Top finance law firm to host 4th AICIF in Lagos

Top finance law firm to host 4th AICIF in Lagos

The Met Skills Limited in collaboration with the Metropolitan law firm is set to host the 4th African International Conference on Islamic Finance (AICIF), in Lagos from Monday November 4th 2019 to Tuesday the 5th.
The event, which will take place at Eko Hotels & Suites, Victoria Island, Lagos, will bring together experts in finance, law, infrastructure and various other sectors and segments of the economy.
The two-day conference themed “Infrastructure Financing, Sustainability and the Future of African Markets” will feature the Emir of Kano, his Highness, Muhammad Sanusi II, CON as the first keynote speaker, while Oussama Kaissi, Chief Executive Officer of the Islamic corporation for the Insurance of Investment and Export Credit (ICIEC) of the Islamic Development Bank Group, will give the second keynote.
Speaking about the forthcoming event, the conference chair and Managing Partner of Metropolitan Law Firm, Ummahani Amin disclosed that one of the fundamental goals of the conference was to establish a community of Practice that will serve as a credible resource/support for Islamic Finance deal structuring and create a platform for financial institutions and other key eco-system players to demonstrate their commitment and support for the development of Islamic Finance in Africa.
“With focus on Islamic Microfinance as a tool for financial inclusion, poverty alleviation and promoting economic growth, the AICIF conference hopes to motivate financial institutions to push for more defined regulations on Islamic finance,” she said.
Unveiling some of the speakers at the 4th AICIF, Amin revealed that the line-up included, thought leaders and experts from different jurisdictions where Islamic Finance has progressed. Among these are, Mallam Nasir El-Rufai, governor of Kaduna State; Muhammed Dabai Suleyman, Director, FSS2020; Ahmad Usman Kollere, Assistant Director (Head, Financial Inclusion) NAICOM Abuja; Toyin. F Sanni, Group CEO, Emerging Africa Capital; Gbenga Oyebode, Chairman, Aluko & Oyebode; and Dr Konstantinos Tsanis of FinTech Association of Nigeria – who is currently leading the innovation and transformation arm of Alat, created by WEMA Bank.
Others are, Abdulkader Thomas, Chairman, Shariah Board, Sterling Bank; Norfadelizan Abdulrahman, MD, TAJ Consortium Limited; 
The Chair of the conference stated that with the line-up above, there would be an enormous wealth of experience to be shared at the conference, which according to her has the potential to lead to exponential growth & development in the country.
The Metropolitan law firm is a multi-specialist law firm established in 2006 with profound understanding of the investment environment of the capital Market and business Laws in Nigeria.  It has distinguished itself in the financial services sector and continues to provide seamless services to its diverse clientele, which include high net-worth individuals, public and privately held commercial Businesses and Financial institutions.
Does the Supreme Court still have the Power to Hear Appeal on Grounds of Mixed Law and Facts? By O.G. Ogbom, esq.

Does the Supreme Court still have the Power to Hear Appeal on Grounds of Mixed Law and Facts? By O.G. Ogbom, esq.

The Supreme Court, just like every other courts in the land, is a creation of the constitution. It is vested with both original and appellate jurisdictions. It is the only court clothed with authority and jurisdiction to entertain appeals from the Court of Appeal. This is provided for in section 233(1) of the Constitution which confers exclusive jurisdiction on the Supreme Court to hear and determine appeals from the Court of Appeal.
It has been notoriously settled that jurisdiction is the life of every form of adjudication, and without it, no court or tribunal can proceed to competently determine a suit or matter brought before it. It is a threshold issue that can be raised by any party, or even the court at any stage of the proceedings, even for the first time on appeal. That is what the Supreme Court said in Elabanjo & Anor v Dawodu [2006] 15 NWLR (PT 1001) 76; (2006) LPELR – 1106 (SC) where MOHAMMED, JSC held:
“Jurisdiction is the very basis on which any tribunal tries a case. A trial without jurisdiction is a nullity …the importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this court; afortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save
time and costs and to avoid a trial in nullity”
It is also settled law that any proceedings conducted without jurisdiction no matter how well conducted and no matter how sound the decision or orders made therein is a nullity. See the case of –MADUKOLU V. NKEDILIM (1962) 2 SCNLR 341.
It is important to mention that before the enactment of the 3rd Alteration Act of 2010, section 233 (2) of the Constitution of the Federal Republic of Nigeria, (as Amended) 1999, provided for instances where appeals from the decisions of the Court of Appeal would lie to the Supreme Court as of right, whilst section 233 (3) and (4), particularly (3) provided for instances wherein appeals would lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court. 
Flowing from the above stated provisions, where an appeal is lodged against the finding of facts by the lower court (the Court of Appeal, in view) such appeal is said to be based on grounds of fact. Where the question to be determined by the appellate court is a question as to what the law is, it will certainly amount to a ground of law. It might seem difficult or impossible to determine or misapprehend. This is usually so when the questions to be determined by the Appellate court are a mixture of facts and law. In essence, it is called a ground (s) of mixed fact and law.
This has always been the position of law as regards appeals to the Supreme Court before the decision in Shittu vs P.A.N Ltd (2018)15 NWLR (Pt. 1642) 195; made pursuant to the third Alterations to the Constitution of the Federal Republic of Nigeria 1999. By this case, It appears that there can be no appeals to the Supreme Court with leave of court, in other words, appeals to the Supreme Court could only be as of right. This presupposes that appeals with leave of court to the Supreme court has deeply changed or obliterated.
Under the said Third Alteration Act, whilst sections 233 (1) and (2) (relating to appeals to the Supreme Court generally and on grounds of law respectively) are retained, sections 233 (3) (4) and (5) (all of which relate to appeals with leave to the Supreme Court), are not retained, and as such, are no longer in existence. Importantly, the absence of section 233 (3) in particular, connotes the absence of any constitutional basis upon which appeals that are not on grounds of law, as provided for in section 233 (2) (a), or are not provided for in section 233 (2) (b)-(f), may be brought to the Supreme Court. By Shittu’s case (supra) it appears that, the Constitution of the Federal Republic of Nigeria (as amended) does not recognise appeals with leave to the Supreme Court.
For the clarity and ease of reference, section 233 (2) (a) – (f) provides as follows:
1. where the grounds of appeal against the decision of the Court of Appeal involves questions of law alone, such appeals shall lie as of right to the Supreme Court;
2. appeals to the Supreme Court against decisions of the Court of Appeal as to the interpretation or application of the constitution will lie as of right;
3.appeals to the Supreme Court against decisions of the Court of Appeal on contraventions of any of the provisions of Chapter IV of this Constitution (Fundamental Rights), shall be as of right;
4. decisions in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court, shall be appealable as of right to the Supreme Court;
5.decisions of the Court of Appeal bordering questions of the validity of the election of a person as President, Vice-President, Governor, Deputy-Governor or whether the tenure of any such persons has ceased will be appealable to the Supreme Court as of right; and
6. an appeal from a decision of the Court of Appeal may lie as if right by virtue of the provisions of an Act of the National Assembly.
And such other cases as may be prescribed by an Act of the National Assembly.
From the above, it is clear that by the third alteration of the 1999 Constitution of the Federal Republic of Nigeria, the leeway, by virtue of Section 233(3) to an aggrieved party whose grounds of appeal involve facts or mixed law and facts, is closed.
In upholding the preliminary objection of learned Respondent counsel (O. Tolani Esq.,) to the competence of the appeal in Shittu vs P.A.N Ltd (2018)15 NWLR (Pt. 1642) 195, at pages 209-210 of the report : Honorable Justice Bode Rhodes- Vivour stated as follows:
“I must observe that there is now in existence the 1999 Constitution of the Federal Republic of Nigeria, as altered by the First, Second and Third Alterations Act , 2010. By the Alterations there is no longer section 233(3) of the Constitution. That is to say, the Supreme Court now can only hear appeals where the ground of appeal involves questions of law . See section. 233(1) & (2) of the Constitution. The Supreme Court no longer has jurisdiction to hear appeals where the ground of appeal involves questions of mixed law and facts. Appeals on grounds of mixed law and facts ends at the Court of Appeal .” 
Again, it continued:
…I must observe that there is now in existence the 1999 Constitution of the Federal Republic of Nigeria, as altered by the First, Second and Third Alterations Act, 2010. By the alterations, there is no longer section 233(3) of 1999 Constitution which allowed leave to appeal to the Supreme Court. That is to say, by virtue of section 233(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Supreme Court can only hear appeal where the grounds involves questions of law. The apex Court no longer has jurisdiction to hear appeal where grounds of appeal involve questions of mixed law and facts. Appeals on grounds of mixed law and facts ends in Court of Appeal.’’
Flowing from the above quoted position of the Supreme court, can one safely say that what was made was just a mere observation as indicated? Can it be said that it was made only in passing as an aside that was not necessary for the determination of the real issue the court was called to address and decide? Can it be referred to as an obiter dictum? 
The Shitu’s case has been used to repeatedly represent or qualify for the proposition that right of appeal to the Supreme Court on grounds of facts, mixed law and facts or challenging exercise of discretion of the courts below no longer exists even with leave. This is so, even though the Supreme court has not been called upon as it where, to decisively interpret section 233 cfrn, of the Third Alteration Act, by empaneling a full court of 7 Justices with an invitation to amicus to assist their lordships if need be. It is dangerous to continue to leave the Shittu’s case with different interpretations as currently being witnessed. The intendment of section 233 must not be allowed for argument or doubt. There is also need not to arm-twist the spirit and intention of the Constitution. By excluding section 233 (3) of the constitution by the draft man, the conclusion that leaves no one in doubt, is that the Supreme is stripped the powers to hear appeals on grounds of facts, mixed law and facts. 
O.G. Ogbom, Esq., LL.B,(Hons) BL, LL.M., is a Port Harcourt based legal practitioner.
Public Documents Attached to an Affidavit or Counter Affidavit need no Certification |  O.G. Ogbom, Esq.

Public Documents Attached to an Affidavit or Counter Affidavit need no Certification | O.G. Ogbom, Esq.

Sections 88, 89 and 90 of the Evidence Act, 2011, communally regulate admission and proof of documents. Under Section 88 of the Evidence Act, documents shall be proved by primary evidence except in the cases mentioned in the Act.
Primary evidence has been defined by Section 86(1) of the Evidence Act to mean the document itself produced for inspection of the Court. The Evidence Act grants dispensation with primary evidence in Sections 89 and 90 of the Act to the effect that secondary evidencemay be given of the existence, condition or contents of primary evidence when inhibited by circumstances as spelt out in Section
89 thereof. Hence, the nature of the secondary evidence admissible under Section 89 are provided for by Section 90 of theEvidence Act. Section 90(1)(c) of Evidence Act, 2011, also provides for admissibility of the photocopy of a public document to be a certified copy of the document, but no other photocopy.
Again, sections 102 and 103 of the Evidence Act, have clearly distinguished what private and public documents are. The Evidence Act, section 102, and the Stroud’s Judicial Dictionary, both define a public document to be a document made for the purpose of the public making use of it and one to which the public has access or original documents executed or made by public officers or public agency while carrying out official act. For the avoidance of doubt, the said section 102 states as follows:
(a) documents forming the official acts or records of the official acts of—
(i) the sovereign authority,
(ii) official bodies and tribunals, or
(iii) public, officers, legislative, judicial and executive,
whether of Nigeria or elsewhere: and
(b) public records kept in Nigeria of private documents.
While section 103 of the Evidence Act defines a private document as one which is meant for personal use and consumption. 
Section 111 of the Evidence Act, provides for the certification of public documents. … Such certificate must be dated and subscribed by a public officer in custody of the document with his name and his official title with a seal if the officer is entitled in law to make use of a seal.
In Udom vs. Umana (No. 1) (2016) 12 NWLR Pt. 1526, pg. 179 at 234 -235, the Apex Court per, the noble Rhodes-Vivour, JSC., in his contribution instructed thus:
…. Before a public document can be tendered and accepted by the Court, it must be certified. A public document is certified if:
1. It was paid for;
2. there is an endorsement/certificate that it is a true copy of the document in question;
3. the endorsement/certificate must be dated and signed by the officer responsible for certification, with his name and official
title. Payment of the prescribed fees is indeed part of the conditions that must be fulfilled before a public document can be
validly certified to be the true copy of its original.
The case of Udom vs. Umana(supra) and sections 88, 89, 90 and 102 of the Evidence Act, 2011, would ordinarily come into play when questions of tendering of
documentary evidence and admissibility of same arise and wherein the totality of the dispute is initiated by way of Writ of Summons. In that stance, a witness would need to enter the witness box to lead evidence that will convert the pleaded documents into evidence. On the converse and in cases where proceedings are initiated by Originating Summons or Motion, there is no room for leading evidence in chief and tendering of documents from the witness box. All the evidence needed therein would be incorporated in the affidavit and counter affidavit sworn on oath either in support or against the Originating Summons or Motion. All that is left for the Court in this regard, is to read and interpret the documents and analyze the affidavit and counter affidavit facts as they are before it. This is to say that the parties are left with no room for vive voce evidence.
This position is in consonance with the decision of the Court of Appeal, per Mbaba, JCA., in British American
Tobacco Nig. Ltd. vs. International Tobacco Co. Plc. (2013) 2 NWLR Pt. 1339, Pg. 493 at 520 – 521 where he found that:…public documents exhibited as secondary copies in affidavit evidence cannot necessarily be certified true copies and that document exhibited to an affidavit is already an exhibit before the Court, being part of the affidavit evidence which a Court is entitled to look at, and use…..See Adejumo V Governor of Lagos State (1970) All NLR 187. Where the same position was taken by the Supreme Court. See also Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 608, 735 and Jukok International Ltd v. Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55. The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy … It is therefore not the position of law to expect the exhibited photocopy to be certified by the adverse party before the Court can attach probative value to it” Per EKANEM, J.C.A. (Pp. 14-16, Paras. D-F). See BOKO v. NUNGWA & ORS (2018) LPELR-45890(CA).
This position is a departure from the case of Governor of Kwara State v. Lawal (2007) 13 N.W.L.R (Pt. 1051) @pp 360-361, where the Court of Appeal held that:
“Where a public document as opposed to a private document is produced in an attempt to prove facts in issue before a court of law, before it can be considered admissible in evidence, it must be duly certified as required by law, irrespective of whether such a document is being used in an interlocutory application or at the hearing of a substantive suit. In other words, only a certified true copy of a public document must be tendered.” 
And also the case of Fawehinmi v. IGP (2000) 7 N.W.L.R. (Pt. 665) @p. 525, which was upheld by the Supreme Court. But the S.C in Jukok International Ltd v. Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55 departed from the cases of Governor of Kwara State v. Lawal (2007) 13 N.W.L.R (Pt. 1051) @pp 360-361, and Fawehinmi v. IGP (2000) 7 N.W.L.R. (Pt. 665) @p. 525 and then set the ball rolling for the decision in British American. Tobacco Nig. Ltd. vs. International Tobacco Co. Plc. (2013) 2 NWLR Pt. 1339, Pg. 493 at 520 – 521.
A document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be proper before the Court to be used, once the Court is satisfied and it is credible, being already an evidence before the Court (on oath), the formality of certification for admissibility, (if it required certification) had been dispensed with. Of course, the reason for this is easy to deduce, the first being that affidavit evidence is already an admitted evidence before the Court, unlike pleading, which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided. Again, as mentioned earlier,  document attached to an affidavit evidence must necessarily be a photocopy or secondary copy (except where the document was executed in several parts or counter parts and the deponent has many of the parts to exhibit in original forms). See British American Tobacco Nig. Ltd. vs. International Tobacco Co. Plc. (2013) 2 NWLR Pt. 1339, Pg. 493 at 520 – 521. 
It is therefore not the position of the law as it is today, to expect the exhibited photocopy of public documents to be certified by the adverse party before the Court can attach probative value to it. Originating Summons and Motions are fought on the platform of affidavit and counter affidavit evidence, documents annexed thereto have equally become evidence before the Court thereby dispensing with the question of their admissibility or non-admissibility. In this regard, secondary evidence or photocopies of the original documents are without
contest and suffices. 
O.G. Ogbom, Esq., LL.B,(Hons) BL, LL.M., is a Port Harcourt based legal practitioner. 
The Age of Clinical Photography And The Patient’s Right To Confidentiality (Privacy) in Nigeria | Emaediong Akpan

The Age of Clinical Photography And The Patient’s Right To Confidentiality (Privacy) in Nigeria | Emaediong Akpan

1.0 Introduction
The issues surrounding clinical photography are pertinent especially for the plastic, reconstructive and aesthetic specialty.  With technology advances and increased connectivity the exchange of digital images and its creations has increased remarkably. 

This is likely to threaten the patient’s right to privacy and confidentiality. Clinical photographs are valuable to the medical team but most importantly to the patient who has the most to lose if such photos are released to the public. 
The patient is a person under healthcare. He might be waiting to receive such care or might have already received it.  Globally, Medical practitioners are governed by The Hippocratic Oath, ethical guidelines which are historically taken by physicians summarily pledges to serve humanity to the best of their ability and without discrimination of any sort and without breaching patients confidentiality.  The patient is naturally bestowed with the right to have his information, correspondence and medical history kept confidential. This is an offshoot of a medical practitioner’s duty to keep his patient’ confidence irrespective of whether it was provided directly by the patient or learned through an examination/ test or through treatment or learned indirectly through medical examination. 
2.0 The Medical Code of Ethics in Nigeria 2018
The Medical Code of Ethics in Nigeria (hereinafter the code) is a formal statement on what should be the correct attitude expected of physicians.  The ethics of professional secrecy is germane to the medical professions and is taken seriously. Snippets of information that comes to the knowledge of the medical practitioner in the course of the patient-doctor relationship constitutes a secret and privileged information which must in way be divulged by him to a third party.
The disclosure of information on the patient can only be made following an informed consent of the patient, in writing. The ethic covers such information inclusive of induced abortion, venereal diseases, attempted suicide, and drug dependence. However the practitioner is not under an obligation to keep such information confidential where it is necessary to breach that confidentiality to protect the patient or the community from danger and this must be made clear to the patient at the time of confidential disclosure.
3.0 Principles of Patient- Doctor Confidentiality
The foremost guiding principle in patient confidentiality in clinical photography is personal identifiable information (PII). This is defined as any physical feature that might easily distinguish a patient, such as facial features, birthmarks and tattoos. It is very important that the PII of a patient is appropriately masked whenever such pictures will be used for publications  such as advertisements. 
The medical practitioner in disclosing a patient’s information must seek the patient’s consent to disclose any information whenever possible whether or not by his assessment the patient can be identified from the disclosure.  The practitioner is under an obligation to ‘anonymise’(isic) such information where anonymity will serve the purpose. The doctor has a duty to ensure that such disclosure is kept to the minimum necessary. From the foregoing, it is clear that the Code leaves vague certain key terms needed to clearly restrict practitioners in their use of patient’s informed consent as a tool for self-advertisement. While this work is not concerned with the intricacies of the offence of self-advertisement by medical practitioners,  it is necessary to assert that the writer considers the use of clinical photography for any purposes other than educational purposes constitutes self-advertisement. The Code seems yet to fully awaken to the growing spate of clinical photography and its use for publication on social media platforms as such it’s rules seems a bit abstract in application to present day challenges.
The duty of a doctor to preserve his patient’s confidence subsists even after the patient has died.   It is pertinent to note that the doctor’s duty of confidentiality is owed to his patient and as such disclosures in response to accusations by his patient can be responded to by a full disclosure.  Hence, where a doctor is being accused by third parties who did not enjoy a patient-doctor relationship with him, he is not at liberty to disclose any information and a disclosure will amount to a breach of his duty to his patient.
4.0 Conclusion
With the internet age, otherwise sacred and hallowed professions have been tainted with the impulse to be heard and seen through advertisements. Despite knowing that these advertisements are viewed by the public with a large sector being consumers who are not well-informed to make medical choices of such magnitude, these practices continue to spring up like new iphones. To make matters worse, the subjects of these advertisements are patients who supposedly gave their consent for procedures performed on them to be used as ‘catch points’ to harvest a new crop of unsuspecting vulnerable consumers. 
It is no longer adequate to rely on an uninformed vulnerable consumer’s consent as being superior to the duty of the medical practitioner as contained in the Code of Medical Ethics. Considering that the medical practitioner will always be better informed when pitched against the patient (consumer), it follows that all times he should be bound by the ethics of the profession as opposed to the patient’s choices in the issues of confidentiality. More so, where the disclosure is for the purposes of advertisement as opposed to educational purposes or as required by law the medical code of ethics should be the yardstick. This work examined the medical ethical code on patients’ confidentiality. This paper further argued that beyond the patient’s consent the medical practitioner is bound first by his ethical codes in the disclosure of a patient’s information. It is recommended that government institutions take decisive steps to protect the privacy and confidentiality of patients. There is a need to regulate the documentation of clinical photography which is a synonymous with plastic, reconstructive and aesthetic procedures.
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Variation of Stringent Bail Conditions not Enough, Why Sowore Deserves no Bail – Richarmond O. Natha-Alade

Variation of Stringent Bail Conditions not Enough, Why Sowore Deserves no Bail – Richarmond O. Natha-Alade

Following recent outcries and sentiments whipped by Omoyele Sowore, his supporters and the key players in his defence, occasioned by his arrest and detention ordeal, everyone suddenly turned to blame the President of the Federal Republic of Nigeria as a tyrant upon whose authority Omoyele Sowore had been detained and undergoing trial for treasonable felony and terrorism, among other charges. Unfortunately, most Nigerians and persons in this shoe do not know as of fact that President Buhari may not be aware that anybody called Omoyele Sowore is being held, detained and undergoing trial for such offence. Isn’t that interesting? It would be justified in due course.
For my readers to appreciate the purport and essence of this piece vis-à-vis the legal framework of the State Security Service (SSS) and its functions and extents, I hereby give its brief background as follows:
The State Security Service (SSS), self-styled as the Department of State Services (DSS), is the primary domestic intelligence agency of Nigeria. It is primarily responsible for intelligence gathering within the country and for the protection of senior government officials, particularly the President and State Governors. It is one of three successor organisations to the defunct National Security Organization  (NSO), dissolved in 1986. The SSS is under the control of the National Security Adviser.
Ex-President, Ibrahim Babangida in June 1986 issued Decree Number 19, dissolving the National Security Organization (NSO) and re-structuring Nigeria’s security services into three separate entities under the Office of the Coordinator of National Security. The State Security Service (SSS) was made responsible for domestic intelligence. The National Intelligence Agency. (NIA) handled external intelligence and counter-intelligence. The Defence Intelligence Agency (DIA) was responsible for military-related intelligence outside and inside Nigeria.
The mission of the SSS is to protect and defend the Federal Republic of Nigeria against domestic threats, to uphold and enforce the criminal laws of Nigeria, and to provide leadership and criminal justice services to both federal and state law-enforcement organs. The SSS is also charged with the protection of the President, Vice President,Senate President, Speaker of House of Representatives, State Governors and Deputy Governors, spouses, certain candidates for the offices of President and Vice President, and visiting foreign heads of state and government. The SSS has constantly adapted to various roles necessitated by evolving security threats in Nigeria including counter-terrorism and counter-insurgent.
The Enabling Law under which DSS Operates
Sequel to the disbandment of National Security Organization by Ex-president Babangida regime in 1986 and the issuance of Decree 19, same lasted and became part of the consolidated Laws of the Federation of Nigeria (LFN) now known as the National Security Agencies Act, CAP 278 of the Laws of the Federation of Nigeria, 1990. Section 2  (3) and (4) of the enabling law specifies the powers and functions to the State Security Service as earlier mentioned and same includes liaising with relevant agencies in the arrest and prosecution of any person found wanting of the provisions of the Act as it relates to security of Nigeria and its elected chief executives and/or Officials. The roles and functions of SSS has been given Judicial Imprimatur in the case of DIRECTOR OF SSS & ORS V AGBAKOBA (1999) LPERLR- 954(SC), at page 22 Paragraphs A-E Me Lord Uwais J.S.C. in a unanimous decision held as follows:
“The duties of the SSS are spelt out under Section 2 subsections (3) and (4) of the National Security Agencies Act, Cap. 278 of the Laws of the Federation of Nigeria, 1990. It provides: “2(3) The State Security Service shall be charged with responsibility for- (a) the prevention and detention within Nigeria of any crime against the internal security of Nigeria; (b) the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and (c) such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, Commander-in-Chief of the Armed Forces, as the case may be, may deem necessary. (4) The foregoing provisions of this section shall have effect notwithstanding the provisions of any other law to the contrary, or any matter therein mentioned.”
In the light of the above, could it be said that the Department of State Security acted ultra vires its power as donated to it by the enabling laws in the arrest and prosecution of Omoyele Sowore accordingly? The answer is not far-fetched, as same is obviously found within the line of law and reasoning.
On the propriety of badging every crime on the President Chest and seeking his intervention in every judicial process that seems of National concerns:
It is not only sad but disgusting, the shared ignorance borne out of irrational temperance and cerebral laxity of many members of the Nigerian populace attributing and heaping all sought of abnormalities, disobedience of court order, mal-administration, societal decadence and general failure of any public institution on the office of the President of the Federation.
The responsibilities attached to the office of the president of a country is so enormous that if he faces foreign policy alone by attending to correspondences, meetings and engagements from the 192 countries of the world, he could never finish, not to talk of being fully involved in activities of 45 ministries, about 380 Boards (above number of days in a year), 210 agencies, Tasking Security reports from all security agencies from all round the Federation, State Governors and Government activities e.t.c; all these outside the duties imposed by the constitution and other enabling laws of Nigeria couple with activities and briefings from other arms of government, which are also at all time critical.
Criticism is cheap, it takes whoever wears a shoe to know where it pinches. It is not only laughable but ridiculous that many men who cannot rule one wife and three children successfully and/or, who cannot attempt to rule two or more wives of same tribe under same roof and who cannot successfully lead a group of 20 men without serious problems are always in the fore front of those who easily criticize and condemn a president who leads above 200 million men and women of different tribes and culture in an African country with extensive land mass and so much complexities as Nigeria.
The above picture is painted to lets appreciate the enormous tasks and importance attached to the office of a president of Nigeria; in the circumstance, could anyone not imagine and satisfy his soul that someone as busy as Nigeria president may not be aware Sowore is being detained or prosecuted? If the SSS are performing their lawful duties and President Buhari never made a comment of awareness, Why fighting the wind?
Sowore is like every normal Nigerian, he has been accused of terrorism, treasonable felony and conduct likely to breach public peace among other offences. I earlier suggested in my earlier article that sowore ought to seek political solution before it is too late.  see: REVOLUTION: Sowore was not properly advised, He may be sentenced to death
https://lordricharmond.blogspot.com/2019/08/revolution-sowore-was-not-properly.html 
Unfortunately, None of Sowore and/or his supporters would help matter. Sowore in his penultimate day in court was seen chanting Revolution in open court, behaving unruly and addressing press men in an inappropriate manner, despite the pendency of his case in court. That in itself is enough to deny him bail; because he has high tendencies to continue in the offence for which he is been charged when released on bail; granting him bail in the circumstance is against the guiding principles of law on bail. The fact of his case is simple, clear and distinguishable from the constitutionally guaranteed right to peaceful and lawful protest. I refer to my last article where I begged to differ from the position of revered learned Silk Femi Falana, SAN. Read  up: #RevolutionNow: Femi Falana, SAN Slipped! He Compared Two Parallel Dead Ends 
 https://lordricharmond.blogspot.com/2019/08/revolutionnow-femi-falana-san-goofed-he.html
Anyone who expects President Buhari to be in over 5, 000 police stations across Nigeria, 500 army and naval bases across the country and about over a thousand EFCC, ICPC, DSS, Civil Defence and other security and enforcement agencies offices/stations spread across the country so that he could intervene in respect of all crimes of anyone arrested and accused of commiting an offense must be subject to mental examination.
Sowore is only one person of the over Two Hundred Million Nigerians who is subject to laws and regulations. The SSS has obligations to perform their duties under the law. Our president is far busy than to being dragged to intervene in the affairs of all criminally inclined persons who are arrested and charged accordingly. There are over a thousand things to be done by office of the President than silly intervention in crimes and prosecution of arrested persons which is just 1% fragment of issues of the entire national concerns.
The shocker is; President Buhari may not even know Omoyele Sowore exists. If there is disobedience of court order, why not ask the relevant agencies concerned and drag their respective heads or coordinating leadership to court for contempt and let them be decisively dealt with, instead of blaming all societal ills across Nigeria on President Buhari. Some would even argue, President Buhari is the reason Bobrisky is cross-dressed, President Buhari is the reason Nigerian police men who arrested Wadume were killed by corrupt army officers, President Buhari is the reason some pastors / Imams are duping and harassing their female members, President Buhari is the reason why lecturers are corrupt and exchanging sex for marks; as a matter of fact, President Buhari is the reason they cannot satisfy their wives in bed. What blame would Buhari not take for being Nigerian President? Many lazy Nigerian Youths with low intelligence quotient and almost no knowledge in anything, who rates BB Naija Show above leadership and matters of importance and national concerns that should ordinarily influence their lives and future would rather blame the president for their misery. Where is the hope for this generation?
The law prohibits President Buhari or any person whatsoever to intervene and influence criminal investigation and prosecution
The position of Law is clear that no one is allowed to obstruct the course of justice, influence same or allow same to be influenced. The law only allows anyone convicted of a crime to be pardoned by the President or Governor if the offence is that of Federal or State respectively; if such president or Governor so wishes under prerogative of mercy arrangement. But that comes only after conviction, not in the process of investigation and prosecution. In the United States and most part of the advanced world, it is an impeachable offence considered to be against the constitution and the oath of office for the president or anyone in authority to influence investigation, not to talk of prosecution.
For there to be a claim of obstruction of justice, a legal proceeding has to be underway. The legal proceeding can be an investigation, a trial, or an inquiry in the pursuit of justice. To obstruct justice, a person must knowingly and/or willfully interfere with the pursuit of justice. This interference could be in the form of a threat to a witness, judge, or other legal officials. Interference could also be in the form of physical harm, undue influence or even hindering in the discovery or apprehension of a suspect for a crime. A person who provides information that they know to be false in the course of an investigation or legal process may also be accused of obstruction of justice.
It is gross corruption and abuse of office which any offender can be arrested and charged under relevant laws to call and ask for the intervention or influence of the president or authorities in criminal process with the sole aim or intention of obstructing the course of justice. It is more damning when same issue is already placed before the court for adjudication.  
It is not enough to heap blames on the president of the nation for any misgivings occasioned by any institution of government, which is expansive and complex beyond any iota of imagination. Our laws and the system must be made strong enough to punish culprits without trading words targeted at blaming the president for all.
Interest of Nigeria as a Nation is Paramount than that of any individual
In all, the National interest remains paramount above individual interests. In recent past, many persons who constitutes National threat and who are ordinarily not entitled to bail were granted bail. I recommend that expert advice in deserving cases on security and intelligence issues be duly considered by our courts prior to making orders. Although, the grant or refusal bail is discretionary, yet, the law is trite that every discretionary power should not be arbitrarily used and/or based on the whims and caprices of the user, but must be exercised judicially and judiciously. The rights of parties before the court must at all time be duly considered. The legal principles for grant or refusal of bail should be at all time duly considered as expatiated by Me Lords of the Apex Court in the case of Dokubo-Asari v. FRN (2007) LPELR-958 SC ( Pp. 9-11, paras. B-E)
 “When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial Court, the law has set some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include, among others, the following: (i) the nature of the charge; (ii) the strength of the evidence which supports the charge; (iii) the gravity of the punishment in the event of conviction; (iv) the previous criminal record of the accused if any; (v) the probability that the accused may not surrender himself for trial; the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him; (vii) the likelihood of further charge being brought against the accused; (viii) the probability of guilt; (ix) detention for the protection of the accused; (x) the necessity to procure medical or social report pending final disposal of the case. See: Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Ani v. State (2002) 1 NWLR (Pt. 747) 217; Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (Pt. 708) 171; Eyu v. State (1988) 2 NWLR (Pt. 78) 602. The criteria are not exhaustive. Other factors not mentioned may be relevant to the determination of grant or refusal of bail to an accused. They provide the required guideline to a trial court in the exercise of its discretion on matters of bail pending trial. My learned brother, Uwaifo, JSC, has this to say on these factors: “In that regard it is proper to consider the nature of the offence, the nature of the evidence in support of it, and the severity of the punishment which conviction will entail. The learned trial Judge took this critical factor as to availability to stand trial into consideration … These are not matters that should be glossed over. Some of them may not be admissible as evidence in the main trial but they are certainly worthy to be taken into account in an application for bail pending trial.” See the case of Bamaiyi v. State (supra) at page 292. In his contribution in the above case at pg 294, Ogbuegbu, JSC, stated: “The court has in most cases, discretion to admit an accused person to bail pending trial, but in the exercise of the discretion, the nature of the charge, the evidence by which it is supported, the sentence which by law may be passed in the event of conviction, the probability that the appellant will appear to take his trial, are the most important ingredients for the guidance of the court and where these are weighty, an appellate court will not interfere. See: In the matter of Etienne Barronent v. Edmond Allian I. E. and B. I. (1852) Dears 51; 118 E. R. K.B. 337 and Re Robinson (1854) 23 L.J.Q.B 286.” Per MUHAMMAD ,J.S.C
In same case of Asari- Dokubo which is a reiteration of Bamaiyi case, the Supreme court has emphasized the rights of Nigeria as a Nation as above that of every individuals, hence Per MUHAMMAD ,J.S.C at P. 38, paras. B-E held viz;
“The pronouncement by the court below is that where National Security is threatened or there is the real likelihood of it being threatened, human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.”
By law, It should be Nigeria first before any Nigerian or group of Nigerians. Court or any of its officials do not carry gun to fight bandits, Lawyers do not enter Sambisa forests, bloody civilians do not suppress riots or insurgency of huge weaponry, the Journalists do not fight war. Where is Nnamdi Kanu today and what is he doing where he ran to? he jumped bail and persists in his crime while building and encouraging other criminals. What were the gimmicks of El-zazzaky with joint external forces; If not for the wisdom,  exercised by the Kaduna State Judge who gave El-zazakky bail condition and the compliance procedure wisdom exercised by the State? We should at least be sure that if  Abubakar Shekau of boko haram is arrested today, he would not be unleashed on us and/or sent back to us by being released on bail the moment he is caught. Experts’ advice and/or opinions on security / intelligence issues should not be treated with kid glove, but with great concerns and carefulness in giving qualified freedom to individuals whose conduct constitutes threat to national security.
May God endow our Honurable Judges and Justices with more wisdom to read between the lines and do just on matters that affect national interest and security. May we never know the price of peace.
Richarmond O. Natha-Alade is a legal Practitioner and Principal Partner at
Sun Natha-Alade & Partners (SNATHAP)
lordricharmond@gmail.com
www.snathap.com
How Mental Health Issues Are Important To Lawyers | Amenze Precious

How Mental Health Issues Are Important To Lawyers | Amenze Precious

Mental health issues in the legal profession are often ignored, stigmatized, and untreated. This not only leads to poorer quality of life for lawyers and their families, it is a contributing cause of many malpractice claims.
At least once a year there are people who will struggle with mental illnesses such as depression, severe anxiety, or stress disorders. This is even more common among lawyers. 
Not only are lawyers likely to suffer from mental illness than the public at large, but lawyers with higher paying and higher status jobs are more likely to self-report depression and poor health than lawyers with lower-status positions. The health consequences of poor mental health are wide-ranging and often serious. But the consequences to a lawyer’s legal practice and their colleagues’ practices can also be severe. Poor mental health has been linked to an inability to meet deadlines, respond to client communications, and complete important tasks. If unaddressed, lawyers and their colleagues can suddenly find themselves facing a large cluster of malpractice claims stemming from breakdowns in a lawyer’s mental health.
Thankfully, there are things that every lawyer can do to promote mental health within themselves and their coworkers – 
1) promote mental health resources for lawyers; Building a healthy workplace is a team effort. Lawyers, staff, and management can all choose to be open about the importance of mental health and encourage one another to lead healthy lifestyles. Senior lawyers and management can set an example by taking advantage of lifestyle or health benefits, such as going to the gym, 
2) Encouraging positive communication on mental health ; Lawyers and support staff can be trained to look for signs of temporary or chronic physical or mental health problems. An assistant may be best situated to know if certain files are being left to linger or a lawyer is not responding to calls or important correspondence. But these warning signs may be left unaddressed if the staff member feels that bringing these concerns to others will make the problem worse or be seen as an attack on the struggling lawyer. Building a positive culture that responds to stress and mental health problems without judgment can prevent dangerous silence as claims pile up unbeknownst to colleagues.
3) implement a notification policy; In both smaller and larger firms, management can ensure that it is notified whenever a claim is made against an associate or a potential claim is discovered. Inquiries can be made at that time as to whether this claim is symptomatic of larger problems, such as excessive workload or mental health issues, and steps can then be taken to assist the lawyer.
Effective treatment for mental illness, often requires a multifaceted approach that includes medication, cognitive therapy, peer support, dietary changes and sleep. 
adequate sleep as an important key to wellness, and one that is often overlooked.
Well lawyers are prototypes in suffering from mental health problems .
The mental health crisis that has struck hard at the legal profession will not be fixed until the issues of mental health are adequately addressed in the general population across the nation.
WAYS TO TACKLE THE LEGAL PROFESSION MENTAL HEALTH PROBLEMS.
Recent years have witnessed a growing concern internationally in wellbeing and mental health in the legal community. Far from being the legal profession’s ‘hidden secret’ .
There is much evidence that significant problems exist around wellbeing for many lawyers who appear to be ‘surviving but not thriving’. It is not, however, possible to generalise about the causes and consequences of lawyer distress. There is no one ‘wellbeing problem’ within the legal profession, 
The wellbeing concerns of the corporate lawyer, ‘high street’ and sole practitioner, barrister, law centre and legal aid solicitor, for example, are by no means the same; nor, importantly, are the resources and structures that are increasingly being put in place to support lawyer wellbeing, with marked differences between large and small organisations. Factors seen as contributing to poor lawyer wellbeing differ across areas of practice, law firms and at the bar, and do not easily translate to the experiences of law students or legal academics. The pressures associated with client demands, concerns around vicarious trauma and, in particular, the impact of the organisation and form of billing of much legal work, the focus of especial concern, are more acute in some areas of law than others. Yet, digging deeper, core themes do tend to recur; the prevalence across the legal community of a pervasive stigma. 
around disclosure of mental health problems; concern about the highly competitive culture of law, poor work-life balance and, for many lawyers, long hours; the ‘personality attributes’ and characteristics of those who enter and teach law, involving ideas about a profession replete with ‘insecure overachievers’, widespread ‘imposter syndrome’ and tendencies towards perfectionism; concerns about a lack of line-manager training in dealing with mental health matters when they do arise; for some lawyers, the impact of corrosive and uncivil workplace cultures, bullying, discrimination and harassment. 
This raises troubling questions about how the ‘good lawyer’ is often positioned as someone who will, or should, respond to seemingly ever greater work demands, to time-pressures, billing targets, the impact of new technologies and so on, by better attending to their own personal wellbeing — by becoming resilient. The problem is that this can easily mask the long-term consequences of working at a level of ‘peak performance’ that these cultures bring about in people (as these recent accounts of poor wellbeing testify); how far from seeing resilience as something called upon in exceptional circumstances, it can be seen as a ‘baseline’ requirement in ways that reinforce what are, at the end of the day, still viewed as highly desirable traits in the profession (the ability to work long hours, say, to work without apparent caring commitments, or to be ‘careless’, to see oneself, and be seen by others, as a competitive individual). 
What is mental health stigma? Mental health stigma can be divided into two distinct types: social stigma is characterized by prejudicial attitudes and discriminating behaviour directed towards individuals with mental health problems as a result of the psychiatric label they have been given. In contrast, perceived stigma or self-stigma is the internalizing by the mental health sufferer of their perceptions of discrimination .
perceived stigma can significantly affect feelings of shame and lead to poorer treatment outcomes.
(1) the most commonly held belief was that people with mental health problems were dangerous – especially those with schizophrenia, alcoholism and drug dependence, 
(2) respondents believed that people with mental health problems were generally hard to talk to. 
(3) people believed that some mental health problems such as eating disorders and substance abuse were self inflicted.
People tended to hold these negative beliefs regardless of their age, regardless of what knowledge they had of mental health problems, and regardless of whether they knew someone who had a mental health problem. More recent studies of attitudes to individuals with a diagnosis of schizophrenia or major depression convey similar findings. In both cases, a significant proportion of members of the public considered that people with mental health problems such as depression or schizophrenia were unpredictable, dangerous and they would be less likely to employ someone with a mental health problem.
Most people who live with mental illness have, at some point, been blamed for their condition. They’ve been called names. Their symptoms have been referred to as “a phase” or something they can control “if they only tried.” They have been illegally discriminated against, with no justice. This is the unwieldy power that stigma holds.
Stigma causes people to feel ashamed for something that is out of their control. Worst of all, stigma prevents people from seeking the help they need. For a group of people who already carry such a heavy burden, stigma is an unacceptable addition to their pain. And while stigma has reduced in recent years, the pace of progress has not been quick enough.
– Talk Openly About Mental Health
– Educate Yourself And Others
– Be Conscious Of Language
– Encourage Equality Between Physical And Mental Illness
– Show Compassion For Those With Mental Illness
– Choose Empowerment Over Shame
Don’t Harbor Self-Stigma
By: Amenze Precious 
New Amendments To The Regulations On The Status & Transfer of Players By FIFA (Pt.1)

New Amendments To The Regulations On The Status & Transfer of Players By FIFA (Pt.1)

Introduction

One of the most important regulations made by FIFA
which ensures contractual stability in football and a healthy relationship
amongst players, clubs and member associations is the ‘Regulations on the
Status and Transfer of Players’ (RSTP).

This Regulation is often amended yearly in order to
cover new developments or issues that occurred in the previous year. This is
done through the publication of a new version of the RSTP, and through
Circulars that are usually published on the official website of FIFA.

This article (a series) highlights the various
amendments which have been made to the Regulations on the Status and Transfer
of Players in 2019.

1. Amendment
to the definition of “third-party”.

Under previous versions of the Regulations of the
Status & Transfer of Players prior to 2019, “third party” was defined by
FIFA as:

“a party other than
the two clubs transferring a player from one to the other, or any previous
club, with which the player has been registered.”

Based on that definition, ONLY a buying club,
a selling club, or any former club of a player were NOT considered as third
parties. This meant that any other person or organization other than those
three were considered third parties.

However, by virtue of
the amendment as contained in definition No 14 of the 2019 version of the RSTP, players are now included among
those NOT to be considered as third parties
 in football. A
third party is now presently defined as:

“ a party other than the
player being transferred, the two clubs transferring the player from one to the
other, or any previous club, with which the player has been registered.”

Based
on the above, the only persons who are NOT third parties are:

1.      A player
being transferred;

2.      The
selling club;

3.      The buying
club; and

4.      Any former
club of the player being transferred.

Do
you know that by virtue of the above amendment, a player can now benefit from
his/her own transfer fee? Article 18ter of the RSTP provides:

“No club or player shall enter
into an agreement with a 
third-party whereby a third-party is being entitled to
participate, either in full or in part, in compensation payable in relation to
the future transfer of a player from one club to another, or is being assigned
any rights in relation to a future transfer or transfer compensation.”

From
the above definition in Article 18ter, it is apparent that a “third party” is
prohibited by FIFA from benefiting from a transfer compensation. However, since
the definition of a “third party” now excludes a player being
transferred, it means that a player can now be LEGALLY entitled to a part of or
the whole of his future transfer fee (if agreed with his club) without being in
violation of Article 18ter of the RSTP.

According to FIFA, “…such amounts promised to the
players should be seen as part of the remuneration due to the players under
their employment relationships with their clubs and such agreements should not
be considered a violation of FIFA’s rules on third-party ownership of players’
economic rights
.” This is also in line with the jurisprudence of
the FIFA Disciplinary Committee in the
June 2018 decisions involving Panathinaikos FC, Werder Bremen FC &
others. 

Players
and their representatives can leverage on this henceforth, by requesting a
percentage of a future transfer fee for the player, especially where the buying
club is unable to afford decent wages, sign-on fees, loyalty bonuses.
performance related-bonuses, etc.

This
amendment came into force on June 1, 2019.

2. Amendment to the
“Registration” of Players.

Under
the previous and the present versions of the RSTP, it was/is not stipulated the
manner in which amateur and professional players should be registered; whether
manually or electronically.

Article
5 (1) of the RSTP 2019 provides:

“A player must be registered at
an association to play for a club as either a professional or an amateur in
accordance with the provisions of article 2. Only registered players are eligible
to participate in organised football …”

However, by virtue of FIFA Circular No 1679 dated 1st July
2019
, national associations would henceforth be required by
FIFA to have an Electronic Player Registration
System
 for both male and female players, whether
professionals or amateurs. Under this system, it is mandatory for a player to
be given a FIFA ID when the player is first registered by his/her national
association.

The
amendments (boldened) in the Circular provides:

Each association must have an electronic
player registration system, which must assign each player a FIFA ID when the
player is first registered
. A player must be registered at an
association to play for a club as either a professional or an amateur in
accordance with the provisions of article 2. Only 
electronically registered players are
eligible to participate in organised football …”

It can be seen from
the above that when FIFA begins to implement compliance, players who are not
electronically registered and without a FIFA ID will not be able to participate
in organized football. Note that this amendment came into force on 1st October 2019, but mandatory implementation will
commence as from July 1, 2020.

(…to
be continued)

Written by ‘Tosin Akinyemi

THE REVOCATION OF  DISTRIBUTION LICENSES: MATTER ARISING (ISSUE 1)

THE REVOCATION OF DISTRIBUTION LICENSES: MATTER ARISING (ISSUE 1)

Nigeria’s Electricity Regulator, the National Electricity Regulatory Commission (‘the Regulator’) has indicated an intention to revoke the licenses of the following Distribution Companies (Discos);

a. Abuja Electricity Distribution Company Plc (‘AEDC’)
b. Benin Electricity Distribution Company Plc (‘BEDC’)
c. Enugu Electricity Distribution Company Plc (‘EEDC’)
d. Ikeja Electric Plc (‘IE’)
e. Kaduna Electricity Distribution Company Plc (‘KAEDCO’)
f. Kano Electricity Regulatory Distribution Company (‘KEDCO’)
g. Port Harcourt Electricity Distribution Company Plc (‘PHEDC’)
h. Yola Electricity Distribution Company Plc (‘YEDC’)

The Notice which was issued on October 8, 2019 gave the affected Distribution companies (‘Discos’) a period of 60 (sixty) days to ‘SHOW CAUSE’ why their respective distribution licenses should not be cancelled. The Regulator has predicated its reasons for this action on the affected Discos’ manifest and flagrant breaches of the EPSRA, terms and conditions of their respective distribution licenses and the Order.

 The intention of the Notice regardless, this has generated industry debate, concerns, insinuations, permutations and expression of investment concerns, most of which centre around the powers of the Regulator to revoke the licenses of the Discos, the yardsticks for the determination of the Discos selected for the sanctions, whether the yardstick for the revocation took into consideration the peculiar challenges of the Discos’ operational areas, the determination of the collateral effect of the revocation on ongoing projects of the Discos (incidentally coordinated by the NERC), and the post-revocation transfer of the services of the Discos, whether to the government (loosely known as nationalization) or  to other companies.

This Issue will therefore focus on the powers of the Regulator to issue the October 8, 2019 Notice to Show Cause, the legality or otherwise of it and in Issue II, carry out a surgical analysis of the allegations against the Discos, the consequence(s) of the Regulator’s action on investment and the option(s) open to the Regulator.

A cursory look at the Notice issued by NERC, especially under the “Particulars of Non-Compliance”, establishes the two major grounds upon which the proposed revocation is predicated;

a. The failure of the Discos to comply with expected remittance threshold to Nigerian Bulk Electricity Trading Company (NBET) for the billing cycle. Essentially, the failure of the affected Discos to meet their debt obligation to the Generation companies (GENCOs); thereby creating a cyclic debt within the electricity distribution value chain; and
b. The alleged failure “to provide the minimum financial securitization of their payment obligation to NBET i.e., “an adequate and unencumbered letter of credit covering three months based on their minimum payment obligation to NBET and MO” that would have addressed the compliance failure.

The matter of revocation of a license is an issue of law, for which the Electricity Regulator is expected to be staunchly guided by its enabling Statute; the Electricity Power Sector Reform Act 2005 and subsidiary legislations made thereto. Section 69 of the EPSRA 2005 provides that for a license to be revoked under the following condition-precedents:

a. Issue a notice to the licensee of its intention to revoke; 

b. Offer the licensee 60 days from the date of the licensee’s receipt of the notice to show cause why the license should not be revoked; 

c. Communicate its decision to the licensee after the expiration of the notice period. From all indications and contrary to the news of revocation making the rounds, the NERC is still in the first stage of the process.

Whereupon the expiration of the 60-days’ notice and depending on the representation made by the affected Utilities, the following options will be open to the Regulator:

a. Maintain the status quo by not revoking the license of the Discos;

b. Amending the conditions for the continued use of the Discos;

c. Revocation of the license and assignment of same to another entity at a particular period.

It is with these in mind that the provision of Section 74 (3) of the EPSRA characterizes the Notice issued by the NERC, as an Order Nisi which will be made Absolute if no reasonable cause, in the sole opinion of the NERC, is made. The section provides that Commission shall notify the licensee in writing of its intention to cancel the licence concerned and the reasons for doing so, and shall allow the licensee an opportunity to demonstrate, within 60 days following the delivery of such a notification, that circumstances have changed such that cancellation may no longer be warranted. The burden to therefore justify why the license should not be cancelled or revoked is with the Discos. In other words, the affected Utilities must demonstrate a change in circumstance which may necessitate a review of its (NERC) position.

Furthermore, the provisions of Section 69(2) of the EPSRA 2005 empowers the Regulator to regulate the shareholding structure of a company to whom license has been issued. Consequently, the Regulator issued the Order NERC/LLE/ACTT127 of 2013 mandating all licensees to obtain approvals from the NERC before assigning the license or undertaking to a third party, or before changing the shareholding structure of the licensed entity. This provision gives the Regulator the allowance to impose on the Discos a mandatory change of the board of the Discos as an additional ground for the continuous use of the license by the Discos.

It will be recalled that sometimes in 2009, the Governor of the Central Bank of Nigeria leveraged on his powers under the Banks and other Financial Institutions Act (‘BOFIA’) to force the sack of the members of the board of five commercial banks. Under similar circumstance of the revocation of the licenses of the Discos, it would appear that pursuant to the wide powers of the Regulator per section 73(5) of the EPSRA, it may be able to compel the change of the board of directors of the licensed entities or even compel the compulsory acquisition of the shares of the Discos. This is very wide discretionary power of the Regulator.

Wide discretionary powers are a strong tool in the hands of regulators and the Court would not interfere especially where the regulatory body is able to demonstrate that  it acted in good faith, was not influenced by irrelevant considerations a duty to act reasonably; did not act ultra vires, that is, outside the precinct of its statutory powers.
The above notwithstanding, the question as to the rationale underpinning the various power intervention funds from the Central Bank of Nigeria, the more recent bilateral contractual relationships created between the various Discos and the respective Meter Asset Providers (MAPs) and supervised by the Regulator all appear to suggest that the Regulator’s most recent action may be viewed as an antithesis to these various interventions.

Issue Two of this article will consider in more details the various alleged infractions of the Utilities and the consequence(s) of a revocation of the licenses (assuming the affected Utilities are not able to provide sufficient reason why the license should not be revoked). Nationalization appear to be a possible consequence. Whether the government intends to tow this part; whether the law allows it and if so, whether it has/will have any effect in investor confidence, are all matters that will be exhaustively addressed in the concluding part of this paper.

By: 
Tolu Aderemi, Partner Energy & Infrastructure, Perchstone & Graeys LP

Temidayo Adewoye, Associate, Energy & Infrastructure Team.
Photos from the Art of Legal Advocacy and Business of Law Training for Lawyers

Photos from the Art of Legal Advocacy and Business of Law Training for Lawyers

The 3rd Career Training for Lawyers organised by Lawlexis held on the 26th and 27th of September, 2019, with the theme “The Art of Legal Advocacy and Business of Law”. Participants were treated to a rigorous 2 day training sessions with some of the legal industries experts. Modules at the training included Litigation, Mediation, Arbitration, Forensic Document Examination and the Business of Law. 
See photos from the event below –