How corporate governance can affect Nigeria’s development | Olajide Olutuyi

How corporate governance can affect Nigeria’s development | Olajide Olutuyi

Corporate
Governance is not just about how a company is directed and controlled to
maximize performance and ensure accountability to stakeholders. Better
governance practices and processes have become imperatives for both national
and global economies. A company that is run very efficiently and responsibly
will perform very well and ultimately contribute to strengthening the economy.

Public,
private and non-profit organisations all need to be governed – apart from
day-to-day management of the entities by their executive teams. Corporate
governance is the responsibility of the governing body, or board of directors
in the case of companies.

The
first corporate governance codes were introduced in December 1992 in response
to corporate failures in the United Kingdom. A report, known as the Financial
Aspects of Corporate Governance, was produced by a committee headed by Sir
Adrian Cadbury. Now referred to as the Cadbury Report, the report significantly
influenced corporate governance thinking around the world. Other countries
followed suit, France (Vienot Report, 1995); South Africa (King Report, 1994);
Canada (Toronto Stock Exchange recommendations on Canadian board practices,
1995); The Netherlands Report (1995); and Hong Kong (a report on corporate
governance from the Hong Kong Society of Accountants, 1996). These reports
tried to forestall the abuse of power by corporate entities.

But
at the turn of the 21st century, the world began to experience some corporate
challenges, which led to the review of corporate governance practices. One of
the widely-recognised outcomes of these efforts was the United States’
Sarbanes-Oxley Act of 2002, also known colloquially as SOX. The Act requires
certification of internal auditing, increased financial disclosure, and it also
imposes criminal penalties on directors for non-compliance. SOX is considered
one of the most influential pieces of corporate legislation in the world. It
was built on the idea that corporate governance should not be left to the
discretion of directors of companies and their chief executives.

Nigeria
also has its fair share of corporate governance history. Before the 1990s, the
principal company law in Nigeria was the Companies Act 1968, which was modelled
after the Companies Act 1948 of the United Kingdom. The law was repealed and
replaced by the then Companies and Allied Matters Decree No. 1 of 1990. There
were several modifications over the years but the principal statute regulating
companies in Nigeria today is the Companies and Allied Matters Act Cap. C20,
2004. The current statute was the product of a rigorous process led by the
Nigerian Law Reform Commission.

The
first corporate governance code in Nigeria was the Code of Corporate Governance
for Banks and Other Financial Institutions in Nigeria. It was issued by the
Bankers Committee in August 2003. The regulation was introduced in response to
the financial crisis of the 1990s. The 11 principles of the regulation focus on
appointments, board proceedings, board responsibilities, assessment and audit
committees. Unfortunately, this code did not have much impact.

Analysts
have attributed the lack of impact to the issuance of another legislation by
the Securities and Exchange Commission (SEC) two months after the Bankers
Committee had issued its corporate governance code. In October 2003, SEC’s
17-member committee, headed by Atedo Peterside, issued the Code of Best
Practices on Corporate Governance in Nigeria. The SEC code emphasised the role
of the board of directors and management; shareholder rights and privileges;
and the audit committee. Not only was the code influential, it was also the
first to be issued by any regulator in the country.

Although
the SEC code presented some sweeping reforms, it was soon found to be
inadequate in addressing new challenges. Therefore, in 2006, the Central Bank
of Nigeria (CBN) issued its Code of Corporate Governance for Banks in Nigeria
Post Consolidation. This code was introduced to ensure accountability on the
part of bank CEOs. It specifies fines and penalties, including jail terms for
erring CEOs. It prescribes risk management measures within the organisation,
particularly emphasising the role and qualification of a company’s internal
auditor. 

The
National Pension Commission (PENCOM) issued its own code in 2008, known as the
2008 PENCOM Code. Subsequently, the National Insurance Commission (NAICOM)
issued its Code of Corporate Governance for the Insurance Industry in 2009.
These three industry-specific codes were meant to address the issues that were
not addressed in the SEC legislation.

However,
in 2011, SEC released the Code of Corporate Governance for Public Companies in
Nigeria, which effectively replaced its 2003 legislation. This latest law was
adjudged at the time as the most comprehensive corporate governance code in
Nigeria. The code is anchored on five main principles, which include:
leadership, effectiveness, accountability, remuneration and relations with
shareholders.

A
new study jointly published by the Association of Chartered Certified
Accountants (ACCA) and KPMG places Nigeria among the top five countries in
Africa for compliance with the Organisation for Economic Co-operation and
Development (OECD) Principles of Corporate Governance. The report examines the
corporate governance requirements for listed companies in 15 African countries
against the four tenets of corporate governance as underpinned by the OECD
Principles. The countries were ranked based on the principles, which include
leadership and culture; strategy and performance; compliance and oversight; and
stakeholder engagement. Nigeria came behind South Africa, Kenya and Mauritius –
but ahead of Uganda in the top five bracket.

Despite
these developments, Nigeria lags behind countries like the United Kingdom in
terms of corporate governance codes, policies and enabling laws. The UK,
through the Financial Reporting Council, regularly reviews and updates the
country’s corporate governance codes, principles and best practices. The
regulator promotes high standards of corporate governance to foster investment.

The
establishment of the Financial Reporting Council of Nigeria (FRCN), through the
Financial Reporting Council Act 2011, was widely praised. The Directorate of
Corporate Governance of the FRCN has the responsibility to develop principles
and practices of corporate governance. The directorate can act as the
coordinating body responsible for all matters pertaining to corporate
governance in Nigeria. Unfortunately, the council’s attempt to overhaul the
country’s corporate governance framework to encourage more disclosure and
better governance practices was scuttled last year.

One
issue bedevilling Nigeria’s corporate governance landscape is the multiplicity
of overlapping legislations. The council tried to address this issue and unify
the sectoral corporate governance codes with the National Code of Corporate
Governance 2016 (NCCG), released in October 2016. The NCCG – which provides
corporate governance legislation for private and public sectors as well as
not-for-profit organizations – was suspended by the federal government in
November following stiff opposition from various stakeholders. In suspending
the code, the Minister of Industry, Trade and Investment, Okechukwu Enelamah,
also issued a query to the FRCN for overreaching itself and to essentially explain
the rationale for the legislation.
While
the political leverage of religious organisations was apparent in the
suspension of FRCN code, it is important to state that the corporate governance
of charitable organisations, especially religious bodies, needs urgent
attention. At the very least, if implemented, the code would foster
transparency in the management of these organisations that are becoming
behemoths in the country. Effective and frequently updated corporate governance
codes are required for a developing country like Nigeria to overcome its
development challenges.

Data
indicates that Nigeria has lost 75 banks since the advent of banking since
1914. There is evidence suggesting that these bank failures were largely due to
weaknesses in corporate governance. A CBN and Nigeria Deposit Insurance
Corporation (NDIC) study of distress in the Nigerian financial services sector
(October 1995) provides the following data, showing the factors that cause
distresses in the banking industry: Economic depression (25%); political crises
(17.9%); bad credit policy (25%); undue interference by board members
(corporate governance) (32.1%).

In
a report presented to the Global Corporate Governance Forum in 2003, Stijn
Claessens, Professor of International Finance at the University of Amsterdam,
identified several channels through which corporate governance affects the
growth and development of a nation. According to him, “The first is the
increased access to external financing by firms. This in turn can lead to larger investment,
higher growth, and greater employment creation. The second channel is a
lowering of the cost of capital and associated higher firm valuation. This makes
more investments attractive to investors, also leading to growth and more
employment. The third channel is better operational performance through better
allocation of resources and better management. This creates wealth more
generally.

“Fourth,
good corporate governance can be associated with a reduced risk of financial
crises. This is particularly important, as financial crises can have large
economic and social costs. Fifth, good corporate governance can mean generally
better relationships with all stakeholders. This helps improve social and
labour relationships and aspects such as environmental protection. All these
channels matter for growth, employment, poverty, and well-being more generally.
Empirical evidence using various techniques has documented these relationships
at the level of the country, the sector, and the individual firm and from the investor
perspectives.”

Despite
the flaws of the NCCG, the unintended consequence of its suspension is the
potentially negative impact on investment in the country. The effect of
corporate governance on the overall development of an economy cannot be overemphasised.
In his foreword to the Claessens’ report, Sir Adrian Cadbury said of the
significance of corporate governance for the stability and equity of society:
“The aim is to align as nearly as possible the interests of individuals, of
corporations, and of society. The incentive to corporations and to those who
own and manage them to adopt internationally accepted governance standards is
that these standards will assist them to achieve their aims and to attract
investment. The incentive for their adoption by states is that these standards
will strengthen their economies and encourage business probity.”

It
is for the sake of bolstering investor confidence and attracting foreign
investments in Africa’s largest economy that the International Finance
Corporation (IFC) and SEC jointly developed and launched a Corporate Governance
Scorecard for publicly-listed companies in the country.

Efforts
should be made to quickly resolve the issues with the FRCN harmonised corporate
governance code for Nigeria. Moreover, the council should be provided the
independence it needs to function effectively and promote higher standards of
corporate governance and reporting in the public, private and non-profit
sectors.

@jideolutuyi
Olajide
Olutuyi
 
Senior Financial Analyst at Scouts Canada

This
article was first published here
Legal Insight Into Mastercard’s $18 Billion Lawsuit Blocked By The UK’s Competition Appeal Tribunal

Legal Insight Into Mastercard’s $18 Billion Lawsuit Blocked By The UK’s Competition Appeal Tribunal

Background
In 2014, the European Court of Justice
finally decided that Mastercard’s ‘interchange fees’ for cross-border[1] transactions
were too high and therefore flouts competition law practices which primarily
are in place to protect consumers. Subsequent to that ruling, Sainsbury (a UK
retail company) brought an action against Mastercard in the UK, before the
Competition Appeal Tribunal, and won, the damages Mastercard was asked to pay
to Sainsbury was enormous[2].

However, at the trial, Mastercard made some pertinent arguments, and the court
professed some dicta that soon led to the present class action led by Walter
Merricks on behalf of some 46 million UK consumers against Mastercard in
another suit. Mastercard was being sued in the class action for $18
Billion—definitely, the biggest ‘supposed’ class action that would have gone to
trial in UK’s history—for the damages suffered by consumers as a result of the
ruled Mastercard excessive interchange fees.


Insight
For a proper understanding, it might be
necessary to discuss some words/phrases, interchange fees, its practicalities,
and the Competition Appeal Tribunal especially.

For a proper understanding of interchange
fees, examine this scenario: A as a credit card company provides the technology
necessary for B’s customers to buy items with their credit/debit cards anywhere
in the world A’s services covers. One of B’s customer is C. Now, C wants to buy
an item from a retailer D, D also has its own bank E—that helps process
payments when a credit card is swiped in his store. The idea is that anytime C
swipes his credit card issued by B through A in D’s store, B charges a fee from
E for the transaction, the money charged by B goes to A of course. Sadly (for
D), for his efforts, E also charges a small amount for helping D’s
customer—C—use his credit card in D’s store. [Note the definition of the keys
in the scenario, A is Mastercard, B is the issuing Bank/Customer’s bank, C is
the Customer, D is a Retailer, E is the acquiring Bank/Retailer’s bank].

From the above, assuming the price of an
item is listed by D as $50, at the end of the day, when E pays A through B, and
when E removes his own small commission (often called an ‘add-on-rate’) from
the $50, D might be having $45, instead of $50. Now, to avoid all of this, what
D do is that since the value of the item in his store is actually $50, and D
wants exactly $50 from customers so as to keep his business going and make
profit, he charges customers $55 for an item that has the value of $50 (the $5
addition is the cost of the payment processing D has to pay/suffer for
customers using their credit cards in D’s store). This is why when customers go
to some stores and say they want to use their credit card to pay for an item,
the store keeper says it charges an extra $3 or $5 or thereabout for credit
cards—this cost is to defray the expenses of the card payment processing. Some
stores will say they only accept credit cards for items that cost $10 or more,
this is because, say an item cost $5, and for the transaction the two banks
involved in the payment processing—issuer and acquirer—are already charging
together like $3, there is no way the retailer can make profit off such
transaction, because he would be left with $2 for a $5 item. Of course, the
sophistication of interchange fees cannot be properly dealt with in an article
as this, but a small clarification on how it works is only necessary.

Now, consider the second store mentioned in
the last paragraph—who only charges customers $3 or $5 any time a customer says
he wants to use a credit/debit card. What this means is that the retailer
maintains the actual value of the item, in our previous discussion—say at
$50—but only inflates it when a customer opts to use a credit card, at which
point, the customer has to pay an extra $3 or $5. The rationale behind this is
that the retailer here maintains the actual price of the item (at $50) so that
a customer paying cash wouldn’t have to pay an inflated price of $55—which
contains a card payment processing fee for customers paying with credit/debit
card. Now, these type of retailers are small scale retailers and are quite a
few, they are the usual bodegas on most corners, they have the time to separate
customers using credit cards from those making payment with cash. Large
retailers like Sainsbury, Walmart, Tesco, Safeway, QuikTrip, however, do not
have that luxury of time of separating customers, they just inflate the price
of their items to (in our example) $55—so the item is $55—it doesn’t matter if
you as a customer is paying cash or using your credit/debit card, everyone is
paying $55 for a $50 item.
To be clear, the lawsuit against Mastercard
in the present case is a by-product of the holding by the ECJ in 2014 that
Mastercard charges a higher charge rate from issuing banks (B in our example
above). The ECJ concluded that Mastercard’s attitude was anti-competitive,
since customers would definitely have to use credit cards at stores, and
Mastercard has been in business for a while, most banks would opt for its
renowned services without considering the cost, since retailers would be the
one paying Mastercard, and would have to sort the cost with their customers anyway.
Before highlighting the nub of the present class action, it should be noted
that as mentioned earlier, following the 2014 ECJ ruling, Sainsbury—a retail
company in the UK—sued Mastercard for similar unlawful high card (interchange)
fees in the UK, and won. That ruling, in fact, was what gave confidence to the
present class action—it is rooted in the idea that if a retailer (Sainsbury)
could win, then the customers who ‘suffered’ from the unlawful charges could
also win and claim damages.

In the present case, the class action
representative[3]—Walter
Merrick—through the chosen notorious law firm—Quinn Emmanuel Urquhart &
Sullivan LLP known for similar actions including the Sainsbury’s case—sued for
the damage and loss caused to customers in the UK between 1992 and 2008[4]. It must
be noted that this lawsuit is by the customers and not retailers as
Sainsbury—who won. The nub of the lawsuit is that in our above example,
assuming Mastercard (A) ought to be charging C (through B) say 1% from every
C’s (customer’s) purchase, and as ruled by the EC and ECJ (in the Sainsbury’s
case), instead of the 1%, let’s assume Mastercard (A) is charging 3% from such
purchase. The customers in the present class action are asking for the
difference between the 1% and 3%, which is 2% on all of their transactions made
with their Mastercard debit/credit cards between 1992 and 2008. They aggregate
the damages to be around $18 Billion. 
   
The case is brought before the Competition
Appeal Tribunal. The Tribunal was created by the UK’s Enterprise Act, 2002, and
was given new special powers especially as regards class actions in competition
law related cases via the Consumer Rights Act, 2015—which also amends the
Competition Act, 1998. As the name suggests, the Tribunal handles competition
law related issues, and for the new class actions capable of being brought by a
large percentage or group of people/consumers, the Consumer Rights Act in its
Schedule 8 made some salient provisions[5]. Just
like in the US[6], in
section 47B(4) of the Competition Act[7], or as
discussed under the new CRA[8], “collective
proceedings may be continued only if the Tribunal makes a collective
proceedings order”. So, Mr. Walter Merrick as the lead representative of the 47
million consumers being represented has to get a collective proceedings order
before proceeding against Mastercard in their lawsuit. It was at the hearing
for the grant of the order that the court sees no reason and refuse to grant
the prerequisite order.

Definitely, the Tribunal and the collective
proceeding order as in the US is a mechanism put in place to disallow class
actions that are not meritorious (as the present case against Mastercard) from
proceeding to proper trial. So, before limited court resources are wasted on a
class action often involving a lot of litigants, the court administration devise
a means of ‘weeding out’ non-meritorious cases by making class
action representatives get an order to proceed to trial from the court/Tribunal
first. At the hearing for the grant of the said order or otherwise, the
Tribunal relied on two main reasons to refuse the grant of the prerequisite
order. One, the Tribunal highlighted its concern on the difficulties embedded
in providing evidence(s) that Mastercard fees (charged by it through the
issuing banks) were actually passed on to or charged from the customers who are
suing Mastercard in the envisaged class action. Secondly, it is the Tribunal’s
view that it would be hard to ascertain or calculate the individual losses of
each customer considering the complexities of the transactions, and deductions
always made in payment processing.

On the first rationale for refusal,
Mastercard argued that the retailers are the culprit—charging inflated prices
on items (in stores) so as to defray the payment processing cost and not
them—and because of that, Mastercard argued it shouldn’t be liable. This
argument is sound, unfortunately, the plaintiffs were too grounded in a
seemingly opposite argument made by the same Defendant—Mastercard—in a prior
Sainsbury suit. In the Sainsbury suit, Mastercard’s argument was that Sainsbury
has no ground to sue them because the cost (excessive interchange fee) they
complained of and want to retake from them were actually passed off by the
retailer to the consumers, so in essence, the consumers are the ones who
suffered, and not the retailer. The Tribunal, of course, rejected this
argument, and in holding Mastercard’s excessive interchange fee as the causal
factor opined that “Sainsbury would have passed on to consumers what it could,
made whatever cost-savings it could and—to the extent that its draft Budget
returned a profit that was different to market expectations—adjusted its
spending…so as to return the expected profit”, It continued, “if Sainsbury did
not seek to recover the inevitable costs of its business from its customer, it would
rapidly lose more than it made, and become ex-business”. The Tribunal clearly
held Mastercard as the instigator of the inflated price of items sold by
retailers as Sainsbury in this case.

It was because of the above ruling that the
plaintiffs thought if Mastercard is being held as the instigator in Sainsbury,
then the consumers should consequently be able to recover for their losses as
instigated as well especially since Mastercard itself has admitted and argued
that the customers are the ones who suffered from their excessive interchange
fee. The plaintiff refused to understand there is a difference between a
retailer’s claim and a consumer claim, in a consumer claim, it is a whole
different set of facts that need to be proved. The plaintiffs also forgot that
in almost prominent legal systems[9],
‘precedents’ are different from ‘connection’ between cases, and also that two
cases might be connected, it does not necessarily mean a ruling in one would
serve as a precedent or continuation in the second one. In fact, this is the
basis upon which the ‘distinguishing’ discussion in applying precedents at
court trials comes in—as there are no two similar cases, and cases can be
distinguished.

It is no wonder that Mastercard’s argument
in the Sainsbury’s case appears to be a two-edged sword which can be used and
used in the almost opposite as well—this is the brilliance in Mastercard’s
argument. Mastercard is now saying in the present case that although it
suggested that the consumer who actually suffered are the ones that ought to be
suing them in the prior Sainsbury case—an argument which was refused—still, the
cost was added by the retailers and not Mastercard. These two arguments do not
flow, especially if considered in the same case where a ruling has been made
that Mastercard instigates the inflated cost of items by retailers, but it
buttresses the age-long legal principle that admission/arguments in a case
cannot be transferred to another case—each case is different and must be proved
differently, in fact, the Plaintiff must prove his case beyond the
preponderance of evidence in the present case without necessarily relying on
what transpired in another case, even if they are connected.

The ongoing also signaled the incompetence
and greed of the plaintiffs in this case. From the legal perspective, since the
current plaintiff representatives are similar in both Sainsbury and this class
action, they could have looked for a way to join the class action to the
Sainsbury case where Mastercard was found as the instigator of the consumer
peril, it would have been easy to claim damages on the customers behalf in that
case as the case would have flowed. But the plaintiffs wanted a new class
action suit where they would be able to sue for $18 Billion, and that greed,
lack of insight and incompetence has affected their case.

On the side, the Tribunal wasn’t sure the
said excessive Mastercard interchange charges complained of were actually
charged by retailers on their customers—i.e. the retailers might have inflated
the prices of some item and not of some other items, there is no way the
Tribunal could have known that all the charges (which are alleged to be excessive)
were actually charged to all the 46 million customers in the class action. So,
what the Tribunal is saying is that, at best, Mastercard is an instigator, but
we are not sure if the excessive interchange fees it charges were collected via
an increased price of items from the 46 million customers in this class action.
As mentioned above, the separation of the retailer and consumer claims
destroyed the present consumer claim, it would have been hard for Mastercard to
say there was no evidence that the excessive fees were passed to the customer
in the same suit where the Tribunal had already held Mastercard as the
instigator of the inflated price on items sold by the retailers.

The second ground for refusal is that the
Tribunal was wary about the difficulties embedded in calculating individual
losses for the 46 million customers. On this ground, it may appear that the
Tribunal was wrong as contested by Walter Merricks. The consideration of
whether (total) damages could be calculated (although should not be excessively
speculative in an ideal civil trial) appears not to be relevant in determining
whether a pre-trial collective order should be granted or otherwise, as that
should be a trial issue after the defendant has been found liable. Section 47B
contains most of the requirements for the grant of a pretrial collective
proceeding trial order, there is nothing like the possibility of ascertaining
damages payable by the defendant before the grant of the order. In fact, more
convincingly, section47C(2) states that “the Tribunal may make an award
of damages in collective proceedings without undertaking an assessment of the
amount of damages recoverable in respect of the claim of each represented
person”.

The problem with the ongoing argument is
that it is not flawless when closely examined. The Tribunal was right for
refusing to grant the order on this ground as well, this is how. It must be
understood that primarily, the essence of the pretrial order is to disallow
trials that are non-meritorious and won’t stand so as to save the Tribunal’s
limited resources. It is in the spirit of this duty that the Tribunal reasoned
that a trial that if it embarks on will lead to undeterminable damages is a
waste of time. Also, section 47C(2) closely read only applies to an instance
where the proceeding itself which the order contemplates has concluded, and
where the court has determined that the defendant is liable. In the present
case, from the order pretrial, the Tribunal has already seen grounds to find
that Mastercard is not and will not be liable, hence its decision to block the
order. On the side is the argument that the use of “may” in section 47C(2)
suggests the Tribunal has discretion, which can be (prudently) exercised.

Also, how can the Tribunal effectively
calculate the damages payable by Mastercard when we have already established
that the retailers inflate their prices to cover Mastercard charges and these
prices applied to both customers using their credit/debit card and those paying
cash too? What about the extra money made by the retailers from customers who
paid with cash on a similar item or service which contains the alleged
excessive interchange Mastercard charges?, how will the Tribunal differentiate
between the customers paying with card and cash? The exercise posed by this
last question is definitely an almost impossible task that gives room for high
speculation on the number of customers who paid with cash only, those who paid
combining cash and card, and those who paid with their cards only—since the envisaged
trial is meant to seek restitution for only customers who holds and uses a
debit/credit card carried by Mastercard.

Conclusion
The complexities of interchange fee must be
understood by competition law regulators in the light of effective card services,
need for continued innovation in payment system, and the current necessitated
increase in security of digital payment incited by this modern era. How do
competition law and its regulator expect those who serve as the intermediary as
Mastercard, VISA provide the necessary effective services if customers are
complaining about interchange fees and suddenly exclude all of the benefits of
the digital payment system they enjoy?. The line must be drawn between
competition law and practicing business in a fair manner—a manner Mastercard is
known for—considering the fact that similar cases in the US had been thrown out
by US courts, and even in the UK, the High Court still ruled in January 2017
that Mastercard had charged interchange fees at a lawful level, and has not
been anticompetitive in similar cases brought by retailers. Competition law
must be careful so it doesn’t stifle innovation, and good companies with fair
business praxis out of the market, as competition law tenets could then have a
cobra-effect since it is the consumers for which it was initially created for
that will suffer from the imminent negative consequence(s).

Scheming through the new Consumer Rights
Act, 2015, it could be reasoned that by virtue of section 47B(13) which
provides that “the right to make a claim in collective proceedings does not
affect the right to bring any other proceedings in respect of the claim”, that
consumers/plaintiffs in the class action can still bring an action before the
normal High court in the UK. This reasoning will also be wrong, as this
provision contemplates an instance where the action has not been brought at
all—i.e. where the right to bring an action has not being exercised. What is
pertinent is that, whatever the interpretation one gives section 47B(13), that
section wouldn’t have contemplated an instance where the plaintiffs can bring
simultaneous actions, or different but similar actions with similar facts in
different courts because the ruling of the court of first instance is
unfavorable, such interpretations would be absurd and would constitute abuse of
court process. If there is one thing the court frowns at the most, it is the
abuse of court process, as same can attract cost by the defaulter to the court
and the non-defaulting party. On the side, even if it is possible to still
instigate the same action at the High Court in the UK, the intention of the
Enterprise Act and CRA would have been relegated or almost obviated since these
laws have created a special Tribunal for competition law related issues as
this. It would be unbecoming of a High Court that entertains normal civil
claims to entertain a competition law case, especially when there is a
statutory Tribunal created for such special cases. 

The only remedy for the class action order
which has been blocked thus seems to be an appeal to the Court of Appeal in the
UK, but the appeal also needs the leave of the Tribunal—see section 49(2)(b) of
the 1998 Competition Act—which the Tribunal can and will most likely deny in
its discretion. Although upon denial, the plaintiffs can proceed to the Court
of Appeal for its leave based on first application to the Tribunal and refusal.
Even then, the possibility of the Court of Appeal granting the leave is bleak.

[1] Mastercard
being a US company, but doing business in Europe
[2] The
CAT awarded Sainsbury’s damages as follows :
– £102,7 million for credit card
overcharges, reduced by £33 million due to excess interchange received by
Sainsbury’s Bank
– £760,000 for debit card overcharges
– Compound interest costs on 50% of the
overcharge amount – 20% on cash balances and 30% on the cost of borrowing [See:
http://www.cmspaymentsintelligence.com/eu/blog/article/sainsburys-mastercard-open-floodgates-uk-merchants]
[3] Most
class actions require a representative who will represent their interest in
court since all the class members can’t come to or address the court. The representative
is often approved by the court as it must find him/her capable to defend the
class member’s interest.
[4] 2007/2008
being the period when the European Commission ruled Mastercard’s (interchange)
fees were anti-competitive
[5] See
especially section 5 of Schedule 8—which amends section 47 of the 1998
Competition Act, by creating a new section 47B
[6] The
new CRA class action operation is modeled after what obtains in the US, it also
shares the opt-in (which is automatic under the UK law in so far as a consumer
is considered eligible) and opt-out of class member feature as it presently
obtains in the US.
[7] 1998
[8] Consumer
Rights Act, 2015
[9] Continental
European Legal System and common law.
Gbenga Odugbemi
Ed’s Note – This article was first
published
here
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Non-profit Organizations (NPOs) and social enterprises
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However, a key challenge the social sector
faces is building strong, resilient organizations with teams and structures to
maximize resources and achieve the desired social impact. Non-profit organizations
and social enterprises face a number of challenges. These include inadequate presentation
and proposal writing skills, limited funding or access to financing and weak
internal governance mechanisms. This affects their overall effectively and
sustainability.
About THE FUNDING SPACE
The Space is a training, mentoring and networking
space for social enterprises and non-profits in Nigeria to equip them with
practical skills, information and support on how to package proposals, business
plans and pitches for donors, impact investors and financial institutions.
The Space brings together local and
international experts in social entrepreneurship, fundraising, impact
investors, venture capitalists, and financial institutions, to facilitate
sessions.
Participants will learn the
following:
·       
How
to develop social impact strategies
·       
How
to navigate the funding and financing space
·       
How
to build local and international partnerships
·       
How
to set up internal systems
·       
How
to develop fundraising frameworks
·       
How
to conduct impact assessment
·       
How
to develop financial reports
·       
How
to write reports and
tell their stories
·       
How
to conduct
socially conscious
branding & marketing
·       
How
to access micro-finance
Participants will also have the opportunity
to pitch their ideas to experts and investors and receive guidance, advice and
information on how to achieve success.

Course Details
Date – 27 – 28
September 2017
Venue – Lagos,
Nigeria
Costs:
N 100,000 per person
N 75,000 for 2 persons per
organization
N 50,000 for 3 persons per
organization
*All costs include
training software, meals 
and a private
mentoring session.
 


The networking cocktail at the SPACE is a
fun time to meet potential partners, investors or just to simply share with
like minds.

To Book your place and help us meet your needs
appropriately, complete the information below, and send to vo@afrigrants.com by 17 August 2017

       I.           
Name
    II.           
Organization
 III.           
Number
of Persons Email
IV.           
Brief
Description of your organization
   V.           
What
are the 3 key challenges you face in your work?
VI.           
What
would you like to achieve at the Space?

Why Federal Govt needs a loan Finance for Railway/ Senator Ashafa

Why Federal Govt needs a loan Finance for Railway/ Senator Ashafa

The Senator representing Lagos East Senatorial District in the National Assembly, Senator Gbenga Ashafa on Thursday 27th of July, 2017 once again defended the Federal Government’s loan request from China Exim Bank during the consideration of the report from the Senate Committee on Local  and Foreign Debts.

The Senator who is also the Chairman, Senate Committee on Land Transport in his contribution to the report of the Senate Committee on Local and Foreign debt concerning the loan request today,  urged his colleagues to approve the loan request as doing same would be supporting the legislative agenda of the 8th Senate.
He reminded his colleagues that “there is a time frame attached to the loan and that if the loan is not approved by the Senate, the country stands the risk of forfeiting the loan, which would help a great deal in actualizing developmental projects across every  part of the country.”
Ashafa stated further “the legislative agenda of this 8th Senate ably led by the President of the Senate, Distinguished Senator Bukola Saraki involves charting a new course for national economy by opening up the economy for greater investment and ease of doing business.”

“Hence the creation of the National Assembly Business Environment Round Table (NASSBER) to identity priority bills that will aid in investment in the economy. The consequence of this is passing of several economic bills into law including the Nigeria Railway  bill 2017.”
“My distinguished colleagues, approving this loan request is therefore also supporting the cause, which the 8th Senate stands for. “
The Federal Government laid before the National Assembly on the 26thof April, 2017 a request seeking an approval for a loan in the sum of $6.4 Billion from China Exim Bank. The sum of $5,851 Billion of the total is being sought to execute the Modernisation of Lagos to Kano, Kano to Kaduna, Lagos to Ibadan and Lagos to Calabar rail segment.
You will recall that Senator Gbenga Ashafa earlier in May, 2017 defended the loan request and vehemently urged his colleagues to ensure that the National Assembly passes the loan request in order to fund the Lagos to Kano and Calabar to Lagos Rail projects, while contributing to a motion sponsored by Senator Eyinnaya Abaribe (Abia South) on the “Outright Omission of the Eastern Corridor Rail line in the request for approval of Federal Government 2016 to 2018 External Borrowing Plan.

After the consideration of the report and contributions on the floor of the Senate today, the Loan request was approved for the Lagos to Kano, and Lagos to Calabar railway modernization projects.

Photo Credit – Google 
Constitutional Review – Bills passed by the House of Representatives on 27/7/2017

Constitutional Review – Bills passed by the House of Representatives on 27/7/2017


The Nigerian House of Representatives on 27th
July, 2017, in a plenary session, with 97 Senators in attendance, deliberated
over Bills seeking to amend the 1999 Constitution of the Federal Republic. The
Clauses include;

1.     Bill on Members of
the Council of States
Bill on the
composition of members of the council of state
Yes – 274 No – 6
Abstain – 2
2.     Authorization of
expenditure (Section 62 and 182) 
Bill to reduce the
period of which the Governor of a State may withdraw funds from the
consolidated revenue funds in the absence of an appropriation act from 6 months
to 3 months.
Yes: 295 No: 0
Abstain: 0
3.     Devolution of Power
Bill to amend 2nd
schedule, part 1 and 2 of the 1999 Constitution to give more legislative powers
to state by moving some items to the Concurrent List in the Constitution.
Yes: 210 No: 71
Abstain: 8
4.     Financial Autonomy
of State Legislature
Bill to provide for
funding of Houses of Assemblies directly from the consolidated revenue of the
State.
Yes: 286 No: 10
Abstain: 1
5.     Distributable
account for LG’s to have their own special account
Bill to alter
Section 162 to empower each local council to maintain its own accounts into
which all allocations due to the local government council shall be paid
directly from the federation account and state allocations.
Yes: 281 No: 12 Abstain:
1
6.     Democratic
Existence funding and tenure of LG council
Bill aims at
strengthening local government administration in Nigeria by guaranteeing the
democratic existence and funding of local government councils.
Yes: 285 No: 7
Abstain: 1
7.     State creation and
boundary adjustment
Bill seeks to
ensure that only democratically created local government councils can
participate in state creation and boundary adjustments. 
Yes: 166 No: 125
Abstain: 3
8.     Immunity for
legislators for Acts in Course of Duty
This is a Bill to
alter section 4, 51, 61, 68,93 and 109 of the constitution, to provide immunity
for members of legislature in respect of words spoken or written in plenary.
This means that no member of the Senate can be legally prosecuted for words and
writings made during a plenary session or in committee. And to institutionalize
legislative bureaucracy in the constitution and obligate the president to
address the joint national assembly once a year to give a state of the nation
address.
Yes:
288 No: 10 Abstain: 1
9.     Political Parties
and Electoral Matters: Time to conduct Bye Elections and Power to deregister
parties.
Bill seeks to alter
Section 134 and 179 of the Constitution to provide time for INEC to conduct bye
elections and Section 225 to empower INEC to deregister political parties for
non-fulfillment of certain conditions such as a breach of registration requirements
and for not winning any seat in any election.
Yes: 293 No: 2
Abstain: 1
10.    Presidential
Assent
This Bill seeks to
alter Section 58, 59 and 100 of the Constitution to resolve the impasse when a
President or Government fails to give or withdraw accent from a Bill passed by
the Legislature.
Yes: 248 No: 28
Abstain: 4

11. Time
frame for submission of names of ministerial or commissioner nominees. To set a
time frame within which a president or governor shall forward names of nominees
for ministerial or commissioner positions along with their intended portfolios.
Nomination shall be
between 30 days after President has taken oath of office.
Yes: 248 No: 46
Abstain: 1
12. The Bill seeks to alter section 147 of the
Constitution of the Federal Republic of Nigeria, 1999 to provide for the
appointment of a Minister from the FCT, Abuja to ensure that the FCT is
represented in the Executive Council of the Federation.
Yes: 191 No: 91 Abstain: 3
13. Change
of names of some LG councils: Ebonyi, Oyo, Ogun, Pleateau and Rivers.
This Bill seeks to alter the Constitution to provide for change in the
names of some Local Government Councils and the definition of the boundary of
the FCT, Abuja.
Yes: 220 No: 57
Abstain: 8

14.   Independent
Candidacy
This seeks to alter sections 65, 106, 131, and 177 of the Constitution.
This is aimed at expanding the political space and broadening the options for
the electorate by allowing for independent candidacy in all elections.
Yes: 275 No: 14
Abstain: 1
15.    The
Nigeria Police Force to become Nigerian Police
This Bill seeks to alter the Constitution in sections 34, 35, 39, 214,
215, 216 and the Third Schedule to change the name of the Police from “Nigeria
Police Force” to “Nigeria Police” in order to reflect their core mandate.
Yes: 280 No: 9
Abstain: 4

16.  Restriction
of the tenure of President and Governor
The Bill sought
that any vice president who had completed a tenure of a sitting president and
contested a fresh four years mandate shall not be eligible to run for a second
term of office.
Yes: 292 No: 3
Abstain: 3
17.    Separation
of Office of the Accountant-General
This Bill seeks to alter section 84 of the Constitution to establish
the office of the Accountant-General of the Federal Government separate from
office of the Accountant-General of the Federation.
Yes: 274 No: 23
Abstain:2
18. Office
of Auditor General to be included in first line chat of consolidated revenue.
This Bill seeks to make the office of the Auditor-General for the
Federation and for the State financially independent by placing them on
first-line charges in the Consolidated Revenue funds of the Federation and of
the States.
Yes: 289 No: 11
19.Separation
of Office of the Attorney General from the Minister/Commissioner of Justice
This Bill seeks to alter sections 150, 174, 195, 211, 318 and the Third
Schedule to the Constitution to separate the office of the Minister or
Commissioner for Justice from that of the Attorney-General of the Federation
and of states soas to create an independent office of the Attorney-General of
the Federation insulated from partisanship. It also seeks to redefine the role
of the Attorney-General, provide a fixed tenure, provide the age and
qualification for appointment and also for a more stringent process for the
removal of the Attorney General.
Yes: 234 No: 58
Abstain: 3
20.    Submissions
from the Judiciary
This bill contains a vast array of alterations with regards to the
Judiciary such as the composition of the National Judicial Council, and
empowering Justices of the Supreme Court and Court of Appeal to hear certain
applications in chambers thereby enhancing the speedy dispensation of justice.
Yes: 265 No: 6
Abstain: 7
21.  Determination
of pre-election matters.
This Bill seeks to among other things make provisions for timelines for
the determination of pre-election disputes.
Yes: 288 No: 3
Abstain: 1
22.   Consequential
Amendment on Civil Defence
This Bill seeks to reflect the establishment and core functions of the
Nigeria Security and Civil Defence Corps. It is a consequential amendment
because of the inclusion of the national security and civil defence as an item
in the Exclusive Legislative List under the Second Schedule to the
Constitution.
Yes: 293 No: 2
Abstain: 1
23.     Citizenship
and indigeneship
This Bills seeks to alter section 25 of the Constitution to guarantee a
married woman’s right to choosing either her indigeneship by birth or by
marriage for the purposes of appointment or election.
Yes: 208 No: 78
Abstain: 2
24. Procedure
for Overriding Presidential Veto in Constitutional Alteration
This Bill seeks to among other things provide the procedure for passing
a Constitution Alteration Bill where the President withholds assent.
Yes: 271 No: 20
Abstain: 0
25.Removal
of law making power from Executive Arm.
This Bill seeks to alter section 315 of the Constitution of the Federal
Republic of Nigeria, 1999 to remove the law-making powers of the Executive Arm
of Government.
Yes: 139 No: 148
Abstain: 4
26.  Investment
and Securities Tribunal
This bill seeks to establish the Investments and Securities Tribunal
under the Constitution.
Yes: 270 No: 12
Abstain: 2
27.   Reduction
of Age for Election
This Bill seeks to alter the Sections 65, 106, 131, 177 of the
Constitution to reduce the age qualification for the offices of the President
and Governor and membership of the Senate, House of Representatives, and the
State Houses of Assembly.
Yes: 261 No: 23
Abstain: 2
28.Authorization
of expenditure time frame for laying Appropriation bill, Passage etc
This Bill seeks to provide for the time within which the President or
Governor shall lay the Appropriation Bill before the National Assembly or House
of Assembly to encourage the early presentation and passage of Appropriation
Bills.
Yes: 252 No: 7
Abstain:2
29.  Deletion
of State
Electoral Commission from
CFRN
Yes: 229 No: 51
Abstain: 1
30. Inclusion
of Section 141 of the Electoral Act in the Constitution.
Yes: 241 No: 16
Abstain: 1
In total, there were 33 proposed
amendments, 30 were adopted and 3 were rejected.
Adedunmade Onibokun, Esq.

Photo Credit 1 – www.nigerianews.com 
 2. www.twitter.com/@NGRsenate
Constitutional Review: Bills Passed by Nigerian Senate on 26/7/2017

Constitutional Review: Bills Passed by Nigerian Senate on 26/7/2017


The Nigerian Senate on 26th
July, 2017, in a plenary session, with 97 Senators in attendance, deliberated
over 33 Bills seeking to amend the 1999 Constitution of the Federal Republic. The Bills include;

1.     Bill on Members of
the Council of States
Bill on the
composition of members of the council of state
95 Senators voted
Yes to amend
2.     Authorization of
expenditure (Section 62 and 182)  
Bill to reduce the
period of which the Governor of a State may withdraw funds from the consolidated
revenue funds in the absence of an appropriation act from 6 months to 3 months.
Yes: 93 No: 1
Abstain: 1
3.     Devolution of Power
Bill to amend 2nd
schedule, part 1 and 2 of the 1999 Constitution to give more legislative powers
to state by moving some items to the Concurrent List in the Constitution.
Yes: 5 No: 90
Abstain: 0
4.     Financial Autonomy
of State Legislature
Bill to provide for
funding of Houses of Assemblies directly from the consolidated revenue of the
State.
Yes: 90 No: 5
Abstain: 0
5.     Distributable
account for LG’s to have their own special account
Bill to alter Section
162 to empower each local council to maintain its own accounts into which all
allocations due to the local government council shall be paid directly from the
federation account and state allocations.
Yes: 84 No: 8
Abstain: 1
6.     Democratic
Existence funding and tenure of LG council
Bill aims at strengthening
local government administration in Nigeria by guaranteeing the democratic existence
and funding of local government councils.
  
Yes: 88 No: 7
Abstain: 1
7.     State creation and
boundary adjustment
Bill seeks to
ensure that only democratically created local government councils can participate
in state creation and boundary adjustments.  
Yes: 47 No: 48
Abstain: 0
8.     Immunity for
legislators for Acts in Course of Duty
This is a Bill to
alter section 4, 51, 61, 68,93 and 109 of the constitution, to provide immunity
for members of legislature in respect of words spoken or written in plenary.
This means that no member of the Senate can be legally prosecuted for words and
writings made during a plenary session or in committee. And to institutionalize
legislative bureaucracy in the constitution and obligate the president to
address the joint national assembly once a year to give a state of the nation
address.
Yes: 93 No: 1
Abstain: 0
9.     Political Parties
and Electoral Matters : Time to conduct Bye Elections and Power to deregister
parties.
Bill seeks to alter
Section 134 and 179 of the Constitution to provide time for INEC to conduct bye
elections and Section 225 to empower INEC to deregister political parties for
non-fulfillment of certain conditions such as a breach of registration
requirements and for not winning any seat in any election.
Yes: 90 No: 0
Abstain: 0
10.   Presidential Assent
This Bill seeks to
alter Section 58, 59 and 100 of the Constitution to resolve the impasse when a
President or Government fails to give or withdraw accent from a Bill passed by
the Legislature.
Yes: 95 No: 1
Abstain: 0
11.Bill
11: Time frame for submission of names of ministerial or commissioner nominees.
To set a time frame within which a president or governor shall forward names of
nominees for ministerial or commissioner positions along with their intended
portfolios.
a)    Nomination shall be
between 40 days after President has taken oath of office.
Yes: 75 No: 19
Abstain: 0
b)    Submission of Ministerial
Nominees shall be with their Portfolios
       Yes:
78 No: 16 Abstain: 1
c)     35% affirmative
action for women as ministers
       Yes: 49 No: 43 Abstain: 2
d)   Submission of
Commissioners Nominees shall be within 30 days.  
       
        Yes: 84 No: 7 Abstain: 0
e)     Submission of names
of office of commissioners shall be attached with portfolio
Yes: 87 No: 8
Abstain: 0
f)      35% Affirmative
action for women as States Commissioners
Yes: 61 No: 35
Abstain: 0


12. The
Bill seeks to alter section 147 of the Constitution of the Federal Republic of
Nigeria, 1999 to provide for the appointment of a Minister from the FCT, Abuja
to ensure that the FCT is represented in the Executive Council of the
Federation.
Yes    No    Abstain 
13.  Change
of names of some LG councils: Ebonyi, Oyo, Ogun, Pleateau and Rivers.
This Bill seeks to alter the Constitution to provide for change in the
names of some Local Government Councils and the definition of the boundary of
the FCT, Abuja.
Yes: 84 No: 2
Abstain: 2
14.   Independent
Candidacy
This seeks to alter sections 65, 106, 131, and 177 of the Constitution.
This is aimed at expanding the political space and broadening the options for
the electorate by allowing for independent candidacy in all elections.
Yes: 82 No: 5
Abstain: 3
15.    The
Nigeria Police Force to become Nigerian Police
This Bill seeks to alter the Constitution in sections 34, 35, 39, 214,
215, 216 and the Third Schedule to change the name of the Police from “Nigeria
Police Force” to “Nigeria Police” in order to reflect their core mandate.
Yes: 87 No: 2
Abstain: 1
16.  Restriction of the tenure of President and
Governor
The Bill sought
that any vice president who had completed a tenure of a sitting president and
contested a fresh four years mandate shall not be eligible to run for a second
term of office.
Yes: 88 No: 0
Abstain: 1
17.    Separation of Office of the Accountant-General
This Bill seeks to alter section 84 of the Constitution to establish
the office of the Accountant-General of the Federal Government separate from
office of the Accountant-General of the Federation.
Yes: 89 No: 0
Abstain: 0
18.                       
Office
of Auditor General to be included in first line chat of consolidated revenue.
This Bill seeks to make the office of the Auditor-General for the
Federation and for the State financially independent by placing them on
first-line charges in the Consolidated Revenue funds of the Federation and of
the States.
Yes: 95 No: 0
Abstain: 0

19. Separation
of Office of the Attorney General from the Minister/Commissioner of Justice
This Bill seeks to alter sections 150, 174, 195, 211, 318 and the Third
Schedule to the Constitution to separate the office of the Minister or
Commissioner for Justice from that of the Attorney-General of the Federation
and of states soas to create an independent office of the Attorney-General of
the Federation insulated from partisanship. It also seeks to redefine the role
of the Attorney-General, provide a fixed tenure, provide the age and
qualification for appointment and also for a more stringent process for the removal
of the Attorney General.
Yes: 95 No: 1
Abstain: 1
20.      Submissions
from the Judiciary
This bill contains a vast array of alterations with regards to the
Judiciary such as the composition of the National Judicial Council, and
empowering Justices of the Supreme Court and Court of Appeal to hear certain
applications in chambers thereby enhancing the speedy dispensation of justice.
Yes: 95 No: 2
Abstain: 1
21. Determination
of pre-election matters.
This Bill seeks to among other things make provisions for timelines for
the determination of pre-election disputes.
Yes: 97 No: 0
Abstain: 0
22.  Consequential Amendment on Civil Defence
This Bill seeks to reflect the establishment and core functions of the
Nigeria Security and Civil Defence Corps. It is a consequential amendment
because of the inclusion of the national security and civil defence as an item
in the Exclusive Legislative List under the Second Schedule to the
Constitution.

Yes: 97 No: 0
Abstain: 0
23.  Citizenship
and indigeneship
This Bills seeks to alter section 25 of the Constitution to guarantee a
married woman’s right to choosing either her indigeneship by birth or by
marriage for the purposes of appointment or election.
Yes: 49 No: 46
Abstain: 0
24.Procedure
for Overriding Presidential Veto in Constitutional Alteration
This Bill seeks to among other things provide the procedure for passing
a Constitution Alteration Bill where the President withholds assent.
Yes: 92 No: 4
Abstain: 0
25. Removal
of law making power from Executive Arm.
This Bill seeks to alter section 315 of the Constitution of the Federal
Republic of Nigeria, 1999 to remove the law-making powers of the Executive Arm
of Government.
Yes: 89 No: 3
Abstain: 0
26. Investment
and Securities Tribunal
This bill seeks to establish the Investments and Securities Tribunal
under the Constitution.
Yes: 76 No: 14
Abstain: 5
27.  Reduction
of Age for Election
This Bill seeks to alter the Sections 65, 106, 131, 177 of the
Constitution to reduce the age qualification for the offices of the President
and Governor and membership of the Senate, House of Representatives, and the
State Houses of Assembly.
The bill now proposes 35 as the minimum age
for the office of the President and being elected to the Senate; and 25 for the
House of Representatives.

Yes: 86 No: 10
Abstain: 1
28. Authorization
of expenditure time frame for laying Appropriation bill, Passage etc
This Bill seeks to provide for the time within which the President or
Governor shall lay the Appropriation Bill before the National Assembly or House
of Assembly to encourage the early presentation and passage of Appropriation
Bills.
Yes: 94 No: 0
Abstain:0
29.   Deletion
of NYSC decree from CFRN
The Bill seeks to alter the Constitution of the Federal Republic of
Nigeria, 1999 to delete the National Youth Service Corps Decree from the Constitution
so that it can be subject to the regular process of amendment.
Yes: 88 No: 3
Abstain: 0
30.    Deletion of Public Complain Act from CFRN.
The Bill seeks to alter the Constitution of the Federal Republic of
Nigeria, 1999 to delete the Public Complaints Commission Act from the
Constitution so that it can be subject to the regular process of amendment.
Yes: 90 No: 1
Abstain: 2
31.   Deletion
of National Security Agencies from the CFRN
The Bill seeks to alter the Constitution of the Federal Republic of
Nigeria, 1999 to delete the National Securities Act from the Constitution so
that it can be subject to the regular process of amendment.
Yes: 92 No: 2
Abstain: 0
32.   Deletion of land Use Act from CFRN
The Bill seeks to
alter the Constitution of the Federal Republic of Nigeria, 1999 to delete the
Land Use Act from the Constitution so that it can be subject to the regular
process of amendment.
Yes: 46 No: 44
Abstain: 0
33. Deletion
of State Electoral Commission from
CFRN
Yes: 73 No: 19
Abstain: 2

Adedunmade Onibokun, Esq.

 Photo Credit 1  – premiumtimes.com 
2 – youtube.com. 3 – Twitter.com/@NGRsenate
Sexual Harassment in the Work Place | Busayo Adedeji

Sexual Harassment in the Work Place | Busayo Adedeji


Sexual harassment is bullying or coercion of a sexual nature, or the unwelcome or
inappropriate promise of rewards in exchange for sexual favours. In
most modern legal contexts, sexual harassment is illegal.[1]
Although the concept of sexual harassment in the work place is not alien to
Nigeria, there is a dearth of reported cases on the subject. Reasons that might
be attributed to this include:


1.     No precise provision in Employment
Relation laws bordering on sexual harassment in the work place;
2.     Victims of sexual harassment
not coming out to report the infringement.

The International Labour
Organization (“ILO”) in its publication on
Declaration on Fundamental Principles and
Rights at Work[2] defined
sexual harassment as:
“a sex-based
behaviour that is unwelcome
and offensive
to its recipient
.”

For sexual harassment to exist these two
conditions must be present.

Sexual harassment may take two forms:
1) Quid Pro Quo, when a job benefit – such as
a pay rise, a promotion, or even continued employment – is made conditional on
the victim acceding to demands to engage in some form of sexual behaviour; or;

2) hostile working environment in which the
conduct creates conditions that are intimidating or humiliating for the victim.

Behaviours that qualifies as sexual
harassment include:

PHYSICAL Physical violence, touching, unnecessary proximity.

VERBAL Comments and questions about appearance,
life-style, sexual orientation, offensive phone calls.

NON -VERBAL Whistling, sexually-suggestive gestures,
display of sexual materials.

The effects of Sexual harassment are both
societal and personal. Some common effects include:

·       
Psychological suffering including humiliation, reduced motivation, loss
of self-esteem.
·       
Victims foregoing career opportunities, leaving employment or committing
suicide;
·       
Women’s undermined access to high-status and well-paid jobs,
traditionally male-dominated.

The Way
Forward

·       
Legal Framework against Sexual Harassment must be put
in place and clear institutions to enforce the regulations must also be defined
and set up.

·       
Efforts must be made to create awareness amongst the
workforce on issues bordering on sexual harassment.

·       
Companies should endeavour to have standing sexual
harassment policies that will be known to all employees.

In conclusion, it is
pertinent to state that the sexual harassment phenomenon is one that keeps
spreading like a wild fire leaving is ashes behind and it is high time our
lawmakers step up and pass laws to regulate this menace in the work place.


[1] https://en.wikipedia.org/wiki/Sexual_harassment
[2] http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_decl_fs_96_en.pdf


Busayo Adedeji

Regulatory Compliance & Commercial law
advisor
Busayo advises clients on corporate immigration issues, advising clients on employment and labour law issues, ensuring that clients are in line with regulatory compliance rules, civil litigation etc
What Nigerian entrepreneurs should expect from Foreign Investors | Boma Braide

What Nigerian entrepreneurs should expect from Foreign Investors | Boma Braide


Nigerian Entrepreneurs who start out on
their fundraising journey think they will be showered with funding offers but
are quickly awakened to the rude shock that they are not able to pick and
choose from investors as they would have liked.

Based on experience, you might think that
we saw something special in your venture and that was why we approached you.
Yes we did but not what you are thinking. We saw an opportunity to add value
and make you a truly global business coming out of Nigeria.
Our vision is to see a Nigeria of
Entrepreneurs and leaders solving meaningful problems on a global scale.
And in order to achieve this we have set
out on a tall mission which is:
To impact 1,000,000 Nigerian
Entrepreneurs to DOMINATE their market by the year 2035.
In order to achieve this, we need to state
the key things that entrepreneurs should expect from an investor and then do to
bring their expectations to life to be able to scale their business to
domination.
1.     It is best to keep
expectations to a minimum and be spot on about the amount of investment that
you require.
2.     A lot of investors
are looking for somewhere to sweat their money but not themselves. Isn’t this
obvious, they are usually very busy people already – otherwise how would they
have the wealth to take such huge risks with businesses. You need to keep these
investors updated – a consistently timed monthly update of a page or so and a
full update with accounts each year.
3.     More usefully there
are a small number of investors that are willing to help. This might be as an
interested and encouraging observer, at least responding to your updates and
occasionally offering some unsolicited help. They are likely to respond well
when asked for help.

4.     We find our help is
particularly useful at the start of a relationship – helping to challenge and
strengthen the brand and product proposition, the strategy and to prioritize
action plans.
5.     Having someone with
an understanding but more dispassionate about the business helps to create
different options and make effective choices for how to grow the business.
6.     An Investor
Director should bring an investor’s perspective, so helping make decisions, not
only for revenue and profitability growth but to make a business attractive to
future investors or exits. They should be a huge help in creating the story to
attract investors in the lead up to the next raise.
7.     When setting out on
the funding route, think about what you want from your investors. For example,
what expertise is most important, what contacts in your industry are you
lacking, where are the big risks facing the business? Then have it as part of
the conversation with potential investors.
8.     Be prepared to pay
fees which can consist of connection and investors fees. Connection being the
broker that connected you to the investors and the investors themselves. These
fees do not make anyone rich, it is a fraction of the fee that the facilitators
of the investment charge for their time out to large corporate organisations,
but because a transaction creates a contract and clear expectations of both
parties it holds the facilitators to account.
9.     Watch out for some
investors that will demand a paid non-executive seat even if they are only
investing a small amount. You need to judge everyone on their merits but there
is usually a co-relation between the size of the demand and how little help
they will be.
If someone is offering something you’d
value then try and formalize that commitment as much as possible. It is easier
to agree expectations before completing an investment and guards against two
parties having a different view of what has been promised.

Are you seeking investment?
Forterun.com is working with several investment partners that would like to
talk with you and know where you are with regards fund raising for your
business. To find out more send an email to info@forterun.com or call Omo on
+234 903 915 1191.

This article was first published here
International’ Commercial Arbitration Moot Competition by LCA-YAN

International’ Commercial Arbitration Moot Competition by LCA-YAN


“The Lagos Court of Arbitration Young
Arbitators Network is organising the first ‘International’ Commercial
Arbitration Moot Competition in Nigeria. The LCA-YAN Moot will provide a unique
opportunity for young and aspiring practitioners to gain exposure to various
aspects of international commercial arbitration including interlocutory matters
such as the conduct of emergency arbitration and joinder of parties.
Participants will 
also have the opportunity to explore the
principle of piercing the veil in international commerce and other cutting edge
issues in international commercial arbitration.


The participating teams are from top tier law firms and students from selected
universities. The Moot will hold as follows:

Date: 28 July 2017
Time: 9 am
Venue: Lagos Court of Arbitration, 1A, Remi Olowude Street, 2nd Roundabout,
Lekki-Epe 

Expressway, Lagos, Nigeria
The Moot boasts the participation of some
of Nigeria’s finest and most experienced arbitrators some of who include:
Chief Bayo Ojo, SAN
Mr Yemi Candide – Johnson, SAN 
Mr Etigwe Uwa, SAN 
Mr Tunde Fagbohunlu, SAN 
About 20 law firms were invited to
participate in the moot, but only 12 made it through to the Oral Hearing at the
Lagos Court of Arbitration. Below are the qualified firms and their tribunals:


Arbitrators
Groups
Co-Arbitrator
Presiding Arbitrator
Co-Arbitrator
Moot Final Tribunal
Yemi Candide-Johnson, SAN
Chief Bayo Ojo, SAN
Obosa Akpata
One
Abiodun Anibaba
Greg Nwakogo
Aaron Onyebuchi
Two
Diane Okoko
Babatunde Fagbohunlu SAN
Jokpa Utake
Three
Laura Alakija
Etigwe Uwa SAN
Faruq Abbas
Four
Shehu Mustapha
Adedapo Tunde-Olowu
Ronke Alex-Adedipe
Five
Folahan Ajayi
Isaiah Bozimo
Hamid Abdulkareem
Six
Shola Abiloye
Kolawole Mayomi
Aliyu Zubair


Claimant 
Respondent 
Tribunal
Hearing Room
One
AELEX Partners
Babalakin & Co
Abiodun Anibaba
Greg Nwakogo
Aaron Onyebuchi
 One
Two
Banwo & Ighodalo
Dikko & Mahmoud
Diane Okoko
Babatunde Fagbohunlu SAN
Jokpa Utake
 Four
Three
Moshood Shehu & Associates
Punuka
Laura Alakija
Etigwe Uwa SAN
Faruq Abbas
 Nine
Four
Sofunde, Osakwe, Ogundipe & Belgore
S.P.A Ajibade & Co
Shehu Mustapha
Adedapo Tunde-Olowu
Ronke Alex-Adedipe
 Ten
Five
Sterling Partnership
Strachan Partners
Folahan Ajayi
Isaiaha Bozimo
Hamid Abdulkareem
 Two
Six
Streamsowers & Kohn
Wole Olanipekun & Co
Shola Abiloye
Kolawole Mayomi
Aliyu Zubair
Eleven
Qualification to Moot Final:
The two highest scoring teams by points
total will advance to Final Round. 
Prizes
1. Winning Team prizes
2. Best Memorial prize 
3. Best Advocate prizes
4. Best Student Advocate prizes
Sponsors
The Moot is sponsored by: AELEX Partners,
White & Case, Paris, Babalakin & Co, Broderick Bozimo & Co,
Stephenson Harwood, London, Olisa Agbakogba Legal, Ukiri & Lijadu and
StreamSowers  & Kohn.
To sponsor any of
the prizes or the Moot, or for other enquiry, contact:
Prince-Alex Iwu
piwu@aelex.com
+2348050688079
Or
Jokpa Utake
autake@babalakinandco.com
+234 805 604
4634″

Provisions of the Whistle Blower Protection Bill | Adedunmade Onibokun

Provisions of the Whistle Blower Protection Bill | Adedunmade Onibokun


The Whistle Blower Protection Bill, 2017, on
19th July, 2017, was passed by the Nigerian Senate. The Bill seeks
to encourage and facilitate the disclosures of improper conduct by public
officers and public bodies and to ensure that persons who make disclosures and
persons who may suffer reprisals in relation to such disclosures are protected
under the law.

The Bill aims to provide for the manner in
which individuals may in the public interest disclose information that relates
to unlawful or other illegal conduct or corrupt practices of others.
The Bill in Section 1 begins by stating the
class of persons who may be Whistle blowers. It provides that –
1.—(1) A person may make a disclosure of
information where that person has reasonable cause to believe that the
information tends to show—
(a)  
an economic crime
has been committed, is about to be committed or is likely to be committed;
(b)  another person has not complied with a law or is in the
process of breaking a law or is likely to break a law which imposes an
obligation on that person;
(c)  
a miscarriage of
justice has occurred, is occurring or is likely to occur;
(d)  in a public institution there has been, there is or
there is likely to be waste, misappropriation or mismanagement of public
resources;
(e)  
the environment has
been degraded, is being degraded or is likely to be degraded; or
 (j)
the health or safety of an individual or a community is endangered, has been
endangered or is likely to be endangered
It however is not everyone that brings
forward information that is a Whistle Blower, such person must be making the
disclosure in good faith, believing the information to be true and same must be
made to any of the following persons in line with Section 2 and 3 of the Bill
including; an employer of the whistle blower; the Inspector General of police; the
Attorney-General; the Auditor-General; a staff of the Independence Corrupt Practices
Commission; a member of the National Assembly; the Economic and Financial
Crimes Commission; the Human Rights Commission; the print and Electronic media;
the National Drug Law Enforcement Agency; a chief; the head or an elder of the
family of the whistleblower; a head of a recognised religious body; a Minister;
the Office of the President; the Federal Inland Revenue Service; or the Public
Complaint Commission.
It is important to note that a disclosure
can be either oral or written. The procedure for making a disclosure is
contained in Section 4 of the Bill and states that such disclosure must contain
as far as possible the following –
(a)  
the full name,
address and occupation of the whistleblower;
(b)  the nature of the impropriety in respect of which the
disclosure is made;
(c)  
the person alleged
to have committed, who is committing or is about to commit the impropriety;
(d)  the time and place where the alleged impropriety is
taking place, took place or is likely to take place;
(e)  
the full name,
address and description of a person who witnessed the commission of the
impropriety if there is such a person;
(f)   
whether the
whistleblower has made a disclosure of the same or of some other impropriety on
a previous occasion and if so, about whom and to whom the disclosure was made;
and
 
(g) if the person is an employee making a disclosure about
that person’s employer or a fellow employee, whether the whistleblower remains
in the same employment.
Where a disclosure is made to a person
other than the Attorney-General, the person shall submit a copy of the written disclosure
to the Attorney-General within seven working days after receipt of the
disclosure. It is important to note that when a disclosure is made, any investigation
into the matter by the authority to whom it was reported must be completed
within 60 days and if such person does not have the authority or capacity to
investigate the disclosure, such must be reported to the Attorney – General’s
office.
Also, if the investigator believes that the
evidence in the disclosure will be tampered, an application can be made to court
to preserve the evidence.
The Bill
specifically in Section 12 provides that a whistleblower shall not be subjected
to victimisation by the employer of the whistleblower or by a fellow employee
or by another person and victimisation will be inferred if  the whistleblower, being an employee, is
dismissed, suspended, declared redundant, denied promotion, transferred against
the whistleblower’s will, harassed, intimidated or threatened. If the Whistle
blower is not an employee, victimization will be inferred with such person is
subject to discrimination, intimidation or harassment by a person or an
institution.
A whistleblower is
not liable to civil or criminal proceedings in respect of the disclosure unless
it is proved that whistleblower knew that the information contained in the
disclosure is false and the disclosure was made with malicious intent. Also,
any contract of employment which seeks to prevent a disclosure is void.
A whistleblower who
has been subjected to victimisation may bring an action in the High Court to
claim damages for breach of contract or for another relief or remedy to which
the whistleblower may be entitled, except that an action shall not be commenced
in a court unless the complaint has first been submitted to the Commission on
Human Rights and Administrative Justice.
One major flaw
however of the Bill is that it does not specifically make provisions for the reward
of a Whistle Blower. Many Whistle blowers will be willing to make disclosures
most importantly because of the possibility of a reward. The Bill however
provides in Section 14(4) that the Commission may, where it considers it just
in the circumstances of the case, make an order for payment of reward from the
Fund established under section 20 of the Bill. Section 20 thus further provides
that the Attorney _General or Minister of Justice may make regulation for or
with respect to any matter required or permitted by this Act to be prescribed
to give effect to this Act. The above seems very vague and puts the onus on the
Minister to make policy in regard to the rewards for Whistle Blowers.
This single flaw
will in no small way limit the success of the Bill.
Adedunmade Onibokun

Photo Credit – www.nationaldaily.com