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Highlights of the Report on the Future of FinTech in Nigeria – Olayanju Phillips

by Legalnaija | Mar 26, 2020 | Uncategorized

Introduction

In light of the rapid
adoption of technology in the financial services sector, the Securities and
Exchange Commission (“the SEC” or “the Commission”) spearheaded the development
of a regulatory framework for the operation of FinTechs in Nigeria with the
inauguration of a FinTech Roadmap Committee (“the Committee”) at the 3^rd
quarter meeting of its Capital Market Committee (“CMC”) in 2018.[2]

The terms of reference of
the Committee were as follows:

Develop a FinTech roadmap for the
Nigerian Capital Market;
Inform the SEC on approaches to
innovation within the Financial Services sector;
Promote access to capital in the
Financial Services sector;
Enhance financial inclusion in our
economy;
Foster greater transparency within the
Financial Services sector;
Enable more efficient compliance in
regulator regime;
Serve as a think tank which will provide
guidance on independent research for examining the role and value of
FinTech in the financial ecosystem; and
Seek efficient and responsible policy
regulatory regimes that balance financial innovation and consumer
protection.

The Committee submitted its
report titled “The
Future of FinTech in Nigeria” (“the Report”)[3] which was formally launched by the SEC on
29^th October 2019 at the Nigeria Fintech Week. The Report identifies
certain challenges against the growth of FinTechs in the Nigerian capital
market and proposes solutions.

Challenges

The following are the
challenges identified by the Committee:

1.
Regulation

The existing regulatory
framework in the Nigerian capital market neither provides enough clarity on
the role of FinTech companies nor clearly articulates their licensing and
compliance requirements. In addition, there is uncertainty on how regulators
intend to treat certain FinTech products like crypto assets. This lack of
clarity creates uncertainty in the minds of innovators. Another regulatory
problem is the length of time it takes to register a FinTech company with the
Commission.[4]

2.
Access to Data

The efficiency of every
FinTech company is dependent on access to data, and the limited data makes it
difficult to identify potential customers, develop applications to meet the
specific needs of investors and monitor competition. Access to data is also important
for regulators to adopt the use of supervisory technology (SupTech). The
Nigeria Data Protection Regulation 2019 will potentially affect FinTech’s
access to data, because of the requirement of lawful processing.[5]

3.
Cybersecurity

FinTechs rely on data, which
is vulnerable to attack and misuse. The interconnected financial systems
further accentuate the threat of data theft and cybersecurity. If the risk of
cyber security is not curtailed, then it may lead to financial instability.[6]

4.
Capital Market Liquidity

The Nigerian capital market
is overdependent on foreign capital for liquidity. Thus, there is a need to
grow the domestic contribution as a shock absorber to adverse changes in the
market and address the capital flight associated with foreign capital and the
dearth of liquidity in the market. Furthermore, the crowdfunding industry has
been stifled by regulation. While donation-based and reward-based crowdfunding
are permitted by extant regulation, equity crowdfunding is considered illegal.[7] This has curtailed the growth of the
retail market.

5.
Lack of Market Confidence

FinTechs fall under
Non-Banking Financial Institutions (NBFIs), which are perceived as weaker
institutions compared to Banks. This causes a dip in the market’s confidence in
FinTechs. Other problems causing low market confidence are:

Low Investments participation;
Poor trading operations
process/infrastructure;
Poor communication of value proposition;
and
Dearth of innovative solutions to bring
FinTechs into the mainstream market and encourage retail and institutional
participation in their funding.

6.
Institutional Knowledge Gap

As a result of lack of
awareness, a typical retail customer would rather have his/her money in a bank
account or invested in land/property than the capital market. To achieve better
participation, capital market operators and FinTechs must collaborate to
educate the public about their service offerings.

7.
Lack of Innovation

The industry is not dynamic
and innovative in providing solutions for retail investors. Government has to
offer incentives to encourage investment in FinTech innovation. Regulators must
adopt a more innovative approach and the operators need to deploy more
solutions to engage and encourage broad based participation. In addition, more
products and services must be designed around the investment needs of the
public, and not just High Net-Worth Individuals (“HNIs”).

8.
Weak Digital Infrastructure

Infrastructures such as
power, high-speed broadband, cloud infrastructure, and IOT infrastructure are
lacking; and where available are not optimal. The cost of setting up
infrastructure required to power FinTech solutions is usually passed to the
final consumer. The right digital infrastructure will create safer, efficient,
and more transparent platform for financial services, building confidence, and
ensuring speedy services delivery and stability in the system.

9.
Underdeveloped Venture Capital/Growth
Funding Structure

There is a low level of
participation of venture capital/growth funds in FinTech investments. The
non-existence of numerous marketplace platforms where FinTech startups can
demonstrate their innovative offerings to potential investors, and the absence
of developed platforms for alternative funding markets providing capital
formation for FinTech startups are challenges facing FinTech startups. In
addition, the absence of a single source of guidance or regulation around
funding for FinTechs through venture capitalists in Nigeria subjects the
process to variation and uncertainty.

10.
Lack of Incubator-accelerator
Entrepreneurial Support System

The report admits that while
there have been attempts by the innovative hubs to offer support to startups,
the effect has not been felt across the FinTech startups community. In
addition, the quality of the incubation/accelerator entrepreneurial support
system for FinTech in Nigeria is heavily reliant on foreign technical support
and investment. The need for these support systems is underpinned by the fact
that many local startup founders have a technical background in technology and
are not familiar with industry practices in capital markets and banking.

Recommendations

After identifying the
foregoing problems, the Committee recommended as follows:

1. Deepening Market
Penetrations

In order to improve the
penetration of investment products, the Committee

recommends that:

A. Collaboration

i. SEC should collaborate
with the CBN to streamline customer onboarding and simplify the process of new
product registration.

ii. SEC should collaborate
with Self-Regulatory Operators to provide access to information for FinTech
oriented public/startups.

iii. SEC should collaborate
with the National Pension Commission to ease tension between fund and pension
managers, share knowledge with the Commission to effectively allocate available
assets and revise regulations, such as the SEC Rules.

iv. SEC should collaborate
with the National Insurance Commission (NAICOM) to promote the adoption of
FinTech as distribution channels for the promotion and sales of insurance
products and educate consumers on how insurance works.

v. SEC should collaborate
with educational institutions to develop industry relevant curriculum, create
cross-country financial literacy programs and hold seminars and conferences on
financial literacy in capital market.

vi. The government should
collaborate with universities and other tertiary institutions to deepen
training and research in software skills and engineering, provide grants for
training prospective software developers to high globally recognised standards
and implement fiscal policies to provide tax breaks for institutions and
individuals investing in startups and FinTechs.

B. Fostering an Innovative
Environment

i. SEC should intensify its
efforts to raise awareness on the benefits of investing in the Nigerian capital
market.

ii. SEC should encourage the
development and introduction of FinTech-led innovation in the market.

iii. SEC can collaborate
with Nollywood or leverage YouTube and Facebook to develop and disseminate
short videos on financial literacy, to educate the public.

iv. SEC should create a
sandbox and collection of Application Programming Interface (API) services that
can be made available to FinTech firms to create innovative solutions.

C. Invest in RegTech and
Process Improvement Technologies

RegTech platforms will
strengthen inspection and investigation processes and ensure transparent
enforcement and prosecution of digitized rules/codes.

2. Consumer Protection,
Security and Data Privacy

A. The Committee recommends
that SEC should collaborate with regulators and government agencies to develop
FinTech oriented privacy and security policies. Global privacy regulations,
such as the Convention N^o108,[8] the OECD Guidelines on the Protection of
Privacy and Transborder Flows of Personal Data,[9] and the EU General Data Protection
Regulation,[10] should be reviewed and adapted to
Nigerian startups. Competition rules should also be enforced to prevent
formation of data provider monopolies.

B. FinTechs should comply
with industry standards in data exploitation, data minimisation, information
security, responding to cyber incidents and periodically assess their security
posture for systemic vulnerabilities.

3. FinTech Friendly
Regulation/Policies and Compliance

To address the regulatory
challenges that FinTechs encounter, the following were recommended:

A. SEC to drive a harmonized
regulatory agenda by creating a centralised committee of all regulators (charged
with the responsibility of formulating and ratifying policies and regulations
for FinTechs) and allow different FinTech businesses to be regulated by
different bodies within the committee. Equity financing/crowdfunding are to be
regulated by the SEC, while payments and lending are to be regulated by the
CBN. In addition, SEC and other regulators in the industry should leverage on
the regulatory sandbox to be made available to FinTechs by the Nigerian
Inter-Bank Settlement Scheme instead of building individual ones. The
Commission should also work with other government agencies to provide
incentives to startups.

Due Date: Q4, 2020

B. Cryptocurrencies, Virtual
Financial Assets and Initial Coin Offerings (ICOs)

i. SEC should decide on the
preferred classification of cryptocurrencies; preferably as commodities or
securities but NOT as currency.

ii. SEC should be
responsible for regulating Virtual Financial Assets Exchanges.

iii. SEC should regulate
equity-based crowdfunding while the CBN should regulate interest-based
crowdfunding.

iv. SEC should issue
guidelines and standards for white papers and ICOs.

v. SEC should have clear
taxonomies of tokens based on their nature, characteristics, and economic
realities as their determining factors.

Due Date: Q1, 2020

C. Accelerating Investments
in FinTechs

i. SEC needs to establish a
clear FinTech vision and agenda.

ii. SEC should consider
creating “Speed Funds” where HNIs can invest in FinTechs through the capital
markets.

iii. SEC should shorten the
timeline for registration of FinTech companies.

iv. SEC, Self-Regulatory
Organisations and Exchanges should ensure that listing requirements are
FinTech-friendly.

Due Date: Q2, 2021.

D. Directory Services

i. SEC should create a
RegTech platform as a one-stop shop to manage registration, licensing and
approval of FinTechs, and a directory service where useful information about
FinTechs in Nigeria can be accessed.

ii. SEC should organise
hackathons to develop software solutions for automation of SEC’s regulatory
processes.

iii. SEC should create a
FinTech Office to manage investor relationships, engage and provide regulatory
clarifications to new entrants, facilitate
regulator-innovator-market-engagements, coordinate the communication
and dissemination of relevant industry information, and provide support and
advisory services to the industry.

Due Date: Q2, 2021.

E. Capacity Building

i. SEC should invest in
capacity building for its employees charged with regulation.

ii. SEC should look to
publish a report on FinTech in the Nigerian capital market, on an annual basis.

Due Date: Q1, 2021.

F. Engagement with FinTechs

i. SEC and other regulators
should cooperate more with FinTechs through forums and engagement sessions.

ii. SEC should create an
innovation Hub within the Commission.
Due Date: Bi-annually, Quarterly.

Commentary

With the buzz in the
Nigerian FinTech space and the growing interest of entrepreneurs and foreign
investors in FinTech companies that solve problems in the financial industry,
the establishment of a Roadmap Committee and a blueprint for the development of
FinTech companies in Nigeria is a step in the right direction. It is our hope
that this Report will provide clarity to investors and entrepreneurs alike on
the policy plan of the SEC for the integration of FinTech companies into its
operations. The Committee provided a timeline for the implementation of its
recommendations between Q4 2019 and Q4 2021 and expressed its availability to
assist the Commission with the process of implementation.

_________________________________________________________________

For further information on
this article and area of law, please contact

Olayanju Phillips at:
S. P.A. Ajibade & Co., Lagos by
telephone (+234 1 472 9890), fax (+234 1 4605092)

mobile (+234.814.468.3333)
or email

(ophillips@spaajibade.com)

www.spaajibade.com

[1]
Olayanju Phillips, Associate, Corporate Finance &
Capital Markets department, SPA Ajibade & Co., Lagos, Nigeria.

[2]
Held on the 14^th of November 2018 at the Federal
Palace, Hotel, Victoria Island, Lagos. See ‘Notification for Third CMC Meeting
in 2018’ (SEC Nigeria, 19 October 2018)
(accessed 22 January 2020).

[3]
Fintech Roadmap Committee of the Nigerian Capital Market,
‘The Future of Fintech in Nigeria’,
April 2019
(accessed 22 January 2020).

[4]
The registration process involves an application for
approval from the Commission by filling the FinTech assessment form
http://sec.gov.ng/regulatory-sandbox-assessment/. The SEC engages the FinTech
company and registers it if it meets its requirements. The length of time it
takes to receive SEC’s approval to offer a FinTech product depends on the
nature of product and whether the SEC has existing Rules or Guidelines to
regulate them.

[5]
Pursuant to Para 2.1 of the Nigeria Data Protection
Regulation 2019, data may no longer be collected, processed or shared with
third parties, except with the lawful consent of the data subject. Furthermore,
by the provisions of Para 2.2, the consent of the data subject must obtained
for each purpose the data will be processed, unless the processing is necessary
for compliance with a legal provision, performance of a contract to which the
data subject is a party, to protect the interests of the data subject or of
another person, or in the public’s interest.

[6]
In a bid to curb these threats, the Cybercrimes Act
(Prohibition, Prevention, etc) Act, 2015 criminalizes unlawful access to a
computer with intent to obtain confidential information, unlawful interception
of communications, unauthorised modification of computer data, computer related
forgery, identity theft and impersonation (See sections 6,7,8,11 and 13 of the
Cybercrime Act, 2015). Significantly, there are no requirements for reporting
cyberbreaches and intelligence sharing across organisations to build cyber
resilience in the Act. Proactive safeguards to be put in place by data
controllers and data processors are also conspicuously absent.

[7]
Section 22(5) of the Companies and Allied Matters Act CAP
C20 LFN 2004 prohibits private limited companies (which most FinTech companies
are registered as) from inviting the public to subscribe for any shares or
debentures of the company or deposit money to it. Section 67 of the Investments
and Securities Act also prohibits all persons from making invitations to the
public to acquire or dispose of any securities of a corporate entity or to deposit
money with any corporate entity for a fixed period or payable at call, unless
the body corporate is a public company. Furthermore, a public company may only
offer its shares to the public through a registered Exchange, subject to
certain restrictions placed by the Commission, including approval of the
Commission and registration of the securities.

[8]
Council of Europe, Convention for the Protection of
Individuals with regard to the Automatic
Processing of Individual Data, 28 January 1981, ETS 108, available at:
(accessed 28 January
2020).

[9]
Organisation for Economic Cooperation and Development
(OECD), Guidelines Governing the Protection of Privacy and Transborder
Flow of Personal Data, 23 September 1980, available at:
(accessed 28 January
2020).

[10]
Regulation (EU) 2016/679 of the European Parliament and of the
Council of 27 April 2016 on the protection of natural persons with regard to
the processing of personal data and on the free movement of such data, and repealing
Directive 95/46/EC (General Data Protection Regulation)
(accessed 28 January 2020).

This article was 1st published Here

Data Privacy and Protection under the Nigerian Law – Francis Ololuo

by Legalnaija | Mar 26, 2020 | Uncategorized

Introduction

The 21^st century,
commonly dubbed “the information age” with its greatest invention, the
internet, has brought about fast and easy dispensation of personal information
or data. With an estimated 2.96 billion social media users worldwide, social
media is the greatest accomplice to the speedy dispensation of personal
information around the world.[2] Virtually everybody on the planet has
their personal data i.e., name, address, pictures, email address, bank details,
or medical information online. These data reveal sensitive personal information
that can be exploited to harm users unscrupulously for economic gain. Thus, it
is has become important to protect these data and regulate the way data is
used. One should be able to decide whether or not they want to share some
information, who has access to it, for how long, for what reason and to be able
to modify some of this information, if necessary.[3]

The information age has seen
data exchange become a common feature and an integral part of commercial
transactions. Considering that five of the six largest companies in the world
(Apple, Microsoft, Amazon, Google and Facebook) deal in data and profit off
processing the data of its consumers,[4] it has become imperative to regulate how
that vast amount of personally identifiable data is managed. For instance, the
Google-owned YouTube’s algorithm feeds off personal data (e.g. user
information, likes, searches, etc.) to suggest what videos users may like or
find interesting.

1.
“Knowledge is power, information is
power.”

1.1
This statement by Robin Morgan became more glaring and profound in the light of
the Facebook-Cambridge Analytica Data Privacy Scandal [5] that shook the world in 2018. Here,
Cambridge Analytica, a political consulting and strategic communication firm
was found to have illicitly collected the personal data and information of
about 87 million Facebook users without their consent for political advertising
purposes (especially in the run-up to the 2016 US Presidential elections). This
scandal amongst other previous data privacy breaches [6] signaled the urgent need to protect
personal data. It prompted the immediate implementation of the EU General Data
Protection Regulation (GDPR)[7] in 2018.

1.2
In similar vein, Nigeria has had its own fair share of data privacy breaches.
Notably, the recent case between NITDA [8] and TrueCaller (2019) as well as the case
involving MTN Nigeria Communications Ltd v Barr. Godfrey Eneye (2013) are a few
instances.[9] Data protection is becoming a risk issue
discussed at negotiation stages between companies in different jurisdictions
and data protection has become a tool to encourage confidence in businesses. In
essence, it is important that companies and persons in Nigeria know the laws
governing Data Privacy and Protection in Nigeria and the scope of rights,
duties and responsibilities available to them.

2.
The Legal Framework of Data Privacy and
Protection Laws in Nigeria

Although Nigeria does not
have a specific statute regulating Data Privacy and protection, the NITDA
commendably came up with the Nigeria Data Protection Regulations (NDPR) in 2019
which specifically addresses Data Privacy and Protection in Nigeria. Asides
from the NDPR, there are other laws which touch on Data Privacy and Protection
in Nigeria, which are briefly highlighted below.

3.
The Constitution [10]

Section 37 of Nigeria’s 1999
constitution forms the foundation of data privacy rights and protection in
Nigeria. Section 37 guarantees and protects the right of Nigerians to privacy
with respect to their homes, correspondence, telephone conversations and telegraphic
communications. It deems Privacy in this respect a fundamental right which is
enforceable in a court of law when breached. Prior to the NDPR, most cases of
data privacy breaches were enforced under this section.[11]

4.
The Nigeria Data Protection Regulation
(NDPR) 2019 [12]

Albeit a subsidiary
legislation, the NDPR is the major law specifically aimed at addressing data
privacy and protection in Nigeria. The regulation was issued by the National
Information Technology Development Agency (NITDA) in 2019 to comprehensively
regulate and control the use of data in Nigeria.[13] A copycat of the EU GDPR, the
regulation touches on principles of data processing, the requirement of Data
Compliance Officers, requirement of data subject’s consent for collecting and
processing data, requirements for international transfers of data and rights of
data subjects, inter alia. It also prescribes penalty for non-compliance
with the regulation. [14]

5.
The NCC Consumer Code of Practice
Regulation 2007 [15]

Part VI of the Nigerian
Communications Commission (NCC) regulation, generally deals with the protection
of consumers’ data in the telecoms sector. Reg. 35 requires all licensees to
take reasonable steps to protect the information of their customers against
improper or accidental disclosures. It prescribes that licensees shall not
transfer this information to a third party except as permitted by the consumer
or commission or by other applicable laws or regulation. Data collected by the
licensee must be such that is reasonably required for business purposes and not
to be kept for longer than necessary. This law extends not only to electronic
or written data but also to verbal data recorded by the licensee.[16] It also provides for notification of the
consumer of the use and disclosure of data obtained from them.

6.
The NCC Registration of Telephone
Subscribers Regulation 2011 [17]

Regulation 9 and 10 of the
NCC Registration of Telephone Subscribers Regulation 2011, deals with the data
privacy and protection of subscribers. It provides for confidentiality of
personal information of subscribers stored in the central database or a
licensee’s database.[18] It also provides that these information
shall not be released to a third party nor transferred outside Nigeria without
the prior written consent of the subscriber and commission, respectively. This
regulation also regards the information stored in the Central Database as the
property of the federal government of Nigeria.[19]

7.
The Freedom of Information Act 2011 [20]

Section 14 of the Freedom of
Information Act protects personal data. It restricts the disclosure of
information which contains personal information by public institutions except
where the involved data subject consents to its disclosure or where the
information is publicly available. The Act also provides that a public
institution may deny the application for disclosure of information that is
deemed privileged by law (e.g. Attorney-client privilege, doctor-client privilege).

8.
The Cybercrimes (Prohibition,
Prevention, etc.) Act 2015 [21]

The Cybercrimes
(Prohibition, Prevention, etc.) Act, Nigeria’s foremost law on cybercrimes
criminalizes data privacy breaches. Generally, this Act prohibits, prevents and
punishes cybercrimes in Nigeria. It prescribes that anyone or service provider
in possession of any person’s personal data shall take appropriate measures to
safeguard such data. [22]

9.
The Child Rights Act 2003 [23]

The Child Rights Act
protects the privacy rights of children.[24] The Act protects and guarantees
the right of every child to privacy, family life, home, correspondence,
telephone conversation and telegraphic communications subject to the
supervision or control of the parents or guardians.[25]

10. The
Consumer Protection Framework 2016 [26]

The Central Bank of
Nigeria’s Consumer Protection Framework prohibits financial institutions from
disclosing the personal information of their customers. It also ensures that
these financial institutions take appropriate measures to safeguard customers’
data and necessitates the prior written consent of their customers before
sharing these data with anyone.

11. The
National Identity Management Commission (NIMC) Act 2007 [27]

Section 26 of this Act
requires the approval of the Commission before a corporate body or anybody can
have access to data stored in their database. The Act also empowers the NIMC to
collect, collate and process data of Nigerian citizens and residents.

12. The
National Health Act (NHA)2014 [28]

The NHA which regulates
health users and healthcare personnel restricts the disclosure of the personal
information of users of health services in their records. It also ensures that
healthcare providers take the necessary steps to safeguard such data.

13. The
Federal Competition and Consumer Protection Act 2019 [29]

This Act stipulates that the
Federal Competition and Consumer Commission shall ensure that business secrets
of all parties concerned in investigations conducted by it are adequately
protected during all stages of the investigation or inquiry.[30]

14. Case
Laws

Just like many other common
law jurisdictions, judicial decisions are an integral source of law in Nigeria
and although, very few, there are court decisions on data privacy and
protection. Some of these include the cases of Godfrey Nya Eneye v MTN
Nigeria Communication Ltd [31] and Barr. Ezugwu Anene v Airtel
Nigeria Ltd.[32] In the former case, the court held that
the unauthorized disclosure of the claimant’s mobile phone number by his
telecommunications service provider (the defendant) and subsequent unsolicited
text messages he received from unknown third parties were violations of his
constitutional right to privacy. A similar verdict was given in the latter
case. Both claimants were awarded damages of N5,000,000 (five million naira),
respectively.

15. Conclusion

15.1
It is laudable that Nigerian authorities through their laws and various
regulations are taking bold steps to protect the personal data of her citizens.
However, despite the array of laws and regulations on data privacy and protection,
the only law that specifically and comprehensively deals with this phenomenon
is the recently announced NDPR by NITDA.

15.2
Prior to the NDPR, most laws on data privacy and protection in Nigeria were
industry specific. For instance, the various NCC regulations protect consumers
in the telecommunications sector; the provisions in the Child Rights Act
protects persons under the age of 18 and the Freedom of Information Act
protects personal data in records of public institutions. Therefore, the
establishment of a data privacy and protection law in the form of the NDPR that
transcends industries and category of persons is highly commendable.

15.3
The quick implementation and enforcement of the NDPR by NITDA has shown its
seriousness in ensuring compliance with data privacy and protection laws by
data controllers and processors in Nigeria. [33] Another evidence of this is the current
investigation of TrueCaller by NITDA for data privacy breaches [34] alongside the recent investigation of
the Lagos Internal Revenue Service (LIRS) for publishing some Lagos State
taxpayers’ personal information on its website.[35] The establishment of the NDPR and the
activities of NITDA have also helped create awareness about data privacy and
protection amongst Nigerians.

15.4
Despite being a huge step in the right direction, the NDPR is not without
criticism. The regulation solely “applies to all transactions intended for the
processing of personal data and to actual processing of personal data…
and to natural persons residing in Nigeria or residing outside Nigeria
but of Nigerian descent.”[36] The NDPR applying solely to personal
data and natural persons means the regulation excludes other forms
of data and corporate organisations respectively.

15.5
Furthermore, some quarters believe the NDPR being a regulation and not a
statute enacted by the National Assembly lacks the requisite force of law
sufficient for addressing such an important subject. Some also believe the NITDA
is not empowered by law within the ambit of Section 6 of the NITDA Act to make
such a regulation.

15.6
Nonetheless, Nigeria is one of the few countries that can boast of having data
privacy and protection laws in the world.[37] It is thus apparent the country is
heading in the right direction although there is still room for improvement.

_________________________________________________________________

For further information on
this article and area of law, please contact

Francis Ololuo at:
S. P. A. Ajibade & Co., Lagos by

Telephone (+234.1.270.3009;
+234.1.4605091-2)

Mobile (+2348112491286) or

Email
(fololuo@spaajibade.com).

www.spaajibade.com

[1]
Francis Ololuo, Associate Intern Intellectual Property & Technology Law
Department, SPA Ajibade & Co., Lagos, Nigeria.

[2]
https://www.statista.com/statistics/278414/number-of-worldwide-social-network-users/accessed
on January 20, 2020.

[3]
Estelle Masse “Data Protection: Why it matters and how to
protect it” (January 25, 2018) available online at: https://www.accessnow.org/data-protection-matters-protect/accessed
on January 20, 2020.

[4]
https://www.statista.com/statistics/263264/top-companies-in-the-world-by-market-value/
accessed on January 20, 2020.

[5]
“Facebook data privacy scandal: A cheat sheet” by James
Sanders and Dan Patterson (July 24, 2019) available online at: https://www.techrepublic.com/article/facebook-data-privacy-scandal-a-cheat-sheet/
accessed on January 20, 2020.

[6]
For instance, in 2014 the personal information of over
3billion Yahoo users was unlawfully accessed by hackers – CNN Business: “Every
Single Yahoo Account was Hacked – 3 Billion in all” (October 4, 2017)
available online at https://money.cnn.com/2017/10/03/technology/business/yahoo-breach-3-billion-accounts/index.html/
accessed on 4^TH February, 2020

[7]
The European Union General Data Protection Regulation
2016/679 is the EU’s major law on Data Protection and Privacy is aimed at
protecting natural persons within the EU with respect to the processing of
personal data and on the transfer of such data outside the EU.

[8]
National Information Technology Development Agency (NITDA)
is Nigeria’s foremost agency responsible for regulating data privacy and
protection in Nigeria.

[9]
CA/A/689/2013 (Unreported).

[10]
The Constitution of the Federal Republic of Nigeria 1999 (as
amended). Act No. 24, 5 May 1999.

[11]
See the case of Barr. Ezugwu Emmanuel Anene v. Airtel Nigeria Ltd,
Suit No: FCT/HC/CV/545/2015 (Unreported).

[12]
A regulation made by the NITDA pursuant to Section 6 of the NITDA
Act. Available on https://nitda.gov.ng/wp-content/uploads/2019/01/NigeriaDataProtectionRegulation.pdf
accessed on 27th January, 2020.

[13]
NITDA is empowered by section 6(a) of the NITDA Act (2007) “to create a
framework for the planning, research…evaluation and regulation of Information
Technology practices, activities and systems in Nigeria.”.

[14]
For a review of the NDPR, see “Data Protection Regulation 2019 –
The New Law” by Yimika Ketiku and Dolapo Bolu, available online at: http://www.spaajibade.com/resources/data-protection-regulation-2019-the-new-law-yimika-ketiku-and-dolapo-bolu/
accessed on January 20, 2020.

[15]
Nigerian Communications Act 2003, Federal Republic of Nigeria
Official Gazette No. 87 (10^th July, 2007) Vol. 94.

[16]
Regulation 35(3), CPC 2007.

[17]
Federal Republic of Nigeria Official Gazette No. 101 (7th November
2011) Vol. 98.

[18]
Regulation 9(2).

[19]
Regulation 5.

[20]
Federal Republic of Nigeria Official Gazette (28^th May)
Vol.98. Available on https://www.cbn.gov.ng/FOI/Freedom%20Of%20Information%20Act.pdf
accessed on 28^th January, 2020.

[21]
Federal Republic of Nigeria Official Gazette (15^th May)
Vol. 102. Available on https://cert.gov.ng/ngcert/resources/CyberCrime__Prohibition_Prevention_etc__Act__2015.pdf
accessed on 28th January, 2020.

[22]
Section 21.

[23]
Child’s Rights Act No 26 of 2003 (Federal Republic of Nigeria
Official Gazette No 26, Vol.90). Available on https://www.refworld.org/pdfid/5568201f4.pdf
accessed on 28^th January, 2020.

[24]
persons under the age of 18.

[25]
Section 8.

[26]
Pursuant to its powers under section 2(a) and 33(1)(b) of the CBN
Act 2007, the CBN released the Consumer Protection Framework 2016 on 7^th
November 2016. Available on https://www.cbn.gov.ng/out/2016/cfpd/consumer%20protection%20framework%20
(final).pdf accessed on 28^th January, 2020.

[27]
National Identity Management Commission Act No 23 of 2007 (Federal
Republic of Nigeria Official Gazette No 23, Vol. 94). Available on https://www.nimc.gov.ng/docs/reports/nimc_act.pdf
accessed on 28^th January, 2020.

[28]
Federal Republic of Nigeria Official Gazette No. 145 (27^th
October, 2014) Vol. 101.

[29]
Federal Republic of Nigeria Official Gazette No 18 (1^st
February 2019) Vol. 106. http://fccpc.gov.ng/uploads/FCCPA%202019.pdf
accessed on 28^th January, 2020.

[30]
Section 34(6).

[31]
Appeal No: CA/A/689/2013 (Unreported).

[32]
Suit No: FCT/HC/CV/545/2015 (Unreported).

[33]
In December 2019, NITDA threatened to issue a Notice of Non-compliance and to
publish the names of companies that default in filing their Initial Data
Protection Audit Report within the prescribed timeline. See https://andersentax.ng/nitda-to-issue-non-compliance-notices-to-defaulting-
organizations/, accessed on 30^th January, 2020.

[34]
Wole Olayinka “The People v Big Tech: Nigerian takes TrueCaller to
Court for Alleged Violation of Privacy Rights” 30^th September 2019 https://techcabal.com/2019/09/30/the-people-v-big-tech-nigerian-takes-truecaller-to-court-for-alleged-violation-of-privacy-rights/
accessed on 30^th January,2020.

[35]
James Kwen “NITDA says LIRS breaches Nigeria Data Protection
Regulation” 27^th December, 2019 https://businessday.ng/news/article/nitda-says-lirs-breaches-nigeria-data-protection-regulation/
accessed on 30^th January, 2020.

[36]
Article 1.2 of the NDPR 2019.

[37]
Other countries/regions include the EU, Canada, Brazil, China,
Angola, Argentina, Australia and Cape Verde.

First published here

The NBA can reconstruct the Nation by positively impacting on our democratic process | Dele Adesina SAN

by Legalnaija | Mar 19, 2020 | Uncategorized

Egbe Amofin ni Eko, the Lagos Branch of the main Egbe Amofin held its annual lecture in honour of Pa Tunji Gomez yesterday. The lecture is an annual event organised to honour the memory of Pa Gomez, who was one of the strong leaders of Nigerian Bar Association, Lagos Branch and Egbe Amofin in Lagos.

The programme was attended by eminent Legal Practitioners, including the Honourable Attorney General of Lagos State, Mr Moyo Onigbanjo SAN; Chief (Mrs.) Pricilla Kuye, Past President of Nigerian Bar Association; Mr Dele Adesina SAN and many others. Chief Wole Olanipekun SAN OFR was the Chairman of the occasion, while Mr Femi Falana SAN was the Guest Lecturer. The occasion was also attended by the family of the honouree.

In his welcome address, the Chairman of Egbe Amofin ni Eko, Chief Ogunleye Martins, traced the formation of the Branch to January 2017 and stated that the Branch was formed to provide a platform for a fraternity of lawyers of Yoruba extraction who live and practice in Lagos State. The objectives of Egbe Amofin ni Eko is to promote cultural renaissance by exposing its members to the trail-blazing contributions of Yoruba progenitors in the area of politics, law, ethics and national development.

The Chairman of the occasion, Chief Wole Olanipekun SAN OFR, congratulated the Egbe Amofin ni Eko for the well-deserved honour they have done to Pa Tunji Gomez. He also congratulated the family for the worthy life Pa Tunji Gomez lived first as a lawyer of note and of integrity and secondly as a human being. Speaking on the topic, Chief Wole Olanipekun SAN OFR talked about the need to protect the Profession and its two departments. According to him, the Bar must defend and honour the Judiciary while the Judiciary must also respect the Bar as respect is reciprocal. He said *“may the day never come when a lawyer will be intimidated or blackmailed for prosecuting/ handling a matter. At the same time, the lawyer has a duty to be civil and respectful in handling his matter.”* And this he has observed throughout his Practice career. He emphasised that the Bar and the Bench belong to the same Profession and we must build the Profession together.

The guest lecturer, Mr Femi Falana SAN, delivered a thought provoking lecture on *“Tribunalisation of Democracy in Nigeria.”* Among other issues raised by the lecturer is the increasing number of pre and post election petitions in Nigeria which according to the lecturer is second to none anywhere in the world. He wondered why Nigerian politicians seem unprepared to take no for an answer or accept defeat after an electoral contest.

He also touched on the negative impact of election-related cases on the nation’s Judiciary, in particular, the over-burdensome of these cases on the Judges and the abandonment of other cases including civil and criminal; stressing that these other cases are as important as the political cases. He advocated a shift away from the present state of the law whereby the onus is on the petitioner to prove corrupt practices and other vices beyond reasonable doubt, submitting that the standard of proof must not be that of proof beyond reasonable doubt but of balance of probability; election petition being sui generis.

In his contribution, Dele Adesina SAN congratulated Egbe Amofin ni Eko for thinking it wise to organise the lecture in honour of a worthy, honourable and quintessential lawyer in person of Pa Tunji Gomez. According to Dele Adesina SAN, Pa Gomez was a man of principle, honesty and high integrity, who will not say one thing and do another; a group person who was noted for pursuing the collective interest rather than narrow or selfish interest. Commenting on the theme of the lecture, Mr Adesina SAN stated that the bane of the problem in our democratic experience is the unwillingness on the part of the politicians to play by the rules or obey the law of the land. He stated that it is rather unfortunate that there seems to be no punishment in practical terms for electoral offenders.

So in our democracy, the politicians believe that the end justifies the means; stressing that it is the failure of the electoral process, both pre and post election that leads to the inundation and suffocation of our Courts with election-related cases, the opportunity-cost of which is a profound delay and congestion in our Courts. Mr Adesina SAN expressed his belief that the Nigerian Bar Association can reconstruct the Nation through positively impacting on our democratic process and making constructive contributions that will ensure that our democracy enjoins more democratic content in terms of obedience to electoral principles, ensuring punishment for electoral offenders and expediting the judicial process. He further stated that such suggestions from the Bar must include the establishment of Constitutional Courts to handle all election cases in order to free our Courts. He said, in order to be able to do this, the lawyers themselves must promote rule of law by obeying their own laws and constitution as no one can give what he does not have.

Finally, Mr Adesina SAN stressed the need for Egbe Amofin members, both national and in Lagos, to promote unity, the selfless pursuit of a collective goal in the affairs of Nigerian Bar Association and the need to elevate the interest of Yoruba lawyers within the context of the Nigerian Bar Association, as these have become more paramount and compelling more than ever before so as to avoid needless conflicts and controversies which has led to the failure of the Group in the past. Concluding that Egbe Amofin members need compromise which he said is a strong factor in leadership success and the absence of which precipitate failure.

Effects of Corona Virus on Global Taxation | Kofoworola Omowale Q.

by Legalnaija | Mar 19, 2020 | Uncategorized

The rapid outbreak of the coronavirus is alarming and the world is grappling with it. The virus has adverse effects on the health sector and its implications on commercial transactions are reshaping the global economy.

The virus knows no border, health-wise, commercially and economically. There are several disruptions caused by COVID-19 in the international sphere. The virus leaves no one and no sector unaffected. It has become a global phenomenon impacting family life, businesses and economies across the globe. Taxation cannot escape the disruption of the deadly COVID-19. Logically, tax is an important part of the economy. Corona Virus disrupts the economy.

Therefore, taxation is also disrupted. It is no longer news that tax policies are experiencing changes in the world. Countries affected by the virus are implementing tax relief for persons, businesses and households affected by this health crisis. This article will discuss the tax relief implemented by countries and the position of African countries in the practice of tax during this global outbreak of COVID-19.

CHINA

China reduced its Value-added Tax (VAT) from 3 percent to 1 percent for the cash accounting for small businesses. Also, VAT on medical, catering, accommodations, laundry services, masks and protective clothing has been cut off. The state taxation administration extended the period of tax declaration and deadline for tax payments. Subject to certain provisions and policies, enterprises producing important supplies and materials can receive a deduction on their corporate income tax on facilities payments. In the quest to encourage medical personnel and other public health workers, allowances and payments obtained by these set of people are exempted from Personal Income Tax. However, the fiscal and tax policies are subject to the rate of the epidemic.

FRANCE

The government is allowing companies to suspend payments of some social charges and taxes and also activating short-time work scheme. Businesses affected by the virus in activity can delay their tax payments and these companies can also refer taxes due during the epidemic without justification or penalty. In addition to the tax suspension and deferment policies, loans are available for any small or medium-sized businesses in difficulty.

GERMANY

Germany had a plan to implement a reform of the solidarity tax (a 5.5% surcharge on high-income earners) in 2021, however, due to the outbreak of Corona virus, the reform now applies in 2020, this present year. The Germany government has made it easier for companies to claim subsidies to support workers on reduced working hours to counter the effects of the pandemic.

ITALY

In Italy, tax deadlines have been extended for residents and companies in the areas where there is an outbreak of the virus. Also, all tax payments are extended until May(with the hope that the outbreak would have succumbed) without any penalty or restriction. Policies are in place to ensure that tax credits are granted to companies that suffer a 25 percent drop in revenue.

JAPAN

Tax filing deadlines and payments are delayed by a month in Japan, however, there are no tax policies considered on how the situation evolves. But, strong measures to protect the economy and proper consideration on reducing the sales tax are being considered. Options on tax, fiscal policy and deregulation are pertinent to be considered.

SPAIN

Spain government implemented a tax relief for small and medium-sized companies, without the exclusion of self-employed persons. Those businesses will be able to defer their tax obligations for six months without interest. The exempted taxes are: Income Tax, Corporate tax, and Value Added Tax (VAT).

United Kingdom

The UK government announced reductions on taxes to reduce the economic impact of the coronavirus. The personal income tax is not very much affected, but business property taxes for retail, leisure and tourism have been reduced due to the outbreak of COVID-19.

USA

In the US, taxpayers have been given the privilege to delay the filing of taxes due to the economic effects of the coronavirus. However, the categories to get a filing extension are not listed. The US delay tax payments without interests or penalities for individuals and businesses affected negatively by the virus.

What’s the narrative for African countries?

African countries have weak tax system and a heavy reliance on commodity revenue. The virus may not have as much effect on the tax system, because tax is still a striving part of the economy. In most African countries, tax evasion is the reality of the tax system, which renders the effect of COVID-19 a minimal disruption.

However, it wouldn’t be a big deal if African countries start to implement tax relief policies as an effect of the virus. The tax administration capacity in Africa is still needed to help spur development in Africa. Tax relief might seem like an odd proposition to the tax system in this part of the world, because the tax system does not have proper structure in place to comply tax payment.

CONCLUSION

Tax measures are important because the health issue is creating a substantial economic shock, and tax relief is means of minimizing the economic impact on medium-sized enterprises.

It is pertinent to note that only countries with a good and effective tax structure could implement policies to relief companies and individuals of tax payment. Companies in developed countries, including countries with effective tax systems have high tax burden on them, and this global outbreak will definitely have an enormous effect on tax compliance, payment and filing.

The policies to relieve these companies of their tax obligations during this outbreak will be of good effect than companies in African countries. This is an attestation to the proposition that Tax systems and policies in African countries are as good as nonexistent. The COVID-19 outbreak will determine the truth of this assertion. However, this is a call to African countries to implement policies and put in place structures that will aid tax compliance in the region and be of global standard.

KOFOWOROLA OMOWALE Q.

Kofoworola Omowale is a 3rd year law student at the University of Ibadan. She is a goal-oriented and purpose driven lady. She has keen interest in finance, taxation and the fintech space. She has authored several articles on Fintech, taxation and career development. She is currently a chapter member of Young Accomplished African Women (YAAW), West Africa’s first finance and technology talent accelerator for women.

She is also the Media Executive of Streetlaw Advocacy Network, an organization that proffers legal services to the vulnerable people in the society. She ardently believes that “whatever worth doing is worth doing well”.

REFERENCE

m.oecdobserver.org/ws/fullstory.php/aid/3510/Africa_s_tax_system:_A_survey.html

https://issafrica.org/iss-today/will-africas-economies-buckle-under-the-coronavirus

https://www.google.com/amp/s/amp.usatoday.com/amp/5019351002

https://www.japantimes.co.jp/news/2020/03/17/business/economy-business/tax-cut-japan-combat-covid-19/#.XnJQOh4o8ex

https://www.connexionfrance.com/French-news/Coronavirus-Covid-19-in-France-What-impact-on-work-workplaces-finance-economy-money-childcare

https://home.kpmg/us/en/home/insights/2020/03/tnf-france-tax-relief-available-for-businesses-affected-by-coronavirus.html

https://taxfoundation.org/coronavirus-covid-19-outbreak-fiscal-tax-measures/

Dele Adesina SAN, Femi Falana SAN & 6 others Inaugurated as NBA Ikeja Branch Patrons

by Legalnaija | Mar 17, 2020 | Uncategorized

The NBA Ikeja Branch, on Tuesday 17th March, 2018, inaugurated eight (8) new Patrons for the Branch. These Patrons are P.O. Jimoh-Lasisi, Layi Babatunde, Kemi Pinheiro, Rowland Otaru, Dele Adesina, Wemimo Ogunde, Femi Falana (all of whom are Senior Advocates of Nigeria), and Mrs Roli Craig. The Patron’s Investiture Ceremony also provided an opportunity to honour accomplished and very supportive seniors and elders of the Branch. It was also an occasion for fund-raising to complete the Bar Centre under construction.

Prince Dele Oloke Esq., the Chairman of the Branch, spoke eloquently about the Branch’s new direction of giving honour to whom honour is due, respect for seniors and elders of the Branch in order to promote unity of purpose among Branch members. He also spoke extensively on the need for elders of the Branch to provide effective mentoring to junior members of the Branch in order for them to be able to build a successful career in the Profession.

Giving the acceptance speech on behalf of other Patrons, Dele Adesina SAN thanked the Chairman, Prince Dele Oloke Esq., the Executives and other members of the Branch first for their appointment and secondly for the honour done to the honourees. He stated that thanksgiving and appreciation are essential qualities of human relation and when people are appreciated or thanked for doing a little, they would be spurred to do more.

He promised on behalf of the Patrons and Honourees that the leaders shall continue to support the Branch in the task of taking the Branch to higher levels. He enjoined all the members, young and old, juniors and seniors, to continue to demonstrate loyalty and commitment to the course of the Branch including but not limited to the desire and decision of the Branch to produce the National President in July 2020.

In this connection, Mr Dele Adesina SAN admonished the members to recognize that no strong individual can equal a strong institution. And that institutions build the destiny of Nations. He further stated that at one point or the other, the individuals will need the Branch more than the Branch needs them.

The Challenges of Executive Immunity Clause in the Constitution of the Federal Republic Of Nigeria, 1999 | Dele Adesina, SAN, FCIArb

by Legalnaija | Mar 14, 2020 | Uncategorized

AN ADDRESS DELIVERED
TO THE PARTICIPANTS OF THE EXECUTIVE INTELLIGENCE MANAGEMENT COURSE, INSTITUTE
FOR SECURITY STUDIES, ABUJA ON 9TH DAY OF JUNE, 2011

I
consider it a great honour once again to be invited to this year’s Executive
Intelligence Management Course of this great Institute to deliver a paper on
the topic “The Challenges of the Immunity
Clause in the Constitution of the Federal Republic of Nigeria 1999”² I recall that I was here last year
to address you during a similar Course. Once
again, I thank you for this invitation.

The subject of Constitutional
Immunity will continue to attract public discourse as long as the style of profligacy
and licentiousness of leadership, audacious demonstration of affluence by the
few but highly powerful and demonstrable impunity in the conduct and handling
of public fund continue in our society.

These are issues of
accountability, responsibility and transparency in governance and they
constitute serious concern to the governed.
The desire therefore to bring erring leaders to judgment in the exercise
of the sovereign authority of the people and the limit of such authority if any
will continue to make discussion on the subject of immunity relevant in
Nigeria.

I belief that every
position of authority is to serve the people and honestly too. It is not to
serve one’s self or ones family.
Regrettably, experience has shown that some of our leaders seek
leadership to wield authority. Authority to amass wealth and accumulate
material possession. Indeed, it has been
said that in Nigeria, some stash money in the names of their cronies and family
members with scandalous and reckless abandon.
All these lead to wastage of public resources and high degree of
corruption.

Therefore, subjecting
leadership to control and judicial sanction without offending the Constitution,
requires a good understanding of the provisions of the immunity clause in the
constitution. But let me ask, how many
people are covered by this provision?
And what is the percentage of this people compared to several other
leaders occupying one position of authority or the other, who also constantly
abuse and misuse their powers and authority?

THE CONSTITUTIONAL IMMUNITY

Section 308(1) of the
Constitution of the Federal Republic of Nigeria 1999 hereinafter referred to as
“the Constitution” which guarantees
the listed public officers immunity from criminal prosecutions subject to the
provisions of section 308(2) provides as follows:

“Notwithstanding anything to the contrary in
this Constitution but subject to sub-section two (2) of this section –

a.
No civil or criminal
proceedings shall be instituted or continued against a person to whom this
section applies during his period of office;

b.
A person to whom this
section applies shall not be arrested or imprisoned during that period either
in pursuance of the process of any court or otherwise; and

c.
No process of any
court requiring or compelling the appearance of a person whom this section applies
shall be applied or issued, provided that in ascertaining whether any period of
limitation has expired for the purposes of any proceedings against a person to
whom this section applies, no account shall be taken of his period of office”.

This sweeping
provision grants general cover for the listed members of the Executive to get
away with virtually everything to the extent that they are free from criminal
prosecution during the pendency of their tenure no matter what offence is committed
by them. However, it must be noted that
immunity

“does not apply to civil proceedings against
a person to whom this section applies in his official capacity or to civil or
criminal proceedings in which such a person is only a nominal party”.³

Subsection (3) listed
the persons to whom the section is applicable.
In the very words of the section.

“This section applies to a person holding the
office of President or Vice President, Governor or Deputy
Governor and the reference in this section to period of office is a
reference period during which the person holding such office is required to
perform the functions of the office”.⁴

The Advanced Learners
Dictionary of English Language defines immunity in the context it was used in
the Constitution to mean:

“The state of being protected from something,
protection against particular laws that is given to politicians” ⁵

The Authoritative
Black’s Law Dictionary 7th Edition, also define the word to mean:

“Any exception from a duty, liability or
service of process especially such as exception granted to a public official” ⁶

It also defines
Constitutional immunity to mean:

“Immunity granted by
the Constitution” ⁷

Simply stated,
immunity means protection from liability.
In other words, if the public official concerned commits even murder
which is absolutely prohibited by our criminal law,⁸ or offences of obtaining money under false pretences
contrary to Section 419 of the Criminal Code⁹the Constitution says you cannot arrest or
detain not to talk of prosecuting or sentencing simply because the person
involved happens to be the President, Vice President, Governor or the Deputy
Governor.

This is
notwithstanding the wave of seeming Executive lawlessness in the polity and the
parasitic ruling class who more often, are not able to separate or distinguish between
public fund and their personal money.
For me, providing constitutional protection against this situation
amounts to subversion of the rule of law, democracy and political stability
which must not be allowed to persist. But how did it all begin?

The Doctrine of
sovereign immunity has its origin in the anachronistic vestige; expressed in
the latin maxim Rex non protest
peccare (The king can do no wrong). As the King enjoyed absolute
immunity, he could neither be impleaded in his own courts nor subject to any
foreign jurisdiction. According to King
Maneleus of Sparta

“When a king takes spoils, he robs no one,
when a king kills, he commits no murder, he only fulfils justice” ¹⁰

I think the Yoruba
Native Law and Custom has something similar to this. This can be deduced from
the very title of ‘KABIYESI’ answered
by our Royal Fathers. Jurisprudentially,
Kabiyesi literarily means “who can ask him questions? Nobody.” But inspite of this referred position of the
Royal Fathers, the Yoruba Native Law and Custom still have very strong,
irresistible and generally accepted system of bringing an erring Oba to
justice.

By virtue of the Crown
Proceedings Act 1947, which came into force on 1^st
January, 1948, the position has changed.
Effective from that date, the Crown can be sued in England for the tort
of its servants. This was a radical
change from the pre 1947 position of total immunity enjoyed by the Crown¹¹The 1947 Act does not apply in Nigeria
by virtue of the Act being a post 1900 legislation and therefore not qualified
as a statute of general application.

The Crown
Proceedings Act of 1947 made the government generally liable with
limited exceptions in tort and contract. Even before this enactment, it was
possible to claim against the Crown with the Attorney General’s Fiat. Please note however that law suits against
the Sovereign in UK in his or her personal and private capacity remain
inadmissible under the British law.¹²

In the United States
of America, the Federal Government has sovereign immunity and may not be sued
unless it has waived its immunity or consented to the suit. The Eleventh
Amendment to the United States Constitution states that

“The Judicial powers of the United States
shall not be construed to extend to any suit in law or equity commenced or
prosecuted against one of the United States by citizens of another State or by
Citizens or subjects of any foreign State”

The Supreme Court of
United States has held that this Amendment re-affirms that States possess
sovereign immunity and are therefore generally immune from being sued in
Federal Courts without their consent.

In Australia, there is no automatic crown
immunity, although the crown may be explicitly or implicitly immune from any
particular statute.

In my opinion, the
principles of state sovereignty and Crown Immunity are distinguishable from the
Executive Immunity granted by the Constitution, because, even though these
officers represent the Executive authority of the State, they do not constitute
the Sovereignty of the State.

THE SCOPE OF IMMUNITY CLAUSE

In Olabisi
Onabanjo V. Concord Press of Nigeria,¹³ the Plaintiff who
was the Governor of Ogun State had filed a libel suit against the Concord Press
of Nigeria and promptly, the Defendant challenged the competence of the suit on
the ground that the Plaintiff was immune from being sued under section 308 of
the Constitution and therefore cannot sue. This objection was dismissed when
the Court held that although the Governor could not be sued, he was not
precluded from instituting and maintaining an action in Court.

The same decision was
reached, in the case of His Excellency,
Apa
Aku V. Plateau Publishing Ltd. & Ors,¹⁴ another libel
suit instituted by another serving Governor. The Jurisdiction of the Court was
also challenged on the basis inter alia of section 267 of the Constitution of
Nigeria 1979 (similar to section 308 of 1999 Constitution). The defendant had
argued that since processes cannot be issued requiring or compelling the
Plaintiff to appear before the Court that the Court cannot exercise
jurisdiction over the Plaintiff in the suit. That, even, in proceedings
commenced by the Governor, no process of any Court requiring or compelling his
appearance can be issued. The Governor, he further argued, cannot waive the
immunity conferred on him on the ground of public policy. That he cannot be subject to the process of
Court in his private capacity. Sound argument you will say.

But this is what the
respected Hon. Judge said and I quote:

“In my view the provisions of section 267 of
the Constitution quoted in full above are very clear and unambiguous. It means
as long as the Plaintiff, that is, His Excellency, Apa Aku remains in the
office of the Governor no civil or criminal proceedings shall be instituted or
continued against him. He shall not be
arrested or imprisoned during that period, either in pursuance of the process of any court or otherwise. Likewise and in the same circumstance, no
process of any court requiring or compelling his appearance shall be applied
for or issued. In effect the section
gave the Plaintiff immunity while in office as Governor and not disability in
legal proceedings while in office as Governor” ¹⁵

Consequently, His
Lordship dismissed the objection because according to him, the Constitution
does not deprive the Plaintiff the right to sue. One wonders what then is the status of the
legal right of equality of all persons before the law? If you as a President, Vice President,
Governor or a Deputy Governor can sue me but I cannot sue you for remedy over an
injury done by you to me just because you are in office, that to me does not
appear to be fair or just.

The decision in Apa
Aku V. Plateau Publishing (Supra) was confirmed by the Court of
Appeal in the case of Chief DSP Alamieyeseigha V. Teiwa & ors¹⁶. The Respondents in this case had secured an
order to compel the Chief of Air Staff to investigate some alleged criminal
acts purportedly committed by the Appellant while he was a serving officer in
the Nigerian Air Force.

The Appellant Governor
Alamieyeseigha was not made a party to the suit because he was at the time of
the suit, the Governor of Bayelsa State.
Thereupon, the Appellant sought and obtained the leave of the Court of
Appeal to appeal against the Order as an interested party. The Respondents
objected relying on the provisions of section 308 of the Constitution. In dismissing the objection, the Court of
Appeal held as follows:

“The failure of Respondents to put on notice
the Appellant who would be directly affected by the order to be made under the
application for mandamus is not only void for breach of section 36 of the
Constitution, Order 46 Rule 4 of the Federal High Court (Civil Procedure)
Rules, 1999, it is also void for breach of the immunity granted to the
Appellant from process or proceedings civil or criminal by section 308 of the
Constitution.

The immunity granted is not intended to
subject a person to whom section 308 applies to a civil disability in respect
of any of his fundamental rights guaranteed by the Constitution. At least, it is not intended that it shall
deprive a person concerned the right to fair hearing in the determination of
his civil rights or obligations – as would be the case if the attempt by the
Respondents were to be successful.

Section 308 of the Constitution is not to be
read in isolation it should be read alongside other provisions of the
Constitution in such a way as to give effect and validity to the other rights conferred
by the Constitution”.¹⁷

It has also been
contended that since the affected Executives cannot be sued or charged to court
during their term of office, cases that arose before their assumption of office
cannot be continued against them while in office and therefore has to be stayed
to await the expiration of their tenure.
See the cases of Cornel Oluwole Rotimi Vs. Mcgregor¹⁸; Bola Tinubu Vs. IMB Securities Ltd.¹⁹ and
Media Technic Nigeria Ltd. Vs. Lam Adesina²⁰

Talking about the
scope of the cover provided by Section 308 of the Constitution, Hon. Justice
Oduyemi JCA had this to say in Alamieyeseigha’s case (Supra)

“What section 308 provides in favour of the
persons enumerated in subsection(3) thereof so long as each of them holds the
office stipulated is an immunity from civil or criminal proceedings instituted
or continued against him; immunity from
arrest or imprisonment during that period either in pursuance of the process of
any court or otherwise or the application for or issue of the process of any
court requiring or compelling the appearance of a person to whom the section
applies. It is settled law that any
breach the provisions of section 308 of the Constitution renders such process
or proceedings civil or criminal, null, void and of no effect.”²¹

It therefore follows
that the officers listed in the said section cannot be served with any court
process. No court can lawfully exercise any jurisdiction on him. If any court does, the exercise of that
jurisdiction shall be a nullity.

The above cited cases
are civil in nature. Not much have been
seen or recorded on the interpretation and scope of the concept in criminal
cases. Not until 2002, the Executive
Immunity clause was perceived as almighty, unquestionable and absolute. That the President, Vice President, Governors
and Deputy Governors cannot even be investigated talk less of being prosecuted
while in office was the popular perception. That position was decisively changed in 2002
when our court put their feet down and insisted that the listed officers may
not be prosecuted in view of the clause, but, they can most certainly be
investigated for any criminal offence they allegedly commit while in
office. This was the case of FAWEHINMI VS. INSPECTOR GENERAL OF POLIC
& 2 ORS.²²

As men and women
saddled with specialized responsibilities and functions of security, intelligence
and investigations, this ground breaking case will be of particular interest
regarding the scope and interpretation of the subject under discussion. The facts of the case are briefly as follows:

The Plaintiff, Chief
Gani Fawehinmi SAN had petitioned the Inspector General of Police alleging the
commission of a crime against the person of the Governor of Lagos State. The petitioner invited the Inspector General
of Police to investigate the allegation contained in his petition pursuant to
its powers under section 4 of the Police Act.
The IGP in his wisdom or otherwise replied to the petition citing
section 308(1) of the Constitution as preventing him or the police from
carrying out an investigation against the sitting Governor.

Not satisfied with
this reply, the petitioner went to court claiming declarations and order of
mandamus compelling the Respondents by themselves, their agents, servants and
privies to investigate the complaints submitted by the Applicant. The Federal High Court, in a considered
opinion, held that the allegation of crime against the Governor could not be
investigated by the Police by virtue of section 308(1) of the Constitution
which granted immunity from criminal investigation against the President, the
Vice President, the Governor and the Deputy Governor.

But
quare!, from the wordings of section 308 of the Constitution, does the
Constitution really prevent the investigation of allegation of crime? No, it
does not. We shall see this very shortly.

Chief
Gani Fawehinmi SAN, the indefatigable anti-corruption crusader will not have no
for an answer. This he demonstrated by promptly appealing against the judgment
to the Court of Appeal contending that;

i “The learned
trial judge erred in law in holding that the Respondents are
Constitutionally barred by section 308 of the Constitution from investigating
allegations of crime made by the Appellant against the Governor.

ii That the learned trial judge erred in law
when he held that investigation by the Nigerian Police Force into criminal
allegations against a governor amounts to legal proceedings. iii That the
learned trial judge erred in law when he held that section 308 of the
Constitution confers immunity on the Governor of a state against investigation
into criminal allegations against him.”

The
Court of Appeal set aside the decision of the lower court and held pointedly
that under section (4) of the Police Act, the Police has the duty to detect crime.
Implicit in that duty is the duty to investigate complaints on the commission
of crimes. Furthermore, the court
held that section 308 of the Constitution does not help or protect the persons
covered under the section from Police investigation. That the use of the word “proceedings” after civil or criminal” in section 308 (1) of the
1999 Constitution makes it clear that what the draftsmen had in mind was
proceedings in court.

The
Court of Appeal rejected the interpretation of the lower court that legal
investigation of any matter more often than not usually leads to legal
proceedings. Their Lordships stated that
the meaning ascribed to the said provision (by the lower court) is too extensive
and wide. In his contribution Aderemi
JCA (as he then was) at page 528 of the report stated and I quote.

“Under the provision of section four (4) of
the Police Act, the Police has inter alia, the duty to detect crime. In the performance of that all important
duty, the police in trying to discover whether or by whom, an offence has been
committed, he is entitled to question any person (emphasis mine) whether
suspected or not from whom he thinks that useful information may be
obtained. That very act of the police is
called investigation” ²³

The learned justice rejected the
interpretation of the lower court that such an investigation will offend the
provisions of section 308(1) because the investigation will lead to the arrest
of the Governor and his eventual prosecution.

It is to
be noted, borrowing the opinion of the Court of Appeal on this point, that when
section 4 enjoins the Police to investigate, it only demands from the police
the verification of the allegation preferred.
In other words, to inquire into the authenticity of the allegation where
the allegation is found by the police to be well made and a prima facie case
has been made from the process of the investigation, there will be a resort to
the court of law for criminal prosecution or proceedings. The preferment of a former charge in the
court of law is the beginning of criminal proceedings and is an offshoot of a
criminal investigation carried out by the police.

Happily,
the decision of the Court of Appeal was confirmed by the Supreme Court (the
highest court of the land) in unmistakable terms. The Supreme Court has held
that any of the office holders mentioned in section 308 of the 1999
Constitution can be investigated by the police for any allegation of crime or
offence alleged against him. The immunity conferred by section 308 does not
confer on any of them immunity from Police investigation. See generally Fawehinmi Vs. IGP.²⁴

This is
the state of the law in Nigeria today. I
submit with authoritative firmness that nothing stops the law enforcement
agents acting under section 4 of the Police Act Cap P19 LFN 2004 which
donates the duty to prevent and detect crime, preserve law and order and
protect life and property from going after anybody including those covered by
the Executive Immunity. In the same
vein, the Police, on the strength of this same law can investigate any
allegation of crime of corruption or any other crime whatsoever leveled against
the President, Vice President, Governor and Deputy Governor.

For me,
criminal prosecution or criminal proceedings in the language of the Constitution
is only one of the consequences of criminal investigation. If section 308
forbids criminal prosecution as it is presently constituted, prosecution is not
the only consequence of a successful Criminal investigation. The outcome of
such criminal investigation, I suggest, can be kept in safe till the public
officer is out of office. Better still, the outcome of such criminal
investigation can be laid by the investigating agency before the parliament,
that is, the National Assembly with respect to the President and the Vice
President or the House of Assembly with respect to the Governors and Deputy Governors,
to provoke the activation of impeachment process under sections 143 and 188 of the Constitution respectively. The
failure of politicians in any of the Houses to take this step can be checkmated
by the peoples power through protest or other forms of civil disobedience to
force the parliament to do the needful.

I am
fortified in this position by the pronouncement of my law lord Hon.
Justice Uwaifo JSC in his contribution to the judgment in Gani
Fawehinmi Vs. IGP (supra) when he said;

“That a person
protected under section 308 of the 1999 Constitution, going by its provisions,
can be investigated by the police for an alleged crime or offence is, in my
view, beyond dispute. To hold otherwise
is to create a monstrous situation whose manifestation may not be fully
appreciated until illustrated… the evidence may be useful for impeachment
purposes if the House of Assembly may have need of it. It may no doubt be used for prosecution of
the said incumbent Governor after he has left office. But to do nothing under the pretext that a
Governor cannot be investigated is a disservice to the society”.²⁵

Perhaps
the Supreme Court was only confirming the public opinion on this issue
vis-à-vis the pervading act of corruption in high places – a cankerworm that all
have agreed needs to be comprehensively addressed if Nigeria must see
development and its people take advantage of its enormous God given
resources. Everybody, particularly to
those of us who belong to the Sociological school of jurisprudence, it would
have been unimaginable if the Supreme Court had reinstated the decision of the
High Court to the effect that because of the Constitutional immunity a Governor
cannot be investigated and the speculative assertion that “investigation
will lead to arrest and prosecution.”

I know as a matter of
law and practice that, not all investigations lead to arrest and prosecution. As men and women in the security network you also
know this too.

I agree
fully with the Lordships of the Supreme Court when they said that:

“Criminal proceedings
do not include police investigation as an act.
The findings or the result or conclusions reached eventually in the
investigation could. It is true that the
evidence required in the course of police investigation may be used in criminal
proceedings and become decisive of their outcome.”

I submit
that this decision has clearly whittled down the potency of the immunity clause
contained in the Constitution. We only
need to take full advantage of the development in order to forcefully instill
discipline, transparency and accountability in Governance. I am therefore going
to dwell more on the subject of investigation in order to take full advantage
of the judgment.

But
before I do that, let me conclude on the scope of the clause by saying that authorities
agree that section 308 does not apply to proceedings in election petition cases
involving the election of the Governor.
In Alliance for Democracy Vs. Ayodele Fayose No. 1,²⁶ Muri Okunola JCA (Now of blessed memory) said
and I quote:

“the provisions of
section 308 of the 1999 Constitution of the Federal Republic of Nigeria are not
applicable to confer immunity on a state Governor in an election petition
involving his election to preclude the issuance of subpoena on him? Or
put in another way, the immunity provided by the provisions of section 308 of
the Constitution of the Federal Republic of Nigeria 1999 on a State Governor is
put in abeyance when his election is being disputed before an Election Tribunal
as to make him amenable to being compelled by the subpoena to tender
document(s) or give evidence before the Election Tribunal”.²⁷

At this
juncture, may I say that the issue is not about the challenges of Immunity in
our constitutional jurisprudence but about the relevance of Immunity itself,
having regards to the nations contemporary experience in governance. After all, the immunity covers the President,
the vice President and 36 State Governors and their Deputies only out of the
multitude of political office holders that are in one position of authority or
the other. Even, for the category of
people covered by the Immunity, their children, wives and cronies are not in
any way covered. Secondly, the cover is
not for life. It operates only while in
office so its effect is to postpone the day of reckoning only. It does not
remove it and what more there is no statute of limitation against crime.

The
challenges that we face for me are how to have an effective and functional
crime investigation system and effective policing and monitoring of high
profile suspects. How to evolve the
necessary political will, courage and determination to punish offenders, irrespective
of their social status. How to equip the Police and other specialized
investigative agencies such as the ICPC, EFCC and the Special Fraud Unit of the
Police in order to have an efficient criminal justice administration system.

The
business of crime investigation has gone far beyond, “face me I face you” interview. With modern technology an individual can be
investigated without him knowing about it.
Gone are the days of “manual” investigations where a suspect is arrested
even without sufficient evidence upon which to charge or caution him. The Agencies
must in the course of their investigation reach a stage where it becomes
apparent to them from evidence gathered by them that there is sufficient cause
to believe that an accused has been discovered.

Added to
this is the need for the Law Enforcement Agents to take advantage of the
enormous powers donated to them by the Law for credible discharge of their
duties and responsibilities. For instance, there is, for the EFCC a general and
asset investigation unit established under Section 12 of the EFCC (Establishment)
Act 2004 which is charged with the responsibility for the prevention and
detection of offences in violation of the provisions of the Act. There is also
the provision for identification and tracing of proceeds and properties
involved in any offence under the Act.
By virtue of Section 42 of the EFCC Act, the EFCC, I submit can
investigate the asset of any person in or out of power suspected to have run
foul of not only the EFCC Act itself but also the Money Laundering Act, since
most of the ill gotten wealth will constitute an offence under the Money Laundering
Law anyway.

Also, enormous
powers are vested in the ICPC and the Special Fraud Unit of the Nigerian Police. Section 6 of the Act empowers the operatives
to where reasonable grounds exist for suspecting that any person has conspired
to commit or has committed an offence under the ICPC Act or any other law
prohibiting corruption to receive any report, investigate them and in
appropriate cases to prosecute the offenders.

These
powers are there. The challenge is to put them to effective and productive use
in order to maintain law and order and instill sanity in our political office
holders. Still talking above effective and efficient crime investigation, two
factors I believe are predominantly responsible for the shoddy and abysmal
performance in crime investigation in Nigeria. These are lack of proper funding
and Corruption. I won’t bother you
to talk about corruption; it is a vice we all know.

With
regards to lack of proper funding, this is what the Tell Magazine of June 6^th 2005 – a popular news magazine
in Nigeria quoting his interview with a Police officer said.

“According to the
D.P.O. as recent as 1997/1998 corruption in the force was something that was
done with utmost discretion and with facts unlike today that policemen on stop
and search brazenly demand money from members of the public and sometimes even
kill for failure to drop the mandatory N20. But it is no one’s fault. Previously D.P.O’s received quarterly
allocations for the running of their stations while operational materials like
statement forms for both complainant and suspect, duplicating papers, biros,
files and bail bonds were supplied from the headquarters to the stations. But suddenly the quarterly allocations
stopped. Initially, we thought it was a
temporary thing and D.P.O’s started to bring these things from their pockets
but when it persisted, they had to resort to what is now called in the force
“Self Generating Fund”

The D.P.O continued
in his interview with the Tell Magazine by saying that

“The quarterly allocation was meant for
fueling of patrol vehicles for outside investigations, payment of informants
and other
expenses. It is this money they (The
Police Men) take from you that they use to fuel their cars and do all the
police work.

The man is not
through yet. This was his conclusion

“The day policemen stop collecting this
N20.00 you people complained about, police activities will grind to a
halt”.

This is what another D.P.O
said

“DPO’s no longer get impress to run their
stations, nobody buys them fuel repair their patrol vans and other operational
vehicles when they break down. Even when you lose any of your men, you as the
DPO have to make the burial arrangement and raise money for taxing your men.
The situation is bad”.

Ladies and gentleman,
I am not aware of any Police Force of any Nation given this state and
circumstances, including a deplorable level of incentive and encouragement that
can operate optimally. These are the real challenges and these are the issues
that should attract our primary attention. I wonder if the above does not still
represent the position even today except perhaps the Policemen serving in Lagos
State. I was made to understand that Lagos State through its autonomous
Security Fund provides enormously for the Police in terms of provision of
equipments, incentives and operational vehicles.

In conclusion
therefore, even, if the immunity clause in the constitution is removed today and
I am totally in support of its removal from the constitution, if nothing is
done in the direction I have highlighted in this paper to make the system work,
abuse and misuse of power will continue unabated.

I thank you for
listening.

DELE ADESINA ESQ.,
SAN

END NOTE

1. Dele Adesina is a Senior Advocate of
Nigeria, Past General Secretary of Nigerian Bar Association. A member of the distinguished Body of
Benchers and Principal Counsel in the
Chambers of Dele Adesina & Co. 109, Opebi Road, Ikeja, Lagos and 23, Kolda
Street, off Adetokunbo Ademola Crescent, Abuja.

2. Section 308 of the 1999 Constitution of
the Federal Republic of Nigeria.

3. Section 308(2) Constitution 1999

4. Section 308(3) of the Constitution 1999

5. Advanced Learners Dictionary at page 598

6. Black’s Law Dictionary 7^th
Edition Page 752

7. Black’s Law Dictionary 7^th
Edition Page 753

8. Section 316 Criminal Code deals with the
offence of murder which is liable to death penalty.

9. Which attracts a punishment of 3 years
imprisonment.

10. Quoted in the book – Judicial foot Prints –
of Justice C. Oputa by George Oputa page 66

11. See the paper titled: The Limit of
Executive Immunity by Femi Falana Esq.

12. ibid

13. (1981) 2 NCLR 349

14. (1985)
6 NCLR pg 338 at page 342

15. (1985)
6 NCLR pg 338

16. (2001) 33 wrn
144

17. Per Oduyemi JCA Alamieyeseigha Vs. Teiwa
(Supra) at page 161

18. (1974) nscc
542;

19. (2001) 16 NWLR pt. 740 pg. 670

20. (2004) 44 WRN pg. 19

21. Alamieyeseigha V. Teiwa & Ors at page 147

22. (2002)7 NWLR part 767 pg. 606

23. (2002)7 NWLR part 665 pg. 481
particularly at page 528

24. (2002)7 NWLR part 767 pg. 606

25. See generally (2002) 7 NWLR part 767 pg.
606.

26. (2004) 26 WRN 34

27. Quote by Muri Okunola JCA

Dele is unbeatable in terms of his leadership capacity at the Bar- Chief J.K Gadzama SAN

by Legalnaija | Mar 13, 2020 | Uncategorized

Former Chairman of the Nigerian Bar Association (NBA) Section on Public interest and Development Law ( SPIDEL) Chief Joe Kyari Gadzama SAN, last today in Abuja described Mr. Dele Adesina SAN as unbeatable in terms of his leadership capacity at the Bar.

Chief Gadzama stated this while receiving Mr. Adesina and his team who paid him a courtesy call at the J-K Gadzama Court in Abuja. He said “In terms of capacity in the present context you are unbeatable. But what is the assurance that the process will be transparent and the results of the exercise will reflect the votes and will of the people.
“You were the General Secretary of the NBA when I was chairman of Abuja branch and your record of achievements are there for all to see”.

Chief Gadzama also said: “I believe in the regional groups, I am a trustee of the Arewa Lawyers Forum and therefore cannot go against the decision of Egbe Amofin and their candidate. When you stepped down for Mr. Oluwarotimi Akeredolu SAN in 2008, some of us were not happy with you.

You have a huge support base in my branch, most of the people in your entourage are my people and I cannot say no to you.You don’t need NBA Presidency to get to the top, it is all about service to God and humanity. If you believe you can serve the association now, please go on. Iwill consult with my people to agree on who to support in the race”

In his response, a Partner in J-K Gadzama LLP, Mr. Mohammed Mongono said: “Be rest assured that you have no problem with me and those who will listen to me. Others may come but one is matured to take his own position, so feel free to visit us any time. Mongono also stated that nobody has the institutional memory more than Mr. Adesina and therefore he has all their support. He complained that nobody was appointed into the Electoral Committee of the NBA from Maiduguri, Biu and Damaturu branches of the NBA
and that as a former chairman of Maiduguri Branch, he was disappointed at this and does not know what they have done to deserve this.

He assured Mr. Adesina of the support of the law firm in this journey.

Dele Adesina SAN Quote on prosperity of young lawyers

by Legalnaija | Mar 13, 2020 | Uncategorized

We need a prepared leadership and not an accidental leadership. Only a prepared leadership can guarantee success for his organization or his society. The prosperity of the young generation of lawyers in this country today may appear uncertain but believe me that it is possible for you individually and collectively to succeed and prosper in the Profession. You know what? I wish to say that if it is possible, it is practicable and if it is practicable, then, it is realizable once we apply ourselves spiritually, physically and professionally to the ideals and ethics of the Profession. The truth is that you must be determined and cut the right picture for you to succeed. As I always say, your picture determines your future.

Culled from Dele Adesina SAN’s Goodwill Message To The Young Lawyers Forum (Y.L.F) Ilorin Branch, on the occasion of their Annual Bar Dinner which held on 7th December, 2019

LAWYER ASKS COURT TO SET ASIDE 2019/2020 NDDC BUDGET SUBMITTED BY BUHARI TO NATIONAL ASSEMBLY OVER NON-INAUGURATION OF GOVERNING BOARD

by Legalnaija | Mar 12, 2020 | Uncategorized

Says only the Governing Board has the power to submit budget, award contracts, etc.

Challenges Inauguration of NDDC Advisory Committee without Board.

Lagos-based lawyer and human rights activist, Mr. Inibehe Effiong, has dragged President Buhari, the Attorney General of the Federation, Abubakar Malami SAN and the National Assembly before the Federal High Court in Abuja over the President’s ‘illegal’ submission of the 2019 and 2020 budget estimates of the Niger Delta Development Commission (NNDC) to the National Assembly without and in the absence of the Governing Board of the NDDC.

The case which was filed on Wednesday, 11th March, 2020 with Suit No: FHC/ABJ/CS/349/2020 also has the Minister of Niger Delta Affairs, Godswill Akpabio, the NDDC and the Ag. Managing Director and head of the Interim Management Committee of the NDDC, Prof. Kemebradikumo Daniel Pondei, as 4th, 5th and 6th Defendants, respectively.

Effiong in his Originating Summons asked the court to determine the following four questions:

“Whether by the provisions of Section 18 (1) of the Niger Delta Development Commission (Establishment etc.) Act, 2000, the President of the Federal Republic of Nigeria can validly submit estimates of expenditure and income (budget estimates) of the Niger Delta Development Commission to the National Assembly without and/or in the absence of the governing Board of the Commission.”

“Whether the 2019 and 2020 estimates of expenditure (budget estimates) of the Niger Delta Development Commission is not ultra vires, illegal, invalid, null and void having been submitted to the National Assembly by the President without and/or in the absence of the governing Board of the Niger Delta Development Commission in view of the express provisions of Section 18 (1) of the Niger Delta Development Commission (Establishment etc.), 2000.”

“Whether the Interim Management Committee appointed by the President of the Federal Republic of Nigeria to manage and supervise the affairs of the Nigeria Delta Development Commission, can legally exercise the power exclusively vested in the governing Board of the Commission, including entering into contracts and expenditure of the funds of the Commission, in view of the express provisions of Sections 8 and 14 (3) of the Niger Delta Development Commission (Establishment etc.), 2000.”

“Whether the existence and inauguration of the governing Board of the Niger Delta Development Commission is a condition precedent to the inauguration of the Niger Delta Development Advisory Committee; a body statutorily charged with the responsibility of advising the governing Board and monitoring the activities of the Commission in view of the provisions of Section 11 (2) of the Niger Delta Development Commission (Establishment, etc.) Act 2000.”

In his 40 paragraphs affidavit with 8 exhibits attached, Effiong stated that he is from the Niger Delta Region. He sated that President Buhari dissolved the extant Board of the NDDC headed by Senator Victor Ndoma-Egba in January 2019 and appointed an Interim Management Body to manage the affairs of the NDDC. He stated that Buhari in October 2019 wrote to the Senate seeking the confirmation of a new 16 member governing Board which has Dr. Pius Odubu from Edo State as chairman which was approved by the Senate.

Effiong deposed that despite the approval of the governing Board by the Senate, Buhari unilaterally suspended the inauguration of the Board and continued to retain the Interim Management Committee now head by Professor Pondei.

According to the activist, Buhari on the 26th November, 2019 submitted the 2019 and 2020 budget estimates of the NDDC to both Houses of the National Assembly without and/or in the absence of the Governing Board of the NDDC which attracted condemnation from the National Assembly, and that the Senate during its Plenary on Tuesday, 26th November, 2019 passed a resolution directing its Committee on Niger Delta Affairs not to recognize the Interim Management Committee but to relate only with the approved governing Board of the Commission when considering the budgets.

“Following the condemnation of the President’s submission of the said budget estimates without and/or in the absence of the governing Board of the NDDC by the National Assembly and the resolution of the Senate, the President by a letter dated 23rd December, 2019 formally notified the Senate of his decision to “put on hold” the governing Board appointment confirmed by the Senate “to allow the Interim Management Committee to manage the Commission pending the outcome of the Forensic Audit.” Effiong said.

According to the lawyer, in contravention of the earlier Senate resolution, the Senate Committee on Niger Delta Affairs recognized the Interim Management Committee while considering the 2019 budget of the NDDC on the 12th February, 2020 and allowed the said Interim Management Committee to defend the 2019 budget and that on Wednesday, 4th March, 2020 and Thursday, 5th March, 2020 the House of Representatives and the Senate respectively considered and passed the 2019 budget estimates of the NDDC without and/or in the absence of the governing Board of the Commission.

He also deposed that the National Assembly is currently considering the 2020 budget estimates of the NDDC without and/or in the absence of the governing Board.

Effiong also complained that on 10th March, 2020, President Buhari constituted and inaugurated the Niger Delta Development Advisory Committee at the Council Chamber, State House, Abuja, consisting of the nine Governors of the Niger Delta States and other persons appointed by the President without and/or in the absent of a governing Board for the Niger Delta Development Commission.

In his written address, the Lagos lawyer argued that the power to submit estimates of the expenditure and income of the Commission is statutorily vested in the Governing Board of the NDDC and not the president. He contended that the role of the President is that of agency; in the sense that the President merely acts as the courier of the Governing Board. The President, he argued, cannot perform his role under Section 18 (1) of the Act without and in the absence of the Governing Board. He said that a contrary interpretation will do direct violence to the spirit and letters of the NDDC Act.

Effiong further argued that “only the Governing Board of the Commission can exercise the power exclusively vested in it by the NDDC Act. There is no part of the said Act that empowers the President to put the existence of the Governing Board “on hold” and arrogate the statutory power of the Governing Board to an Interim Management Committee. The Interim Management Committee led by the 6th Defendant is an aberration and has no statutory backing”

On the inauguration of the Niger Delta Development Advisory Committee, Effiong submitted that “the existence of the Governing Board of the Commission is a condition precedent to the constitution of the Niger-Delta Development Advisory Committee. This is only logical since the advisory committee is required to advise the Governing Board. It is therefore my respectful contention that the inauguration of the Advisory Committee by the President is premature and against the due process of law and the intendment of the NDDC Act without and/or in the absence of the governing Board.” He argued.

Effiong prayed the court to declare that the President cannot validly submit the budget estimates of the NDDC to the National Assembly without and/or in the absence of the governing Board of the Commission. He therefore asked the court to set aside the 2019 and 2020 budget estimates of the NDDC submitted to the National Assembly by Buhari.

He also prayed for an order of injunction restraining the Interim Management Committee from exercising the power of the Board. Finally, he asked that the court should declare that the inauguration of the NDDC Advisory Committee was premature and against the due process of law.

Effiong told the court that “the Defendants should not be given a free hand to run the country amok without recourse to the dictates of the law. That will only lead to one result – anarchy. This Court has a sacred duty to halt descent into anarchy and uphold the rule of law. It is only by so doing that the future of Nigeria as a democratic country can be guaranteed.”

No date has been assigned for the hearing of the case.

Lawyer Profile: MFON EKONG USORO

by Legalnaija | Mar 12, 2020 | Uncategorized

Mfon Ekong Usoro holds an LL.M in Maritime Laws from University College London, an LLB (Hons) from the University of Buckingham, B.L (Hons) from the Nigerian Law School and a BSc (Hons) Sociology from the University of Calabar.

She is on leave of absence as the Managing Partner of Paul Usoro & Co., a leading law firm in Nigeria. Usoro has extensive and current experience in trade in services, participation in negotiations at diplomatic meetings and achieving consensus for adoption of negotiated instruments amongst member States at the regional and continental levels.

Relevant Regional, Continental and International Experience

Usoro is the Secretary General of the Memorandum of Understanding on Port State Control for West and Central African Region (Abuja MoU) – an Inter-Governmental Organization operating under a Cooperative Agreement with the International Maritime Organization with full diplomatic status.

The Abuja MoU comprises of 22 member States abutting the Atlantic from Mauritania to South Africa. As the Secretary General, Usoro established teams of experts from member States for the development of constitutive documents, port State Control procedures, takes the lead in negotiation and secures adoption of those documents by the member States and has successfully attained a high level of harmonization of procedures, implementation and coordination among the member States. She has held the position for over 8years.

Mfon Usoro has at various times consulted for the African Union Commission. Working with a group of experts, she was pivotal to the drafting and negotiation of the African Union Maritime Transport Charter 2009. She is periodically invited by the African Union Commission Department of Infrastructure to participate in workshops/chair meetings held in Addis Ababa, Cairo etc.

Usoro is a member of the African Network for Women in Infrastructure (ANWIn), an African Union Commission initiative.

Mrs Usoro also consulted for UNEP [Nairobi] and UICN [Senegal] to work with two other consultants from South Africa and Togo for the revitalization of the Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central Africa Region [Abidjan Convention].

Usoro was for several years, the sole Maritime legal consultant to the Maritime Organization for West and Central Africa (MOWCA), an inter-governmental body of countries in West and Central Africa headquartered in Cote d’ Ivoire. In that capacity produced the:

– Memorandum of Understanding on the Establishment of a Regional Integrated Coastguard Network in the West and Central Africa Region 2008. As the Chairperson of the Ad-Hoc Committee on the Establishment of the Sub-Regional Integrated Coastguard Network negotiated and developed a consensus MOU among member States for presentation to and adoption by the Ministers of Transport of the sub-regional organization.

– Draft Framework for Sub-regional Cabotage and the Memorandum of Understanding on Sub-regional Cabotage in October 2001.
Usoro was appointed in 2009 to chair the ministerial committee of the Maritime Organisation of West and Central Africa (MOWCA) regional Maritime Development Bank in 2009.

For a period spanning over a decade, Usoro regularly attends meetings of the Implementation of IMO Instrument Sub-committee of the MSC Committee of the International Maritime Organization in London and has been privileged to chair twice the IMO Workshop for Secretary General and Database Managers of Regional Port State Control regimes.

She for more than a decade has been actively involved in discussions on liberalization of legal services including attending meetings at the WTO as a member of the International Bar Association Bar Issues Commission, International Trade in Legal Services.
Relevant National Experience
Mfon Usoro is a trade law expert and represents the Nigerian Bar Association at the Nigerian Coalition of Services Industry (NCSI). Mfon was recently appointed the Chairperson of the National Consultative Forum on Trade and Trade Related Negotiations, NOTN.
She was privileged to lead the brainstorming sessions at the services industry consultation on the Nigerian Draft Schedule of Specific Commitments organized by the Nigerian Office for Trade Negotiations in February 2020. She participated as a panelist in 2 panels at the recent National AfCFTA Forum on “Effective Implementation for Industrialization and Inclusive Economic Development in Nigeria” on 5-6 December 2019 co-organized by the United Nations Economic Commission for Africa (UNECA).

At the level of the NBA and apart from representing the NBA at NCSI, Usoro was the Alternate Chairperson, NBA Liberalization of Legal Services Working Group (2012-2014) and past Chairperson, NBA Section on Business Law.

Mfon Usoro is the pioneer Director-General and Chief Executive Officer of Nigerian Maritime Administration and Safety Agency, (NIMASA) and she left the Agency in 2007. She is the chairperson of the Inter-Ministerial Committee for the Finalization of the National Transport Policy for Nigeria.

Corporate Boards
Usoro currently serves as Chairperson, Board of Directors of TIB Asset Management Limited; a Non-Executive Director (Independent), on the board of The Infrastructure Bank Plc; a Non-Executive Director (Independent), on the board of First City Monument Bank Ltd; a Non-Executive Director, on the board of Board of Geometric Power Limited.
National Honours.

Mfon Usoro was conferred with the Officier de L’Ord de Mono, a national honour of the Republic of Togo in 2002; and Chevalier de l’Ordre du Merite Maritime, a National honour of the Republic of Cote D’ Ivoire in 2015.

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