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Climate Change And Environmental Law | Okpara Cherish

by Legalnaija | Sep 6, 2019 | Uncategorized

“We
are running the most dangerous

experiment
in history right now,

which
is to find out how much carbon dioxide

the atmosphere can handle before

there
is an environmental catastrophe.”(ELON MUSK)

Climate change is a change in global or
regional climate patterns, in particular a change apparent from the mid to late
20th century onwards and attributed largely to the increased levels of
atmospheric carbon dioxide produced by the use of fossil fuels. Climate change
occurs when changes in Earth’s climate system result in new weather patterns
that last for at least a few decades, and maybe for millions of years. The
climate system comprises five interacting parts, the atmosphere, hydrosphere,
cryosphere, biosphere, and lithosphere(Wikipedia).

Climate change has become one of the greatest
global challenges of our times. Climate change affects people all over the
world. Effects that scientists had predicted in the past would result from
global climate change are now occurring, such as loss of sea ice, accelerated
sea level rise and longer, more intense heat waves. Science shows that as time
goes by, it will get extremely worse. Worse impacts will be on the lives and
livelihoods of the poor and developing countries, especially small island
states. We are increasingly aware that what happens in one part of the globe
can affect another part of the globe – be it toxic pollutants from Asia, Europe
and North America contaminating the Arctic or the greenhouse gases of the
industrialised regions triggering droughts or the melting of glaciers in the
less industrialised ones.

According
to the IPCC (Intergovernmental Panel on Climate Change), human-caused global
warming is driving climate changes impacting both human and natural systems on
all continents and across the oceans. Human-caused global warming results from
the increased use of fossil fuels in transportation, manufacturing and
communications.

The
Intergovernmental Panel on Climate Change is an intergovernmental body of the
United Nations, dedicated to providing the world with an objective, scientific
view of climate change, its natural, political and economic impacts and risks,
and possible response options.

In
Nigeria, according to findings from EcowarriorsNG (A Non Governmental Organization)
during their Climate Change Awareness Walk at Magodo; there is very little
sensitization on climate change and global warming. The very few that know just
hear of it in movies and do not educate their minds further.

According
to a survey done by the World Health Organisation, Onitsha is rated as the
dirtiest city in Nigeria. Aba is a popular city in Nigeria known for its
commercial activities. Also, the Association of Waste Managers of Nigeria,
popularly known as Public Private Participation, says Lagos State has now
become one of the dirtiest cities in the world.

Most
of this waste gets into the drainage system, blocks them leaving waters to
flood the roads and into the ocean.Plastics pollution has a direct and deadly
effect on wildlife. Thousands of seabirds and sea turtles, seals and other
marine mammals are killed each year after ingesting plastic or getting
entangled in it.

The
2014 World Climate Change Vulnerability Index classified Nigeria as one of the
10 most climate-vulnerable countries, and Lagos as the 10th most vulnerable
city in the world. The continued heavy reliance on fossil fuel-powered
generators in Nigeria by government institutions, businesses and households for
electricity supply constitutes a major threat to the nation’s climate change
plans. The dark smoky fumes that comes out of the exhaust of some commercial buses
in Lagos is enough to keep the country in total darkness.

As of 2005, Nigeria has the highest rate of
deforestation in the world according to the Food and Agriculture Organization
of the ited Nations (FAO). Between 2000 and 2005 the country lost 55.7% of its
primary forests, and the rate of forest change increased by 31.2% to 3.12% per
annum. Forest has been cleared for logging, timber export, subsistence
agriculture and notably the collection of wood for fuel which remains
problematic in western Africa.

In
2005 12.2%, the equivalent of 11,089,000 hectares (27,400,000 acres) had been
forested in Nigeria. Between 1990 and 2000, Nigeria lost an average of 409,700
hectares of forest every year equal to an average annual deforestation rate of
2.38%. Between 1990 and 2005, in total Nigeria lost 35.7% of its forest cover,
or around 6,145,000 hectares.

In 2015, the Nigerian Federal Executive
Council (FEC) approved the adoption of National Policy on Climate Change and
Response Strategy (NPCC-RS), as a National Document for implementing climate
activities in the country. The National Environmental Standards and Regulations
Enforcement Agency NESREA, is the major federal body responsible for protecting
Nigeria’s environment is responsible for enforcing all environmental laws,
regulations, guidelines, and standards ‘[National Environmental Standards
Regulations and Enforcement Agency (Establishment) Act 2007 (NESREAA) and the
33 Regulations made by the Minister of Environment under section 34 of the Act
This statute was created under the 1999 Constitution of the Federal Republic of
Nigeria (section 20) and repealed the Federal Environmental Protection Act 1988].These
laws prohibit the carrying, depositing and dumping of harmful waste on land and
in territorial waters among other things.

Despite
the regulations we seemingly have in place, there is has been no major
milestone in combating climate change and global warming in Nigeria.

In
an article written by YUSUF OLAOLU on Legal Professions and Climate
Change in Nigeria; he stated
that:

“Climate
Change, Energy and Sustainability are rapidly developing areas of law. There
has been significant activity at the national and international levels to
design and implement specific legal tools to address climate change and
renewable energy concerns. The coming years will see increased attention to a
broad range of climate and renewable energy issues at all levels of government.
Almost all business sectors and industries will be affected, including public
entities, non-profit institutions, lenders, developers, investors, landowners,
and companies in the engineering and construction, chemical, industrial and
manufacturing, transportation, and waste management sectors.

It
is time the legal profession turns its attention to the global dimensions of
this serious challenge and motivate decision-makers to bring about a
transformation of institutions and agreements to protect the lives of those who
would be worst affected by the impact of climate change. There are a number of
opportunities that exist for lawyers from the emergent regulatory and corporate
responses to climate change. Most importantly, the emerging Climate Change Bill
(the significant local legislation on Climate Change) in Nigeria and
International Treaties will generate new business opportunities and additional
regulatory risks. It is imperative for lawyers to be able to recognize and analyze
them for developmental gains. “

There
is a scarcity of legislation dealing with climate change. Nigerians disregard topics
related to climate change and global warming. These changes have led to the
emergence of large-scale environmental hazards to human health, such as extreme
weather, ozone depletion, increased danger of wildland fires, loss of
biodiversity, stresses to food-producing systems and the global spread of
infectious diseases. In addition, climatic changes are estimated to cause over
150,000 deaths annually.

“TWENTY
FIVE YEARS AGO PEOPLE COULD HAVE BEEN EXCUSED FOR NOT KNOWING MUCH, OR DOING
MUCH ABOUT CLIMATE CHANGE. NOW YOU HAVE NO EXCUSE!!” (Desmond Tutu).

Rape In Nigeria: Should The Burden Of Proof Shift?

by Legalnaija | Sep 6, 2019 | Uncategorized

Abstract

Nigeria
is a large and populous country with a lot of beliefs and superstitions. These
beliefs are largely fuelled and sustained through religion, societal views and
a sense of morality. These factors play a role in the attitude Nigerians have
towards certain issues, criminal issues especially.
These criminal issues
elicit different responses from the different classes of individuals within the
Nigerian space, and one of such criminal issues is rape; a crime that affects
the victims both physically and psychologically as victims, who are largely
female, are stigmatised and labelled with unsavoury names and are sometimes
even accused of being at fault for their own rape and consequently victims have
been known to commit suicide to thus escape the shame they face from society.

This
stigmatisation is largely fuelled by the disproportionate and frankly
impossible elements which the prosecution must prove to be granted a conviction
against the accused. To this point, this article seeks to suggest whether this
burden of proof should shift from the complainant on to the accused; due
largely to the peculiar nature of the crime of rape compared to other crimes as
well as the burden of reporting the crime and being at the forefront of proving
that the elements of rape have been fulfilled so a conviction can be made.
BURDEN OF PROOF As with all crimes, the
burden of proof in rape lies with the complainant/prosecution, who must show
that the accused did indeed commit the crime being alleged and that he intended
to commit the alleged act. It is not enough merely to say, that the accused
committed the alleged act however, this must be proved beyond reasonable doubt
that the accused indeed committed the alleged act. This even receives statutory
backing in the highest law of the land, the Constitution of the Federal
Republic of Nigeria1. The underlying principle behind the notion of this
stringent burden lying in the prosecution, is the point that it is better that
ten guilty men should escape than that one innocent man should suffer.2 In the
case of The State v. Danjuma3, the Supreme Court stated;

A
cardinal principle of law is that the commission of a crime by a party must be
proved beyond reasonable doubt. The burden of proving that any person is guilty
of a crime rests on the prosecution… the burden never shifts and if on the
whole of the evidence the Court is left in a state of doubt, the prosecution
would have failed to discharge the onus of proof which the law lays down on
upon it…4 WHAT IS RAPE? According to the
Oxford Advanced Learner’s Dictionary,5 rape is defined as “to force somebody to
have sex with you when they do not want to by threatening them or using
violence.”

1
See section 36(5) 2 Okonkwo and Naish (2012). Criminal Law in Nigeria. 2nd ed.
Ibadan: Spectrum Books Limited. p.93 3
[1997] 5 NWLR (pt. 506) 512 4 ibid 5 The 9th edition.

The
Criminal Code defines rape as:

…unlawful
carnal knowledge of a woman or girl, without her consent, or with her consent,
if the consent is obtained by force or by means of threats or intimidation of
any kind, or by fear of harm, or by means of false and fraudulent
representation as to the nature of the act, or in the case of a married woman,
by impersonating her husband…6 As stated above, rape affects its victims both
physically and psychologically and as seen from the above definitions, rape is
a vile, violent and disturbing act which is rightly punishable under the law as
a criminal act. One point that sticks out in the above definitions is the
importance of Consent. The requirement
of consent in a rape trial is so essential that where it can be proved that
consent was absent, a conviction of rape will most likely be given while the
presence of consent will provide the accused with a strong defence and thus
weaken the case of the complainant. Thus the lack of consent is a central
factor towards establishing the offence of rape. To this effect, the accused
must not only be shown to have committed the act (of rape), but that he did so
with the intention of having sexual intercourse without the victim’s consent or
that the accused must have been recklessly indifferent as to whether the victim
was consenting or not.7 The victim is expected to show as well, in a situation
where the consent was obtained fraudulently that she was induced and relied on
the fraudulent information.

The
requirement of consent however has probably been the most difficult thing to
prove by the accuser in a rape trial. In D.P.P v. Morgan8, the House of Lords
stated that where an accused believed that the woman was consenting, he should
not be guilty of rape even though he had no reasonable grounds for his belief.
The principle of the decision reached in this case is still very relevant in
Nigeria, and it just goes to show the insensitive burden placed on the
prosecution in proving the offence of rape. This will no doubt lead to
injustice and it is perhaps no surprise, however unfortunate it may be, that
Nigeria has only ever recorded 18 rape convictions in her history.

A
case that exemplifies the injustice that may result in a rape trial is the case
of Ogabi v. The Republic9. Here, the appellant did not deny having sexual
intercourse with the victim but contended that he did so with her consent. He
was convicted by the High Court and sentenced to a term of imprisonment. Upon
appeal to the Supreme Court, the court held that the presence of injury on the
private part of the victim was not conclusive proof of absence of consent to
the sexual act and the failure of the prosecution to call material witnesses
who approximate as closely as possible to what may be described as an
eyewitness was prejudicial to the prosecution’s case. The appeal was thus
allowed! The notion that women or victims are expected to fight back while
being raped further contributes to the seemingly obtuse attitude people have
towards consent in rape. It is not

6
Section 357. See also section 282, Penal Code Act; section 258, Criminal Law of
Lagos State. 7 D.P.P. v. Morgan (1975) 2
All ER 347; R v. Olugboja 3 All ER at 433 8 Ibid 9 (1965) NMLR 364

uncommon
to hear questions being asked about the dressing of the victim at the time of
the rape, or why the victim (if a woman) would go over to a man’s house to
sleep over, suggesting she was asking for it. Probably the most infuriating of
all, is the stereotype that a woman really means yes when she says no. In other
words, consent is given indirectly and thus the victims are essentially
enablers of their own rape. Another important point that sticks out in trying
to prove rape is CORROBORATION. It is established practice, that the evidence
presented by a complainant in sexual offences must be corroborated10. In R v.
Baskerville11, corroboration was defined as;

evidence
which implicates the accused, that is, which confirms in some material
particular not only the evidence that the crime has been committed but also
that the prisoner committed it.12 This essentially means that the victim’s
story must be supported by some external evidence connecting the accused to the
rape. However this is counterproductive as more often than not, rape occurs in
a private setting, away from the full glare of the public. As a result, the
victim would then need to rely on direct evidence such as her appearance,
medical reports or examinations immediately the offence was committed,
statement to police, etc.

The Supreme Court in Edet Iko v. The State13, held
that the fact that the complainant said accused inserted his penis into her
vagina is not ipso facto sufficient proof of penetration in the absence of
corroborative evidence like a medical report to support the evidence of
penetration. In R v. Saidu, the victim was found sitting on the accused’s lap
who was wiping her thigh with a cloth, which was identified as belonging to the
accused. Upon examination, the cloth was found to contain human semen, which
was also found on the thigh of the girl without blood. The doctor, who examined
her could not say whether the rupture of the hymen as well as the condition of the
outer parts of the girl’s vagina was recent. Accused was thus convicted of
indecent assault instead of rape! The
above cited cases show the attitude that judges in Nigeria have towards
corroborative evidence in rape trials. In one reported case14, the court
blatantly disregarded medical evidence that showed laceration of the hymen,
though not stating the cause, as well as the testimony of an eye witness who
stated that he found the appellant on top of the complainant. Despite the
requirement of corroboration in practice, while adducing evidence in a rape
trial, the reported cases show that more often than not, the courts would
ignore this corroborative evidences even in situations where it is clear that
the evidence supports the fact that the accused did in fact commit the alleged
act.

CONCLUSION
AND SUGGESTIONS FOR REFORM

Though
the concept of a presumption of innocence during a criminal trial was conceived
with the idea of preventing an innocent man from being wrongly convicted for a
crime he didn’t commit, in the case of rape, especially in Nigeria, this has
only served to allow “criminals” escape punishment. This even further allows
such individuals to become repeated offenders as they escape liability

10
Ibeakanna v. Queen (1963) 2 SCNLR p.191 11 (1916-17) All ER 38 12 Ibid. at 34
per Lord Reading CJ. 13 (2001) 14 NWLR (Pt. 732) 221 at 245. See also Simon
Okoyomon v. The State (1972) 1NMLR 292 14 Na’an Upahar & Or v. The State
(2003) 6 NWLR 254-256

either
due to a failure to report the rape, the incompetence of the investigative
officers who are pit in charge of the case or even the court’s attitude towards
the victims or the evidence adduced by the prosecution during the trial. To
this effect it begs the question whether the burden of proof in a rape trial
should shift from the complainant to the accused?

From
the above stated problems, (many of which could not be listed here by the
author) faced by the complainant in trying to get a rape conviction against the
accused, it would help if the burden shifted onto the shoulders of the
accused.

Firstly,
shifting this burden would go a long way in allowing victims be more open
towards reporting their cases. In the present dispensation, victims are well
aware of the difficulties they face in even having their reports taken serious
by a police force who more often than not ridicule them and blame them for
enabling their own rape. Such individuals who are supposed to help gather up a
case for the prosecution would, if the accused bears the burden of proof,
probably take their jobs more serious and be more receptive towards listening
to rape reports. This will also be further helped if the police force had more
female presence, as the majority of rape victims are female, these officers
will empathise with them and be willing to investigate their claims.

Secondly,
though newer criminal statutes such as the Violence Against Persons
(Prohibition) Act 2015 and the Criminal Law of Lagos State 2011 are more
progressive with regards to their provisions on rape and sexual offences, it is
suggested that the statutes governing rape and other sexual offences be revised
and enacted with proper regard towards the plight of victims in proving they
were raped and reference towards international best practices. These would
include a provision which shifts the burden of proof from showing that rape was
committed, to showing that rape was not committed, thus granting the victim
respite from having to go through a harrowing trial which would in the end not
favour her.

To
end it all, it can be seen that the current prevalent system is “anti-rape” as
it does not give a favourable climate to the victim who has gone through a lot
leading up to the point of trial. It is a system that largely favours the
accused, due in part to the fact that the burden of proof lies largely with the
complainant who must prove beyond reasonable doubt that the accused did commit
the alleged act. The suggestions outlined above, together with the criticism of
the current system will go a long way to improving the entire criminal justice
system towards rape as well as granting the victims proper reliefs.

Gani Fawehinmi Students Chambers

Faculty of Law

University of Lagos

Why Nigeria Isn’t Ready For A Jury System | Njoku Augusta Chinweubam

by Legalnaija | Sep 6, 2019 | Uncategorized

A
nation that is still being held captive by the unrelenting grip of corruption,
and is constantly plagued by political and economic instability, has no
business pursuing a Jury system. Nigeria is one such nation. A jury is a historic
legal institution in which a group of laypersons participate in deciding cases
brought to trial.
It is a group of people randomly selected by a judicial
district who are charged with the responsibility of deciding whether, on the
facts of the case, a person is guilty of the offence for which he or she has
been charged. It flows from this definition that Nigeria, in the current state
that she is, cannot in any way achieve justice by conducting a trial using the
jury system.

The
law requires a juror to be completely unbiased and without any conflict of
interest. A conflict of interest is when a person has knowledge of the case,
such as knowing one of the people involved, that may unfairly influence their
fact-finding abilities. How possible is it that one such person can be selected
to carry out jury duty? In developed nations like the United States of America and
Canada, who like Nigeria, practice a common law legal system, that can readily
be achieved. However, unlike these nations Nigeria is a country where bribery
and corruption is the order of the day, a country where many a man can get what
he wants from whoever he wants provided he has and offers the right incentive.

Corruption
has eaten deep into the governance and administration of Nigeria and it is easily
the major hindrance to the smooth and rapid growth and development of the nation
state. Nigeria first featured on the Corruption Perception Index (CPI) in 1996 and
has more than once been ranked as the most corrupt country in the world. What
are the odds that an unbiased Nigerian can be selected to sit in a trial as a
juror? Next to nothing. Nigeria is still in the process of learning to conduct a
free and fair election, which is one of the salient features of modern democracy,
and her progress appears to be infinitesimal or nonexistent. Over the years, after
every election, appalling stories of rigging and various malpractices at the
polls are circulated by word of mouth and the mass media. How successfully then
can any such jury selection process be conducted in Nigeria? As it is, a jury system
is likely to do more harm than good to our judiciary that is already faced with
the struggle of being and remaining independent.

Nigeria’s
colonial history, together with her practise of the common law legal system, is
another vitiating factor. A common law legal system is characterised by the
absence of codes, an inductive method of legal reasoning, judicial precedents, to
mention a few. A jury system is not a common feature of the common law, as a
result, most common law countries do not practice it. Nigeria, by virtue of her
being a former colony of Britain, is a common law country and her legal system
is strongly entrenched in the principles of stare decisis or judicial
precedents. Stare decisis advocates for a strict adherence to the decisions
of higher courts of law by the lower courts. The Nigerian Legal System attaches
importance to courts based on their position in the judiciary hierarchy. In
other words, there is no place for a jury in the Nigerian system of
adjudication. The Nigerian 1999 Constitution (as amended) in section 6 vests
judicial powers on the courts and also describes how these courts are to be constituted.
This provision does not include a jury system. To introduce a jury system into
our stabilized court system would be to disrupt a sound legal custom and a
system of rules that have been laid down and adhered to for decades. There is
no saying how long such an adjustment would take to get used to, nor is there a
way to point out how much damage the inclusion of a jury system would do to the
effective and efficient administration of justice in Nigeria.

Furthermore,
Nigeria is a federation characterised by diversity along ethnic, cultural and
religious lines. It suffices to point out that the Nigerian dream is a
heightened sense of nation building despite our various ethnic and religious
differences however, unfortunately, we are yet to achieve this. Many disputes
have arisen as a result of our inability to regard one another as ‘Nigerian’ and
not ‘Igbo’ or ‘Hausa’. Most of the crises in Nigeria today are the results of ethnic
or religious discrimination and it now appears that the very substance that
makes us is breaking us. Now a jury system requires a random selection of jurors
with requirements that more than half of the population is bound to be capable
of meeting. For instance, in the United States, a jury begins with a call for
jury duty. To be eligible for jury duty, one must be a legal citizen of the
U.S., be at least 18 years old, have no record of felony crime charges, be able
to speak English, and live in the jurisdiction, or area in which the jury is called,
for at least a year. Now in a multilingual and multiethnic society like Nigeria,
where tribalism, favouritsim and ethnicity is prevalent, how then can 12 people
(more or less) be selected without chaos arising from one ethnic group raising
an objection that his tribe was not represented? Or that the jurors are mostly
of a particular tribe or ethnic group? In a trial where a quarter of the jurors
are of the same ethnic group, how can the element of bias be successfully
eliminated?

What
can be inferred from the above assertions is that indeed Nigeria is not
prepared for a jury system. A jury system cannot survive in a country that is
corrupt. Many criminals and offenders will go scot free as long as they are
able to bribe one or all of the jury. The purpose of the law would therefore be
defeated. Also with how regimented the Nigerian legal system is, introducing a
jury system is bound to be a tedious, ineffective task as it would disrupt the laid
down principles and rules of our court system. In addition, to the extent that
ethnicity and tribalism continue to thrive amongst Nigerians, a jury system can
never do any good to the administration of justice in Nigeria. However, if the
issue of corruption amongst the citizens, public officials and the people in
the government can be properly addressed, if the judiciary can be statutorily expanded
to include a jury, and if tribalism can be made a thing of the past, then maybe
a jury system can be introduced into the Nigerian legal system. Until then, Nigeria
remains unprepared for a jury system.

©Njoku
Augusta Chinweubam

Gani
Fawehinmi Students Chambers

Faculty
of Law

University
of Lagos

Register For Art of Legal Advocacy And Law Firm Profitability Training For Lawyers

by Legalnaija | Sep 3, 2019 | Uncategorized

Excellent
advocacy skills and a sound knowledge of the business of law are necessary
skills mandatory for every lawyer desirous of attaining career success. This
training will instruct you on the skills required to advance your legal career
and position your law firm for high profitability in today’s business eco
system.

TRAINING OVERVIEW

Theme:
“The Art of Legal Advocacy”

Modules:

–
Litigation

–
Arbitration

–
Mediation

–
Forensic Documents Examination

–
Legal Writing

–
Law Firm Profitability

Date:
26th and 27th September, 2019

Time:
9am – 5pm daily

Duration
of Class: 2hrs each

Venue:
Neca House, Hakeem Balogun Street, Alausa, Ikeja, Lagos

Members of Faculty

·
Mr. Olabode Olanipekun SAN, Partner, Wole Olanipekun
Co.,

·
Dr. Abiodun Osiyemi; President, Forensic Science
Academy

·
Mr. Fola Alade ASCMA (UK); Principal Partner, Fotefa
Partners

·
Dr. Chinua Asuzu, Dean, The Write House; Senior
Partner, Assizes Law

Firm

·
Miss Busola Ajala , CEO, Strictly Law Business

·
Mr. Tolu Aderemi LLM (Netherlands), Partner,
Pearchstone & Graeys

Registration Details

Fee
per delegate – N60,000

Early
Bird (Ends September, 5, 2019) – N40,000

(1 Day Left to Register for Early
Bird)

For
registration details, please call Lawlexis on +2348055424566; +2349095635314 or
email lawlexisinternational@gmail.com

We
look forward to welcoming you as the session promises to be impactful and help
put you well on the way to achieving your career goals.

Thank
you.

For:
Lawlexis International

Ade
Onibokun

This training will instruct you on all you need to advance your legal career

by Legalnaija | Sep 3, 2019 | Uncategorized

This training will instruct you on all you need to advance your legal career and position your firm for high profitability in today’s business eco system.

The modules include – –

Litigation

-Arbitration

-Mediation

– Forensic Documents Examination

– Legal Writing

– Law Firm Profitability

You also get to learn from our Members of Faculty who are experts in these areas of legal practice, they include –

· Mr. Olabode Olanipekun SAN, Partner, Wole Olanipekun Co.

· Dr. Abiodun Osiyemi; President, Forensic Science Academy.

· Mr. FolaAlade ASCMA (UK); Principal Partner, Fotefa Partners.

· Dr. Chinua Asuzu, Dean, The Write House; Senior Partner, Assizes Law Firm.

· Miss Busola Ajala , CEO, Strictly Law Business.

· Mr. Tolu Aderemi LLM (Netherlands), Partner, Pearchstone & Graeys

Other details are –

Theme: “The Art of Legal Advocacy”

Date: 26th and 27th September, 2019

Time: 9am – 5pm daily

Duration of Class: 2hrs each

Venue: Neca House, Hakeem Balogun Street, Alausa, Ikeja, Lagos

Registration Details
Fee per delegate – N60,000
Early Bird (Ends September, 5, 2019) – N40,000

We look forward to welcoming you as the sessions promise to be impactful and help put you well on the way to achieving your career goals.

For registration details, please call Lawlexis on +2348055424566; +2349095635314 or email lawlexisinternational@gmail.com or follow this link – https://paystack.com/pay/Lawlexis

#NBAAGC2019 #nbaconference #facingthefuture #NBA2019AGC #NBA2019AGC #nigerianlawyers #AOCLegal #AOCLegal #careertraining #lawyertraining

NBA Introduces Travel Policy

by Legalnaija | Sep 2, 2019 | Uncategorized

NIGERIAN
BAR ASSOCIATION

NBA
TRAVEL RETIREMENT POLICY – APPLICABLE TO THE MACARTHUR
FOUNDATION PROJECT AND OTHER NBA-RELATED TRAVELS

1. Travel and
Subsistence

NBA recognizes the need for
travels in the course of executing and meeting the objectives of the MacArthur
Foundation Project and its other functions. Travel and subsistence needs may
arise for members of staff from conferences, domestic trainings and meetings.
Consequently, NBA acknowledges the need to allocate and release travel funds
for all reasonable expenses.

1.1 Objective

The objective of this policy
is to instill accounting and retirement discipline as well as transparency in
NBA-related travel expenses. The policy also seeks to ensure that funds
collected from the association are utilized for the purpose it was disbursed in
line with the transparent accounting policy that is being entrenched in the NBA
administration. It also bears emphasizing in specific regard to the MacArthur
Foundation ACJA project that the NBA has an obligation to properly account to
the Foundation for all expenses incurred with receipts therefor.

1.2 Scope

This policy covers
NBA’s travels and meeting expenses as it relates to the MacArthur Foundation
project and for other purposes as well as reimbursements including travel
costs, accounting for travel costs, and entertainment during travels.

2. Policy

2.1 General

It is the policy of
NBA to release funds in form of advance for all its activities. In situations
where advances are obtained, members of staff while traveling on official
business must exercise sound judgment in incurring expenses as all advances
will be accounted for. Travel requests must be in writing, approved by the
President through the General Secretary’s recommendation, and shall state the
following:

a.
Purpose of travel;

b.
Travel destination;

c.
Travel accommodations;

d.
Mode of Transportation; and

e.
Travel dates and duration.

The Internal Auditor
(or in his absence, the Accountant) shall review requests for advance and
ensure that there is sufficient cash to accommodate the expense. Alcohol or
tobacco expenses do not qualify as expense for advances or retirements. NBA’s
funds shall not be used for such expenses.

2.2 Travel Cost:
Transportation

Transportation shall be by
air, train, bus, taxi, or use of rental or personal vehicle. Adherence to
safety measures is paramount and always required.

Carpooling is encouraged for
members of staff traveling to the same location. The shortest and most
direct routes are encouraged for economy and efficiency. Timely planning and
booking of rides and air travels is encouraged to obtain the lowest priced
airfares.

Use of the Association
or personal vehicles is acceptable when it is evident that transportation via
other means is not practical or when it is less expensive. Reimbursement to the
owner of the personal vehicle will be at the current cost per mile rate
approved by the National Executive Committee or the President personally or
through the General Secretary.

2.3 Travel Cost:
Accommodation and Meals

The policy allows verifiable
payment for a single room for as many nights as necessary while carrying out
official duties. Accommodation and per diem threshold shall be established and
reviewed by the Head of Administration and Finance from time to time and shall
be duly approved by the President through recommendation from the General
Secretary. This implies that where payments seem ambiguous or outside the
expected threshold, the approver or internal/external audit can verify such
claims. Accommodations should be economical but practical.

NBA shall not
reimburse any staff for fines for traffic violations or private auto repair,
alcohol purchases, entertainment, or club fees.

2.4 Accounting for
Travel Expenses

The staff incurring
travel cost shall ensure that the President pre-approves the expense. Once
travel is completed, he or she is responsible for submitting receipts or other
documentation for all monies received and other reimbursable costs (if any).

All staff of the NBA
(and National Officers who may have to travel in respect of MacArthur
Foundation Project) shall prepare Travel Expense Reports documenting the travel
costs including the amount, place, and purpose of the business travel. The
staff and the relevant National Officers shall submit the report no later than
seven (7) days after incurring the expense. The accountant shall review these
documents for adherence to approved limits.

2.5
Supporting Documents

The NBA requires that
receipts must be submitted for all monies received and spent. Supporting
documents should provide evidence of the amount paid for the goods bought or
services paid for.

A photocopy or typed
receipt shall not be acceptable as supporting document.

Below is a list of acceptable
supporting documents for each category of expenditure:

Expenditure Acceptable
Supporting Documents

1.
Accommodation Hotel Invoice/Receipt.

2.
Air Transportation (a). Airline Ticket (b). Boarding Pass (c). Proof of payment
made to the airline or booking agency (This must tally with the flight
details)

3.
Local Transportation (a). Uber, Taxify and other Taxi receipt (Where
Applicable) (b). Bus ticket

4.
Other forms of purchase/payment Receipt of purchase/evidence
of payment.

2.6 Reimbursement for
Travel Expense

In circumstances that
an NBA Staff or National Officer is not advanced with funds for any preapproved
travel, he/she may undertake the trip with his personal funds based on and in
conformance to the provisions of this Policy provided that he shall retire the
travel expense in the manner stipulated in this Policy and be reimbursed with
such costs and expenses within 7 (seven) days of such retirement in the event
that the travel advance was not paid to him/her before the said period.

2.7 Violation of
Travel Policy

All NBA staff and
National Officers who may have to travel in respect of MacArthur Foundation
Project assignments are expected to comply with this travel policy. Violation
of this policy will result to disciplinary actions against the staff. National
Officers should please set the example in compliance for the staff.

The NBA will recoup
all un-retired advance from the financial entitlement of defaulting
persons.

Nigerian Bar Association Introduces Petty Cash Policy And Procedure

by Legalnaija | Sep 2, 2019 | Uncategorized

In his to promote governance reforms of the Nigerian Bar Association,
the Paul Usoro led administration shall be present to
the NBA NEC for approval a Petty Cash Policy for the NBA.

Find details
delow –

Petty
Cash

The objectives of this
documented Petty Cash process include to;  provide funds for minor expenses 
ensure the cash is available when needed  accurately account for petty cash/
advances issued to staff

This objectives are
achieved by the various processes documented below.

1.0
Petty Cash Policy Statements

·
An amount not more than N250,000 shall be
dedicated as float for the purpose of petty cash administration. This amount
shall be reviewed periodically by the Head-Accounts with the approval of the
NBA President.

·
The float shall be kept by a petty cashier
for the purpose of funding. Only approved petty cash shall be disbursed.

·
Only officers with approval limits (i.e.
head of department) shall approve petty cash requisition.

·
The petty cash expenses will be limited to
amounts not exceeding N20,000 (twenty thousand naira) for expenses including
but not limited to:

a.
Fuel expenses

b.
Official entertainment expenses

c.
Minor purchases and expenses

d.
Minor repairs and maintenance

e.
Local transportation

f.
Other minor expenses that may be logical and relevant to operational needs.

This list of allowable
petty cash expenses shall be reviewed regularly and updated accordingly upon approval
by the NBA President.

·
There shall be segregation of duties
between the custodian of petty cash, the officer responsible for approval of
and replenishment of petty cash. The petty cash officer shall maintain a petty
cash register for the purpose maintaining petty cash records.

2.0
Petty Cash Requisition

·
A requesting department/individual raises
a petty cash requisition and forwards to the petty cashier.

·
The requisition must be approved by the
HOD of the requesting department.

·
The petty cashier reviews the requisition
and confirms the item required is an allowable petty cash item, otherwise,
redirect requisition to procurement or other appropriate process. List of petty
cash allowable expenses are documented in the policy statements for petty cash
above and is subject to amendments upon approval by the NBA president.

·
Subsequently, the petty cashier prepares a
petty cash voucher for approval by the Head of Accounts.

·
On approval, the petty cashier disburses
cash and the requesting individual signs for the cash received.

·
After incurring the expenses, the
requesting individual must ensure that the petty cash obtained is retired and
relevant support documents and balance (if any) are submitted to the petty
cashier.

·
Support documents shall be filed
accordingly with appropriate documentation.

3.0 Petty Cash Disbursement

·
The maximum amount payable by the petty cashier
shall be N20, 000 per expense.

·
A duly completed and approved petty cash
request form shall be presented by the requesting officer to the petty cashier
for disbursement of petty cash.

·
Expenses paid from a petty cash fund can
only be made for the purpose for which the fund was authorized.

·
At every point in time, the total amount
of all receipts plus the cash on hand shall be equal to the total approved
petty cash float of N250,000.

·
Cash count shall be performed at the end
of each day by the petty cashier and reconciled to the book balance of the cash
on hand.

4.0 Petty Cash Retirement

·
Petty cash advances/disbursements shall be
retired within 72hrs of completion of the transaction for which the request was
made.

·
Retirement of petty cash shall be done
using the petty cash voucher

·
Any unexpended petty cash shall be
accounted for on the petty cash voucher and returned to the petty cashier.

·
Evidence of expenditure such as receipts,
tickets etc. shall be attached to the petty cash voucher or retirement form.

·
Petty cash advances not retired within the
stipulated timelines shall be recovered from the requesting staff’s salary.

·
Where no evidence of expenditure is
provided, the HOD of the requesting department shall sign off on the expense,
otherwise the amount of the un-receipted expense will be recovered from the
requesting staff’s salary.

5.0
Petty Cash Reimbursement / Replenishment

·
At the end of each month or when the petty
cash balance available reaches a reorder level of N60,000, the petty cashier
shall complete the petty cash replenishment form.

·
The amount that shall be requested for
reimbursement shall be equal to the summation of approved petty cash disbursed
during the month, bringing the total available petty cash float to the approved
monthly amount of N250,000.

·
The request shall be submitted with
supporting documents including: a. Petty cash register b. Petty cash support
documents i.e. request forms, receipts etc.

·
Such requests shall be reviewed by the
Head-Accounts and approved for payment by the NBA President.

·
All cheques for replenishment of petty
cash float shall be made payable to the petty cashier.

·
On no account shall the petty cashier have
the aggregate of cash and unpresented for reimbursement vouchers that will be
more than the float.

6.0 Physical security of petty cash

·
Petty cash shall be placed in a safe i.e.
fire – resistant box  Access shall be granted to only authorized
personnel

7.0 Cash counts

·
End of month cash count – At the end of
the month, a member of staff from a different team other than finance team e.g.
Internal Audit department or Administration department, will be appointed by
the Head of Finance, shall conduct a cash-count and reconcile the cash counted
to the book balance and the cash on hand. Any issues noted during the cash
count shall be documented in a Cash count report.

·
Surprise cash count – Management or the
internal auditor shall carry out unannounced cash counts at least once a month
or as deemed necessary. This aims at ensuring the cash on hand equals the book
balance at all times.

ADR In Criminal Litigation: An Abomination Or Necessary Evil | Nonso Nonso Anyasi

by Legalnaija | Sep 2, 2019 | Uncategorized

The
picture of a purported settlement agreement executed between an alleged
offender and the parents of a fourteen year old girl who was defiled has been
making the rounds on Social Media, with many lawyers and PUBLIC commentators condemning
the said settlement agreement which was presided over by Office of the
Commissioner of Police of Rivers State.
Many lawyers have opined that this
settlement agreement is alien to our criminal jurisprudence, as offences
dealing with rape, sexual harrasment and defilement of minors should be placed
outside the scope of operation of Alternate Dispute Resolution (ADR) mechanism
in order to emphasize the gravity of such offences.

It
has become necessary to critically examine the position of the law on ADR in
criminal litigation in Nigeria. Does the law expressly prohibit “settlement” of
criminal cases? Before engaging in an exposition of the jurisprudential
principles of criminal litigation as it applies to this case, it is pertinent
to briefly state the facts of this notorious case for the ease of assimilation.

The
father of a fourteen year old girl, upon the advice of his Counsel brought a
petition to the Office of the Commissioner of Police in Rivers State, alleging
that his daughter had been sexually defiled by a certain Chief in the
community. They sought the arrest and prosecution of the offending Chief.
Subsequently, the suspect who was accosted by the police confessed to his
complicity. An agreement was then
reached between the accused person and the victim’s family that the accused
person and his family would apologise to the victim and her family, and also be
responsible for the medical bills of the victim. It was also agreed that the
victim would undergo monthly check up at a specified hospital for six months.
It was further agreed that upon the final check up on the sixth month, the
victim would withdraw the petition if she has been certified to be medically
fit and okay. The accused person also agreed to pay a specified sum of money as
immediate compensation to the victim’s family. The agreement was drawn up by
the legal Counsel of both parties, and executed by the parties and their
Counsel. The victim, being a minor did not sign this agreement, but it was
signed by her father.

The
picture of this settlement agreement which was leaked on Twitter as soon as it
was executed has attracted serious opprobrium from different quarters.
Alternate Dispute Resolution (hereinafter “ADR”) is not alien to our criminal
jurisprudence. Before the introduction of colonial rule in Nigeria, disputes
were settled amicably amongst the interested parties. There was no distinct discrepancy
between civil and criminal cases in pre-colonial cases, as there was no
codified system of laws. The head of communities in most instances acted as an
umpire in settling disputes. Where offencs were committed against a member of
the community, the offender would be made to pay restitution to the victim, and
also be made to suffer moral reproach and disgrace. The principle of
restitution was however the most paramount principle behind punishment of civil
offenders in pre-colonial Nigeria.

However,
with the advent of colonial rule, and subsequently independence, the legal
system became formalised with the introduction of the courts and prison system.
Offenders were prosecuted by the state on the behalf of the victim and the community,
and in most cases, sentenced to either jail term or compelled to pay fines to
the state. There are several principles behind the concept of punishment in
modern day criminal jurisprudence, including:

1. Retribution: This is based on the
biblical theory of an eye for an eye, wherein offenders are made to suffer
punishment parallel to the wrong they have committed. Sentences of imprisonment,
death penalty, and corporal punishment are based on the retributive philosophy.

2. Restitution: Here, the offender is
given the chance to make amends for his past misgivings. The offender is
punished in such a way that the society and/or the victim are compensated for
his crimes. Sentences such as community service, fines, and orders for
forfeiture of property are classic examples of the restitutive principle.

3. Detterence: Often times, some offenders
are used as scape goats to teach a lesson to other members of the society to
desist from engaging in similar vices. This priniciple which is also known as
the utilitarian principle by Western Legal Scholars is more pronounced where
the victim has shown remorse or has already offered to make restitution for his
actions. Sentence of both imprisonment and fines on convicts is an example of
the detterence philosophy at work.

4. Rehabilitation: This theory aims at
correcting and re-integrating offenders into the society. The offenders are
given the lessons which make them vilify their previous crimes, and are
re-integrated into the society to live crime-free lives. This principle is
mostly utilised for juvenile delinquents and first time offenders.

The
Nigerian criminal justice system which attempts to combine all the above
principles can however be said to be largely retributive in nature. It is trite
that no person shall be punished for an offence except if such punishment is
defined and the punishment prescribed in a written law. A critical review of
the penal laws of Nigeria will reveal most criminal punishments are retributive
in nature. It places much premium on inflicting punishment and pain on the
offender than any real attempt to reform and reintegrate the offender back into
the society. From the time an offence is committed to the trial and judgment,
all our legal rules is concerned with is proving guilt according to the letters
of the law. Little or nothing is done about repairing the damage done by the
crime. Victims of crime and even the community who suffer the direct impact of
the offence are relegated to the background.

The
resultant effect of this over-reliance on the retributive system is that the
court rooms are over-congested with too many cases and litigation is prolonged
before justice is achieved. It takes time for the guilt (or innocence) of an
accused person to be established, due to the traditional problems of shortage
of facilities associated with our juducial system. Trials at the high courts
take as long as three years before a verdict is reached. An appeal from the Court
of Appeal to the Supreme Court can span for as long as six years. Ordinarily,
an accused person remains incarcerated in custody as a guest of the state
during his trial, and may be discharged by the apex court on appeal. He would
then be made to have suffered unjustly for an offence which he is innocent. The
case of Shande v State (2005) 12 NWLR
(PT 939) 301 wherein the accused person was acquitted by the Supreme Court
after facing trial for eight years is a classic example of the tribulations
facing our retributive criminal justice system.

The
proximate impulsion to this treatise being the recent settlement agreement to
oust the jurisdiction of the court in trying an alleged criminal offender is
the critical review of the application of ADR to criminal litigation in
Nigeria. Recently, the policy framers of the Nigerian Criminal Justice system
have begun to embrace and intigrate ADR into our criminal jurisprudence. The
Administration of Criminal Justice Act (ACJA) contains a legal framework for the
adoption of a mild form of ADR via plea bargaining in Nigeria. In the case of FRN v Igbinedion & Ors (2014)
LPELR-22760 (CA), the Court of Appeal in defining plea bargaining adopted
the definition of the Black’s Law dictionary thus:

“What
is a plea bargain arrangement? Bryan Garner’s Black’s Law Dictionary 8 the
Edition at pg. 1190 defines plea bargain as “A negotiated agreement between a
prosecutor and a criminal defendant whereby the defendant pleads guilty to a
lesser offence or to one of multiple charges in exchange of some concession by
the prosecutor usually a more lenient sentence or a dismissal of the other
charges.”

Plea
bargain also known as plea agreement or plea deal, although not expressly
stated to be an ADR mechanism, can be regarded as such because its form and
effects conforms to the principles and aims of ADR. It has been submitted that
plea bargaining is a case management strategy like other ADR mechanism which
brings about effective case management.[1]
In a plea bargain arrangement, the accused person agrees to plead guilty to the
some or all of the offences he is charged with, in return for a lesser
punishment. Plea bargains are mostly activated in corruption trials involving
the EFCC. It was used in the trial of ex-IGP of Police Tarfa Balogun, and the
trials of ex-Governors Lucky Igbinedion, and Diepreye Alamieyeseigha of Edo and
Bayelsa States, amongst others. The advantages of plea bargain which have been
given judicial notice by the Court of Appeal in FRN v Igbinedion (Supra) include:

“(1) Accused can avoid the time and
cost of defending himself at trial, the risk of harsher punishment, and the
publicity the trial will involve.

(2) The prosecution saves time and
expense of a lengthy trial.

(3) Both sides are spared the
uncertainty of going to trial.

(4) The court system is saved the
burden of conducting a trial on every crime charged.”

It
must however be stated that plea bargaining can only be activated where there
is a pending charge before a competent court. In the Rivers State purported
settlement agreement under consideration, the matter was still being
investigated by the Police, who were yet to prefer a formal charge against the
accused person. Therefore, it can be submitted that this does not amount to a
plea bargain arrangement. The best legal terminology to describe this
settlement is mediation. It is clear from the facts that the agreement was
signed ssubject to the supervision of the Nigerian Police Force who were
investigating the matter. It is pertinent to note that the Police Force is
given wide powers under Section 4 of the
Police Act which provides that:

“The police shall be employed for the
prevention and detection of crime, the apprehension of offenders, the
preservation of law and order, the protection of life and property and the due
enforcement of all laws and regulations with which they are directly charged,
and shall perform such military duties within or outside Nigeria as may be
required of them by, or under the authority of this or any other Act.”

The
Police therefore have the primary responsibility of apprehending offenders. But
they are not saddled with the task of punishing offenders. However, they have a
general duty to maintain the peace, law and order in the society. It is the
duty of the state to prosecute and punish offenders, and not the police. Before
the state can prosecute, the police must first file a first information report
which informs the relevant state department (Ministry of Justice or Department
of Public Prosecution) of the purported commission of the offence. It is
important to note that the entire criminal system in Nigeria is based on the
exercise of discretionary powers by the parties involved. The Police Force in
submitting an information report to the Department of Public Prosecution
exercises discretionary powers. They are not bound to charge every percieved
offender to court. The Ministry of Justice or Department of Public Prosecution
(as the case may be) is also not under any obligation to prosecute all persons
who have been referred to them. The Supreme Court in the locus classicus case
of Akpa v. State (2008) 14 NWLR
(Pt.1106) 72 explained this hallowed position of the law when the Noble
Lord Nikki Tobi JSc opined thus:

“The
prosecution has an unfettered discretion to prosecute person in court and
because the discretion is unfettered, court of law do not have the power to
question it…The only jurisdiction of the court is to try accused person
presented before it for prosecution. The
prosecution is not under any regimental duty or any duty at all, to charge all
possible accused persons“. (@ pg 18 paras A- D).

Therefore,
it is submitted that the Police Force and the Ministry of Justice should be
exonerated from whatever legal and moral vilification that the purported
settlement agreement attracts.

As
stated earlier, the purported settlement can be best described as the proceeds
of a mediation agreement. The Victim-Offender Mediation program is not unknown
to international jurisprudence. The Victim-Offender Mediation program is aimed
at promoting direct communication between the victim and the offender. The
victim has the opportunity to ask questions, address the mental, psychological
and emotional trauma caused by the crime and its aftermath and seek reparation.[2]
It lays more emphasis on restitution and reconciliation of crime related
offenders through one on one meeting between victims and offenders subject to
the oversight of trained mediators, rather than focusing on the retributive
system which characterises our outdated criminal litigation system. This method
is the oldest and most widely used form of ADR in criminal cases in other
jurisdiction especially when juveniles are involved.

A
proper analysis of the terms of settlement of the Rivers State Agreement
reveals that each of the clauses is geared towards the restorative or
restitutive principles of punishment. The accused person and his family were
made to undergo moral reproach by publicly apologising to the victim and her
family. The case has aleady gained sufficient notoriety, and his identity as a
potential sex offender is not in question. Furthermore, and in addition to the
moral punishment of apology, financial sanctions has also been imposed on him.
The fine which he would pay goes directly to the victim. This is unlike the
traditional penal system where fines imposed by the court are payable to the
state and becomes the property of the state. The offender has thus been
compelled to make amends to the victim by paying for her medical treatment and
also by the payment of damages.

A
critical evaluation of the entire agreement will reveal that the mere execution
of the agreement does not immediately oust the jurisdiction of the court to
prosecute the accused offender. In fact,
the petition submitted to the police was not withdrawn at the time of executing
the agreement. The most important clause in the agreement is term No. 5 which
provides that the victim and her family will withdraw the petition if she is
certified to be medically fit after the final medical check to be carried out
on a pre-determined date. Thus, the victim is given the freedom to pursue the
petition in the event that she has not benefitted from the proposed
restitution. The entire agreement is one which exemplifies the restorative
approach to criminal jurisprudence which places the victim at the centre of
proceedings, as opposed to the traditional retributive approach wherein the
offender is the centre of proceedings. It is only in extremely rare cases
involving theft of property that the accused person in criminal proceedings is
compelled by the courts to make restitution to the victim.[3]

It
is however understandable that the gravamen of public opprobrium against this purported
settlement agreement (and Victim-Offender Mediation) is the percieved
trivialisation of the grave offence of rape and sexual molestation. It has been
argued that such agreement operates to make the offence of rape very lucrative
and appealing to potential offenders who now know they can avoid jail term by
the simple payment of compensation to the victim. In blancing this conflict
between the need to impose retributive/detterent punishment on offenders and
the need to engage in restitutive practices, the dictum of the Court of Appeal
in the case of Okomu Oil Palm Ltd v
Okpame (2007) 3 NWLR (Pt. 1020) p.71 is most instructive thus:

“After
all, it must be remembered that justice is not a one-way traffic. It is not
justice for the plaintiff alone. It is not even only a two-way traffic in the
sense that it is justice for the plaintiff and the defendant alone. I think
really justice is a three-way traffic in justice for the plaintiff who is
crying for a redress of the wrong done to him; justice for the defendant who is
crying that he should be heard and his defence considered before being ordered
to pay any sum claimed against him and also before being mulcted in cost; and
finally but very important, justice for the society at large whose social norms
and psyche are certainly going to be adversely affected if it cannot be seen by
the common but reasonable man that upon the facts as laid down, justice in the
real and true sense of that word, has been seen to have been done by the
arbiter.” (Per Aderemi JCA).

Hence,
has justice been done to all aggrieved parties in this case? Has justice been
done to the accused ofender who has been made to make financial restitution for
the consequences of his act? Will this deter him from committing similar act in
the future? Has justice been done to the victim who has received compensation
for the injury she suffered? Has justice been done to the victim’s family who
have received an apology and monetary compensation from the offender and his
family? Does this apology and monetary compensation diminish and overshadow the
shame of having a defiled daughter? Has justice been done to the state by this
agreement? The agreement has saved the state the resources it would otherwise
have expended in prosecuting and punishing the offender. However, will this
prevent future occurences of similar crimes in Rivers State? Will the society
learn from this event and come to the conclusion that defilement of underage
girls is unacceptable, or will they be willing to risk the venture of public apology
and payment of monetary compensation just to have a bite at the forbidden
apple?

This
writer invites his readers to draw their own conclusions.

Nonso Anyasi is a Lagos-based Lawyer.
He tweets @Oluwanonso_Esq

[1]
Alternative
Dispute Resolution and Its Relevancy in Criminal Matters, Aduaka & Onnome,
International Journal of Business & Law Research 6(1):75-84, Jan.-Mar.,
2018

[2]
J.R. Gehm “Victim-Offender Mediation
Programs: An Exploration of Practice and Theoretical Frameworks‟ Western Criminology Review, Vol. 1 No http://wer.sonoma.edu/v1n1/gehm.html

[3]
See the case of Ikpe v FRN & Anor (2018) LPELR-45567 (CA)

Written By:

Nonso
Nonso Anyasi
(@Oluwanonso_esq)

Satire: The Arrest and Detention of Sowore | Ibukunoluwa Idris

by Legalnaija | Sep 2, 2019 | Uncategorized

IN
THE FEDERAL HIGH COURT OF A DEMOCRATIC STATE

IN
THE IMAGINARY JUDICIAL DIVISION

HOLDEN
AT THE NEW NIGERIA

SUIT
NO: DFHC/999/2019

BETWEEN

PATRIOTIC
CITIZENS

OMOYELE
SOWORE APPLICANTS

AND

1.
THE HOPEFUL DEMOCRATIC STATE

2.
ALL CITIZENS’ SECURITY AGENCIES

3.
ATTORNEY GENERAL FOR CITIZENS RESPONDENTS

FINAL
WRITTEN ADDRESS

1.0
INTRODUCTION/STATEMENT OF FACTS

1.1
The
2nd Applicant via an interview on social media announced a protest called
“Revolution Now”, which was to take place on 5^th August 2019 in 25
states of the 1^st Respondent.

1.2
The
2nd Applicant duly stated the purpose of the protest as follows: ‘the people’s
revolution against unjust and divisive order. It will change the conduct of
people in and out of government. It is a revolution being undertaken to make
people reject the old order and say ‘Enough is Enough’.’

1.3
However,
on 3^rd August 2019, which was 2 days before the proposed protest, a
body of the 2^nd Respondent, responsible for managing, curtailing,
containing and eliminating threats against national security, in a sham of
carrying out its duties arrested the 2nd Applicant.

1.4
The
said body of the 2^nd Respondent with the confidence of a superior
backing, definitely not the law but rather a despot, filed a Motion Ex-parte
for an Order to arrest the 2nd Applicant for a period of 90 days on the grounds
of threatening public safety, peaceful co-existence and social harmony in the
country.

1.5
The
said body of the 2^nd Respondent further alleged that there was
apprehension and anxiety among voiceless citizens as to what would happen next.

1.6
The
Honorable Court having been misled by the affidavit of the 2^nd Respondent
relied on section 27(1) of the Terrorism (Prevention) Act and granted the
vacuous order to detain the 2nd Applicant for a renewable period of 45days.

2.0
ISSUE FOR DETERMINATION

2.1
Whether
or not the arrest and detention of the 2nd Applicant by a body of the 2^nd
Respondent is lawful, acceptable and humane in a full-fledged democratic nation
although ruled by a metamorphosed militant.

3.0
ARGUMENTS

3.1
It
is a settled principle of law that an alleged offence must be created by
statute. In other words there must be a statutory provision creating it as an
offence before any person can be arrested, detained and convicted for the said
offence.

3.2
Furthermore,
the Apex Court emphatically stated that it is rudimentary and elementary for
anybody or persons having something to do with dispensation of justice in this
country to know that no citizen can be made to face any criminal trial for an
act which is not qualified as an offence nor defined or stated (codified) in any
law and the punishment thereof prescribed. All courts, so named, cannot claim
ignorance of these facts. See the
following cases: George –V- FRN (2014) All FWLR (Pt.718) 879; Abioye –V- FRN
(2014) All FWLR (Pt.722) 1646; Aliyu -V- FRN (2014) All FWLR (Pt.720) 1272.

3.3
This
position of law has been restated by the Appellate Court in the case of Nggilari –V- State & ORS (2017)
LPELR-42985(CA), where Honorable Justice Omoyele at Page 68,
Paragraphs B-E held as follows:

“The
law is also well established that no person shall be arraigned or charged for
anything done or undone which does not constitute an offence in any written
law. See Section 36 (6) (a) of the Constitution of the Federal Republic of
Nigeria, 1999 (as amended)”

3.4
Flowing
from the above we humbly submit two sub-issues to be determined by this most
esteemed Citizens’ Court, which are as follows:

a) Whether the 2^nd
Applicant’s actions or the word “Revolution Now” constitutes the offence of
Terrorism under the law?

b) Whether by the provisions of the law,
the 2^nd Applicant has the right to form or lead a peaceful assembly
against the unruly acts of a sterile democratic government.

Whether
the 2^nd Applicant’s actions or the word “Revolution Now” constitutes
the offence of Terrorism

3.5
I
humbly submit and reiterate that to determine the lawfulness of an act, a
reasonable man ought to look at the provisions of the law vis a vis the
features of the act in question.

3.6
It
is paramount to define terrorism according to the law. In the case of Abdulmumini –V- FRN (2017) LPELR-43726 (SC),
His Lordship KEKERE-EKUN, J.S.C. at
Pages 21-23, Paragraphs F-A expounded on the nature of the offence
of terrorism and stated as follows:

“Section
15(2) of the EFCC Act provides: “(2) Any person who commits or attempts to
commit a terrorist act or participates in it facilitates the commission of a
terrorist act, commits an offence under this Act and is liable on conviction to
imprisonment for life.” Section 46 of the Act provides:
“Terrorism” means – (a) Any act which is a violation of the Criminal
Code or the Penal Code and which may endanger the life, physical integrity or
freedom of, or cause serious injury or death to, any person, any number or
group of persons or causes or may cause damage to public property, natural
resources, environmental or cultural heritage and is calculated or intended to
i. Intimidate, put in fear, force, coerce or induce any government body or
institution, the general public or any section thereof, to do or abstain from
doing any act or to adopt or abandon a particular standpoint, or to act
according to certain principles or ii. disrupt any public service, the delivery
of any essential service to the public or to create a public emergency or iii.
create general insurrection in a state; (b) any promotion, sponsorship of,
contribution to, command, aid, incitement, encouragement, attempt, threat,
conspiracy, organization or procurement of any person with the intent to commit
any act referred to in paragraph (a)(i), (ii) and (iii).”

3.7
He
further stated at Page 29, Paragraph D-A as follows:

“The crucial aspect of the
offence of terrorism is the creation of intense fear and anxiety, both physical
and psychological in the minds of members of the public which has the effect of
coercing, forcing, intimidating them to do or abstain from doing any act or to
adopt or abandon a particular view, policy or position to act according to
certain principles.”

3.8
It
is pertinent to respectfully submit that the yardstick to determine terrorism
is if there is an intention to act violently such that it will cause
insecurity to members of the public. (Emphasis mine)

3.9
The
alleged act of the 2nd Applicant that amounts to terrorism is the protest
tagged “Revolution now” which is intended to agitate against the menace of the
ruling government.

3.10 Respectfully, it is of utmost
importance to note that the peaceful protest was to be carried out in a
democratic society where the government ought to be responsible and responsive
to the citizens.

3.11 However, the said body of the 2^nd
Respondent has raised two major concerns to be addressed: the phrase “Revolution
Now” is an intent to violently overthrow the government, and that members of
the public felt unsecured.

3.12 Basically, Revolution is an effort to
transform the political institutions and the justifications for political
authority in society, accompanied by formal or informal mass mobilization and
non-institutionalized actions.

3.13 This could be violent or non-violent.
A non-violent revolution is a revolution using mostly campaigns with civil
resistance, including various forms of non-violent protest, to bring about the
departure of bad governments.

3.14 Generally a non-violent revolution is
characterized by simultaneous advocacy of democracy, human rights and national
independence in the country concerned which was what the 2^nd
Applicant sought to achieve.

3.15 The 2nd Applicant in his declaration
of a Revolution stated the purpose of the movement as follows:

“It
is the people’s revolution against unjust and divisive order. It will change
the conduct of people in and out of government. It is a revolution being
undertaken to make people reject the old order and say ‘Enough is Enough’.

3.16 I humbly submit that there is nothing
in the said statement or other statements and actions made by the 2^nd
Applicant that posed a threat to the peaceful co-existence of the Country.

3.17 Furthermore, the 2^nd Respondents
failed and/or neglected to tender any iota of evidence by which violence has
been threatened.

3.18 Addressing the second issue raised by
the 2^nd Respondent, I humbly submit that the Court, in determining
the issue of whether the words of the 2nd Applicant created intense fear and
anxiety, both physical and psychological in the minds of members of the public,
ought to examine the view of a man on
the clapham to give such
evidence.

3.19 It
is important to note that the 2^nd Respondent failed to produce any
witness to give evidence on this issue, neither did the Court call for such evidence
nor were there expressions of fear or anxiety by members of the public across
the various social media platforms. In the same breath, the 2^nd
Applicant had the support of a lot of groups, including workers, unions, Civil
Society Organisations (CSOs) amongst others.

3.20 In view of the above, I humbly submit
that the concerns of the 2^nd Respondent as laid before the Court
should be roundly disregarded.

3.21 It is only apparent that the violent
has taken by force what they tainted to be violent without any vivid evidence
of actions or words denoting violence. It is paramount to further state that
the violent feel threatened by the voice of the oppressed and has used an arm
to shield itself.

3.22 Par adventure, the word ‘Revolution’
connotes Treason and therefore makes users guilty, then our metamorphosed militant
and the oga at the top is guilty (maybe sometimes in the year 2007, 2012, 2016
or 2017), graciously there is no limitation of time to criminal offences
otherwise the Rule of Law is being shamefully trampled upon.

3.23 Most respectfully, I submit that
there is no action whatsoever that has posed terror as provided for in the Criminal Code, Economic and Financial
Crimes Commission Act and the Constitution. Provided that we have enacted laws
declaring the use of the mere word ‘Revolution’ as a criminal act, none of
which I am aware of, and new laws have been created with retrospective effect
in a democratic dispensation then I shall rest my case.

3.24 Flowing from the above, I therefore
urge this Honourable Court to reverse the Order made on 3^rd August
2019.

Whether
by the provisions of the law, the 2^nd Applicant has the right to
form or lead a peaceful assembly against the unruly acts of a sterile
democratic government.

3.25
Section
39 of the sacred Constitution of the Federal Republic of Hopeful Democratic
State provides as follows:-

1. “Every person shall be entitled to
freedom of expression, including freedom to hold opinions and to receive and
impart ideas and information without interference

2. Without prejudice to the generality
of Subsection (1) of this section, every Person shall be entitled to own,
establish and operate any medium for the dissemination of information, ideas
and opinions: Provided that no person, other than the Government of the
Federation or of a State or any other person or body authorized by the
President on the fulfillment of conditions laid down by an Act of the National
Assembly, shall own, establish or operate a television or wireless broadcasting
station for, any purpose whatsoever.

3. Nothing in this section shall
invalidate any law that is reasonably justifiable in a democratic society –

a.
for the purpose of preventing the disclosure of information received in
confidence, maintaining the authority and independence of Courts or regulating
telephony, wireless broadcasting, television or the exhibition of cinematograph
films; or

b.
imposing restrictions upon persons holding office under the Government of the
Federation or of a State, members of the armed forces of the Federation or
members of the Nigeria Police Force or other Government security services or
agencies established by law.”

3.26 Furthermore, section 40 of the
Constitution also provides as follows

“Every
person shall be entitled to assemble freely and associate with other persons,
and in particular he may form or belong to any political party, trade union or
any other association for the protection of his interest: Provided that the
provisions of this section shall not derogate from the powers conferred by this
constitution on the Independent National Electoral Commission with respect to
political parties to which that Commission does not accord recognition.”

3.27 Honourable Justice Adekeye J.C.A (as
he then was) postulated on the sacredness of the above provisions in a
democratic state where he held in the case of Inspector General of Police –V- ANNPP and 4 ors (other political
parties) (2007) LPELR-8932(CA) at Page 28, Paragraphs F-G as follows:

“The police have no powers to
stop or restrict the fundamental rights of Nigerians to freedom of expression
and assembly once those rights are exercised within the ambit of the law. If
the demonstrates or marchers breach any law in the course of exercising their
freedom of expression and assembly the Criminal Code is there to take care of
such infraction.”

3.28 Without bothering this Honourable
Court, the facts of the above case are as follows: The now metamorphosed
militant leader was the then candidate of the 1^st Respondent and
alongside with 4 other political parties staged a protest against the sitting
government for its inability to effectively govern the nation. The Police
refused to grant permit to hold the rally and further obstructed the
Respondents from holding the protest. A suit was filed against the government
for breach of Fundamental Human Right (that seems now to have gone into the
thin air) and an Injunction against the government, the Court granted their
prayers and honored the position of the constitution.

3.29 In hallowing the sacredness of the Constitution
and jealously protecting the rights of citizens, the Court said “The
constitution of any country is the embodiment of what the people desire to be
their guiding light in governance, their supreme law the groundnorm of all
their laws. All actions of the government in Nigeria are governed by the Constitution
and it is the Constitution as the organic law of a country that declares in d
formal, emphatic and binding principles the rights, liberties, powers and
responsibilities of the people both the governed and the government.

3.30 However, this position now seems to
be mere words without the force or backing of the powerful, the whole essence
of this argument is to pray the Court as a separate arm to honor its words and
trample upon cowardice.

3.31 I humbly submit that this Society is
ripe and ready to be liberated from our oppressive past. Therefore, the right
to demonstrate and the right to protest on matters of public concern are rights
which are in the public interest and that which individuals must possess, and they
should be exercised without impediment as long as no wrongful act is done.

3.32 If as speculated by a body of the 2^nd
Respondent that a breach of the peace and Treason would occur, the criminal
code has graciously made adequate provisions for sanctions against breakdown of
law and order so that the detention of protesters can no longer be justified in
a democratic society

3.33 Furthermore, the underlying factor in
the peculiar circumstance of this case is the possibility of overthrow of
government, terrorism and breach of peace while the rally is in progress. This
first and foremost should be regarded as indictment on all security agencies
most especially the police force and their presumed inadequacy to discharge
their statutory duties under the Enacted Act to maintain law and order.

3.34 With utmost respect and allegiance to
this society I humbly submit that the reason as posed by the Respondents is not
only untenable but highly speculative and I am of the impression that it is not
pungent enough to deprive a citizen of a right enjoyed by virtue of the grand
norm.

3.35 I most humbly refer this Court to the
case of Shetton V. Tucker 364 US 479,488
(1960) where the United States Supreme court observed that-

“Even though the Governments purpose may be legitimate and substantial
that purpose cannot be pursued by means that broadly stifle fundamental
personal liberties.”

3.36 Furthermore, this incidence will not
be the first of its kind and the attitude of a responsive government in a
democratic state as gleaned from Guardian Newspaper edition of October 1^st
2005, the Government, rather than shy away from the truth and seek redress in
detention, had in the broadcast made by the reformed democratic militant
Olusegun Obasanjo publicly conceded the right of Nigerians to hold public
meetings or protest peacefully against the Government’s increase in the price
of petroleum products. The honourable president realised that democracy admits
of dissent, protest, marches, rallies and demonstrations.

3.37 I humbly submit that an intended or
actualised rally or placard carrying demonstration has become a form of
expression of views on current issues affecting government and the governed in
a sovereign state. It is a trend recognised and deeply entrenched in the system
of governance in civilised countries – it will not only be primitive but also
retrogressive, appalling, oppressive and shameful if the Respondents continues
to silence democratic citizens by way of detention.

3.38 It ought not to be said or heard that
the violent oppressors are feeble to lawfully defend themselves and would
rather accuse the oppressed of being violent, even though written without
blueprints and seen by all.

3.39 We submit that there is no iota of
evidence alluding terrorism, treason or violence to disentitle the 2^nd
Applicant of his Fundamental Human Rights.

3.40 We respectfully pray this Honourable
Court to uphold that the detention of the 2^nd Applicant in a
democratic society by an elected government is illegal and ought to be
nullified.

4.0
CONCLUSION

4.1
In
the light of the above arguments, we urge this Honorable Court to nullify the
arrest and detention of the 2^nd Applicant as same is illegal,
repugnant and repulsive in a democratic society.

Written By:

Ibukunoluwa Idris

Payment Service Banks in Nigeria (PSBS): A Review of the Proposed Guidelines for Licensing and Regulation by the CBN

by Legalnaija | Sep 2, 2019 | Uncategorized

The Central Bank of Nigeria (CBN) by its letter dated 5th October 2018, written to all banks, telecommunication companies, mobile money operators, banking agents and the Nigerian Communication Commission, circulated draft guidelines and regulations of Payment Service Banks in Nigeria (PSB) for comments and observations.

The Payment Service Banks in Nigeria is CBN’s initiative to promote a sound financial system in Nigeria in order to enhance access to financial services for low-income earners and unbanked segments of the society.

PSBs are expected to leverage on mobile and digital services to enhance financial inclusion in Nigeria and stimulate economic activities at the grassroots through the provision of financial services.

PSBs will also enable high volume low-value transactions in remittance services, micro-savings and withdrawal services in a secured technology-driven environment to further deepen financial inclusion.

The draft guidelines issued by CBN was issued pursuant to the CBN Act 2007 and (Banks and Other Financial Institutions Act (BOFIA) 1991.

The guidelines cover definition, objectives, and eligible promoters, licensing requirements, corporate governance, business conduct and permissible activities. The requirements for prudential regulation, supervision, Know Your Customer (KYC)as well as risk management of the proposed Payment Service Banks is also covered.

Some of the key provisions of the Regulations include:

1. Objectives of Establishing Payment Service Banks in Nigeria:
Section 2 of the proposed regulations reiterate the objective of setting up payment service banks as primarily to enhance financial inclusion in Nigeria, especially in rural areas by increasing access to deposit products, payment services to small businesses, low-income households and other entities through high-volume low-value transactions in a secured, technology-driven environment.

2. Structure of Payment Service Banks in Nigeria:
The structure for establishment of PSBs is provided in Section 3 and includes; operations in rural areas and unbanked locations with not less than 50% physical access points, establishment of ATMs in some of the areas, operation through banking agents, use of other channels including electronic channels, establishment of coordination centers, technology-driven operations, and setting up of help desks strategically to attend to consumer-related issues.

3. Permissible And Permissible Activities of Payment Service Banks in Nigeria:
Section 4 (4.1) and (4.2) of the proposed guidelines provide the services PSBs shall carry out. They include maintaining savings accounts and accepting deposits from individuals and small businesses, carrying out payments and remittance services through various channels within Nigeria, issuing debit and pre-paid cards, operation of the electronic purse, investment in FGN and CBN securities.

PSBs are however restricted from granting any form of loans, advances and guarantees, trade in the foreign exchange market, insurance, underwriting or undertaking any transaction not prescribed by the guidelines. It is also mandatory for a PSB to use the words “Payment Service Banks” in its name to differentiate it from other banks.

4. Eligible Promoters:
Eligible promoters include Banking agents, Telecommunications companies (through subsidiaries) retail chains and mobile money operators. The list is however not exhaustive and CBN is at liberty to consider other entities not provided in the guidelines.

5. Licensing Requirements for Payment Service Banks in Nigeria:
By the provisions of Section 6 of the guidelines, a PSB license is required. Promoters of PSBs are required to submit a formal application in this regard to the Governor of the Central Bank. An Approval in Principle will first be granted within 90 days of the application for the establishment of a PSB, and not later than 6 months after the grant of an Approval in Principle; a Final License will be granted.

a. Approval in Principle: The requirements for the grant of approval in principle are as contained in Section 6.1 of the guidelines. The requirements include payment of an application fee, evidence of minimum share capital, name reservation, business plan or feasibility report, draft copy of Memorandum and Articles of Association, Undertaking to meet capitalization requirements, Shareholders Agreements, Technical Services Agreement, Financial Management Policy, anti-Money Laundering and Combating Financing Terrorism Policy, Code of Ethics etc.

b. Final License: For a final license to be granted pursuant to Section 6.2, the CBN shall conduct an inspection of the premises and facilities of the proposed PSB, sight original copies of documents submitted, meet with the board and management, verify capital contributions and verify the integration of its infrastructure with the National Payments System.

6. Requirements For Commencement Of Operations And Post-Commencement Requirements:
As provided in Section 6.4 and 6.5 of the proposed guidelines, the PSB shall through a letter inform the CBN of its readiness to commence operations and the application shall be accompanied a by a list of documents specified.

A PSB as part of the post-commencement requirements is also mandatorily required to comply with all guidelines and regulations issued by CBN, maintain adequate accounting system and records, maintain an unimpaired minimum capital at all times and comply with the requirements incidental to the authorization to perform banking operations as stipulated by CBN.

7. Financial Requirements for Payment Service Banks in Nigeria:

The financial requirements are as provided in Section 6.6 of the proposed guidelines and are as follows:

a. Minimum Capital N5,000,000,000.00
b. Non-refundable application fee N500,000.00
c. Non-refundable License Fee N2, 000,000.00

The share capital deposit as stated by the guidelines is subject to availability of instruments and upon the grant of a license or otherwise, the CBN shall refund the sum deposited together with the investment income if any, after-tax and administrative expenses have been deducted.

8. Corporate Governance And Business Conduct (Fair Competition):
Section 7 provides that the code of corporate governance applicable to banks as well as the Revised Assessment Criteria for Approved Persons’ Regime for Financial Institutions shall be applicable to PSBs.

The proposed regulations further provide that where a PSB is related to an existing infrastructure service provider which provides services to other financial institutions, the PSB shall ensure that its dealings with the infrastructure provider are at arm’s length.

The guidelines interestingly incorporate a provision to ensure fair competition amongst PSBs. Section 8 of the proposed guidelines mandate a parent company of a PSB which renders services to its subsidiary PSB, to also offer the same services to other PSBs on the same terms and conditions.

It also prohibits parent companies of Payment Service Banks in Nigeria from offering any preferential treatment, which negates fair competition, to its subsidiary. The failure to abide by the fair competition clause may lead to revocation of the PSB license.

9. Capital Adequacy Ration And Investment Of Deposit Liabilities:
The capital adequacy ratio of a PSB shall be measured as a percentage of the shareholders’ funds unimpaired by its risk-weighted assets.

The minimum capital adequacy ratio shall be 10% or as may be prescribed by the CBN. PSBs shall be required to maintain not less than 5% of their deposits in treasury bills and other short terms Federal Government debt instruments at any point in time.

10. Supervision, KYC Requirements And Risk Management:
PSBs shall be supervised by the CBN and shall comply with the relevant provisions of the Money Laundering (Prohibition) Act, Terrorism Prevention Act, CBN AML/CFT Regulations for banks and other financial institutions and other extant laws and regulations on KYC issued by the CBN.

Primarily, since Payment Service Banks in Nigeria are prohibited from granting loans, provisions of credit risk management do not apply. However, management of other risks shall be as applicable to Direct Money Banks as may be prescribed by the CBN.

Conclusion / Recommendations

Without any doubt, the establishment of Payment Service Banks in Nigeria is a welcome development particularly as it aims to promote financial inclusion and enhance access to financial services. It also provides investment and employment opportunities for promoters as well as service providers.

However, a critical review of the proposed guidelines with specific reference to restrictions contained in the guidelines appears to be a deal-breaker. The restrictions with respect to the scope of services a PSB can render including restriction on advancing loans, restriction on investment platforms, capital and mandatory infrastructural requirements all appear to be disincentives to the establishment of a PSB is a worthy venture.

It has been argued that the establishment of a PSB pursuant to the proposed guidelines may not be profitable.

As a corollary, the unavailability of some services including loans advancement may seem to defeat the purpose of establishing PSBs. This is because the low-income earners and unbanked segments of the society, who are the target market, are still left out of vital financial services thus defeating the primary purpose of establishing the PSB.

The CBN claims that by establishing the Payment Service Banks in Nigeria, it aims to enhance financial inclusion and stimulate economic activities at the grassroots through the provision of financial services however this may likely not be achieved having regard to the proposed guidelines.

It is comforting that the guidelines have not been finalized and can still be reviewed. It is suggested that the CBN in reviewing the guidelines reduce the restrictions and offer more incentives to make the PSB more attractive to investors.

This would also enhance services available to the target market and ensure that purpose of establishing the PSB is achieved. It is our recommendation that in finalizing the regulations the CBN takes into account contributions from core stake-holders to the proposed regulations to ensure that mutually beneficial guidelines are issued.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Written by –

Adebola Sobowale

(Partner, Debt Recovery & Insolvency)

Olisa Agbakoba Legal

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