Cutlasses to Drones: How Nigeria’s Restriction on Drone Usage is Delaying the Birth of a Tech -Driven Agro Economy

by Legalnaija | Jan 19, 2021 | Uncategorized

“Intellectual innovation could only occur in the kind of
tolerant societies in which sometimes outrageous ideas proposed by highly eccentric
men would not entail a violent response against ‘heresy’ and ‘apostasy.”

Joel Morky, American Economic Historian.

Introduction

In 2015, Tanzanian authorities
revealed that between 2009 and 2014, as much as 67,000 elephants were lost to
poaching activities in the country.[1]
To help in addressing the nation’s poaching problem, Bat hawk Recon, a
Tanzanian start up, began deploying drones to help provide the much needed
surveillance for tracking and apprehending elephant poachers. Zipline, an
American robotics company has successfully aided the Rwandan government to
reduce maternal mortality by deploying its drones to transport blood donations
to inaccessible parts of the country.

Similarly, The ThirdEye Project in Kenya
currently helps farmers reach informed decisions on how best to optimally
utilise water, fertilizer and labour on their farms by flying sensor-equipped
drones capable of detecting farm areas where these scarce resources are most
needed.

The above are just but a few instances of the
numerous benefits obtainable from drone application to societal challenges in
Africa. Naturally, it would be expected that the Nigerian government like its
African counterparts would similarly deploy drone technology to address
peculiar challenges. To the disappointment of many however, the Nigeria Civil
Aviation Authority (NCAA), in May 2016, placed seemingly tight restrictions on the
usage of drone technology in the country. It is the argument in some quarters
that the restrictions placed by the government are well founded considering
that drone technology regardless of its positive applications in bettering
mankind, can also be deployed for destructive, immoral and debauched ends. For example,
CNN reported in 2019 that domestic drones carelessly flown at an airport in
Gatwick, England affected, the flights of over 100,000 passengers.[2] Similarly,
in what has been described as the ‘biggest drone conspiracy in history’ by
British authorities, the BBC in 2018 reported the jailing of a 7-man gang
following their conviction for using drones to transport drugs worth over
£500,000 into a United Kingdom, UK prison. [3]

On the other side of the divide, the popular
argument is that overbearing restrictions on the technology would only operate
to deny Nigeria from exploring the numerous positive applications of drones in
healthcare, education, trade and indeed agriculture, the focal point of this
article.

The
Application of Drone Technology to Agriculture

Drones have been innovatively applied to
farming practices and agriculture at large in a myriad of ways:

1.                  
They are currently being utilised by
mechanized farmers to analyse soil conditions with a view to improving crop
yield, determining soil nutrient deficiency, amongst other things. This is
typically achieved by equipping drones with sensors programmed to collect and
analyse data upon which farmers can take informed steps targeted at improving
soil conditions/quality (for example; mulching, planting cover crops and the introduction
of organic matter for better soil quality).

2.                 
In a faster and more efficient manner,
planting is now being carried out by farmers who deploy drones to shoot seeds
into the soil. DroneSeed, an American start-up is currently using this
technology to plant more trees and cover more acres in its reforestation
campaign in the United States, a feat not attainable when slower and more
expensive manual labour was employed.[4]

3.                
Farmers are also using drones equipped with
multispectral and hyperspectral technology (imaging technologies used to
clearly define targeted objects) to detect and treat farm areas infested with pests,
weeds and diseases. The use of drones in spraying farms to combat infestations
also helps in reducing the risks associated with exposure from handling
pesticides. Furthermore, with the data generated from drone flights over farms,
farmers are not only notified of the mere presence of maleficent infestations, but
are also armed with the requisite data to determine uncertainties like the
appropriate quantity of pesticides to use, proper cost estimations of
pesticides required for treatment etcetera.

4.                
The use of drones for crop and livestock
surveillance is perhaps the most innovative application of the technology.
Sensor equipped drones can be used to observe individual plants to access both patent
issues like damage to leaves and latent issues as poor photosynthetic rates.
Amongst grazing livestock, the technology can readily be deployed to identify
sick, lost or injured animals in a faster and more efficient means as opposed
to relying on human inspection efforts.

Nigeria’s
Drone Usage Dilemma: Striking the Balance between National Security and
Innovation.

On the 8^th of May 2016, the NCAA
announced restrictions on the use of drones in Nigeria. Of course in a
democratic society as ours, the regulation of society is desirable to prevent a
descent into chaos or as Thomas Hobbes best put it, “A state of nature where
life was nasty brutish and short.” But popular concern is not with the
regulation of drones, rather it is the difficulty of compliance with the
swingeing restrictions that are unsettling. In relaying the restriction, Sam
Adurogboye, a spokesman of the NCAA stated:

“In recent times, RPA/UAV (Unmanned Aerial
Vehicles) are being deployed for commercial and recreational purposes in the
country without adequate security clearance. Therefore, with the preponderance
of these operations, particularly in a non-segregated airspace, there has to be
proactive safety guidelines.”

Pursuant to the restriction, the agency went
ahead to issue the Guidelines and Requirements for Grant of Permit for Aerial
Aviation Services (PAAS) made pursuant to the Nigerian Civil Aviation Regulations (Nig. CARs 2015 Part 8.8.1.33) and
Implementing Standards (Nig.CARs 2015 Part IS.8.8.1.33) as the pioneer
guideline regulating drone usage in the country. Without further ado, below are
the key excerpts of the above guidelines:

·       
Only companies registered with the
Corporate Affairs Commission with a minimum share capital of at least N20,000,000
may make an application for a PAAS. The import of this requirement presupposes
that individuals are excluded from applying for the said permit.

·       
The completion of a Personal
History Statement by all shareholders having a 5% equity holding in the
applicant company at the Headquarters of the State Security Service (SSS).

·       
Payment of a non-refundable
application fee of N500,000 (five hundred thousand naira) to the Nigerian Civil
Aviation Authority (NCAA).

·       
A waiting period of 6months for the
issuance of a licence/permit from the Airport Transport Licensing Committee of
the NCAA.

Indeed, a major consequence of the NCAA
guidelines on agriculture in Nigeria is obviously the untold hardship it would
occasion on farmers intending to deploy drone technologies on their farms. For
instance, consider how many farmers in Nigeria can afford to incorporate an
agro company with a share capital of N 20,000,000? This rhetoric is gloomier
upon the realization that 70% of farmers in the nation are predominantly
subsistent farmers with barely enough resources to only farm and feed their
selves and families.

Nonetheless, the fears of Nigerian
authorities cannot be discountenanced considering the reality that when in the
wrong hands, drones can be utilised to achieve negative ends and indeed
constitute serious security challenges in societies. Considering that the
nation is plagued by a legion of security threats, the government’s strict
stance can be understood. In reinforcing the position of the NCAA and further articulating
the government’s position on drone usage in the country, the National Security
Adviser, Maj-Gen. Babagana Monguno (rtd.) in October 2018 stated[5]:

“Members of the public are sternly warned
against illicit acquisition of controlled items such as firearms, remotely
piloted aircraft (Drones) and broadcast equipment amongst others. Accordingly,
those with such illegally acquired controlled items are hereby advised to
voluntarily surrender them to the appropriate security agencies.”

The Way
Forward

It is suggested here that the appropriate
approach to be adopted by relevant authorities in engaging emerging trends,
technology and indeed all novelty should not be abrupt bans or grim
restrictions but constructive researches and consultations to ascertain the
pros and cons of such. This is what is expected in any democratic and
progressive society. For example, the European Union before the passage of its guidelines
regulating drones (and even currently) put in place a platform (online) to
accept all recommendations and suggestions for the effective regulation of the
usage of drones amongst EU member countries.[6]

In a similar vein, Parliament in the UK conducted
open consultations for suggestions on the regulation of Unmanned Aerial
Vehicles, drones, in the country[7].
The consultations saw over 5,000 recommendations made to the UK parliament and
has ultimately culminated in the Air Traffic Management and Unmanned Aircraft
Bill on the floor of parliament.

Conclusively it is germane to note that in
order for Nigeria to benefit from the boundless potentials that abound in the
application of drone technology to Agriculture it must review the current
draconian guidelines regulating drone flights in the country. Nigeria must have
a reorientation targeted at changing its approaches to emerging trends as
failure to do so would leave the country as one always playing catch-up to its
contemporaries. 

Author:

Echoga Caleb is an associate at Omaplex Law
Firm, with years of experience in Technology, Data protection and Litigation.  

caleb.echoga@omaplex.com.ng

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Jurisdiction of the National Industrial Court over Service Conditions in the Military | Michael Dugeri

by Legalnaija | Dec 28, 2020 | Uncategorized

Introduction

Case law authority is that the National Industrial Court of
Nigeria (NIC) has jurisdiction over service conditions in the military but only
upon fulfillment of prescribed condition precedents. This means that when a
dispute arises over service conditions in the military there is a multi-tier
dispute resolution procedure that requires the aggrieved soldier, rating or
aircraftman and officer to undertake certain steps in an attempt to settle the
dispute internally before resorting to court action. It is important to note the binding
nature of the multi-tier dispute resolution procedure in the military; whether
it constitutes jurisdictional condition precedent to the commencement of action
at the NIC, and the consequences of a party’s failure to comply.

Redress of Complaints in the Military

Section 178 (1) of the Armed Forces
Act, Chapter A20 Laws of the
Federation of Nigeria 2004, provides that if an officer thinks
himself wronged in any matter by a superior officer or authority and on
application to his commanding officer does not obtain the redress to which he
thinks he is entitled, he may make a complaint with respect to that matter to
the Armed Forces Council. A similar procedure is provided under section 179 of
the Act for lower rank officials, that is, a soldier, rating or aircraftman.

Where a Complaint is brought under
these provisions, it is to be resolved within three months of the complaint.
The initial complaint is to be Commanding Officer of the aggrieved officer. A
further right to appeal lies to the Armed Forces Council. In the case of junior
officials however, a further right of appeal lies to any Army, Naval or Air
Force officer under whom the complainant is for the time being serving, being
an officer not below the rank of brigadier or corresponding rank.  

Sub-section (3) provides that an
officer who feels he has been wronged in any matter shall first exhaust the
administrative remedies available to him under the provision above before
embarking on any other action. Sub-section (5) states that no officer is to be penalized
or victimized for bringing a complaint in accordance with the Act “if the
complaint does not contravene a provision of this Act”. This implies that
non-compliance with the provision of the Act will not only invalidate the complaint,
it will also constitute a punishable offence under the Act. It is suggested
that non-compliance should only invalidate a complaint without more.    

Case law authorities

The courts have held in
the cases of Lt. Col. Garba v. Nigerian
Army & Others (Suit No. NICN/LA/611/2016) and Col. Ositadinma Uche Nwankwo (RTD) v. Nigerian Army & 7 Others (Suit
No. NICN/ABJ/317/2016) that an aggrieved military service official must first
exhaust the administrative remedies provided under the Armed Forces Act before
approaching the NIC. Sections 178 and 179 of the Armed Forces Act, Cap. A20 LFN
2004 provides
that a soldier, rating or aircraftman who thinks himself wronged in any matter
by a fellow serviceman or authority shall
first seek redress from his commanding officer. 
Where the complainant is an ‘officer’ and is not satisfied with the
decision of the commanding officer, a further right of appeal is available to
him with respect to the matter to the Forces Council. What it means is that the
NIC will only be able to assume jurisdiction in the matter after the
administrative remedies in the Armed Forces Act are shown to be have been
exhausted.

In the case of Lt. Col. Garba v. Nigerian Army & Others,
the claimant, a Lieutenant Colonel in the Nigeria Army, sued his employer
(Nigeria Army) and other relevant constituted authorities in the Nigeria Army.
He contended that by a notification of retirement dated 2nd November 2014, the
Nigeria Army (sued as the 1st defendant) notified him that he will be due for retirement
on 31st May 2015. He was then offered to apply for voluntary retirement to the
Office of the Chief of Army Staff (sued as 2^nd defendant) not later
than 31st December 2014 so that the 1st defendant may not consider him for
compulsory retirement. He was then directed to proceed on terminal leave by
28th February 2015. The last sentence of paragraph 2 of the letter of
notification of retirement of 21st November 2014 stated thus: “Please note that
your disengagement from Service is subject to the approval of the Army
Council”.

The claimant, by a
letter dated 19^th December 2014, accepted the offer and applied for
voluntary retirement due to failure of Promotional Board 3/2014 examination as
he was earlier directed. The 2nd defendant, by a letter dated 29th December
2014, forwarded the claimant’s application for voluntary retirement to the Army
Headquarters Department of Military Secretary Departments for further necessary
action. Specifically, the letter stated thus: “I am directed to respectfully forward a copy of Reference A on
subject in respect of the above named officer for your necessary action,
please”. There was no evidence before the court, other than mere averments,
that the 2nd defendant accepted the claimant’s application for voluntary
retirement as the claimant pleaded. Also, the 2^nd defendant (as
contended by the claimant) did not issue the claimant with a certificate of retirement; nor was he paid any of his retirements
entitlements. Instead, by a letter of 1st June 2015 the 2^nd
defendant approved the suspension of the claimant’s retirement, ‘until investigation
involving the claimant, Chisco Transport Limited and the Nigerian Army is
concluded.’ This action was premised on section 43(a) of the Armed Forces Act.

The Court, in Lt. Col. Garba’s case, held that the
claimant was a military officer at the time of institution of the case. As a
result, the claimant was a person subject to service law governed by the
Nigerian Armed Forces Act, Cap. A20 LFN 2004. The court further held that the
claimant’s retirement notice from the Nigerian Army was effectively suspended
in accordance with section 43(a) of the Armed Forces Act Cap. A20 LFN 2004,
hence he was not issued with a mandatory
Certificate of Retirement which could have formed the basis of retirement in the
Nigerian Armed Forces.

Notably, the court
emphasized that section 178 of the Armed Forces Act aforesaid provides ample
channel of administrative remedies for any alleged wrong done to any officer in
the service of the Nigerian Armed Forces which requires as part of service
discipline, to be exhausted before an officer can seek redress or embark in any
other action including seeking redress in court. In the end, the case of the
claimant failed because as an officer of the Nigerian Army he failed to comply
with the relevant provisions of the Armed Forces Act before bringing the case
before the court (NIC). The court, in the case of Col. Ositadinma Uche Nwankwo (RTD) held that fulfilling the
requirements of section 178 is mandatory and admits of no exception; as such
any failure will render the suit incompetent.

It is pertinent to note
earlier Court of Appeal decisions on the mandatory nature of compliance with
section 178 of the Armed Forces Act. In the case of Major General Ovo Adhekegba v. The Honourable Minister of Defence &
Others (2013) LPELR – 20154, the court held that “The wordings of Section 178, with particular reference to subsections
(1) and (2) are quite clear and unambiguous. An aggrieved officer must first
complain to his superior officer and if still unsatisfied, he then complains to
the ‘Forces Council’”. In fact, the case of Wing Commander Yusuf Garba Mshelia v. Nigerian Air Force & Another (2014)
LPELR – 23732 went the extra mile to hold that the duty enjoined under section
178 is one that is not only imposed on the officer but also one imposed on the
Forces Council itself. Thus in the words of the Court of Appeal:

The
refusal of the Forces Council to respond to the letter for redress by the
appellant is condemned. The law imposed a duty on it, to consider the
complaint, investigate it and grant the necessary redress if any. Its failure
to act is a dereliction of that duty. The Armed Forces as a body, is supposed
to be exemplary, in discipline, the world over. To violate the law and retire a
member of that body in consequence is not an exhibition of discipline or
exemplary conduct. To refuse to act in accordance with section 178 of the Armed
Forces Act 2004, and to continue to keep the appellant in suspense, is an abuse
of office, calculated at denying the appellant the right to seek redress in a
court of law…

Conclusion

The
NIC is now firmly established as a specialized tribunal with exclusive
adjudicating power on matters relating to or connected with labour and
industrial relations laws. However, the
law is settled that where a party fails to satisfy a condition precedent to the
institution of an action, the action instituted by a party is premature and
consequently incompetent. See Omaliko v.
Awachie (2002) 12 NWLR (Pt. 780) 1. It is only logical that the remedy
prescribed by law must be exhausted before recourse to the law court. See also Ajibi v. Olaewe (2003) 8 NWLR (Pt. 822)
237. It is important to note the binding nature of the multi-tier dispute
resolution procedure in the military; whether it constitutes jurisdictional
condition precedent to the commencement of action at the NIC, and the
consequences of a party’s failure to comply.

Michael Dugeri

Lawlexis: We Manage Social Media Accounts For Lawyers And Law Firms

by Legalnaija | Dec 21, 2020 | Uncategorized

Can the President Disobey National Assembly Summons? – Nonso Anyasi

by Legalnaija | Dec 15, 2020 | Uncategorized

It
has now become a quadrennial occurrence for the Nigerian polity to experience
debates on the constitutionality or otherwise of the President’s disobedience
to summons/invitation by the National Assembly to account for executive
actions/inactions.  This debate largely
arises from the perceived conflict between the provisions of Sections 67(1) and
89 of the Constitution of the Federal Republic of Nigeria 1999 (as
amended). 

Ideally,
a country governed by responsible leaders would not put its citizen through the
unnecessary venture of indulging in such constitutional debate, because an
invitation by the apex legislative house should not be treated with levity by
the President, but be rather obeyed out of respect to the sovereign will of the
people. This debate has once again become very necessary given the refusal of
President Muhammadu Buhari – on the advice of his Attorney General- to honour
and obey an invitation by the National Assembly to come account for some
executive decisions and actions.

It
is necessary to clarify from the onset that any debate which involves the
interpretation of the sacrosanct provisions of our precious and organic
Constitution can never be otiose, moot or academic, but such debates contain
live issues that can (and should) be examined by the Courts (and legal
scholars) at any time. Please see the case of ARDO v INEC (2017) LPELR-41919 (SC).

Thus,
proponents of the school of thought (led by the Honourable Attorney General of
the Federation) who subscribe to the opinion that President cannot be summoned
or compelled to attend a joint sitting of National Assembly, or of either House
of the National Assembly; or that the President has a constitutional right to
refuse to honour such invitation where issued, hinge their arguments on the
provisions of Section 67(1) of then Constitution which provides thus:

“The President MAY attend any joint meeting of
the National Assembly or any meeting of either House of the National Assembly,
either to deliver an address on national affairs, including fiscal measures or
to make such statement on the policy of government as he considers to be of
national importance.” (underlining
and capitalization mine for emphasis).

This
School of thought subscribe to the view that the use of the modal verb MAY in
this section confers a discretion on the President, which he could choose not
to exercise. However, this invokes the question; does the use of the word “may”
in a statute or the Constitution indeed confer a discretion? Or can it be
interpreted as being mandatory? The Court of Appeal acknowledged this
jurisprudential dilemma in the case of AROWOSAYE
V OGEDENGBE (2008) LPELR-3701 (CA) when the Noble Lord Chima Centus Nweze
JCA (as he then was, now JSC), held as follows:

“The interpretation
of the word “may” has always posed some difficulties. In some circumstances,
the word has been held to import discretion. However, in other circumstances, it has been held to be mandatory.”
(underlining mine for emphasis).

In
the case of UDE V NWARA & ANOR
(1993) LPELR-3289 (SC) the Apex Court laid down the law that the use of the
word “may” in a legislation should be construed as mandatory when it imposes a
duty on a public official. The Apex Court held as follows:

“I agree with Chief
Umeadi that although Section 28(1) of the Law states that the lessor “may enter
a suit”, “may” should be construed as
mandatory i.e. as meaning “shall” or “must. I believe that it is now the
invariable practice of the Courts to interpret “may” as mandatory whenever it
is used to impose a duty upon a public functionary the benefit of which enures
to a private citizen.” (underlining mine for emphasis).

Therefore,
this writer submits that any argument that attempts to excuse the President’s
disobedience to National Assembly invitations by virtue of the purported
discretion conferred on him in Section 67(1) of the Constitution is not pure or
absolute, but is rather standing on a shaky and greatly contested legal
foundation as the modal verb “may” can be construed to connote compulsion to
perform an act and not discretion.

Furthermore,
there is the fundamental prescription that in the interpretation of the
provisions of the Constitution, Sections of the Constitutions must be construed
holistically and not in isolation (Please see the case of A.G FEDERATION V ABUBAKAR (2007) All FWLR (Pt. 389) 1264, 1289 -1291).
Also, the Courts (and indeed officers of the Courts including the Honourable
Attorney General of the Federation) must interpret the Constitution in such a
way that the elementary principles of Government are upheld (Please see the
case of SARAKI V FRN (2016) 3 NWLR (PT
1500) 531, 631 -632). The Constitution must never be interpreted in any
manner that would do violence to the fundamental principles upon which our
democracy is built. Please see the case of DAPIANLONG
V DARIYE (2007) 8 NWLR (PT. 1036) 239).

Therefore,
what are the fundamental principles of government upon which our Constitution
is based that must guide an interpreter of the Constitution? Our 1999
Constitution is premised upon the governmental principles and ideals of democracy,
federalism, separation of powers and checks and balances. The provisions of
Chapter 1 of the Constitution emphasizes these underlying principles which form
the rubric of the administration of this Country. Any attempt to interpret the
provisions of the Constitution must be done in such a manner that gives effect
to these underlying principles. Any purported interpretation that does violence
to these principles are untenable and null. Please see the case of SKYE BANK V IWU (2017) LPELR-42595 (SC).

Therefore,
in construing the provisions of Section 67(1) of the Constitution, one needs to
examine the provisions of other Sections of the Constitution which can be
interpreted together with it to unravel the intention of the framers of the
Constitution. It is clear that from the ipsissima
verba of that section, the President does not need the invitation of the
legislature before he exercises his powers under this Section. This writer
submits that the purpose of this Section 67(1) of the Constitution is to give a
constant access to the President to address either or both houses of the
National Assembly even without the invitation of the National Assembly, and not
necessarily to confer a discretion on the President to refrain from attending
sessions of the legislation where necessary.

It
is trite that the draftsperson of any legislation does not use words
extravagantly. Every single word in a legislation has its purpose. This writer
submits that the closing phrase of Section 67(1) of the Constitution lends
further credence to the interpretation that this Section only serves to confer
an open and constant access on the President to attend National Assembly
sittings when the President so desires. The said subsection ends with the
clause “…as he considers to be of
national importance.”

It
is clear that it is the President who has the authority to determine what is of
national importance that warrants his visitation to the National Assembly. The
power conferred on the President in this Section can only be exercised for the
purposes stated in this section and cannot extend to cover other purposes. The
President needs not wait for an invitation from the federal legislative body
before exercising this Section 67(1) power.

The
National Assembly on the other hand has been given the powers to investigate
the conduct of affairs of any person or authority charged with the duty of
administration. Please see Section 88(1)(b) of the Constitution. Section 89 of
the Constitution further gives the National Assembly the powers to summon any
person to appear before it to give evidence in respect of such investigation. Section
88(1)(b) of the Constitution provides that each House of the National Assembly
shall have the power to direct an investigation into the conduct or affairs of
any person, authority, Ministry of government charged with the duty of
executing or administering laws enacted by the National Assembly.

The
Constitution unequivocally provides in Section 5 of the Constitution that the
executive powers of the Federation shall be vested in the President and may be
exercised directly by him and shall extend to the execution and maintenance of
this Constitution as well as all laws made by the National Assembly.

A
community reading of the provisions of Sections 5, 67, 88 and 89 of the
Constitution shows the intentions of the draftsperson of the Constitution to
infuse the principle of checks and balances in the administration of the
Country. The President is the head of the executive arm of government. He is
the number one person charged with the administration of the laws of the
Federation. The Provisions of Section 88 of the Constitution shows the clear
intention of the draftsperson of the Constitution to subject the exercise of
executive powers under Section 5 of the Constitution to checks, investigations
and balances by the National Assembly.

This
is the fundamental principle upon which our Constitution is built. The principle
of checks and balances is infused in our system of government and the Courts
have always acknowledged this principle. In the case of GOVERNOR OF EKITI STATE V OLAYEMI (2016) 4 NWLR (PT. 1501) 1 @ PP.
41-42 (PARAS. G-A) RATIO 12, the Court of Appeal held thus:

“The Constitution of
the Federal Republic of Nigeria, 1999 (as amended), despite of its recognition
of the doctrine of separation of powers, has expressly made provisions for the
legislature to exercise limited oversight functions in relation to the
executive at both the Federal and State levels. So the concept and application
of the concept of separation of powers under the Constitution does not give
each arm of government the liberty to act without being subject to any
restraint or check by another arm of government.”

This
writer submits that the powers donated to the National Assembly under Section
88 and 89 of the Constitution is in conformity with this principle of checks
and balances which operates as an limitation to the fundamental doctrine of
separation of powers.

Admittedly,
the President enjoys constitutional immunity under Section 308 of the
Constitution and cannot be arrested or compelled to attend the proceedings of
any Court. Likewise, no civil or criminal proceedings shall lie against the
President in his personal capacity during his tenure. However, the National
Assembly is not a Court, it is a distinct arm of Government that derives its
powers directly from the Constitution. The investigative powers conferred on
the National Assembly by virtue of Section 88 of the Constitution does not
elevate the National Assembly into the status of a Court. The Courts belong to
Judicial arm of Government while the National Assembly belongs to the
Legislative arm of Government. Therefore, this writer submits that the provisions
of Section 308 of the Constitution shall apply only to the extent that the
President cannot and shall not be arrested by the security forces during his
presidency. However, this does not confer a blanket immunity on the President
to refrain from attending National Assembly summons and proceedings.

I
have submitted so much in this article. It is perhaps neater and tidier if I
summarize by way of recapitulation as follows:

a.    
The President has the
powers to attend the any or the joint houses of the National Assembly at any
time to deliver an address on national affairs on fiscal issues and
governmental policy as he considers of national importance. The President does
not need an invitation from any of the legislative house to exercise this
power.

b.    
The National Assembly
has the powers to investigate and invite or summon any member of the executive
including the President to account for the execution and administration of the
country and the laws of the land.

c.     
The President does
not have any discretion to exercise when he is summoned by the National
Assembly to answer questions relating to the administration of the Country. He
is bound by his oath of office and the sovereign will of the people to honour
such invitation.

d.   
The provisions of
Section 308 of the Constitution does not grant the President any immunity to
refrain from giving testimony before the National Assembly or answering any
questions in respect of any investigation thereat.

e.     The President cannot be arrested by the Police of the
Security forces for any reason whatsoever. However, if he fails to honour a
summons to appear before the National Assembly, the National Assembly can
commence impeachment proceedings against him as such act amounts to gross misconduct
as defined by the learned jurist Niki Tobi JSC in the case of INAKOJU V. ADELEKE (2007) 4 NWLR (Pt 1025) 423.

Force Majeure vs. Frustration: The Clear Difference | Deola Osifeko

by Legalnaija | Dec 15, 2020 | Uncategorized

Usually contracts not only spell out rights
and obligations of parties, it defines the scope of the legal or commercial
relationship as well as anticipates unforeseen situations (like we have
experienced and are still experiencing the effect of the outbreak of Covid19
which has not only altered daily living but how we discharge our duties in the
workplace and other legal/commercial arrangements).

Specific contract provisions like the
principle of force majeure and the doctrine of frustration may be invoked to
mitigate liability arising from a breach. While the former is the creation of
contract the latter is the creation of common law.

It is therefore safe to include force
majeure clauses in contracts. Force majeure refers to a clause
that is included in contracts to remove liability for
natural and unavoidable catastrophes that interrupt the expected course of
events and prevent participants from fulfilling contractual obligations. The
effect of such a clause is that it contemplates extraneous business risks
occasioned by future events which are beyond the control of any party to the
contract, affecting the parties from discharging same and providing a flexible
approach on how parties manage the situation. 

Therefore, a party affected by outbreak of
disease (epidemic, pandemic), war, riot or natural disaster (Act of God) can
invoke the force majeure clause to avoid liability for default that will result
in breach of contract i.e the failure of performing obligations of the contract
arising from the unforeseen event.

A well written force majeure clause must
provide for:

– A range of events that triggers the non
performance of the contract

– The impact of the effect when the
clause is invoked

– The impact of such invocation on
parties contractual obligations

On the other hand common law envisages that a
contract may be discharged or set aside on the ground of frustration i.e
when an unforeseen event interferes with the capacity of the parties to fulfill
contractual obligations. It therefore implies that a contract may be frustrated
where due to supervening events, parties are unable to substantially perform
their obligations as anticipated in the contract. (Note that the presence of a
force majeure clause and frustration clause in one and the same contract
renders the frustration clause ineffective i.e displaces the frustration
clause).

A supervening event is an event that occurs:

a.     After the formation
of the contract

b.     Without its inclusion
in the provisions of the contract and

c.      In absence of
anything either party is capable of doing by way of a fault or default or
anticipatory acts

d.    When the nature of
the contractual rights and obligations is substantially altered or interfered
with such that:

·        Performance
of the contract has become impossible

·        The
contract is now totally different from what the parties intended

·        A
fundamental contractual term has become incapable of being performed.

However, where a force majeure clause
displaces the effect of the doctrine of frustration in a contract: for events
within the force majeure clause, a party can argue frustration for any event
beyond the scope of the force majeure clause and the court may grant an order
in favour of such argument.

The striking difference between a force
majeure clause and frustration apart from the fact that the former is a
creation of contract is that parties may choose to resume or defer their rights
and obligations after the supervening event is over while in the case of
frustration, parties are discharged from rights and obligation arising from the
contract although any partial performance must either be compensated or partial
payment recovered.

Adeola Osifeko

Corporate Commercial and Dispute Specialist

The Role Of Msmes In Nigeria’s Post Covid 19 Recovery Plan | Olabimpe Oladokun (Mrs)

by Legalnaija | Dec 11, 2020 | Uncategorized

Small businesses (MSMEs) represent about 90% of businesses
worldwide. They account for 96% of businesses and in Nigeria, they account for
84% of the country’s employment.

The global economy was greatly affected by the COVID-19
pandemic, and from the above data, it is clear that small businesses must drive
the global economy to recovery.

Oil prices in the global market crashed to about $30 per
barrel in Q1 of 2020 and about 90% of Nigeria’s export is Crude Oil. This decrease
in demand for Oil in the global market has greatly affected the Nigerian
economy as seen in the negative plunge of the GDP in Q2 of 2020.

The government in response has setup various intervention
plans to support small businesses in cushioning the overall effect of the downturn
on the economy and give room for diversification. This Report seeks to examine
the effects of these proposed interventions. 

Read the full report here