocols, directives and guidance shall be published and be given effect towards the realization of the fundamental objective of these Rules”.

From the above provisions, it’s doubtful there is any (enabling) legal justification for the Chief Judge (CJ) of the FHC to make such provisions as he is reported to have made in the Practice Direction presently under consideration. The powers of the CJ of the FHC to make Practice Directions is exercisable but only “towards the realization of speedy, just and effective administration of justice”. This is clear from the wording of Order 57 Rule 3 reportedly relied upon by His Lordship to issue the Federal High Court (Federal Inland Revenue Service) Practice Direction, 2021. Respectfully, it is difficult to see how the provision of Order V Rule 3 of the Practice Direction (requiring a person challenging a tax assessment imposed by the FIRS, to deposit 50 percent of the tax as assessed by the FIRS) can be reasonably described as a provision made “towards the realization of speedy, just and effective administration of justice”. Also doubtful is whether that particular provision (of Order V Rule 3) falls within the matters with respect to which the CJ of the FHC may make Practice Directions. Therefore (it’s respectfully so submitted), His Lordship lacks powers to make such a new or substantive provision in a Practice Direction.

Again, note that, in making the Practice Direction, the CJ did not purport to be relying on Order 57 Rule 2 of the FHC (Civil Procedure) Rules, 2019 relating to the power of the CJ of the FHC to amend the Rules. Even if he did, the argument could have been raised that there is a laid down Procedure for amending the Rules of Court, if that’s what His Lordship had in mind (although he doesn’t say so). In addition, there are other questions which I doubt my Lord, the Hon. CJ of the FHC, had adverted his mind to at the time he was drafting/signing this particular Practice Direction; they’re questions bordering on fairness, equity and the need to show respect for fundamental rights of litigants coming before a court of law. Examples: is it not unfair to compel a person (who has denied liability in respect of an assessed tax, or who is disputing a tax assessment) to deposit 50 percent of the amount of the assessed tax into the Registry of the FHC? Does such not amount to punishing the affected person even before his liability is established in court? (See ANAECHI v. INEC) Does His Lordship not consider that such a unilateral assessment done by the FIRS might have been undertaken (as is almost always the case) arbitrarily, sometimes without properly applying relevant laws. Besides, the assessment is always (as I have noted) undertaken by the FIRS without carrying along or consulting with the affected person (the taxable person); the assessment is an entirely a one-sided, arbitrary assessment, which more often than not, neither takes into account the interest of the taxable person, nor tries to balance the interest of the both parties. How fair or evenhanded is such a Practice Direction that provides that a court of law could, without first hearing from the challenger’s own side, insist that the person challenging or disputing a tax liability must pay half of the assessed sum (the sun in dispute) as a mandatory condition precedent to entertaining/determining the person’s opposition to the assessed amount or manner of assessment (which the challenger might even see as oppressive or tyrannical on the part of the FIRS?)? Additionally, how would such a draconian and inhibitive provision promote or encourage access to justice.

Access to justice means being “treated fairly according to the law and if you are not treated fairly being able to get appropriate redress…. It means access to ombudsmen, advice agencies and the police law. It means public authorities behaving properly. It means everyone having some basic understanding of their rights” (www.guardian.com). Access to justice has been described as a human right that must respected and could be enforced. According to International and European human rights law, EU Member States must guarantee everyone the right to go to court, or to an alternative dispute resolution body, and to obtain a remedy when their rights are violated. This is the right of access to justice (see: “Access to Justice in Europe” published by the European Union Agency for Fundamental Rights <http://fra.europa.eu>). Further on this paragraphs 14 and 15 of the the United Nations’ Declaration of the High-level Meeting on the Rule of Law recognizes that access to justice is a basic principle of the rule of law in the absence of which people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers accountable. The Declaration emphasizes the right of equal access to justice for all, including members of vulnerable groups, and reaffirmed the commitment of Member States to taking all necessary steps to provide fair, transparent, effective, non-discriminatory and accountable services that promote access to justice for all. Paragraph 13 of the Declaration stresses that delivery of justice should be impartial and non-discriminatory and highlighted the independence of the judicial system, together with its impartiality and integrity, as an essential prerequisite for upholding the rule of law and ensuring that there is no discrimination in the administration of justice. (See: “Access to Justice”published by the United Nations and the Rule of Law <https://www.un.org>).

Nigeria is a member-State of the United Nations. Is Order V Rule 3 of the Practice Direction not a discouraging factor to Access to Justice and therefore a violation of the concept of access to justice? In as much as one encourages and applauds any law or device aimed to ensure prompt payment of lawfully imposed taxes in Nigeria, or to penalize non-compliance with extant tax laws, one must not fail or neglect the need for strict observance of the principles of fairness and rule of law in so doing.

Another issue is whether the provisions of Order V Rule 3 of the Federal High Court (Federal Inland Revenue Service) Practice Direction, 2021 are not a direct derogation from or negation of, the mandatory requirements of “fair hearing” and “impartiality” as required by section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, which provides as follows: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person *shall be entitled to a fair hearing* within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”. Section 1(3) of the Constitution provides that “if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”. Moreover, the Supreme Court of Nigeria has said (see the case of Buhari v. INEC) that _”in the hierarchy of our jurisprudence, Practice Direction comes last in terms of authority. In the area of conflict between the Constitution and Practice Directions, the former will prevail. If there is a conflict between an enabling statute an Practice Directions, the former will prevail. Where there is a conflict between enabling Rules of Court and Practice Directions, the enabling Rules of Court will prevail”.

What’s more? In a paper titled, “When the Making of a Tax is an Abuse of Rights”, M. T. Abdulrazaq (Professor of Taxation, Lagos State University, Nigeria (LASU); Provost, CITN Tax Academy; and Tax Partner at Nolands Nigeria Professional Services) condemned as a violation of right and tyranny, what he called “taxation without representation”. The erudite Prof wrote,
‘Our legislators must respect the principle of legality on the basis of the prescription of “no taxation without representation” that was introduced in the Magna Carta in 1215. They must continually obtain our consent and act as a democratic guarantee against arbitrary taxation by the government. They must have imprinted on their mind the words of James Otis that “taxation without representation is tyranny”’. And reacting specifically to the Practice Direction currently under discussion, the learned professor had this to say (on the Legal Practice Discourse (LPD) Forum on 13 June 2021): “Practice Directions – sections 2,3 and 5 are objectionable as they seek to amend CITA [Companies Income Tax Act], sections 96, 60, 64, 86, 69, 76 and 77.”

Earlier on, in my own article titled, “The Legal Implications of the Requirement for ‘Two-Thirds Majority Vote’ in Relation to Removal of the Head of a Legislative House in Nigeria” (see: dnllegalandstyle. August 18, 2018), I had tried to emphasize the need for those occupying public positions to adher at all times and strictly, with tenets of Rule of Law and due process:
“…. it is expected that fairness, even-handedness and above all respect for rule of law would characterize the behaviour and standards of all men who find themselves in public offices. This was the position of IBRAHIM MOHAMMED MUSA SAULAWA, JCA in a judgment delivered on January 4, 2007, in APPEAL NO: CA/PH/161/99 in the case of WHYTE V KWANDE… in … CHIBUIKE AMAECHI v. INEC & 2 ors (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227), His Lordships, PIUS OLAYIWOLA ADEREMI, JSC had advised thus: ‘in all countries of the world which subscribe to and operate under the rule of law, all actions of both private and public persons are always adapted to the laws of the land. We ought to allow this time-honoured principle to sink well into our heads and hearts.’… In his book, 10 Steps to a More Tolerant Australia, Donald Horne (1921-2005) wrote: ‘the ideal of the rule of law, along with equality under the law, is one of the bases of tolerance. It means that, one way or another, governments themselves must act in accordance with the law'”.

Bottomline
However well-intentioned a law, policy or an action of a person or a public Institution is, if such law/policy/action is undertaken without adhering to due process of law, or is done without any supporting enabling law or in abuse of power, the law/policy/action itself becomes null and of no effect whatsoever (to the extent of its inconsistency with extant law or to the extent of its violation of due process); anything done/made without legal foundation must fail for being void ab initio. Accordingly, it’s my humble view that the provisions of the Federal High Court (FIRS) Practice Direction, 2021, issued on May 31, 2021, by the Chief Judge of the Federal High Court of Nigeria (to take effect on June 01, 2021), to the extent it purportedly requires that any person challenging (at the Federal High Court) an FIRS-conducted-or-arbitrarily-imposed tax assessment in Nigeria must as a mandatory condition precedent to entertainment of his opposition to the assessment, to pay 50 percent of the amount of the assessment into “an interest-yielding account of the FHC before the case can be heard”, is oppressive, inequitable, unfair, illegal and unconstitutional, having been made ultra vires and without taking into consideration certain fundamental requirements of fair hearing, human right, access to justice and fairness. The power given to His Lordship to make Practice Directions in deserving circumstances does not authorize my Lord to issue Practice Directions that are bereft of legal foundations or that are susceptible to being reasonably interpreted as oppressive, or supportive of tyranny or of laying foundations for brazen violation of the fundamental rights of citizens or denial of citizen’s right to access to justice. It’s my candid proposition that the said FHC(FIRS) Practice Direction, 2021 be immediately withdrawn and that the offending provisions be deleted after which another Practice Direction would be reissued on the subject. Peter Drucker said, “Efficiency is doing the thing right. Effectiveness is doing the right thing”. Doing the right thing is always the right thing to do. A law or subsidiary law that fails to do the right thing usually (that’s, when challenged) doesn’t get the right treatment in court. It is additionally, finally, suggested that in future, all stakeholders (including especially legal luminaries in the field) should be consulted or carried along prior to, and in the process of law-writing and law-making, whether it be for purposes of enacting principal or of issuing subsidiary legislation. Test ideas in the marketplace. We learn from hearing a range of perspectives. Consultation helps engender the support decisions need to be successfully implemented. Keith Waterhouse defines “consultation” thus: “A consultation process is what some authority sets in motion preparatory to doing what it intended all along”. There is no greater support in law-making than consultation. Consultation is a major part of doing the right thing. Ronald Reagan (40th president of the United States of America) once said, “the greatest leader[/man] is not necessarily the one who does the greatest things. He is the one that gets the people to do the greatest things”.
Respectfully,
▪️Sylvester C. Udemezue (udems).
08109024556.
udemsyl@gmail.com. (14 June 2021)