Intestate Succession in Nigeria: What is the Status of Children Born Out of Wedlock?

Intestate Succession in Nigeria: What is the Status of Children Born Out of Wedlock?


Introduction
It
is no longer unusual in Nigeria for a deceased who was married under the
Marriage Act to have children out of wedlock. Whenever instances such as this
arise, one of the major issues, which crops up is, who amongst the children of
the intestate person are entitled to apply for letters of administration in
respect of the estate of the intestate person. This is because by virtue of
section 24 (1) of the Administration of Estates Law, Laws of Lagos State,
Volume 1, CAP A3, the maximum number of persons who can apply for letters of
administration is 4 (Four).
Our
law reports are replete with cases where children of an intestate person who
were born within wedlock were up in arms against children born outside wedlock
in respect of the modalities for applying for letters of administration for
their late parent’s estate.

This
paper therefore seeks to explain the status of children born out of wedlock
with regards to their right to apply for letters of administration in respect
of their late father/mother’s estate.
There is no Legal Distinction Between Children Born
Within and Outside Wedlock
Section
42 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended) provides, thus: “No
citizen of Nigeria shall be subjected to any disability or deprivation merely
by reason of the circumstances of his birth.
  
The
effect of the provision of section 42 (2) of the Constitution is that there is
no legal distinction between children born in a lawful wedlock and children
born out of wedlock. This is because section 42 (2) specifically precludes
discrimination against a child on the basis that he/she was born outside
wedlock. 
The
Supreme Court of Nigeria endorsed the position stated above in the case of Salubi v. Nwariaku
(2003) 7 NWLR (Pt. 819) 426 where it held that the children of the deceased who
were born within a lawful wedlock and the children of the deceased who were
born out of wedlock are entitled in equal shares to the properties of the
deceased. Ayoola, JSC captured this point beautifully when his Lordship held
thus:
“It suffices to hold that the court below was right in
holding that the trial court had jurisdiction to entertain the claim before it
and that the two issues born out of wedlock are entitled in equal shares with
the two other issues of the marriage of deceased and the widow.”
The
implication of the foregoing is that the mere fact that a child was born out of
wedlock will not be an impediment to the child getting an equal share of
his/her deceased parent’s properties with the children born in a legitimate
wedlock. 
Can a Child Born Out of Wedlock Apply for Letters of
Administration?
Section
26 (1) of the Administration of Estate Law, Laws of Lagos State, Volume 1, CAP
A3, 2003 provides as follows: 
“In granting administration the court shall have regard
to the rights of all persons interested in the estate of the deceased person or
the proceeds of sale thereof,… and any such administration may be limited in
any way the court thinks fit—“
 
The
effect of section 26 (1) is that all the beneficiaries or persons who have an
interest in the estate of a deceased person can apply for the issuance of
letters of administration in respect of the estate of the deceased person. This
means that the surviving spouse and all the children of the deceased can apply
for the issuance of letters of administration. Also, other relatives of the
deceased such as his/her siblings, aunts, uncles, cousins and so on can also
apply for the issuance of letters of administration. 
The
crux of section 26 (1) in granting letters of administration is in the phrase, “rights of all persons interested”.
Children born out of wedlock definitely fall within the category of persons
interested. This does not however give room for all comers, as “any such administration may be
limited in any way the court thinks fit”
It
is submitted that a child who was born out of wedlock can apply for the
issuance of letters of administration in respect of the estate of his/her
deceased parent. This is because the provision of section 26 (1) of the
Administration of Estate Law of Lagos State is encompassing and covers children
born out of wedlock. Further to this, the provision of section 42 (2) of the
Constitution of the Federal Republic of Nigeria also makes it unlawful for a
child to be denied his/her right to be appointed as an administrator of his/her
deceased parent’s estate just because he/she was born out of wedlock.
Again,
it is important to note that the Court has a discretion regarding persons to
whom letters of administration are to be granted and this discretion must be
exercised on the basis of materials/evidence placed before the Court and with
due regard to the rights of all persons interested in the estate of the
deceased person or proceeds of the sale thereof. See: Asere v. Asere (1992) 6
NWLR (Pt. 197) 316.
 In
the case of Chief J.L.E
Duke v. Rev. (Dr.) Peter Etim Duke
(2014) LPELR-23095 (CA), the
Court of Appeal upheld the judgment of the trial Court where it granted letters
of administration in respect of the estate of the deceased to both the
Appellant and Respondent. Although the Appellant, who was born within the
lawful wedlock of the deceased, had contended that the Respondent was not
entitled to a grant of the letters of administration because he was born out of
an adulterous relationship, the Court of Appeal held that this was not enough
ground to refuse the Respondent his right to be appointed as an Administrator
to his late father’s estate. The Court of Appeal also held that the Respondent
could not be discriminated against based on the provision of section 42 (1) of
the Constitution of the Federal Republic of Nigeria and that the Respondent was
able to show that he had sufficient interest in the properties of the
deceased. 
Also,
in the recent case of Mgbodu
v. Mgbodu
(2015) 12 NWLR (Pt. 1474) 415 the Court of Appeal held
that a child born out of wedlock must not be prevented from partaking in the
sharing of his deceased father’s estate. His Lordship, Bolaji-Yusuff, JCA at
page 439 paragraphs D-F held thus: 
“It has long been established that in this land,
Nigeria, once a father acknowledges the paternity of a child whether born in or
out of wedlock, the child is regarded as a legitimate child and is entitled to
share in the estate of his/her father…This custom has now received a
constitutional approval first through section 39 of the constitution of the
Federal Republic of Nigeria, 1979 and now through section 42 of the 1999
Constitution (as amended) which provides that no citizen of Nigeria shall be
subjected to any disability or deprivation merely by reason of the
circumstances of his birth.”
Conclusion
Whilst
it is conceded that it might be emotionally traumatizing for the children of a
deceased who were born within a legitimate wedlock to recognize the rights of
their siblings who were born out of wedlock when applying for letters of
administration, it is important to state that the failure to recognize the
rights of the children born out of wedlock can lead to the nullification of any
letters of administration, which was obtained without their knowledge, consent
or input.
In
the case of Mgbodu v.
Mgbodu
(Supra) the Court of Appeal set aside the letters of
administration which was granted to the Appellant and his mother because they
refused to include the Respondent’s name as one of the children of the deceased
in the application for letters of administration on the ground that he was born
out of wedlock.
Therefore,
it is important for the beneficiaries of an intestate person to adopt the
consensual approach to the administration of the estate and distribution of the
assets of the deceased in order to prevent a protracted and unnecessary
litigation over the assets of their deceased parent.
It should be noted that this article is for general
information only. It is not offered as advice, on any particular matter,
whether legal, procedural or otherwise. If you have any questions about this
article, please contact the author.
By: Faruq Abbas 
Managing Partner at Abdu-Salaam Abbas & Co.
WHY WE HAVE THE CODE OF CONDUCT BUREAU

WHY WE HAVE THE CODE OF CONDUCT BUREAU


Credits – Google


The
CCB was established in Nigeria in 1979 during the Second Republic after 13
years of military rule by the founding fathers of the first post-military
constitution. The 1979 Constitution provided a list of Codes of Conduct for
public officers
. In
essence, the CCB was established for the purpose of addressing issues relating
to the conduct of public officers during their tenure of holding office, also especially
to fight corruption in the public service.
The
Code of Conduct Bureau and Tribunal Act, Chapter 58 LFN 1990 gave the Bureau
the mandate to establish and maintain a high standard of public morality in the
conduct of government business and to ensure that the actions and behaviour of
public officers conform to the highest standards of public morality and
accountability.
The Bureau’s constitutional mandate as provided for in
the 1999 Constitution is to:

  • Receive declarations by public officers made under paragraph 12 of
    part 1 of the Fifth Schedule to the 1999 constitution.
  • Examine the declarations in accordance with the requirements of the
    Code of Conduct or any law.
  • Retain custody of such declarations and make them available for
    inspection by any citizen of Nigeria on such terms and conditions as the
    national assembly may prescribe.
  • Ensure compliance with and, where appropriate, enforce the
    provisions of the Code of Conduct or any law relating thereto.
  • Receive complaints about non-compliance with or breach of the Code
    of Conduct or any law in relation thereto, investigate the complaint and,
    where appropriate, refer such matters to the Code of Conduct Tribunal.
  • Appoint, promote, dismiss and exercise disciplinary control over
    the staff of the Code of Conduct Bureau in accordance with the provisions
    of an Act of the National Assembly enacted in that behalf.
  • Carry out such other functions as may be conferred upon it by the
    National Assembly.
The
Bureau according to the constitution has powers over the following public
officers:
1.    
The President and the
Vice- President.
2.    
Senate President and
Deputy Senate President
3.    
Speakers of the house and
Deputy Speaker of the House.
4.    
Governors and Deputy-
Governors
5.    
Chief Justice of Nigeria,
Justices of the Supreme Court, President and Justices of the Court of Appeal,
all other judicial officers and all staff of courts of law.
6.    
A.G. of Federation and
each state.
7.    
Ministers and
Commissioners of the Federation.
8.    
Chief of Defence Staff,
Chief of Army Staff, Chief of Naval Staff, Chief of Air Staff and all numbers
of the armed force of the federation.
9.    
I. G of police, Deputy –
Inspector General of police and all members of the police.
10.                       
Secretary of the
Government of the Federation, Head of Civil Service, Permanent Secretaries, D-G
and all other persons in the civil service.
11.                       
Ambassadors, High
Commissioners and officers of Nigerian missions abroad.
12.                       
Chairman, members and
staff of the code of conduct bureau and code of conduct tribunal.
13.                       
Chairman, members and
staff of local government councils.
14.                       
Chairman and members of
the boards or other governing bodies and staff of statutory corporations and of
companies in which the Federal or State govt. has controlling interest.
15.                       
All staff of Universities,
Colleges and institutions owned and financed by the Federal or State Government
or local government councils.
16.                       
Chairman, members and
staff of permanent commissions or councils appointed on full time basis.
The
Code of Conduct Tribunal has the power to improve the following punishments
including-
a)   
Vacation of office or seat
in any legislative house, as the case may be;
b)   
Disqualification from
membership of a legislative house and from the holding of any public office for
a period not exceeding ten years; and
c)    
Seizure and forfeiture to
the state of any property acquired in abuse or corruption of office.
The
Code of Conduct Tribunal is established by Section 15(1) of the Code of Conduct
for Public Officers as contained in Part 1 of the 5th schedule of
the 1999 constitution of the Federal Republic of Nigeria and it consists of a Chairman
and two other persons. 
Credits- google
According
to the Constitution, the Chairman must be a person who has held or is qualified
to hold office as a Judge of a superior court and shall be   appointed by the president on the
recommendation of the National Judicial Council. Also, in other to remove the Chairman,
the President must have the support of two-thirds majority of each house of the
National Assembly and only on the charge that the Chairman is
unable to discharge the functions of his office. Sam Saba became Chairman, Code
of Conduct Bureau on April 30, 2010
.
It
is important to note that an appeal from the decision of the Code of Conduct
Tribunal goes to the Court of Appeal. Moreover, by virtue of Section 18(7) of
the said schedule, anyone who has been found guilty by the code of conduct
cannot be pardoned as the prerogative of mercy does not apply to it.
Adedunmade
Onibokun
@adedunmade
ARBITRATION UNDER THE MICROSCOPE by ABIMBOLA LAOYE

ARBITRATION UNDER THE MICROSCOPE by ABIMBOLA LAOYE

Credits – Google

INTRODUCTION
In the past few decades, Arbitration
has become a mainstay in resolving legal disputes. There are a plethora of
articles which showcase the advantages of Arbitration while ignoring or
simply giving a brief outline of the inherent dark clouds or cons of Arbitration.
A closer look at the recent trend of inserting the Arbitration clause; one
needs to wonder; Is Arbitration really the best mode of dispute resolution?
This is a question which has plagued my mind.
As previously mentioned Arbitration has
been promoted by many profound authors, article writers, and bloggers worldwide
as an efficient way to resolve disputes. The advantages of Arbitration are once
again outlined as follows:
1.     Avoids hostility. Because the parties
in an Arbitration are usually in agreement to the Arbitration clause and are
encouraged to participate fully and sometimes even to help structure the
resolution, they more often together peaceably rather than escalate their angst
and hostility toward one another, as is often the case in litigation.

2.     Usually cheaper than
litigation:
Arbitration
is designed to be cheaper and more affordable for parties by putting in place
all necessary mechanisms to ensure faster and less complicated resolution of
issues. Lower cost is also partly due to the fact that the rules of evidence
are often more relaxed than in a trial, so that documents can be submitted in
lieu of having a witness come to trial to testify. Arbitration is designed
to consume less time than litigation, in order to save time and money. According
to a recent study by the Federal Mediation and Conciliation Services, the
average time from filing to decision was about 475 days in an Arbitrated case,
while a similar case took from 18 months to three years to wend its way through
the courts.
3.     Flexibility: Unlike trials, which
must be worked into overcrowded court calendars, Arbitration hearings can
usually be scheduled around the needs and availability of those involved,
including weekends and evenings. Arbitration is less formal than court
proceedings and the arbitral tribunal may conduct arbitration in such manner as
it considers appropriate if the parties fail to agree on the procedure to be
followed (Article 19 of the Model Law on International Commercial Arbitration).
Arbitration also allows the tribunal to adopt the inquisitorial system which
involves search for the truth largely through the tribunal’s own investigations
if deemed necessary. This in turn saves time and money as against the
procedure of evidence law applicable in court.        
                     
                     
                     
                     
                     
                     
                     
                     
                     
    Parties are attracted to the less formal nature of arbitration which
encourages speed and hence a less costly way of settling disputes. The
flexibility of arbitration extends to the freedom to choose the venue of the
arbitration and the language and the seat of the arbitration whether in the
contract’s arbitration agreement itself or at a later stage. This decision
allows parties from different legal jurisdictions and different legal systems
to pick a neutral venue or a venue that is arbitration-friendly or convenient
for them. This helps parties of different legal jurisdictions having a single
seat avoids the complications relating to conflicting laws.
4.     Simplified rules of
evidence and procedure.
The complex rules of evidence and procedure do not apply in
Arbitration proceedings. This makes Arbitration more adaptable to the needs of
those involved. Arbitration also dispenses with the procedure called discovery
that involves taking and answering interrogatories, depositions, and requests
to produce documents such procedures are regarded as a delay tactic of
litigation. In Arbitrations, most matters, such as who will be called as a
witness and what documents must be produced, are handled with a simple phone
call. Furthermore, rules of evidence which may prevent some evidence from being
considered by a judge or a jury, this rule does not apply to arbitration. Thus,
an Arbitrator’s decision may be based on information that a judge or jury would
not consider at trial.
5.     Privacy and
Confidentiality.

Arbitration proceedings are generally held in private. Parties may agree
to keep the proceedings and terms of the final resolution confidential. Both of
these safeguards can be a boon if the subject matter of the dispute might cause
some embarrassment or reveal private information, such as a company’s client list.
6.     Finality: in most legal
systems, there are very limited avenues for appeal of an arbitral award. So
that the Arbitration will be the end of the dispute. This gives finality to the
Arbitration award and parties are advised take the Arbitration decision in good
faith.
7.     Enforceability of
Arbitration Awards:
The
ability to enforce an arbitration award another advantage of arbitration. 
For example; The New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards 1958 (the New York Convention) as well as the UNCITRAL
Model Law on International Commercial Arbitration 1985 and the UNCITRAL
Arbitration Rules 1976, provides for recognition and enforcement of Arbitration
Agreements and the resulting awards which has received a wide spread acceptance
and uniformity of arbitration laws.  Therefore arbitration awards between
contracting parties form different countries will be easily enforced in the
country where they expect to enforce an award provided that such a country is a
signatory to the Convention or another treaty that obligates it to enforce
arbitral awards.
DISADVANTAGES OF ARBITRATION
Going against the authors tradition of
garnishing Arbitration as a concept and simply stating the cons of Arbitration
in bullet points, it is my view that a closer analyses of the advantages of the
so called advantages of Arbitration will reveal the cloud within the silver
lining of Arbitration. This will help parties to any transaction to be truly
aware of the possible drawbacks of Arbitration and to make an informed decision
about whether to enter or remain in a consumer transaction that mandates it —
or whether to choose it as a resolution technique if a dispute arises or
whether the descision to insert an Arbitration clause should be beyond the copy
and paste of the Arbitration clause precedent because it makes the contract
look longer, more prestigious and more complicated.
The disadvantages include the
following:
1.     Privacy: the fact that
Arbitration proceeding are not held in a public forum and that Arbitration
records are regarded as private documents may be considered to be advantageous
by many; however on taking a closer look at the so called advantage will show
that the privacy breeds Lack of transparencyThe lack of
transparency caused by the privacy of Arbitration makes it more difficult to
spot bias. This is also made worse by the fact that Arbitration decisions are
rarely reviewed by the courts as a result of the fact that parties sometimes
agree to keep the proceedings and terms of the final resolution confidential.
In order to avoid some embarrassment or publication of private information,
such as a company’s client list.            
                     
                     
            The privacy of Arbitration
proceedings and records also gives rise to a Lack of access Precedents on
previous Arbitration decisions. Therefore it is difficult if not impossible to
apply the rule of stare decisis rule. This in turn contribute to a high
level of uncertainty by the parties on the outcome of Arbitration. 
2.     Flexibility which is
one of the most well known tailored and tailorable advantages of Arbitration
depicts that Arbitration hearings can usually be scheduled around the needs and
availability of those involved, including weekends and evenings and holidays.
However like the artribute of privacy, the flexibility of Arbitration may also
breed lack of transparency, and precedents. It has also been seen lately that
arbitration procedures are becoming equally as complex as the court system and
infact holds very few difference to court processes. It can be assumed that
arbitration is copying court litigation and as arbitration has developed, the
procedures too have become as complicated. It is hoped that the UNCITRAL Notes
on Organizing Arbitral Proceedings 1996 will weed out potential problem areas.
                     
                     
                     
                     
                     
                     
                     
                     
                       
                     
                     
      Another
disadvantage of flexibility is embedded in the standards used by an Arbitrator
which are not clear. Generally the arbitrator cannot depart from the law which
is a guide to all arbitration panels. However, sometimes Arbitrators focus on
the equity of “apparent fairness” of the respective parties positions
instead of strictly following the law, which would result in a less favorable
outcome for the party who would ordinarily be favored by a strict reading
of the law. 
3.     Cost: Parties to a
transaction are encouraged to resolve disputes by Arbitration because
Arbitration was designed to be a cheaper alternative to litigation, however
experience also indicates that parties often tend to underestimate the costs of
Arbitration. The idea of Arbitration being cheaper than litigation has become a
myth. Within the last decade, Arbitration which was characterized as being less
expensive has been argued to have become very expensive that even the most
enthusiastic advocates in international Arbitration have argued that it has
become the most expensive mode of dispute resolution. The rising cost of
Arbitration is beginning to be a cause for alarm and in fact will make many
parties give up half way. According to a recent survey by a consumer watchdog
group called “Public Citizen”, Price Waterhouse Coopers (PWC) in corroboration
with the school of international Arbitration at the Queen Mary University of
London the cost of initiating Arbitration is significantly higher than the cost
of filing a lawsuit.                
                       
                     
                     
                     
                     
                     
                     
                     
    There are many factors to consider in the cost of
Arbitration such as the Arbitrator’s fees which is much higher in the event
that a panel of 3 or more arbitrators are involved. It is not unusual, for
example, for a well-known Arbitrator to charge a per day  or per hour
basis for his or her services or their services in the case of a
panel. this could run the cost of arbitration into hundreds of thousands
or even millions of Naira; transportation and accommodation of the Arbitrator
is also borne by the parties and such cost may be even higher  in the case
that the seat of Arbitration is out of jurisdiction; administrative costs which
is becoming more costly as more experienced lawyers take up the cause; parties
also bear the cost of any expert witness called; Parties are also required to
higher and pay their stenographers for the testimony and pleadings such charges
are also incurred sometimes on a daily basis; which is by no means a cheap
endeavour. Other costs ancillary to the logistics of the Arbitration (renting a
room for the hearing, videoconferences, etc.) also apply
4.     Simplified rules of
evidence and procedure.
The complex rules of evidence and procedure do not apply in
Arbitration proceedings in order to make Arbitration more adaptable to the
needs of those involved as well as to save time and expenses. For example
discovery may be more limited with Arbitration. In litigation the important process
like discoveries is dispensed with in Arbitration. Discovery which involves
taking and answering interrogatories, depositions, and requests to produce
documents from an opposing party, or even a person or business entity who is
not a party to the case to provide certain information or documents. This
process is often discarded as a delaying and game-playing tactic of litigation.
As a result, many times Arbitration is not agreed to until after the parties
are already in litigation and discovery is completed. By that time, the
opportunity to avoid costs by using Arbitration may be diminished.
5.     Third party
proceedings: Unlike litigation, Third Party Proceedings are more difficult
to execute as a result of the fact that a Third Party who may share in
liability one way or the other in the transaction in dispute cannot be
compelled to join in proceedings. Such third party can only be joined in
Arbitration proceedings upon his consent.  Kelly v. Tri Cities
Broadcasting (1983) 147 CA 3d 666; Melchor Investment Co. v. Rolm Systems
(1992) 3 CA 4th 587.)                
                     
                     
 
The fact that
the court procedures are not strictly adhered may also lead to the cases where
certain evidence may be admitted (for example hearsay) which is strictly not
allowed in litigation due to the unavailability of cross-examination to test
the accuracy of the statement.
6.     Finality; A final and binding
decision is hard to shake as both parties often give up their right to appeal.
The finality of Arbitration therefore breeds limition of recourse. There is no
automatic right of appeal even if the Arbitrator makes a mistake of fact or
law, depending upon the Arbitration clause or the Arbitration legislation.
Parties need to expressly agree to an appeal procedure in their Arbitration
agreement. Therefore, the remedies for a party who is dissatisfied with the
Arbitration award is limited. If the Arbitrator’s award is unfair or illogical,
this cannot be reviewed on the basis that the Arbitrators made a mistake of
fact or a mistake of law, but only on the basis that the Arbitrators
misdirected their mandate. A consumer may well be stuck with whims and
prejudices of a single Arbitrator and barred forever from airing the underlying
claim in court. The most plausible way to remedy an Arbitration decision is to
file a suit in court overturning the arbitral award on grounds which are
difficult if not impossible to prove.
7.     Enforceability of
Arbitration Awards:
bearing
in mind the existence of The New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) as well
as the UNCITRAL Model Law on International Commercial Arbitration 1985 and the
UNCITRAL Arbitration Rules 1976, who’s primary aim is to provide for
recognition and enforcement of Arbitration Agreements the problem in
international arbitration remains apparent. An international arbitration may
present the practical challenges associated with international business
dealings. For example, an international arbitration may require learning the
substantive law of a foreign jurisdiction, or new rules of procedure which may
appear “backward” compared to any previous experience. In addition, challenges
such as linguistic differences and the need for use of a translator (or even
multiple translators) may further complicate and draw-out the arbitration
proceeding.   The situation where enforcement of an arbitration award in a
country which is not signatory to the New York convention or the UNCITRAL Model
Laws, such enforcement procedure may remain elusive and expensive. 
8.     Uneven playing field. Some are concerned
that the “take-it-or-leave-it” nature of many Arbitration clauses work
in favor of a large employer or manufacturer when challenged by an employee or
consumer who has shallower pockets and less power. Also In situations where the
Arbitrator is reliant on one party for repeat business (1), then the potential
for abuse is present as there may be an inherent incentive to rule against the
consumer or employee and the advantage of impartiality is lost.
9.     Questionable
Objectivity. 

Another concern is that the process of choosing an Arbitrator is not an
objective one, particularly when the decision-maker is picked by an agency from
a pool list, where those who become favorites may get assigned cases more
often. Parties to the dispute may also agree on the Arbitrator, so the
Arbitrator will be someone that both sides have confidence will be impartial
and fair. However An Arbitrator chosen by a party within an industry may be
less objective, more likely to be biased in favor of the appointing group
Adding possible complication. An Arbitrator’s desire to obtain future retainers
may result in compromise or “splitting the baby” awards. The Arbitration
agreement which does not set out the qualifications or the organization that
administers the Arbitration, as well as the bias and competency of the
Arbitrator also stands as a risk of additional complications to Arbitration
proceedings.
10.                       
Speed: Arbitration is designed to consume less time than
litigation, in order to save time and money; however in the wordings of the
Eminent Law Lord; Lord Denning “arbitrate do not litigate” as he stated in the
case of Bremer v. Vulcan (1980) as reiterated in the case of P S
 Abdullah v. D.F.R. (1982).
Lord Denning stated that “when I was a
young man, a Scottish man use to parade this court with his board back and
front written “arbitrate, do not litigate”, this was a good advise in
so far as arbitration is resolved speedily, but it is bad when arbitration
beginnings to drag forever ” . Lord Denning was accurate in his statement
as many elements may affect the duration of litigation and thereby increasing
the cost of the arbitration tremendously and frustrating parties. For instance;
when there are multiple Arbitrators on the panel, juggling their schedules for
hearing dates in long cases can lead to delays.        
                     
                     
                     
                     
                     
                     
                     
                     
                     
    In a bid to speedily resolve issues, Arbitration has discarded
procedural issues like discoveries third party proceedings and Joinder of
parties. The requirement for speed and the requisite discarding of these very
important procedural steps may lead to the a rush of proceedings. This rush in
turn may lead to salient issues not being resolved and “we know that
“ justice rush is justice quashed”.          
                     
                     
                     
                     
                     
                 Arbitrators are also generally unable to enforce interlocutory measures
against a party, making it easier for a party to take steps to avoid
enforcement of an award and even resile at mid stream in the arbitral
proceeding at any time if due care is not taken. Another issue under this
heading is the issue of enforcement of Arbitration awards. Unlike court
judgments, Arbitration awards themselves are not directly enforceable. A party
seeking to enforce an Arbitration award must resort to judicial remedies,
called an action to “confirm” an award. This reversion to the courts
defeats the advantage of speed as attributed to Arbitration as efforts to
confirm the award can be fiercely fought, thus necessitating huge legal
expenses that negate the perceived economic incentive to Arbitrate the dispute
in the first place. And also such a motion for annulment of an Arbitration
award or a motion for confirmation is not confidential which also defeats the
attribute of privacy. Unless agreed upon in advance, the process for selecting
an Arbitration institution, the specific Arbitrator and the number of
Arbitrators could significantly delay the Arbitration process. 
11.                       
Subject Matter Not Capable of Settlement: Parties to a
transaction are at liberty to choose Arbitration as their dispute resolution
mechanism; however not all disputes can be settled by Arbitration, for example
criminal matters or matters of public law (such as intellectual property
rights; dispute over the validity of a patent, fraud). Additionally an
Arbitrator may not have the power to grant remedies that a court can. There is
support for the view that a court will refuse to stay proceedings in support of
Arbitration if the Arbitrator cannot award the remedy claimed. In the case of
Hashim bin Majid v. Param Cumaraswamy, an application to stay court proceedings
was refused on the grounds that one of the remedies claimed by the plaintiff
was a dissolution of the partnership and the court was of the view that this
was not an issue that could be decided by an Arbitrator.
CONCLUSION
In any transaction or anticipated business dealings the decision to exclude the
ordinary jurisdiction of the courts of law must always be made after careful
consideration, and must go beyond simply indulging in the fad of copy and past
of Arbitration Clause in any agreement. Parties must recognize the fact that
each transaction is relative and must be careful not to assume that what was
effective in a given context will produce the same results in each particular
case which may arise. Hasty and impulsively Decisions may easily lead to a
disastrous outcome.
Given the possible perils and
unevenness for those who unwittingly enter the arbitration clauses in
contracts, it is only wise that parties should consider a number of factors to
become better informed and, possibly, ward off a bad experience. Such factors
include but are not limited to the following:
  • The
    importance of confidentiality;
  • The
    ability to anticipate the type of disputes that are likely to arise:
    The choice to arbitrate or litigate will probably turn on whether you will
    need full discovery from the other side; selecting arbitration risks
    truncated discovery, unless specified otherwise.
  • The
    parties involved in the transaction ie. Whether or not the government is a
    party as the government may seek immunity from disclosure of documents
    which are key to proving a case. Immunity considerations may be diminished
    within the confines of a confidential arbitration;
  • Whether
    or not the dispute is international. Arbitration may control risks of
    foreign law or conflict of laws e.g. Sharia law and home bias;
  • The
    level of complexity of the case as well as the need for an expert panel
    and witnesses.

AIRCRAFT LEASE IN NIGERIA: ADDRESSING THE CONCERN OF THE LESSOR by Olumide Oyinloye

AIRCRAFT LEASE IN NIGERIA: ADDRESSING THE CONCERN OF THE LESSOR by Olumide Oyinloye


 

Credits- vegaaviation.com.ge

Introduction
With Government’s intervention and investment in the Nigerian aviation sector
through, among others, the ongoing rehabilitation works at different airports,
improvement of navigational facilities, planned floating of a national carrier,
provision of airline intervention fund to domestic operators through the Bank
of Industry, the Nigerian aviation sector has considerably regained public
confidence. Demand for domestic air travels and patronage of Nigeria airlines
operating regional and international routes is on the increase. To take
advantage of the upsurge, several airline operators are taking steps to
increase their fleets and expand their operations and in some cases, cater for
new regional and international routes. In view of the prohibitive cost of
aircraft acquisition however, practically all the operators are turning to one
lease instrument or another. The most common lease options in acquiring an
aircraft are operating lease and finance lease.
 
Of major importance in the choice of lease options by airline operators are tax
obligations and benefits. Under the Companies Income Tax Act, Cap C21, Laws of
the Federation of Nigeria 2005 (“CITA”), these two types of lease attract
different tax incidences in relation to Capital allowance, Withholding Tax,
Value Added Tax, Capital Gains Tax etc. The considerations for the choice of
lease option by operators however do not change the concerns of Lessor and
financiers, mostly foreign aircraft manufacturers, leasing companies and
operators whose due diligence and security requirements are usually detailed
and wide-ranging.

 
Lessors’ security requirements and documentation often depend on the structure
and dynamics of the lease arrangement and may include Billing System Payment Account
Charge, Deregistration Power of Attorney, Irrevocable Deregistration and Export
Request Authorisation, Intercreditor Agreement, Assignment of Receivables
Agreement, Flight/Aircraft Services Agreement, Engine Warranty Agreement,
Airframe Warranty Agreement, Assignment of Insurances, Assignment of
Reinsurances etc. However, the due diligence concerns and requirements of
Lessors are often the same. Understanding and addressing these concerns and
requirements is, from our experience, as important to a seamless lease
arrangement as meeting Lessors security requirements.
In this edition, PUC Quarterly highlights the differences between an operating
and a finance lease, details the tax regimes applicable to each lease
instrument and identifies some of the major queries of Lessor.
Operating Lease or
Finance Lease
: Understanding the difference
One of the major attractions in operating leases is that they are traditionally
for a short-term, usually less than 10 years, although the lifespan of the
lease may not be known at the beginning.
The Lessor retains
ownership of the aircraft as well as the risks, obligations and benefits
associated with ownership in addition to the lease rental that the Lessor
receives. The lease may become cancelled or renewed as may become necessary.
More importantly, the Lessor is under the obligation to pay such cost as
insurance, maintenance and similar charges on the aircraft in addition to his
warranties as to the condition and fitness of the aircraft. If the aircraft is
lost, rentals cease and the Lessor becomes entitled to payment of the insurance
under its policies.

The short duration of an operating lease offers the operator flexibility in the
management of fleet size and composition enabling the operator to increase or
decrease the number of aircrafts in its fleet over a period of time as it
business demands. The Lessee is also able to manage aircraft obsolescence and
the dangers associated therewith by keeping only relatively new aircraft in its
fleet. On the downside, the Lessor may incur considerable expenses maintaining
the aircraft on the Lessor’s stringent terms due to the latter’s interest in
ensuring that residual value of the aircraft is not depleted by requiring that
the aircraft be returned in almost the same condition as its condition at
delivery.
A finance lease on the other hand usually has a longer lifespan. A distinctive
feature of a finance lease which ought to attract any Lessee’s interest is that
the risks and rewards of ownership are transferred to the Lessee from the
commencement of the lease. The Lessee pays cost associated with the lease such
as insurance, maintenance and other charges on the aircraft in addition to
periodic lease rentals. The primary term of the lease is sufficient to allow
the Lessor to recover rentals equal to the capital cost plus an amount equal to
interest often over the useful life of the aircraft and thereafter the Lessee
may retain ownership of the aircraft at nominal rate.
 
In a finance lease, the Lessee is almost the “owner” of the aircraft. If the
aircraft is sold on a Lessee default, the Lessee may receive any surplus by way
of a rebate of rentals. The Lessee however takes the asset “as is” without
warranties as to condition or fitness from the Lessor, it must maintain the
aircraft, insure it and must continue to pay the Lessor the full rentals, even
if the aircraft is damaged or requisitioned, subject to a right to terminate on
payment of all the unrecovered capital, usually out of insurance or requisition
proceeds payable to the Lessee.
 
Tax Considerations

Operating Lease under the CITA, the total lease
rental received or receivable by the Lessor is income and is wholly taxable in
accordance with paragraph 18 (1)(b), 2nd Schedule, CITA. The Lessor is entitled
to claim capital allowance on the leased assets. The Lessor is however liable
to Withholding Tax (WHT) at 10% of the total rental income due on the lease,
computed on the total lease rental must be deducted from the sums due from the
Lessee. Lessors resident in countries having tax treaties with Nigeria e.g.
Belgium, France, Canada etc, pay WHT at the rate of 7.5%. The lease rental
income is also liable to VAT. The Lessor may include a 5% VAT charge on its
invoice to the Lessee.
In favour of the
Lessee, the lease rental charges and other associated expenses are allowable
deductions for tax purposes. The VAT charged by the Lessor on the lease rental
charge is not an input tax to the Lessee; it is to be charged to the Profit and
Loss Account as an advance payment of tax. However, notwithstanding that the
Lessor might have passed the burden unto the Lessee, the Lessee is liable to
withhold tax at the rate of 10% of the rental payment to the Lessor to the
relevant tax authority. 

Finance Lease in a finance lease, the interest
portion of the rent earned by the Lessor constitutes taxable income; the
capital portion is a repayment of initial investment and has no tax
implications. The Lessor is however not entitled to claim capital allowances on
the leased asset; only the Lessee is entitled to make such claims – Paragraph
18 (2) of the 2nd Schedule to CITA. If the aircraft is disposed at the
expiration of the lease period, any capital gain realised by the Lessor would
be subject to CGT.

WHT is computed only on the interest portion of the total lease payment due
from the Lessee. The Lessor will receive lease rent less 10% WHT unless there
is tax treaty between Nigeria and the Lessor’s country in which case, WHT is
7.5%. The credit note will be issued in the name of the Lessor who can use it
to offset its income tax liability for the relevant period. However, interest
earned by the Lessor on finance lease is a return on investment and is not
liable to VAT.
To the Lessee’s benefit, the interest portion of the periodic lease rent and
other related expenses such as insurance and maintenance cost are deductible
expenses for income tax purposes. The Lessee is entitled to claim capital
allowance on capital portion of the value of the aircraft. The Lessor however
bears liability for remittance of the WHT on the interest portion of the lease
rental even where it is prevented from deducting WHT by gross up provisions in
the lease agreement. The Lessee may however be liable to CGT if the leased
asset was sold by him after exercising the purchase option.

Lessors’ Queries
 
Tax liabilities under Nigerian law are however not a Lessor’s most important
consideration as the Lessor can conveniently pass on the entire tax burden to
the Lessee by tax gross up provisions in the lease agreement which may simply
require that if the Lessee is required by law to make a tax deduction, the
amount of the payment due from the Lessor shall be increased to an amount which
(after making the tax deduction) leaves an amount equal to the payment which
would have been due if no tax deduction had been required. The Lessor’s more
serious concerns relate to repossession, security of rentals, reversional
interest and the residual value of the aircraft, validity and enforceability of
agreements, etc. In practice, the prospective Lessee approaches an aviation
leasing company. After preliminary negotiation, the Lessor and Lessee together
with the aircraft owner (if there exist one in this instance) would execute a
Lease Agreement among other documentation. Before the execution of these documents
and particularly at the negotiation stage, the Lessor will usually contact a
Nigerian law firm on some certain areas of concern arising in the lease. These
concerns categorised into broad areas are but not limited to:

Conventions
The Lessor will like to know if Nigeria has ratified any of the conventions
bordering on aircraft transportation. Of paramount importance to the Lessor are
conventions that grant security on operation of the aircraft as well as
repossession of the aircraft in the event that there is a default or
termination of lease. Such conventions include the Chicago Convention of 1944
on Internatinal Civil Aviation, the 1948 Geneva Convention on the International
Recognition of Rights in Aircraft, the 1933 Convention for the Unification of
Certain Rules Relating to the Precautionary Arrest of Aircrafts and more
particularly, the 2001 Cape Town Convention on the International Interest in
Mobile Equipment and the associated protocols on matters specific to aircraft
equipment. Not only will the Lessor be interested on the ratification of these
conventions and the associated Protocols but the extent to which they have been
enforced or made applicable in the jurisdiction e.g. the extent to which
Nigeria has derogated from the Cape Town Convention and the associated Protocol
on Matters Specific to Aircraft Equipment (“the Protocol”), the relevant
articles of the convention and the Protocol in respect of which Nigeria has
made declarations, the relevant applicable law in Nigeria to ensure an effective
registration under the Cape Town Convention and the Protocol etc.

Forum and Judgment Enforcement

Closely related to this will be issues dealing with choice of law of the
parties and whether same will be respected by the Nigerian courts and whether
any judgment of the forum court against the Lessee would be recognised and
enforced by the courts in Nigeria without retrial on the merit. Of particular
importance in this regard, is whether there is any reciprocity for enforcement
of judgments between the chosen forum and Nigeria and the procedure and
possible timeline for the recognition and enforcement of such judgments.

Filings and
Registration

The Lessor is concerned in this instance in knowing the necessary filings and
registrations that is needed to perfect the Lessor/Owners title in Nigeria and
the extent to which such interest is vested in the Lessor or any other person
holding security over the aircraft. What is the effect of the registration of
the lease on the Lessor’s interest; would Nigerian law regard the Lessee as
having beneficial interest in the aircraft by virtue of the registration and
would this confer any equitable title right or interest in the aircraft. The
Lessor is also interested in knowing the necessary documents that need to be filed,
the agencies that are involved and the fees that are applicable. This will also
cover any other form of taxation that may be payable. This also covers the
pre-registration stage where technical inspection is conducted on the aircraft
sought to be registered. The duration that these processes will take is also in
issue.
Security
This is the most critical area to the Lessor in the lease agreement. This
aspect deals with protecting the interest of the Lessor/Owner in the aircraft
in the event that there is a default of lease or its termination. The Lessor
amongst other things inquires on the lease documentation and other
documentations and the Lessor will want to know if stamp duties is payable on
lease and if same is registrable with the relevant governmental agencies. One
area that gets a large chunk is how deregistration of the aircraft is effected.
The Lessor would also want to know if the interim reliefs provided in Article
13 of the Cape Town Convention are applicable. Not to be left out is the validity
and applicability of the IDERA. The effect of bankruptcy and insolvency on the
Lessee would also be of concern to the Lessor. At this stage also plays out the
concept of Security Trustee. The Security Trustee will border more on the
administration and disbursement of receivables received in respect of the
lease.
 
Deregistration/Exportation
Power of Attorney

The Lessor would be interested in any export control restrictions applicable in
Nigeria and the extent of such restrictions. This would include whether a
Deregistration Power of Attorney empowering the Lessor to export the aircraft
from the Nigeria upon the occurrence of an event of default of by Lessee, the
expiration or early termination of lease agreement would be enforceable under
Nigerian law, notwithstanding that the governing law of the Power of Attorney
may be a foreign law. Other concerns of the Lessor relating to the
deregistration and exportation Power of Attorney include whether the
occurrence, declaration of insolvency or commencement of winding-up proceedings
against the Lessee would negative or invalidate the Deregistration Power of
Attorney. The Lessee also wants to know if the DPOA is revocable, the
circumstances where it will be revoked and if the DPOA will be recognised and
enforced in the Nigerian jurisdiction. All of these are valid anxiety arising
from the inherent right granted under Chapter III of the Cape Town Convention.

Liens and Repossession
 
The Lessor would want to know whether the non-payment by the Lessee of
statutory fees and duties e.g. landing fees create a statutory lien over the
aircraft which would entitle the relevant authority to take possession of the
aircraft and whether this creates a concomitant liability on the Lessor to
discharge such payments. In such case, whether such authority would have the
right to sell the aircraft to recover whatever payment is due from the Lessee.
Is the Lessor entitled to resort to self helps e.g. take physical possession of
the aircraft upon the termination of the lease or must commence legal
proceedings for this purpose? What would be the duration and potential cost of
such legal proceedings? Would be Lessor be entitled to obtain interim order for
the repossession of the aircraft?
 
Bankruptcy/Insolvency
The Lessor is concerned here on what happens to the aircraft in the event that
the Lessee becomes insolvent. In specific terms, whether the commencement of
insolvency proceedings automatically precludes the Lessor from repossessing the
aircraft; what would be the ranking of the Lessor’s rights and interests over
the aircraft vis-à-vis creditors and other persons who have claims over the
Lessee’s assets; and whether a receiver or liquidator appointed in such
proceedings would be bound to give effect to the lease agreement between the
Lessor and Lessee including respecting the right of the Lessor to terminate the
lease agreement consequent upon the commencement of the insolvency proceedings
etc.
 
Insurance and other General Matters

The Lessor inquires if the AVN52C insurance coverage is applicable in Nigeria.
The Lessor is also of concern is if the aircraft must be insured or reinsured
in Nigeria alone or if same can be done outside jurisdiction and if National
Insurance Commission’s approval is required. As stated earlier, the aviation
business is a capital intensive venture and the Lessor would like to know if
the insurance can be carried out outside the jurisdiction or whether same can
be carried out partly outside jurisdiction and within jurisdiction and whether
an assignment of the rights of the Lessee in the insurance taken in Nigeria
would be enforceable under Nigerian law.
 
Other general matters that may be referred to are issues on the ability of the
Lessor to sell the aircraft during the pendency of the lease, Lessor and Lessee
liability in tort, if there are additional documentation required for the
aircraft registration in Nigeria, repatriation of funds and aircraft engine.

Conclusion
The areas identified above are a non-exhaustive list of concerns that the
Lessor has in leasing an aircraft to a Lessee. Ultimately, the Lessor’s concern
is on realising the lease sum, ensuring the proper safety and maintenance of
the aircraft as well as a cordial relationship between the Lessor and the
Lessee. . If the issues identified above are put into consideration by the
operators intending to take the lease option before commencement of negotiation
with lessor and the lessee obtains proper advice and guidance in respect
thereof, potential dispute areas would be reduced and the lease process would be
seamless.
By: Olumide
Oyinloye

TAX LAW: IMPOSITION OF BEST OF JUDGMENT ASSESSMENT

TAX LAW: IMPOSITION OF BEST OF JUDGMENT ASSESSMENT

    

Credits – Google

                    

The
relevant legislation that regulates taxation matters for individuals

in
Nigeria is the Personal Income Tax Act (“PITA”). A Nigerian employer acting as
an agent for the Nigerian tax authority is required to deduct and account for
the personal income tax of its employee through the Pay-As-You-Earn (PAYE)
system.
Best
of Judgment Assessment is a tax assessment procedure conducted by tax authorities
on the accounts of a company or individuals. It is usually done where the tax
payer does not provide any Audited Accounts or Statement
of Net-worth if it is an individual. It can also be conducted if the tax
authorities have reasons to believe the accounts presented by the tax payer is
not sufficient enough to assess their tax liability.

                    
Despite
the role of the employer in the assessment of the emoluments of the employee
under the PAYE system, section 54 (2)(b) of the PITA provides that the relevant
tax authority  can reject the returns
filed by a taxable person and determine the amount of the assessable, total or
chargeable income of the person (employee) based on the tax authority’s  “best of judgment” and make an assessment.
Section 17(1) and 58 (3)
of PITA also empowers the tax payer to raise objection to the revised
assessment by the tax authority. This further reiterates the power of the tax
authorities
to use their discretion to determine on a best of judgment basis,  the tax liability where none or insufficient
tax has been paid by the employer who act as its agent.
The recent case of Group 4
Securicor Nigeria Limited (the “Company”) and Lagos State Internal Revenue
Service (“LIRS”) at the Tax Appeal Tribunal, saw   the
employer raise an objection to the assessment of its expatriate employees based
on deemed income and penalties imposed by the “LIRS”.
The LIRS contended that the Company
had no ‘locus standi or cause of action’ because
it is not a taxable person under the PITA being only an agent of the tax
authority therefore it is only the employee who has the right to protest or
bring a claim.
The Company claimed that the deemed
income was computed based on tax remitted by employees of a subsidiary company,
Outsourcing Services Ltd (“OSL’”) which was operating an entirely different
line of business though they were both owned by the same parent company. The
subsidiary company protested the deemed income imposed on it by the tax
authority but could not provide appropriate documents to substantiate its
position. Unlike OSL, the Company provided relevant documents to the LIRS to
confirm the actual income earned by the expatriate employees.
The TAT asserted that it was
legitimate for the tax authority to rely on the positions of section 54(2)(b),
17 and 58 (3) of PITA to make an assessment based on the deemed income but the
following had to be considered:
1.     The best
of judgment assessment cannot be established on a prior best of judgment
assessment i.e. it must originate from actual industry results or the parameter
must be realistic within industry context.
2.     Best of
judgment must bear semblance to the normal tax assessment of identical or
closely related companies in similar or identical circumstances.
The TAT
concluded that the Company had the right to appeal against the demand notice
where there are claims by the tax authority that the emoluments were
understated and not only the case of under deduction and non remittance.
The
question this case actually raises is that, in the cases where the Federal
Inland Revenue Service (FIRS) issues a best of judgment assessment as provided
in the companies income tax act where a company has not filed its returns, will
the principle in the case of Group 4
Securicor Nigeria Limited v Lagos State Internal Revenue Service (“LIRS”)
be
applicable?

By Sogo Akinola 

Customer Care: A Wake Up Call by Chika Maduakolam

Customer Care: A Wake Up Call by Chika Maduakolam



Credits – Google

I am not a people person! There, I said it!
You may wonder why the dramatics; simply put, it’s something I have found difficult
to admit openly as most people in my immediate environment see me as a social
butterfly and erroneously conclude I am very friendly. Enough said.

For those slightly acquainted with any of
my previous articles, you should already be aware that I will not be making any
groundbreaking discoveries or juxtaposing some highfalutin (never understood this
word!) ideology to change the world; I will simply be following the course of
the ramblings of my mind and the above paragraph is only prelude for the
rambling of today: I weep for the state of Customer Care in Nigeria.

As we all know, it will be a grand waste of
the reader’s time to go on and on about the poor state of customer service in Nigeria.
It is well established in fact that we still have a long way to go in this area;
anyone who disagrees must be living in a part of Nigeria I have not heard of,
please feel free to send me your address so I can relocate.
I have had the privilege of veering out of
legal practice for a while to meddle in the waters of Client relationship for a
short long while and so I would say I am not exempt from the ire I speak of.
That informs the basis for my starting paragraph; I have gotten commendation
from several clients on the fact that they have been attended to in the most
courteous and warm manner; as well as had their issues dealt with in a manner
that has made them feel like royalty. I make no pretense of tooting my own horn
but I will admit that I can be forthright enough to admit that I have not been
the most stellar of client services executive either. Please, bear in mind that
I am not a people person; however, it has not stopped me from doing my job to
the best of my ability, no matter how limited!
 

Credits – Google

What I seek to do today is to call out the
lawyers! Yes, the lawyers! How does this even make sense, you ask?! Simple, if
lawyers braced up and started picking up the ‘cause’ of Terrible Consumer
Services not only the corporate, election, land disputes, we would see a
dramatic improvement in the way consumers are treated in this country, I tell
you!
Follow my train of thought for a minute; A
mistreated customer has a bulldog ‘festus keyamo’ type of lawyer chasing after
that rude air hostess (who I happened to be a witness to such a one this past
week, by the way) and sued the airline (vicarious liability), the said airline
would have no choice but to lay emphasis on client facing employee conduct,
making the necessary investments in training and serious internal sanctions, it
would in turn, impress on said employees the importance of treating customers
appropriately. See where I’m headed?
This is not to say there aren’t customers
that the word ‘obnoxious’ describes and I daresay I am all for resorting to
appropriate redress of such people as a last option but mind you, let this be
an exception, not the norm; unless we would like to imply that majority of
Nigerians are inconsiderate cads.
The call for this article arose as a few of
my friends just relocated back to Nigeria and as much as I was already reveling
in their expected misfortune of weather issues, economic shocks and all
whatnots, the most prevalent ailment with them all was the fact that majority
of the places and people from where/whom they were acquiring a service were
treating them like they were beggars and not customers out to purchase goods
and services. I laughed at them, to be honest, because I felt they were
whining; ‘we are used to it’ as Nigerians till I thought better of the
situation; no more settling for less. Do not be mistaken, the well receiving
service providers in most developed countries do not love you because you are a
family member; they simply know they know the value of spending needless time,
effort and resources on suits from disgruntled customers.
Imagine my utter surprise at the fact that
there exists an Institute for Customer Service in NIGERIA! I wonder where their
members are?!
I, admittedly, worked in said field for a
whole year without any affiliation to them whatsoever and majority of
Nigerians, practically, every field requires client facing, so why do we not
know they exist!! Not to mention that the Consumer Protection Council has laid
claim to the fact that efforts have been made to create awareness on Consumer
rights. Much as it is nice to find a safe haven in listing areas these 2 institutions
could foster change; why don’t the agents of change leverage on the efforts
made by these agents and do what they do best: Cause CHANGE!
Lawyers, over to you!
‘Law is one of the great healing
professions; while Medicine heals the body and the Clergy heals the soul, the Law
heals societal rifts’- Steven Keeva
By: Chika Maduakolam

INTERNET DEFAMATION: KEEPING PACE WITH THE LAW by Kayode Omosehin

INTERNET DEFAMATION: KEEPING PACE WITH THE LAW by Kayode Omosehin

Credits – Google

Everything Starts with Reputation
The greatest injury in the life of a
man is the injury to his reputation. I have restricted the category to the
living because a dead man has no reputation which is enforceable at law. The
right of a man to protect his reputation is a personal right. Such right dies
with a man upon his death. No action can be commenced or continued upon the
death of the injured party. The only recognized exception however is where the
injury to a dead man’s reputation has negatively impacted his estate. Even
then, it is more appropriate to ground the claim in malicious falsehood than
defamation. In any case, redress in the circumstance can be sought by the
personal representatives of the deceased (executors or beneficiaries the
estate) subject to other legal requirements.
The respect (and protection) for a
person’s reputation is sacrosanct. It is as fundamental as the freedom of
expression against which it is the burden of the law to balance. This is
because a man whose reputation is destroyed has lost not only money or other
valuables but everything! That is why, for instance, in Nigeria, injury to
reputation is both actionable as a civil wrong and a crime which is punishable
by terms of imprisonment. In both cases, the injury to reputation is called
defamation. The criminal aspect of defamation is not the focus of this piece.
That will be taken care of on another day by a separate exposition of the eight
sections under Chapter 33 of the Criminal Code Act Cap 77 LFN 1990.

The damage to reputation through words
published by another are hardly quantifiable in monetary terms. This is adumbrated
in the words of Lord Pearce in the popular English case of Hedley Byrne
& Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 at 534
that:
“Negligence in words creates problems
different from those of negligence in act. Words are more volatile than deeds.
They travel fast and afield. They are used without being expended and effect in
combination with innumerable facts and other words. Yet they are dangerous and
cause vast financial damage.”
Keeping Pace with the Internet
The world has evolved, and perhaps
moved to the internet –facebook, twitter, web blog, Instagram, etc. readily
come in view. Substantial percentage of human activities (social, commercial,
political or otherwise) now take place on the internet. The impact of internet
is very profound, whether in its advancement of the pursuit of mankind or
exploitation to ill ends. The use of social platforms on the internet has been
resorted to by some persons suffering from STPD to improve their personality
disorder. Internet has provided voice to the dumb, limbs to the amputees and
job to even those who are otherwise undeniably unemployable. Internet is a
positive invention no doubt.
However, the vast opportunities
afforded by the internet have been utilized for negative objects. A lot of
micro bloggers and other users of the internet are found culpable. It is either
they are uninformed so as to appreciate the line between their freedom of
expression and their subject’s right to reputation or they simply just do not
care. Some exposition is therefore incumbent to show that, what appears to be a
legitimate exercise of freedom of expression, social or political discussion
may otherwise lead to liability in law.
However, Nigerian law on defamation is
everything but a product of the current age. Nigeria is yet to promulgate any
law directly dealing with internet defamation so as to provide for the
obligations of the Internet Service Provider (ISP), bloggers, forum or platform
owners and other users of the internet as well as commentators on posts, chats
or other publications. Although, it has been argued by a school of thought that
due to the peculiarities of the internet, distribution of liability for
internet defamation should not take the same pattern of the general law of defamation.
According to this school, unless there is foreknowledge of the falsity of the
contents, the ISP should not share in the liability of the publisher. For
instance, in an English case of Tamiz v Google Inc. [2012] EWHC 449, the
English Court held that Google Inc. could not be held liable for a defamatory
publication on its Blogger.com on ground that Google Inc. was not a publisher
having not made any contribution to the publication notwithstanding refusal to
remove the defamatory publication following the Claimant’s previous warning to
Google Inc. regarding the defamatory content.
Although Nigerian courts are persuaded
by relevant English case law and, indeed, occasionally resort to them in
deciding judicial questions which have no local precedent; a lot of caution is
however advised with regard to Tamiz v Google Inc. on internet
defamation. Apart from being a diametrical contradiction of previous cases like
Godfrey v. Demon Internet Limited [1999] 4 All ER 342 (which should be
preferred), it represents an overrated protection for the ISP. I have
considered the submissions made by the Google Inc.’s team and, in my humble
view, same can only be entertained by a Judge who is overawed or dazzled by the
great invention called internet.
The view that liability cannot lie on
Google Inc. or any other ISP having not made any active contribution to a
defamatory publication flies in the face of an ISP’s role as the provider of
the platform on which another man’s reputation can be badly damaged. Also, the
contention that it would be unrealistic to fix Google Inc. with responsibility
(before or after complaint about a defamation) has proceeded on a false premise
that the ISP cannot possibly investigate the truth of every post by its users
everywhere around the world. The flaws in the contention are numerous. The most
transparent is implicit in the contention itself, that is, the ISP can only
create a platform for publications (some of which may be defamatory) but cannot
control or delete defamation due to the large population of its users. Even
under general law of defamation, retraction and apology for defamation are well
entrenched. It certainly should not be the fault of aggrieved claimant that an
ISP has no technological solution to problems associated with its lucrative
business, thus causing harm to others.
It is therefore untenable that
liability of ISP cannot arise for refusing to shut down or delete an offensive
blog or post after prior notification has been given of the defamatory content
of the publication on the ISP’s platform. It is also incongruent that an ISP
will allow anonymous users to register for the use of its platform (which in
itself casts doubt on the ISP’s quality standards and giving rise to the
possibility of mischief, abuse and violation of third party’s right) and
thereafter shy away from responsibility for the actions of the registered
users. Never in the history of mankind has the law permitted a man to encourage
an intentional, innocent or negligent act of another in violation of a third
party’s right! The provision of a social platform by ISP is part of the
internet defamation problem, the ISP should as well be part of the solution. In
the absence of any solution (legal or technological) and liability arises, it
should not take a back seat!
It is therefore my humble submission
that any liability arising from a publication of defamatory statement on a
blog, facebook, twitter, Instagram and other social platforms should be jointly
and severally borne by the ISP, the owner of the platform (and the person who
posted the defamatory statement, if different from the owner of the blog) as
well any person who makes a comment on the defamatory post or reposts the
defamatory page in furtherance of the defamation. The strongest defence to
defamation is justification and where same is lacking, the claim should not be
defeated on some flimsy basis of freedom of expression. Anyone who has been a
victim of internet defamation only can attest to the magnitude of the trauma.
It is no longer news that the commonest blackmails occur now through internet
defamation. The admonition of judges by the Court of Appeal in Gbadamosi v.
Kabo Travels Ltd. (2008) 8 NWLR (Pt. 668) 243 at 288-289
, are very apt
here. In that case, the Court stated rightly that “Judges are required to
keep abreast of time and not to live in complete oblivion to happenings around
them. They are to keep pace with the time.”
What Does Defamation Mean?
Various definitions of defamation
abound in works by scholars and decisions of courts. There is no attempt here
to compare the definitions. In my view, defamation is any false statement made
(orally or otherwise) to another which negatively impacts the reputation of the
person about whom the statement was made. Howsoever defamation is viewed, it
centers on some fundamental elements, namely, falsity, publication and impacts.
These essentials are not necessarily cumulative or all inclusive. The presence
of one may give rise to the presumption of another. It is my humble submission
that no discussion of (much less a claim for) defamation can be meaningfully
sustained if it disregards these essentials. My foregoing submission is borne
out of three reasons:
1.     The truth of a
publication is a complete defence to any suit brought for defamation. However,
liability is more probable in circumstance where the falsity of the publication
is established;
2.     Without “publication”
(in the legal sense of word), there can never be a claim for defamation; and
  3. Negative impacts of a
publication in terms of financial loss or public  opprobrium or public
contempt, etc. usually weigh in on the minds of a judge in concluding that the
publication is defamatory.
I am not aware of any judicial decision
in which the elements of falsity, publication and impact have been dispensed
with in the consideration of any liability for defamation or otherwise.
Slander or Libel? A Quick Check again
Slander and libel are the two known
types of defamation. Malicious or injurious falsehood and other nomenclatures
have cropped up in the development of law in this regard. These other
categories are not strictly for protection of personal reputation which
defamation serves. They protect interest in property, trade or other economic
interests. I must admit that the line between some of these torts is very thin
which blurs imperceptibly in litigation.
If the defamation is spoken and not
recorded in any permanent form, the injury is called slander. However, if the
injury was caused through a written device such as document, website or web
blog, or otherwise recorded in any permanent form, it is called libel.
The making of slander and libel is
largely the same save for two differences. Apart from their respective
transient and permanent mediums of publication, libel is actionable per se (without
proving injury or loss) but in slander, damage must be proved.
There are varying circumstances which
present complex analysis of whether any (or what kind of) defamation has been
committed. This piece cannot anticipate all the innumerable circumstances. Few
instances are necessary. A defamatory statement made during a press conference
may be a slander or libel. If the defamation is merely spoken, it is slander.
But if a pressman or blogger at the press conference thereafter publishes the
statement in written or audio form, the liability is for libel.
Now, it is useful to note that a
statement could be a word, combination of words, a picture, cartoon, a symbol,
sound or other expressions by which a person may be represented to an audience.
The instances listed below are amongst those which may give rise to defamation,
namely:
  • Calling
    a soldier a deserter;
  • Calling
    a person gay or attributing homosexuality to a person in a country or
    state or community where homosexuality is prohibited
  • Imputing
    insanity or some contagious disease to a person;
  • Imputing
    bankruptcy, crime or immorality to a person;
  • A
    statement reflecting incompetence, dishonesty or any other adverse
    deficiency on a person’s professional reputation;
  • Juxtaposing
    a man’s picture sitting beside a prostitute or notorious criminal thereby
    suggesting partnership or comradeship between them;
  • A
    statement that unseaworthy ship or un-roadworthy car or bus or
    un-airworthy aircraft is being advertised to carry passengers. The court
    has reasoned that the statement was referring not only to the vessel but
    also the owners;
  • Creating
    a hashtag on a person’s name and calling for captions, descriptions,
    opinions and other commentaries on the person. Liability may arise in the
    circumstance where the reputation of the person is negatively impacted by
    the responses;
  • Photo
    shop or other modes of photo edition of a person’s image which shows
    distortions, alterations, reduction or addition in physical features in a
    manner calculated to ridicule the person;
Ingredients of Defamation
Under Nigerian law, the requirements
for making out a case of slander are largely the same as in libel. The Supreme
Court of Nigeria set out the ingredients necessary to prove libel in the
case Iloabachie v. Iloabachie (2005) 13 NWLR (Pt. 943) 695 at Pg. 736 as
follows:
 1. There must be proof of
publication of the defamatory statement to a third party and must not be
privileged.
What is regarded as “publication” in law of defamation is the
making of a statement to a third party. Some illustration should help. If A
makes a statement to B damaging B’s reputation, there is no
publication. The effect is the same where the statement is made to B’s
agent. A statement is privileged if the maker is under a contractual or
statutory duty to make the statement to the addressee, e.g. lawyer and client,
complainant and law enforcement authority, agent and principal, recruitment
consultant and employer etc. Where the statement is privileged, there is no liability.
 The audience must be
identifiable. It is a great challenge identifying third parties who read the
defamatory publication. The challenge becomes real when considered against the
possibility of readers and commentators having registered with the ISP using
anonymous names. I have been approached by a reputable business foreigner whose
grouse against an e-mail received from an estranged business partner could not
be litigated due largely to the fact that there is no record that any other
person was copied on the e-mail even though the writer repeatedly stated “so
that others copied in this e-mail can see..” throughout the e-mail.
 2. The publication must have
referred to the aggrieved person and was defamatory of him
. Reference to
the aggrieved person in a defamation is key to establishing liability. If the
defamatory statement is to be understood by a reasonable listener or reader or
addressee as referring to the aggrieved person, libel is established.
 3. There must be proof that
the defamatory statement was made in permanent form
. Newspaper, video
record, audio record, website, web blog, are few examples by which a statement
can be recorded in permanent form. If the publication was transient, then it is
slander.
 4. The claimant must provide a
literal translation of the defamatory statement in English language where the
publication was made in foreign language
. The translation must be done by
certified translator. The translation version is usually notarized.
 5. The statement must be false.
Falsity of the statement implies recklessness and malice. It is an essential
ingredient of libel. Where however the statement is true, libel case will fail.
 Please note that in slander
cases, the above requirements also apply except that of (c). The above
ingredients must co-exist. The absence of any of the ingredients defeats the
claim.
Damages for Injury Caused by Defamation
Even though damages is the common
remedy for defamation, Injury to reputation is hardly quantifiable in terms of
naira and kobo. A defamatory publication may lead to loss of relationship, loss
of profit, loss of business opportunities, loss of acquaintances, etc. in a
manner and to such extent that money cannot compensate. It is however
instructive to note that given the wide coverage and reach of the internet, a
defamation on the internet should attract not only the regular species of
general or special damages, but also punitive damages. The foregoing is
strengthened by not only the fact that internet defamation presents a new
challenge in the judge’s task of assessment of damages but also the possibility
malice or motive by the publisher to attain sudden fame by such malicious
publication. The laws must move forward, so also the judges administering them.
I find the compelling words of 17th Chief Justice of India, Honourable Justice
P. N. Bhagwati very apposite here:
“Judges have a creative function. They
cannot afford to just mechanically follow the rules laid down by the
legislature; they must interpret these rules so as to reconcile them with the
wider objectives of Justice…….. Judges must remember that with the changing
human consciousness and renovation of social reconstruction of human
relationships, the law cannot afford to stand still it must move forward.”
PERSPECTIVES ON UNLAWFUL DETENTION IN NIGERIA by Kayode Omosehin

PERSPECTIVES ON UNLAWFUL DETENTION IN NIGERIA by Kayode Omosehin


Credits – Google

One of the sacred liberties of man is
the liberty to move freely. Unless where legitimate exception is permitted by
law, any limitation on a man’s liberty to move freely is an infringement on his
fundamental right. In Nigeria, such infringement is actionable either as a
common law tort called false imprisonment or as a breach of constitutional
right of personal liberty guaranteed under Section 35 (1) of the 1999
Constitution of the Federal Republic of Nigeria (Third Alteration Act) to the
effect that “Every person shall be entitled to his personal liberty and no
person shall be deprived of such liberty save in the following cases and in
accordance with a procedure permitted by law”
. It should be stated clearly
that different procedures of enforcement apply in pursuing a case of false
imprisonment and a constitutional right enforcement for unlawful detention. In
this piece, no distinction is made between false imprisonment and unlawful
detention except where such distinction is necessary for clarity.

Unlawful detention denotes a restraint
of a person in a bounded area without any justification. The infringement may
arise from a restraint by a private citizen as well as detention by agencies of
the government such as false arrest by the Police. The person so restrained is
said to be a “prisoner” so long as he has no liberty to freely go at any time
(however short) to any place he wishes without bail or otherwise. It is
important to mention that several other fundamental right breaches or torts
(such assault, battery, degrading treatment or even crimes) may arise from the
same act(s) which constitute(s) unlawful detention. However, unlawful detention
is the focus of this piece.
The following circumstances may give
rise to unlawful detention:
1.     Being locked up in a
room, car, airplane, cinema, toilet, goal post or any other enclosure without
the victim’s consent;
2.     Being unlawfully
detained in the custody of the Nigerian Police, Nigerian Immigration Service,
Economic and Financial Crimes Commission, Nigeria Armed Forces (including
Nigerian Civil Defence Corps), or any Nigerian Agency vested with or without
power to arrest and detain;
3.     Being held up at a
gun point with threat of being shot if you try to move,
Elements of Unlawful Detention
There are three elements of unlawful
detention which the Nigerian courts have upheld over time and which a person
claiming unlawful detention must prove by credible evidence:
1.     A total restraint on
the movement of a person. This is usually not difficult to prove unless where
the restraint is not a total restraint but a partial one.
2.     The restraint must
have been without consent or justification. Where the plaintiff consents to
being restrained, he cannot longer complain about being restrained. However,
care should be exercised in knowing when consent to be restrained is revoked so
that any further restraint after revocation of consent will be unlawful and
therefore an unlawful detention.
3.     There was no way out
of the restraint or restrained area. Please note that where an alternative way
out of the restrained area exists, the claim for unlawful detention cannot be
sustained if the plaintiff fails to take it. However, the plaintiff will be
justified for not taking the alternative way out of the restraint if doing so
will endanger him life or limb.
The above elements are co-extensive and
all must be proved. Where the plaintiff fails in any of them, the action for
unlawful detention will fail.
 

Credits – Google

Arrest and Detention by Police
Detention by the Police or any other
body or authority, no matter how short, may be a breach of fundamental right by
both the Police and the complainant. But that can only be so if the detention
is found to be wrongful or unjustified in the first place. The period of
detention is not relevant in making a case of unlawful detention. This is
because infringement of unlawful detention is a complete deprivation of liberty
of a person for anytime without lawful cause, however short. It is therefore
essential for the detained person to demand to be let out, the refusal of which
will make the infringement complete.
The power of arrest by the Police is
provided in section 24 of the Police Act and the power is undoubtedly wide and
susceptible to abusive interpretation by the law enforcement agency. Corollary
to the power of arrest is the power to detain a suspect under section 29 of the
Police Act. Similar provisions conferring wide power to arrest is contained in
the enabling law of the EFCC, NDLEA to mention a few.
However, the courts have interpreted
the provisions on the power to arrest and detain very strictly against the
Police. The test of whether a detention by the Police is unjustified turns on a
(sometimes) elusive question of whether the Police had a reasonable suspicion
that the detainee had committed an offence. It appears that the test of
reasonable suspicion may be a subject of manipulative interpretations. However,
the courts have agreed that the test is that of a reasonable man. Therefore,
the question usually asked is whether in the opinion of a reasonable man, the
detention by the Police is based on a reasonable suspicion.
Liability of the Complainant of a Crime
An unsavory part of a case of unlawful
detention is the role played by a complainant who has gone to the Police with a
false allegation that a person has committed a crime. The common saying
regarding oppression of man by man is no less exemplified by the use of state
machinery to harass and intimidate a private citizen. I am not by any means
suggesting docility in reporting a crime to the law enforcement agency. It is
in the interest of our collective security to ensure that no offender escapes
the wrath of the law. However, a considered caution ought to be exercised in
ensuring that an allegation of crime to be made to the Police is based on
reasonable, probable ground. Instructively, it is an offence under the Freedom
of Information Act, the Administration of Criminal Justice Law of Lagos State
and several other penal laws to give false information to a law enforcement
agency or any other constituted authority.
The law is well developed by Nigerian
courts on the issue to the effect that anyone who lodges complaint with the
Police, out of malice or in bad faith, leading to the arrest and/or detention
of another person (the suspect) is also answerable in law for the detention,
harassment and/or injuries caused to the suspect. Therefore, the determining
question usually asked by the court is whether in the opinion of a reasonable
man, was there a reasonable or probable cause to make the complaint to the
Police? If the answer is yes, the complainant has no liability in any action
subsequently brought by the detained person. But if the answer is no, then the
complainant (and the Police) are jointly and severally liable to the person so
detained for unlawful detention.
The plaintiff has the duty to prove
that the complaint ought not to have been made and that there was no reasonable
ground for making it. It is not enough for a plaintiff in a claim for unlawful
detention to plead and provide evidence that the defendant made a report
against him to the Police but he must also plead and establish that there was
no reasonable and probable cause for making the report or that the report was
made out of malice or bad faith. The complainant will be found liable where the
report made to the Police is based on false and incorrect information. See Agbakoba
v. SSS (1994) 6 NWLR (Pt. 351) 475 and Ejiofor v. Okeke (2000) 7 NWLR (Pt. 665)
363.
Some defence counsel have relied on
some Court of Appeal’s decisions in submitting that where an individual has
merely lodged a complaint to the Police and the Police thereupon “on their own”
proceeded to carry out arrest and detention, then the complainant is not liable
as the act of imprisonment is that of the Police. The foregoing submission is
not only curious in my view but also tends to put the blame of any wrongful
arrest (and detention) solely on the Police in that it exculpates the
complainant from the required obligation to ensure that only accurate, true and
correct information is supplied to the Police. I have earlier stated that it is
an offence to furnish wrong information to the Police. In other words, every
complainant is obliged to verify the authenticity of the allegation of crime
before reporting to the police. It is therefore inconceivable for a complainant
to plead to be excused from liability where a person has been wrongfully
detained on his false allegation. Any submission seeking to excuse the
complainant from liability in a case instituted for unlawful detention ought to
be discountenanced in any circumstance where it is clear that the arrest was
wrongfully made, particularly where any the following elements is present:
1.     Where the Police
fails to investigate a defence of alibi; or
2.     Where the complainant
is acting under malice or bad faith against the plaintiff; or
 3. If the basis for the arrest is
otherwise an exercise of the plaintiff’s lawful right (e.g. right to lawful
assembly, freedom of expression, right to self-defence, etc) and therefore ought
not to have been arrested ; or
 4. Where the complainant insisted
that the plaintiff must be arrested or engineered the arrest of the plaintiff;
or
 5. Where the detaining authority
does not have the power to detain or in any other ways in which the complaint
leading to the detention ought not to have been made if the complainant was
acting reasonably.
The Test of Reasonableness and the
Element of Malice or Bad Faith
The common test of whether or not the
Police ought to detain a person is the test of a reasonable man. The test is
better appreciated in its application to cases than in definition. In applying
this test, the court tries to look at the allegation against the suspect
through the eyes of a reasonable man. A reasonable man, according to the
Supreme Court in Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 is a man
with or who possesses a good, reasonable faculty who acts sensibly, takes
proper but not excessive precautions, does things without serious delay and
weighs matters carefully but not over specifically. So, if in the eyes of a
reasonable man, in the opinion of the court, the suspect ought not to have been
detained, the court will likely hold that the Police has acted wrongfully by
detaining him. Where the detention does not pass the test of reasonableness,
the detention will be declared unlawful.
In my own perspective, a man making a
complainant to the Police should be deemed unreasonable if he is any of the
following:
1.     If he is acting on
vengeance or vendetta directly or indirectly against the plaintiff; or
2.     If he is over-zealous
or acting under speculations, extremities or idealisms; or
             
3. If he supplies the Police with false or inaccurate information howsoever.
Bad faith and malice connote some bad
motive or ill-feeling nursed by the complainant against the suspect. The
position of law is clear that malice or bad in itself will not ordinarily
expose the complainant to liability if indeed the offence reported to the
Police was actually committed by the suspect. The truth of the allegation
overrides any element of malice or bad faith of the complainant against the
suspect, and is a complete defence to any civil action by the suspect. In that
circumstance, the malice or bad faith is just a motivation as the suspect is
culpable anyway.
However, where the allegation is false,
bad faith or malice will be imputed to the complainant. If for instance, a
creditor lodges a complaint of stealing to the Police regarding a debt owed to
him by a debtor, any detention of the latter on such complaint may give rise to
an action for unlawful detention. It will be unlawful (and therefore
unreasonable) for the complainant to report a case of stealing in respect of a
loan and for the Police to dabble into what in law is purely a private commercial
relationship between two citizens. Also, where a suspect gives statement to the
Police upon being arrested and claims alibi (i.e. that he was at another
place at the time of the offence and therefore did not commit the offence), it
will be reasonable for the Police to investigate his claim of alibi.
Detention without investigating the alibi will be unreasonable and can
give rise to the presumption bad faith. The foregoing are just instances, the
category is not closed.
The underlying meaning bad faith (and
when it can be implied) was clearly muted by the English Court in the case of Melton
Medes Ltd. V. SIB (1995) 3 All ER 88
, in which it held in pages 889-890
that
“The term ‘bad faith’ has variety of
meanings in different contexts. Thus in the field of administrative law,
where the validity of a decision or act is challenged on this ground, it is
sufficient that the power to decide or act has been exercised for purposes
otherwise than those for which the power was conferred or
without regard
to the relevant, or only the relevant considerations
. There is no necessary
moral connotation.”
(Emphasis
supplied)
I like to emphasize that the test of
reasonableness and malice or bad faith is appreciated more in practical sense
than in theory. Except in few instances, there is hardly any decided case which
serves as precedent for another in determining whether a detention or complaint
passes the test of reasonableness. Each case ought to be treated on its own
merits.
The Use of Police or EFCC to Recover
Debt
A rather strange practice of using the
machinery of the State as a debt recovery agent has featured recently in
commercial dealings. Nigerian banks and other financial institutions are in the
practice of employing the Police or EFCC to harass and intimidate their debtor
into reaching a compromise in respect of a debt owed. Whilst the details of
each of the cases are not the subject of this piece, it is important to state
that the practice is not only repugnant to commerce but also unlawful. It is
repugnant to commerce because it creates fear and tension in commerce and
discourages small business owners from subscribing to the opportunities offered
by financial institutions. It is unlawful because because the Constitution
forbids the use of Police or EFCC or any other state machinery to arrest and
detain a citizen without any legitimate reason.  The courts have declared
that law enforcement agencies are not debt recovery agents and therefore should
not be consultants to banks and other financial institutions in recovering
debts from their customers. A case of unlawful detention may be made out
against a financial institution and a state authority engaging in this
unconstitutional practice.
Remedies for Unlawful Detention
The remedy for unlawful detention is monetary
compensation and public apology. Once a person proves that his right to liberty
has been infringed by a tort of false imprisonment, the court is empowered to
award compensation on liberal terms to that person against the party who
committed the unlawful detention and everybody who takes part in it. See Jim
– Jaja V. Commissioner of Police Rivers State and Ors. (2013) 6 NWLR (Pt. 1350)
225.
Injunctions can also be granted to
prevent recurrence of such unlawful detention. With a proactive legal team, unlawful
detention can be entirely avoided by an ex parte injunction (which is a
type of injunction granted by the Judge without the knowledge of the person
against whom the injunction is sought).
The plaintiff must make a claim for a
certain sum of money as the court is not Father Christmas and therefore will
not award a relief not claimed. The amount to be awarded varies depending on
several factors to be considered by the court such as the status and reputation
of the plaintiff, the duration of the detention, any pecuniary loss to the
plaintiff attributable to the detention, and so many others. The enforcement of
the monetary award made against the Police or EFCC is usually enforced by
attaching any fund in a Nigerian bank standing to the credit of the Police or
EFCC.
Nigerians are encouraged to challenge
the breach of their constitutional right by the Police or any other law
enforcement society. Nigerians should not be discourage by the rather slow
system of justice. The wheels of justice grind even, though slowly. It is by so
doing that we can have a better society free for us all. Many will become
richer by so doing.
Kayode Omosehin is a lawyer practising in Lagos, Nigeria with the law firm Ajumogobia & Okeke.
THE EVOLUTION OF DIVORCE LAW AND PRACTICE IN NIGERIA by ABIMBOLA LAOYE

THE EVOLUTION OF DIVORCE LAW AND PRACTICE IN NIGERIA by ABIMBOLA LAOYE

Credits – divorce.legal

Background
Marriage is a universal institution
which has been in existence from time immemorial. It can be traced as far
back as the very creation of man and is considered to have spiritual, moral and
social significance in society. It is therefore revered as sacred and
thus heavily guarded by various religions, traditions, social norms
and laws alike .
In Nigeria, the sanctity of marriage
cuts across all regions of the country regardless of culture and religion. The
major types of marriages that existed in the pre-colonial era were the
cultural/traditional marriage and the Islamic/Maliki marriage. The type of
marriage practice was determined by the prevalent traditions or religions which
governed the society where the parties live in or where they originated from.

Although the main hub of a marriage is
bliss and happiness similar to fairy tale endings, marriage is soon found
by most to be a far cry from that . In fact for most parties the
protection of marriage by culture and religion lands them in the eternal trap
of marriage. In some cultures such as in the northern parts of Nigeria
women have little or no say in their marital lives as a result of the age old
culture of forced/child marriages and betrothal from birth.
The concept of Marriage and divorce
affects Nigerian women more than it affects men due to the deep rooted culture
that all women should be married leaving women with little or no
choice as to what direction or dimension their lives should take. Hence
more women are trapped in a hellish or short life as a result of
being stuck in abusive marriages.
Divorce or dissolution of marriage on
the other hand is considered to be an abomination  because it is
perceived to whittle away the sanctity of marriage. The outright discouragement
of divorce by all societal forces creates unfair double standards,denial and
religious apathy; For example, the law against bigamy, a frequent occurrence
among men, including those professing Christianity, has never been invoked;
also the acceptance of concubines in the traditional Nigerian culture is
accepted by both men and women alike. 
Various traditions and religions have
also been known to condone divorce by means as simple as a unilateral action of
returning the bride price to the parents of the bride; by simply professing
divorce by word of mouth three times(as is seen under Islamic
law), returning her to her parents’ house,or deserting
her by simply walking away from the marriage. Sometimes abandoning the wife
with children who she must cater for by herself whether she is capable
financially or not or whether she is old enough to cater for them or not (in
the case of child marriages).
The same cannot be said of the marital
standards set for the Nigerian woman. Women in the Nigeria are generally
subject to the whims of their husbands, who may choose to throw them out and in
the streets without any form of support if he so desires and without any
consequences whatsoever. The decision by women in Nigeria to divorce is not undertaken
lightly as the consequences of divorce are more severe for women .  Women
are caught between the ocean and the deep blue sea whereby they have to make a
difficult decision of enduring an unhappy or abusive marriage or face the shame
that stigmatization that awaits any woman who dares to have the
courage to divorce her husband and father of her children. Seeking divorce
increases  discrimination in jobs, sexual harassment, societal
ridicule,financial difficulty,loss of custody of children and loss of property
rights.


Common Law Marriages
The advent of colonialism brought about
common law marriages in Nigeria. In England there were several reforms which
are the bedrock of the Nigeria’s position today.The promulgation of the
matrimonial causes act in 1970 ushered in the co existence of common
law/statutory marriages, Islamic/Maliki marriages, and customary/traditional
marriages. Lord Penzance defined marriage in Hyde V. Hyde (1860) LR.I PD,
130
as:
“the voluntary union for life between
one man and one woman to the exclusion of all others”.
Under the law, marriage is generally
viewed in the law as a civil contract, an emotional bond and a financial
partnership. The procedure for the dissolution of marriage is likewise
expressly spelt out by the same act.
Divorce on the other hand has not found
statutory definition in any of the Acts. The rate of divorce in Nigeria has
increased gradually but slowly evidenced by the higher number of divorce
petitions brought before the courts. The astronomical increase in divorce in
Nigeria has been predicated on a plethora of reasons by various researchers
scholars such as the westernization of Nigerian citizens and the requisite
disappearance of “African values”. Others maintain the stand that the mothers
and wives of old would stay in a marriage even at the cost of their very lives.
Whether or not marriage remains a union
for life as stated by Lord Penzance remains an arguable topic. The Matrimonial
Causes Act created a window into the chance for a life of quality as against
being trapped in a mental and/or physical hell of an abusive marriage for
Nigerian women.While the courts recognise the fact that marriage is not an
institution that should entered into carelessly or recklessly, the courts have
also set a check and balance system by taking into consideration the fact the
human beings are not infallible for instance;marriages could go horribly
wrong to the extent of causing grievous harm mentally physically or both; and
the prevalence of child marriages in some regions of Nigeria may necessitate
the requisite dissolution or nullity of marriage.
It is for this reason the courts have
set up a check and balance between the sanctity of marriage and the need to
live a life of quality and dignity. Thus the general rule as contained in the
Matrimonial Causes Act that divorce proceedings cannot be instituted within two
years of the solemnization of a marriage without the leave of the Court the
only exception to this rule is on the grounds that the marriage has broken down
irretrievably. This tactic of making divorce proceedings cumbersome will
discourage divorce in our society.
Credits- google
The principle of the irretrievable
breakdown of marriage as a ground for divorce is based on the idea that:
“A good divorce law should be to
buttress, rather than undermine the stability of marriage, and when unavoidably
a marriage has broken down irretrievably, the empty legal shell of the marriage
should not only be buried, but buried “with decency and dignity and in a way
which will encourage harmonious relationships between the parties and their
children in the future”.
The court in the case of in Shokunbi
v. Shokunbi CCHCJ/7/76, p.1913 S.C
also stated thus:
“It is the actual state of the marriage
that the court has to inquire into, as to know, whether or not, it is still
viable, rather than concern itself with the question of guilt or innocence or
either party which point is irrelevant”.
The irretrievable break down of
marriage must however be proven by the petitioner who must satisfy the
court of the existence of one or more of the following elements as contained in
section 15 (2) and 16(1) of  the act:
Grounds For Dissolution Of Marriage:
1.     That since the
marriage the Respondent has behaved in such a way that the Petitioner cannot
reasonably be expected to live with the Respondent. In Johnson V. Johnson
1972 11 CCCHCJ 94
, unreasonable refusal of sexual intercourse, nagging
habitual intemperate consumption of alcohol and inordinate sexual indulgences
of the Respondent with all sorts of women particularly housemaids were held to
be weighty and unreasonable acts to expect the Petitioner to put up with.
2.     That the Respondent
has deserted the Petitioner for a continuous period of at least 1(one) year
immediately preceding the presentation of the petition.
3.     That the parties to
the marriage have lived apart for a continuous period of at least two years
immediately preceding the presentation of the Petition for divorce and the
Respondent does not object to a decree being granted.
4.     That the parties to
the marriage have lived apart for a continuous period of at least three years
immediately preceding the presentation of the Petition. Here, there is no
requirement that the other spouse should not object to the Petition being
granted. This provision is a “no fault” provision which allow a painless.
5.     That the other party
to the marriage has, for a period of not less than one year failed to comply
with a decree or restitution of conjugal rights made under the Matrimonial
Causes Act.
6.     That the other party
to the marriage has been absent from the Petitioner for such time and in such
circumstance as to provide reasonable grounds for presuming that he or she is
dead.
7.     If she has a
reasonable fear that her life, body or health is in danger; physical violence
is not necessary and reasonable fear of danger is enough
See the cases of Otunga v. Otunga
(Unreported) WD/119/70 of 19th April 1971; Oki v. Oki (Unreported) WD/80/70
of 30th July 1971; Ekrebe v. Ekrebe (1999) 3NWLR (pt.596) 514 at 517.
In  divorce
proceedings, the courts put into consideration all issues affecting
parties to the marriage such as children, whether biological or otherwise and
other issues which were totally disregarded under customary law.Such matters include
the following:
1.     Property Dispositions
Under the act settlement of property is
based on what the court considers to be “just and equitable in the
circumstances of the case” for the benefit of any or all of the parties
involved, whether the spouses and/or children of the marriage (biological or
otherwise). (See part iv of the Matrimonial Causes Act 1970).
This is unlike divorce under customary
law whereby the woman is expected to return every penny of the bride price to
the man, and also the woman is not entitled to any house even if it is jointly
owned with her husband
2.     Child Custody
The courts determine custody and
maintenance of children based on the “means, earning capacity and
conduct” and “all other relevant circumstances of both parties to the
marriage, such as the age of the children. (See section 70 of the
Matrimonial Causes Act 1970).
This is unlike customary law which has
the general rule that any child born of the marriage belongs to the father,
with the exception of suckling babies the mother may keep until the father
requests for custody of the child.


PROCEDURE
The High Court in any Nigerian state,
with the exception of Imo, has jurisdiction over the dissolution of marriages
that have taken place under the act. Dissolution of marriage is commenced by a
petition issued against the party seeking the divorce (see order 3 rule 1 of
the Matrimonial Causes rules 1983).
Where leave is required to commence
divorce proceedings in court on the grounds stated in order 30 and 40 of the
matrimonial causes act, such leave may be obtained exparte by the party seeking
divorce (see order IV (1) matrimonial causes rule 1983)
Where the ground(s) for dissolution of
marriage is adultery,  the alleged co adulterer must become a party to
those proceedings, (see order 3 rule 2(5) of the matrimonial causes rules
1983).


A judicial separation can be granted by
the court, allowing a couple to live apart but without dissolving the marriage.
Judicial separation does not allow parties to remarry; it is therefore not a
divorce in itself but serves as a precursor to actual divorce. The court may
then issue a decree nisi where satisfied that the marriage has indeed broken
down irretrievably. A decree absolute serves as the final order of divorce
wherein the court will issue an enrollment order evidencing the final
dissolution of marriage.


 The matrimonial causes act does
not provide for the dissolution of a customary or Islamic marriage.
Review of The Matrimonial Causes Act
One of the first assignments tackled by
the Nigerian Law Reform Commission which was set up in 1979 was a review of the
Marriage Act. The commission pointed out the inherent flaws in the existing
matrimonial causes act and commendably set out to remedy the said flaws as
follows:.
1.     Definition of
Marriage
The commission by its bill set out to
modify the definition of marriage to cover both the monogamous and polygamous
systems which is practiced under the traditional/cultural system and the
Islamic/Maliki system.
This innovation of the commission is
the creation of a system for the registration of both customary and Islamic
marriages. Such registration is voluntary and falls within the responsibilities
of the Registrar of Marriages.
2.     Age
Age at the time of the marriage being
one of the greatest predictors of marriage is lacking in laws governing
marriage in this country. The commission recognized the absence of a legal
marriageable age for Nigerian and inserted in the proposed Bill a marriageable
age of 16(sixteen) years for boys and (14) fourteen years in respect to girls.
However the age of 14 and 16
respectively is pegging the age of marriage well below the constitutional age
of maturity as stipulated in section 29 of the 1999 Constitution of The Federal
Republic of Nigeria. This to my mind will not in any way encourage the
empowerment of women or improve the ordeal faced by Nigerian women. It will
rather encourage child marriages which have not benefited any economy in any
way.  
See also Section 29 (4) (b). Sec 21 and
Sec 22 of the Child’s Right Act of Nigeria 2003 (CRA); Article 18 (3) of the
African Charter on Human and Peoples Rights; and Article 27 of the African
Charter on the Rights and Welfare of the Child.
3.     Foreign Marriage
Again, the Bill provides for the
validity of marriages celebrated outside Nigeria if such marriages conform to
the lex loci celebrationis.
The Bill also provides for the
celebration in Nigeria of marriage under foreign law. The requirements however
include the giving of notice to the Registrar of Marriages, entry of the notice
in the Marriage Notice Book and the need for the Registrar’s Certificate.
4.     Bigamy
The commission while taking note of the
non-enforcement of the offence of bigamy made the bid to strike a balance
between the abolition of bigamy as defined in the Marriage Act and the practice
of polygamy and polyandry under cultural/traditional and Islamic/maliki
marriages. the bill abolishes bigamy as an offence but still retains the
principle that an existing monogamous marriage constitutes a bar to a
subsequent valid marriage.
Conclusion
In conclusion the reform of
inimical practices without the sensitization to the fact that women empowerment
should be a matter of high priority will amount to nothing more than political
expediency and rhetoric. The improvement of the quality of life of women by
recognizing and implementing better access to career patterns towards self
development and independence will be necessary for any laws regarding the
protection of women and the promotion of dignity and a higher quality of life
to be effective.
REFERENCES
1.     websites
1.     ARTICLES
  • Bambo
    Adesanya, San; Marriage, Divorce and Succession; the Legal Aspect.
  • Fr Titus Ikechukwu Nnabugwu ; Fault And
    No-Fault Principle Of Divorce In Nigeria
  • Imam,
    Ayesha. 25 October 2012. Correspondence with the Research Directorate
  • Makinde
    Oludolapo Toyosi; Legal Framework Of Statutory Marriage Andevolving
    Marriage Patterns
  • Restatement
    of customary laws in Nigeria; 2013
3.   
BOOKS
  • Charles
    mwalimu; public law; introduction to the Nigerian legal system; volume 1
  • Barrister
    Julie D.A. Oguara; The Monster Called Divorce: The Greatest Tragedy of
    Modern-day Families
1.     STATUTES
  • 1999
    Constitution of The Federal Republic of Nigeria
  • Child’s
    Right Act of Nigeria 2003 (CRA);
  • Matrimonial
    Causes Act 1973
  • Matrimonial
    causes rules 1983
  • The
    African Charter on Human and Peoples Rights;
  • The
    African Charter on the Rights and Welfare of the Child all prohibit girl
    child marriages.
DOES YOUR BOSS PAY YOUR PENSION?

DOES YOUR BOSS PAY YOUR PENSION?

Credits – Google

I
assume not very many people will be able to say yes to the above question, some
do not even know why I should ask such a question, others on the other hand do
not even realise that they should be getting  a pension. Statistics show that a number of
organisations are not contributing to the pensions of their staffs as mandated
by law in Section 1 of the Pension Reform Act 2014.

The
law provides that –

There
shall be established for any employment in the Federal Republic of Nigeria, a
contributory pension scheme for payment of retirement benefits of employees.
The law particularly states that the scheme shall apply to all employees in the
Public Service of the Federation, FCT and the Private Sector. In the case of
the Public Sector, who are in employment; and in the case of the private
sector, who are in employment in an organisation in which there are 15
(fifteen) or more employees. 
The
way it works is every worker who is due has a PFA (Pension Fund Administrator)
who keeps a pension fund account on behalf of the employee. A certain
percentage of the employee’s salary is deducted and paid into the account while
the employer also contributes a certain percentage to the account monthly. 
Payment
or contributing to the pension of an employee is important as the objective is
to assist individuals by ensuring that they save in order to cater for their
livelihood during old age. If however, pension is so important to every
Nigerian worker, how come a lot of employers, most especially in the private sector,
get away without paying same.What is the National Pension Commission, a body
established to regulate, supervise and ensure the effective administration of
pension matters in Nigeria doing about it.
Most
especially as the Pension reform Act provides that any person who contravenes
provisions of the Act where no other penalty is prescribed commits an offence
and is liable on conviction to a fine not more that N250,000 or to
imprisonment for a term not exceeding one year or both.
Adedunmade
Onibokun
@adedunmade