How Courts Disrespect Litigants and Lawyers

How Courts Disrespect Litigants and Lawyers

I left my house 5.30am this morning and arrived High Court premises at Igbosere at about 7.30am. It is is my regular practice to arrive court at least an hour before 9am. I have asked my client to arrive court before 8.30am which he, like me, had to wade through this terrible Lagos traffic to make it to court at the appointed time.

Registrar finally arrives after 9am and announces *”the court is not sitting, please listen for your matters for date”.* 
To leave home at 5.30am I had to wake up 4am. Between 5.30 and 7.30/7.50am I am in Lagos traffic burning fuel with stress building up as to why I must be made to go through this stress. The same goes for the litigant who must leave early and wade through traffic to make it to court.
Had the court considered the challenge and wasted manhours and resources it takes to be on Lagos roads, it would have done the simple task of sending messages to parties if it will not sit for any reason. 
While counsel are required to put their functional email address and phone number, on each processes to be file, this requirement is for a reason but it appears that the court that made it a requirement is not keen at making it an important tool for effective dispensation of justice.
Last week I had a matter at Federal High Court Lagos Division and we had to wait for Registrar till after 9 for a court that normally sits 9 on the dot. On arrival the Registrar announced that the court will not be sitting. On enquiry as to why no message was sent like the last time the Registrar responded that the last messages sent were sent from his pocket and that when they made a proposal to the CR for funds for such messages it was turned down, hence he can’t continue funding it from his pocket.
Just last Thursday a had a matter for trial before a judge in TBS Annex. Arriving court, when it was 9am Registrar started giving dates that the court is not sitting. When counsel present demanded for explanation as to why message was not and the Registrar responded that counsel and litigants should always call a day before the court day to find out if court will be sitting or not.
Can the Bar take this up with the Bench and insist that courtesy be accorded lawyers and litigants in this regards so the court can be taken seriously.
This practice is not rocket science, at least National Industrial Court carries it out effortlessly, why not the State High Courts and Federal High Courts?
 *#JUSTMINDINGMYBUSINESS* 
– copied 
Case Review: SEC V. Big Treat Plc & Ors (2019) LPELR-46520 (CA) | Ayodeji Ayolola

Case Review: SEC V. Big Treat Plc & Ors (2019) LPELR-46520 (CA) | Ayodeji Ayolola


CASE REVIEW OF SEC V. BIG TREAT
PLC & ORS (2019) LPELR-46520 (CA) ON THE POWER OF THE SECURITIES AND EXCHANGE COMMISSION TO INTERVENE
IN THE MANAGEMENT AND CONTROL OF FAILING CAPITAL MARKET OPERATORS 



The Securities and
Exchange Commission (SEC) is statutorily mandated as the apex regulator of the
Nigerian capital market to ensure the protection of investors, and to maintain
a fair, efficient and transparent market. One of the ways in which the
commission carries out this function is intervening in the management and
control of public companies which are ‘failing’, ‘failed’ or ‘in cirsis’.


A recent
judicial precedent that affirms the powers of the commission in this respect is
the case of
SEC v. BIG TREAT PLC & ORS (2019) LPELR-46520 (CA). On 31st January, 2019, the Court of
Appeal, in overruling the decision of the trial court, held that the Securities
and Exchange Commission, being the ‘beacon light of the powers of the Appellant
under the Investment and Securities Act’ had the power to intervene the
management and control of Big Treat Plc, a public listed company.

Brief Facts:

Upon assessing
the 2008 audited accounts of Big Treat Plc (1st respondent), the Securities and
Exchange Commission (appellant) discovered that the 1st respondent was drifting
into deplorable financial state, and therefore decided to intervene in the
affairs of the 1st respondent to ascertain its true financial position and prevent
further depletion of the company’s assets, thereby protecting the interest of the
investors.

Consequently,
the appellant instituted an action at the Federal High Court in the course of
which it applied ex-parte for a preservatory order of injunction to restrain
the 2nd – 6th respondents from obstructing the appellant in the appointment of
an interim management to take charge of the day-to-day administration of the
1st respondent, with a view to preserving its assets and the interests of its
stakeholders. The trial court however refused to grant the application on the
ground that the 1st respondent was not a capital market operator and could
therefore not be under the control and management of the appellant in times of
financial distress. The appellant being dissatisfied with the order of the
trial court appealed to the Court of Appeal.

Court of
Appeal’s Decision:

Allowing the
appeal, the Court of Appeal held in favour of the appellant that the 1st
Respondent was a capital market operator having registered itself with the
appellant as an operator in the Nigerian capital market. The learned justices
maintained this position by relying heavily on section 315 of the Investment
and Securities Act (ISA) which defines a capital market operator as any person,
individual or corporate, duly registered by the Securities and Exchange
Commission to perform specific functions in the capital market. The court also held
in favour of the appellant that it (the appellant) had the statutory power to
intervene in the management and control of the 1st Respondent, if in
the appellant’s opinion; the company had failed, was failing or was in crisis
by doing whatsoever it considered necessary to protect the interest of the
investors. The court reached this decision by relying on Section 13(v) of the
Investment and Securities Act which states that the Commission shall
“…intervene in the management and control of capital market operators which it
considers has failed, is failing or in crisis including entering into the
premises and doing whatsoever the Commission deems necessary for the protection
of investors”.

The Court of
Appeal held thus:

“That the 1st Respondent, an issuer of securities,
having been duly registered with the Appellants and was at all material times
performing the specific function of issuing securities in the capital market
was subject to the intervention of the statutory powers of the Appellant as the
pinnacle regulatory authority for the Nigerian capital market whose sole
purpose is to ensure the protection of investors and to maintain fair,
efficient and transparent capital market as well as reduction of systemic risk
as stated in the preamble of the ISA- the beacon light to the powers of the
Appellant under the ISA.”

Comments:

The court’s
decision in this case reveals the extent of interpretation of the provisions of
the Investment and Securities Act on the definition of capital market operators
and the responsibilities of the Securities and Exchange Commission in relation
to the control and management of failing capital market operators.

This recent
judgment of the Court of Appeal therefore serves as a warning signal to many
public companies in the capital market. Every capital market operator owes its
investors a duty to thrive trade wisely in the capital market, and to continue
to operate as a going concern by all means legally possible. Accordingly, as
required by section 61 of the Investment and Securities Act, capital market
operators need to take more practical steps to establish a system of internal
controls over their financial reporting and security of their assets to ensure
the integrity of their companies’ financial controls and reporting by means of
policies, procedures and practices to ensure safety of assets, accuracy of
financial records and reports, achievement of corporate objectives and compliance
with laws and regulations.

The judgment
also serves as a great beacon light of hope to millions of investors in
Nigeria. Investors can feel safer to invest in the capital market, knowing full
well that there is a watchdog commission which constantly monitors market
activities to forestall manipulative, illegal or unfavourable practices.

Ayodeji Ayolola is an Adjunct Lecturer of Corporate
Law Practice at the Nigerian Law School, Lagos campus; and an Associate Counsel
at Wole Olanipekun & Co., Lagos, Nigeria. Email:ayolola@lawschoollagos.org,
ayodeji.a@woleolanipekun.com

Case Review: Raji v. Truck Sabinos (NIG) Ltd (2018) LPELR-45011 (CA) | Ayodeji Ayolola

Case Review: Raji v. Truck Sabinos (NIG) Ltd (2018) LPELR-45011 (CA) | Ayodeji Ayolola

Case Review of Raji v. Truck Sabinos (NIG) Ltd
(2018) LPELR-45011(ca) on the jurisdiction of the Federal High Court over the
removal of Company Secretaries; a shift in Corporate Law Practice? 

There are some
interesting court decisions which have the potential of shifting long-standing
jurisprudence of certain issues in corporate law practice in Nigeria. One of
such developments is the issue of the jurisdiction of the Federal High Court
over the removal of a company secretary. A legal practitioner of few years
post-call or even almost every Nigerian corporate lawyer would reason that
there is no legal argument worthy of contesting the jurisdiction of the Federal
High Court over the removal of a company secretary, as such jurisdiction is statutorily
vested on the Federal High Court under Section 251(e) of the 1999
Constitution
which states thus:

251. (1) Notwithstanding anything to the contained
in this Constitution and in addition to such other jurisdiction as may be
conferred upon it by an Act of the National Assembly, the Federal High Court
shall have and exercise jurisdiction to the exclusion of any other court in
civil causes and matters
:

(e) arising from the operation
of the Companies and Allied Matters Act or any other enactment replacing the
Act or regulating the operation of companies incorporated under the Companies
and Allied Matters Act;

A literal
interpretation of the foregoing provision is that the Federal High Court has
exclusive jurisdiction over every matter that arises from the operation of the
Companies and Allied Matters Act, and that should obviously include matters
bordering on the removal of company secretaries. However, the Court of Appeal in
RAJI v. TRUCK SABINOS (NIG) LTD (2018)
LPELR-45011(CA)
has adopted a more constructive interpretation which is to
the effect that the Federal High Court does not have jurisdiction over the
removal of the company secretary of a private company. The foregoing
interpretation is supported by the finding of the Court that the Companies and
Allied Matters Act (CAMA) does not have any provisions on the removal of the
company secretary of a private company; as section 296(2) of CAMA, which
only provides for the removal of the company secretary of a public company, states
thus:

“Where it is intended to remove the secretary of a public company, the board of directors shall…”

Let us briefly review the case of RAJI v. TRUCK SABINOS (NIG) LTD (2018)
LPELR-45011(CA)
in order to fully
understand the reasoning of the Court.

Brief Facts:

The Plaintiff
was the company secretary of the Defendant under a solicitor’s retainer
agreement between the Plaintiff and the Defendant. The agreed fee for the
retainer was N300,000.00 (Three Hundred
Thousand Naira) per annum payable on a quarterly installment of N75,000.00 (Seventy-five Thousand Naira
each). The said Agreement dated 1st July, 2003 was executed between the parties
to ratify the appointment of the Plaintiff as Company Secretary/Legal Adviser.


The Defendant had been paying the amount due under the agreement until the last
quarter of the year 2006 when it refused to pay as agreed by both parties in
the retainer agreement. The Plaintiff thereafter sent several demand letters
requesting for the payment of the sum due. When no response was received from
the Defendant, a final demand letter dated 21st November, 2006 was sent to the
Defendant in respect of the quarterly fee due. The Defendant, in a reply letter,
stated that the Plaintiff was not entitled to the demanded fees having not
performed its part of the agreement.

The Plaintiff
consequently brought an action before the Federal High Court claiming a
declaration that the unilateral termination of the retainership agreement
between the appellant and the respondent, as solicitor and client respectively,
in the running of the corporate affairs/engagements of the respondent was
wrongful and occasioned pecuniary damages of N300,000
annual retainer fee; N75,000 being the
4th quarter 2006 retainer fee; and N400,000
being general damages for the breach of the retainership agreement together
with N200,000 being cost of the action.


Decision of the Lower Court

The Federal High
Court held that it had no jurisdiction to entertain the action. The court also
refused to transfer the action to the High Court of Lagos State on the ground
that it (High Court of Lagos State) had also struck out the matter believing it
lacked the jurisdiction to entertain same. The Federal High Court therefore
struck out the matter for lack of jurisdiction. The counter claim which the
Court below held was in negligence was also struck out for lack of
jurisdiction. The appellant, dissatisfied with the decision of the Court below
appealed to the Court of Appeal.


Appellant’s Argument

The appellant
was dissatisfied with the decision of the Court below and filed a notice of
appeal with three grounds of appeal and subsequently filed a brief of argument
in which it contended that, considering the claim in the writ of summons and
the statement of claim which was on the duties of the appellant as the company
secretary, the Court below had the exclusive jurisdiction to entertain the
action and should not have struck it out.


Respondent’s Argument

The respondent, on
the other hand, contended that there is no provision in Section 22(2) of the
Federal High Court Act empowering it to transfer any matter which ordinarily
ought to have been commenced in the High Court of a State to that Court where
the case had already been struck out by the High Court for want of jurisdiction.
The respondent relied on the case of Adetayo v. Ademola (2010) 15 NWLR
(pt.1215) 169 at 195
. The respondent therefore urged that the appeal be
dismissed for lacking in merit.

Decision of the Court of Appeal

In reaching its decision,
the Court of Appeal relied on the fact that here was no indication in the processes
filed in the action indicating that the Respondent is a public company.
Following the fact that the respondent is a private company which is outside
the purview of 296(2) of CAMA, the court held that the matter could be decided
without recourse to CAMA or any enactment regulating operation of companies
under CAMA; which further removes the matter from under the purview of section
251(e) of the 1999 Constitution. The court held that actions founded on a
contractual relationship between a company and its employees as well as claims
for recovery of debts though concerning a company are not matters arising from
the operation of CAMA or any other enactment relating to CAMA or regulating the
operation of companies incorporated under CAMA which is outside the
jurisdiction of the Federal High Court as enshrined in Section 251(e) of the
1999 Constitution. The appellate court therefore affirmed the decision of the
lower court that the Federal High Court does not have the jurisdiction to
entertain the suit, having regard to the fact that it is a matter of simple
contract of employment and a claim for damages arising from alleged wrongful
termination of the contract. The appeal was therefore dismissed.


The Court of Appeal however noted in its decision that the matter was a pending
action in 2010 when Section 254C of the Third Alteration Act amending the 1999
Constitution (which provides for the exclusive jurisdiction of the National
Industrial Court) was made by the National Assembly in 2010. Consequently,
section 24(3) of the National Industrial Court Act would still apply to save
the action for its transfer to the National Industrial Court. The order
striking out the action was therefore varied to an order transferring the
action to the National Industrial Court Lagos for determination.


Comments:
The decision of the Court of Appeal in this matter is indeed a welcome
precedent. The courts have always transcended from giving only literal judicial
interpretation of the Constitution to embarking on more constructive
interpretations and holistic interpretations. Section 251(e) of the 1999
Constitution which is germane to the present case states that the Federal High
Court shall have exclusive jurisdiction in civil causes or matters arising from
the operation of CAMA and any other enactment replacing that Act or regulating
the operation of companies incorporated under the CAMA. It is therefore
axiomatic that the removal of the company secretary of a private company does
not fall under the jurisdiction of the Federal High Court as CAMA has no
provisions for such procedure. Accordingly, the matter should be treated as a
simple employment matter which under the exclusive original jurisdiction of the
National Industrial Court.

However, the
precedent created by the Court of Appeal in this matter will be difficult to
enforce due to the fact that section 22 of the Federal High Court Act does not
provide for the transfer of cases from the Federal High Court to the National
Industrial Court. The problem caused by the lacuna is that labour/employment
matters of this nature which are filed at the Federal High Court after the
coming into force of Section 254C of the (Third Alteration) Act, 2010 cannot be
transferred by the Federal High Court to the National Industrial Court which
now has the exclusive original jurisdiction over such matters. It is therefore
important that the National Assembly fills the lacuna by an amendment of
Section 22 of the Federal High Court Act to accommodate the transfer of cases
of this nature by the Federal High Court to the National Industrial Court which
has exclusive original jurisdiction to determine such cases. 

Ayodeji Ayolola is an Adjunct
Lecturer of Corporate Law Practice at the Nigerian Law School, Lagos campus;
and an Associate Counsel at Wole Olanipekun & Co., Lagos, Nigeria. Email:ayolola@lawschoollagos.org, ayodeji.a@woleolanipekun.com



Implementing The Child Rights Act In Nigeria: Alternative Strategies  | Fifehan Ogunde

Implementing The Child Rights Act In Nigeria: Alternative Strategies | Fifehan Ogunde

On 30th November 2019, it will be 30 years since the Convention on the Rights of the Child (CRC) was adopted by the United Nations General Assembly. Nigeria became a party to the CRC in 1991, just two years after. In order to incorporate the provisions of the CRC into Nigerian law, a Child Rights Bill was proposed in 1993 but was opposed by conservative religious groups and traditional rulers on grounds of incompatibility with religion and culture.

The Nigerian Child Rights Act (CRA) was eventually enacted in 2003 further to the recommendation by the UN Committee on the Rights of the Child in 1996 to enact legislation in this respect. Nearly 16 years after however, it is yet to be universally implemented in Nigeria. About 24 states have implemented the Child Rights Act with 12 states refusing to implement the Act. Of the 12 states, nine are in the North-East region of Nigeria which has the lowest literacy rates and highest number of child-brides . Many of these states oppose the CRA on grounds of the incompatibility of its provisions with Islamic law.

Numerous calls have been made for these states to incorporate the CRA into domestic law. Unfortunately, the peculiar constitutional arrangement of the Nigerian federation purportedly implies that unless these states incorporate the CRA into domestic law, it remains inapplicable in these states. Legislative competence under the constitution is divided between the federal and state governments. The federal legislature is competent to legislate on matters under the exclusive list and the concurrent list. The state legislature is competent to legislate on matters under the concurrent list. For matters not contained in either list, any federal legislation is only applicable in states to the extent of incorporation under state law. Child rights is a matter under the residual list and as a result, its provisions are only applicable in states to the extent that they are incorporated into the laws of the state. 
 It does not appear as though any of these states are not willing to change their stance with respect to the implementation of the CRA and in any case, as asserted by Ogunniran, trying to reconcile the CRA with Sharia Law is an exercise in futility. This does not however suggest that with respect to child rights protection, the federal government is helpless. Where there is a conflict between validly made federal and state law, federal legislation prevails and such state legislation is void to the extent of its inconsistency. Being federal legislation, the CRA should therefore prevail over any state law that is incompatible with its provisions. Surprisingly, this position is hardly advanced in mainstream arguments relating to child rights protection with emphasis being laid instead on encouraging Northern states to domesticate the provisions. This may be due to the fact that without a corresponding political will on the part of states, substantive implementation of the CRA will not be guaranteed even if its supremacy under the constitution is asserted to void incompatible provisions of Sharia Law for example.
Are there any alternatives? Perhaps focus need to shift towards reforming existing law for the purpose of implementing the provisions of the CRA. In the first instance, fundamental rights under the constitution are deemed applicable to ‘every person’ in Nigeria. According to Section 3 of the CRA, those provisions apply ‘as if they were stated in the Act’. It is in my view not far-fetched to argue that this implies that as far as it relates to children, the CRA should represent the authoritative interpretation of fundamental rights provisions under the constitution.
 Another option is to consider the CRA as being the universally applicable law in matters that relate to children under the exclusive legislative list. For instance, the National Assembly is empowered under the exclusive legislative list to make laws relating to the health, safety and welfare of employees. In this area, the CRA may apply in setting the conditions under which children may engage in labour even in states that have not implemented the CRA. The regulation of ‘prisons’ is also a matter under the exclusive list. The provisions of the CRA prohibiting life imprisonment for juveniles can on this basis be regarded as universally applicable on. Post-primary Education is also under the concurrent list, meaning that in cases where the provisions of the CRA conflicts with state law on post-primary education, federal law prevails. Emphasis may be laid on such constitutional guarantees in order to ensure that CRA provisions in this area is universally applicable. 
The United Nations Committee on the Rights of the Child has particularly suggested reforming existing law to ensure compatibility with the CRC. It is however noted that majority of the subjects of particular relevance to children including offences under the Criminal and Penal Codes applicable to Southern and Northern Nigeria respectively are not covered under either the exclusive or concurrent legislative list. Consequently, legislation enacted for the purpose of reforming existing law will still face the problem of limited applicability.  This has been the problem with enforcing subsequent child-rights friendly legislation such as the Violence Against Persons Prohibition (VAPP) Act 2015 which prohibits, among other things, Female Genital Mutilation (FGM) but is only applicable in the Federal Capital Territory. Another option might be broadly interpreting Item 61 of the exclusive legislative list under Schedule 2 of the Constitution to include certain matters that are covered under the existing Criminal and Penal Codes relating to children.
As evidenced above, there are different ways by which the substantive provisions of the CRA can be universally applicable even without domestic incorporation. Moving away from the incorporation of the CRA into domestic law, there is a stark reality that needs to be confronted one way or another with regards children in Nigeria. The numbers may conflict but current statistics show that Nigeria has the highest number of out-of-school children in the world . A significant number of Nigerian children are suffering from violation of their fundamental rights, even in states that have purportedly implemented the provisions of the CRA. In a legal context, the CRA is hardly used as a tool for child rights litigation and has only been referred to or relied upon in a handful of cases. A significant tool in enhancing child rights protection is the development of caselaw to that effect and the CRA needs to serve as a primary frame of reference in all decisions involving children, even in cases where the parties are adults. 
In all of this, it does not appear as though there is any form of political will either at state or federal level to specifically give effect to the provisions of the CRA. With respect to states that have implemented the CRA, greater effort must be made to ensure that its provisions are implemented. Cases involving children should be dealt with under the CRA in order to establish a significant body of case-law relating to child rights protection. Establishing a body of jurisprudence, no matter how significant, does not however replace the need to ensure that greater awareness is created among civil society of the status and relevance of the CRA. UNICEF Nigeria seems to be taking steps in this regard in ensuring that a copy of the CRC is made available to children in local languages . Reports have also emerged of a child-led petition to the Federal government of Nigeria to amend the constitution for the eradication of child marriage. Whether such awareness-creating steps will generate the necessary political and civil society support remains to be seen. One would Otherwise building an effective child rights protection framework may remain a mere pipe dream.
Fifehan Ogunde

Oluwafifehan Ogunde is an research specialist and consultant with research interests in human rights law, criminal law and constitutional law. He has a Master’s degree in Human Rights Law from the University of Nottingham and a Bachelor’s degree from the University of Sheffield. He is also a barrister and solicitor of the Federal Republic of Nigeria, having been called to the Nigerian Bar in February 2012.

Protecting Electricity Consumers In Nigeria | Jafar Atiku Muhammad

Protecting Electricity Consumers In Nigeria | Jafar Atiku Muhammad

If Nigerians can access safe, reliable and affordable power supply, livelihood would be meaningful, households would be lively, firms would operate competitively and businesses would flourish. This means more jobs for Nigerians and less forex outflows for the importation of foreign products. With a growing economy, a promising population and a GDP of 510 billion USD, Nigeria is acclaimed the largest economy in Africa and its highest FDI attractor.

Unfortunately, Nigeria’s power supply is mirage, and this means that the attainment of its vision 20:2020 depends intricately on its ability to leverage on its energy potentials and accelerate growth in its power sector.
The significance of power to Nigeria’s economy led to the ineluctable need to reform. The dawn of 2005 was greeted by the enactment of the Electric Power Sector Reform Act No. 6, 2005 (the Act), which saw to the unbundling of the electricity infrastructure and opened up the sector to participation of the private sector. Prior to the reform, the entire electricity value chain was fused into a vertically-integrated state-owned monopoly – the Nigerian Electricity Power Authority (NEPA), and consumer rights were basically nonexistent. 
The power sector privatisation and reform programme implied a liberalisation of the Nigerian Electricity Supply Industry (NESI) and privatisation of electricity utilities. This development was followed by surging demands for electricity and the need for a robust framework that will comprehensively protect consumers from the juggernauts of the privatised market, because exploring electric competition calls for intricate questions on how the new industry will be structured, how it should operate and how consumers will be affected.

Credit – www.cfr.org
Consumer protection issues are crucial to the Electric Power Sector Reform, as the purpose of the reform will be largely defeated if the new market also means augmented fraud, endless complaints, customer confusion, and other forms of consumer exploitation.
With a utility as crucial as electricity in private hands, a great percentage of electricity consumers in Nigeria are potentially exploited and are facing daunting challenges in the protection of their rights.
While the exploitation of consumers manifests across all sectors of the economy, especially the deregulated sectors of Nigeria’s economy like banking, telecommunications, etc., the menace is at a greater proportion and poses more significant threats in the power sector. 
Basis of Consumer Protection
Recognising that consumption is the essence of production of goods and services, the Act tasks the Nigerian Electricity Regulation Commission (the Commission) with an important mandate under its Consumer Protection Framework. 
Monye  portrays a picture of the consumer thus: 
There is high incidence of fake and substandard products. The problem cuts across various fields including the supply of services. Most often, consumers find themselves saddled with shoddy services, or even non-performance …the supply of shoddy products and services constitutes a big problem to the consumer.
In light of the above, there is a conscious legal policy by the government inspired by the recognition of the vulnerable position which the consumer occupies in the market place. 
The growth of the energy sector and the consequent expansion of its consumer base have been followed by intense consumer complaints cutting across issues of metering, billing, tariff, poor services, and so on. Hence, the law recognises that consumption is the essence of production, and thus puts in place legal and institutional frameworks for the protection of consumers in the NESI.
credit- energymixreport.com
Consumer protection, no doubt, is one of such instances where state intervention is necessary. An ordinary consumer has the right to a sense of security about the products and services purchased in the marketplace. In the circumstance, a consumer is entitled to enjoy the right to protection against poor quality, right to stop unethical practices and right to see that Consumer justice is done. 
The government has sought to ensure the protection of consumers by assigning specific functions to some governmental agencies.  In the power sector, the state saw the need for administrative intervention institutionalising appropriate legal framework for consumer protection, hence the creation of agencies vested with authority to supervise, monitor and regulate the activities of operators and providers of services.
It follows that consumer protections laws and policies span directly from the fundamental rights enshrined in the Constitution. The right to fair hearing, for example, addresses issues of access to justice and consumer redress as a cardinal principle of consumer protection.
From a rule of law approach, the Nigerian Constitution is extant on the extent of deregulation in key sectors of the national economy vis-a-vis consumer protection. The fundamental objectives and directive principles of state policy under Chapter II of the Constitution, particularly section 16 of the Constitution sets out the economic objectives that should guide regulation, deregulation and reregulation, to the effect that the constitution requires an economy that is efficient but also secures “the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity”. Although the legal status of these directive principles is that they are not justiciable at the instant of a person who alleges that his rights have been infringed by the acts of government or another citizen,  this does not mean that they are divested of legal effect as they sought to guide executive actions in Nigeria. Every branch of government ought to reflect these directives in their policies and programmes, and where they fail to incorporate them, or act contrary to their requirement, such actions can be held as unconstitutional. 
Similarly, most of these consumer protections principles replicate the African Charter on Human and Peoples’ Rights, and the Charter, as held in Abacha v. Fawehinmi,  the provisions of the Charter are enforceable in Nigeria as any other law.
Credit – www.pscsolaruk.com 
The Legal Framework
The power sector reform saw to the enactment of the Electric Power Sector Reform Act 2005, which creates a foundation for the protection of electricity consumers in Nigeria. This law is the industry-specific legislation for the protection of electricity consumers and electricity governance generally.
In a quest to reinforce the legal regime for the protection of consumers of goods and services across all sectors of the economy, the Federal Competition and Consumer Protection Act 2019 was enacted to provide a comprehensive legal framework for business competition and consumer protection across all sectors.
The relevant consumer rights’ surveillance and consumer protection institutions are the Federal Competition and Consumer Protection Commission and the Nigeria Electricity Regulatory Commission. While the former is the general consumer protection agency across all sectors enforcing the Federal Competition and Consumer Protection Commission, the later is the sector-specific regulator with mandate of protecting electricity consumers, operating within the purview of the Electric Power Sector Reform Act.
The objects of the Nigerian Electricity Regulatory Commission includes, among others, to ensure that an adequate supply of electricity is available to consumers, to ensure that the prices charged by licensees are fair to consumers and to ensure the safety, security, reliability, and quality of service in the production and delivery of electricity to consumers.  In carrying out the objects, one of the Commission’s functions is to establish appropriate consumer rights and obligations regarding the provision and use of electric services. 
Rights of Electricity Consumers
Prior to the power sector liberalisation and privatisation, consumer rights were left to the whims of the officials of the erstwhile NEPA. One of the innovations of the reform is the establishment of a set of consumer rights. In furtherance of its objects under section 32 or the Act, the Commission is mandated to establish appropriate consumer rights and obligations regarding the provision and use of electric services. In fact, the Commission is mandated by law to issue written reasons for and of its decisions affection the existing rights and obligations of any person(s). Some of the rights of electricity consumers today include:
1. Right to electricity supply in a safe and reliable manner.
2. Right to a properly installed and functional meter.
3. All new electricity connections must be done strictly based on metering before connection.
4. Right to be properly informed and educated on electricity services.
5. Right to transparent electricity billing.
6. All un-metered customers should be issued with electricity bills strictly based on the Commission’s estimated billing methodology.
7. Rright to be notified in writing ahead of electricity service by the DisCo serving the customer in line with the Commission’s guidelines.
8. Right to refund when overbilled.
9. Right to file complaints and to the prompt investigation of their complaints.
10. Any un-metered customer who is disputing his/ her estimated bill has a right not to pay the disputed bill, but to pay only the last undisputed bill as the contested bills goes through dispute resolution by the Commission.
11. It is not the responsibility of any electricity customer or community to buy, replace or repair electricity transformers, poles and related equipments used in the supply of electricity.
Conclusion
On a final note, it is the writer’s conclusion that the designation of the FCCPC as a co-regulator with the NERC in relation to consumer protection and the proliferation of the legal framework for the protection of electricity consumers in Nigeria breed inconsistencies and confusion. The provisions of the Federal Competition and Consumer Protection Act replicates the NERC’s mandate on the FCCPC and dictates its superiority in the event of any conflict with other existing laws, including the Electric Power Sector Reform Act.
This legal regime may be contestable and impracticable, particularly with respect to highly regulated industries, such as the power sector, having specialized skills and industry-specific legislation.
Recommendation
The consumer protection framework of the NESI should be vested exclusively in the NERC, because the dynamics of the power sector requires a certain level of expertise in energy law, electricity consumer protection and electricity governance. This calls for a thorough review and amendment of the Federal Competition and Consumer Protection Act to expunge its relevant provisions that replicate the Electric Power Sector Reform Act and hijacks the mandate of the NERC. These powers need to be clearly defined to ensure that conflicting and a multiplicity of regulatory compliance obligations are not created by the FCCPA. The EPSRA should also be amended and reinforced with more consumer protection principles to reflect the constitutional imperative for consumer protection in the NESI.
Jafar Atiku Muhammad 
The author can be reached onamjafar01@gmail.com 
Reviewing Nigeria’s Constitutional Arrangement: A Few Considerations (2) | Fifehan Ogunde

Reviewing Nigeria’s Constitutional Arrangement: A Few Considerations (2) | Fifehan Ogunde

LEGISLATIVE HOUSE MEMBERSHIP
Further to the constitution, the Senate house consists of 3 representatives from each state. The House of Representatives is comprised of 360 legislators. The basis for this number is not easily ascertained and one would suggest that there is no need for more than one representative from each state.

This will greatly cut expenditure in this regard and increase the availability of funds for relevant sectors of the economy. It is worth noting that members of the Senate and House of Representatives are the highest paid legislators in the world bearing in mind their salaries and allowances. There is little evidence to show that the current number is necessary to effectively exercise the law-making function of the legislative House.

Qualification for membership of the house is on these grounds: minimum age of 35 years (30 years for house of representatives), education up to School Certificate Level and membership of a political party. There is very little stated with respect to the professional experience of the individual with respect to the sensitive function of law-making. It is understandable that as an elected representative of the people, membership qualification with respect to the Senate and House of Representatives should be as diverse and all-encompassing as possible. There is very little in the constitution to guide an assessment of the suitability of law-makers for the position. This itself is in need of review. Furthermore, there is no limit to the number of terms for serving as a member of the Senate and the House of Representatives. It may be necessary to introduce some form of limitation in this regard. This could be in a manner similar to the two-term limit imposed on the office of President or state Governor.
ELECTION TO THE OFFICE OF PRESIDENT 
Since 1999 when Nigeria returned to democratic rule following the death of the military dictator, General Sani Abacha, 2 out of the last 4 democratic presidents have been former military administrators. Major-General Olusegun Obasanjo was President and commander in chief of the armed forces between 1999 and 2007 (1999-2003,2003-2007) in addition to occupying office as a military administrator between 1976-1979. The current president, Muhammadu Buhari is also a former military administrator of the Federal Republic of Nigeria (1983-1985). Under the constitution, an individual is allowed to run for president unless he has been previously elected to the office of President at two previous elections. It should however in my view be amended to also exclude individuals who have occupied the post of President and Commander-in-Chief of the Armed offices under the military dispensation which at the moment is not the case. At the very least, a period of government under the military dispensation should be regarded as one term for the purpose of electing an individual to the office of President. It should also apply to those who have occupied the position of Vice-President under previous administrations. 
IMMUNITY
Under the constitution, there is some level of immunity from criminal prosecution for the President and Vice-President of Nigeria as well as the Governor or Deputy Governor of a State. This may be necessary in order to allow these elected individuals perform the functions of office without any unnecessary distractions. However, it is also important to remember that they are individuals elected by a people to whom they are held accountable. The office of President/Vice President should not serve as a form of sanctuary for individuals who may be acting contrary to the interests of the nation in engaging in illegal activities. If the elected officials have engaged in criminal acts while in office, there is little need waiting for their terms to expire before they can be prosecuted. The interests of the nation is sovereign and they are also bound by the laws of the land. Breaching the laws of the land while in office should also be dealt with by the rule of law as is the case for any other individual. They may be absolved from certain requirements associated with prosecution (such as attendance of particular court proceedings) in order to enable them perform their functions pending the decision of the court. Nevertheless there is a need to reconsider the current constitutional position on immunity for elected officials.
LEGISLATIVE LISTS 
Schedule II divides matters of legislative competence between the National and State Houses of Assembly. There are some problematic aspects of these lists. Item 61 of the Exclusive legislative list for instance regards as a matter of exclusive legislative competence ‘the formation, annulment and dissolution of marriages other than Islamic and Customary marriages’. The reasons for this may be understandable (protecting religious and cultural diversity). Nevertheless, such a position makes it difficult to ensure uniformity in the law pertaining to these areas. Bearing in mind the rise in the relevance of respect and protection of fundamental rights even in relation to personal matters such as marriage, one will consider it more beneficial for all forms of marriages to be included in this list. This also helps to dispel any notions of the supremacy of one religion over another. 
In conclusion, the constitution of the Federal Republic of Nigeria is highly complex and intricate. It seeks to balance several competing interests and to a large extent, the attempt to do so is highly commendable. Nevertheless, there are different aspects of the constitution that by nature serve as a hindrance to the implementation of progressive laws in the Nigerian system. The 1999 constitution is largely a reproduction of the constitution enacted in 1979 (almost 30 years ago). A number of significant changes have emerged nationally and globally since then. These changes need to be reflected in our Constitution. 
Fifehan Ogunde

Oluwafifehan Ogunde is an research specialist and consultant with research interests in human rights law, criminal law and constitutional law. He has a Master’s degree in Human Rights Law from the University of Nottingham and a Bachelor’s degree from the University of Sheffield. He is also a barrister and solicitor of the Federal Republic of Nigeria, having been called to the Nigerian Bar in February 2012.

Kidnap of Honourable Justice Chioma Iheme – Nwosu, Ph.D, Justice of the Court of Appeal and Murder of His Lordship’s Orderly

Kidnap of Honourable Justice Chioma Iheme – Nwosu, Ph.D, Justice of the Court of Appeal and Murder of His Lordship’s Orderly

1. The utterly reprehensible kidnap of Honorable Justice Chioma Iheme-Nwosu, PhD, Justice of the Court of Appeal, and the gruesome murder of His Lordship’s orderly should not only unnerve and agitate all of us but must also jolt our collective conscience. Iheme-Nwosu JCA’s car was intercepted and disabled, Rambo-style, by dare-devil criminals who executed her orderly with the proficiency of marksmen right in the heart of Benin City and then abducted His Lordship, all in broad daylight at about 11.30am. As we write, His Lordship’s whereabout and safety remain unknown and of grave concern to all well-meaning persons.
2. This kidnap incident is one too many and utterly condemnable by everyone for and from multiple fronts. First, it truly should be a taboo for criminals to breach and tamper with the safety of judges generally. We made this point in the Nigerian Bar Association’s (“NBA”) Release following the recent kidnap of Honorable Justice Abdu Dogo of the Federal High Court. Given the sensitive nature of judges’ assignments, it behooves on us to make criminal attacks on them most unprofitable for the criminals lest justice becomes imperiled and shackled. This point assumes greater importance in this season when Justices of the Court of Appeal are crisscrossing the Nigerian nation to sit on and dispense justice in election petition matters.
3. The Court of Appeal as most would know is the court of last resort for all House of Assembly and National Assembly election matters and we have plenty of these at this time. Given the sensitive nature of those petitions, these Court of Appeal panels are mostly constituted and made up of Justices who are deployed outside of their normal duty stations. Some of the venues for these Court of Appeal Tribunals are in cities that are inaccessible by air or not easily accessible by air which means our Justices are left with no option but to travel to these locations by road. And, in that process, Their Lordships are exposed to great harm and danger in the hands of underworld men and women.
Couple that with the fact that Iheme-Nwosu JCA was criminally assaulted and kidnapped right in the city where she works and in broad daylight and the conclusion and prospects become inescapable, to wit, that justice and indeed, our democracy is potentially shackled and totally imperiled by the criminal men and women in our midst.
4. Beyond the safety of judges generally, we cannot but wonder what type of bestial and evil people would descend on a woman and a Justice, with such violence and inhumanness, as was meted out to Iheme-Nwosu JCA? 
Have we become so completely immoral and gone so low in our cultural esteem that criminals have no respect whatsoever and howsoever for womanhood? In every culture in our Nigerian society, womanhood is held as sacred and not to be despoiled or attacked. That is why violence against women and rape – which used to be primarily targeted at women – were and are still considered so very reprehensible and low. That is why, even in war situations, the safety of women and children are always considered paramount. It cuts us to the marrow that the criminals in our midst have not only desecrated the temple of justice continually but have now defiled womanhood – the very symbol and nurturers of life, the hands that rock the cradle – with the abduction of Iheme-Nwosu, JCA.
5. The NBA not only condemns in the strongest terms the horrifying and criminal abduction of Honorable Justice Chioma Iheme-Nwosu, PhD, Justice of the Court of Appeal, but calls more importantly for her immediate release and safe return to all of us. The law enforcement agencies owe their assassinated colleague, Iheme-Nwosu, JCA’s orderly the debt and responsibility of fishing out and meting justice to the criminals who so brutally and heinously murdered him and abducted His Lordship. This crime must not end up as part of our crime statistics. We owe ourselves the responsibility of stopping these criminals now. They must not go unpunished. We must start our redemption by ensuring the safe return of Iheme-Nwosu, JCA. Nothing must happen to His Lordship and her abductors must not escape justice.
Paul Usoro, SAN 
NBA President
NBA WOMEN’S FORUM HOLDS INAUGURAL MEETING IN ABUJA.

NBA WOMEN’S FORUM HOLDS INAUGURAL MEETING IN ABUJA.

The NBA Women’s Forum held its inaugural General Council meeting today, Wednesday the 30th October 2019, at the NBA National Secretariat Abuja. It will be recalled that the Executive Council of the Women Forum was recently inaugurated by the President of the Nigerian Bar Association, Paul Usoro SAN on the 17th day of September 2019.
In attendance were
Prof. Oluyemisi Bamgbose SAN, Chairperson of the Forum; Mrs Chinyere Okorocha, Vice Chair; Mrs. Nsidibe Aideyan, Secretary and Safiya Iweyi Balarabe, Treasurer. Other members of Council in attendance were H.E Anna Ishaku; Mrs. Florence Fiberesima; Ayotola Jagun and Hadiza D. S. Magaji.
The NBA Women Forum will be an influential voice in the society as well as globally, whilst taking the lead in addressing matters of interest to female lawyers in particular and the well being of women (including the girl child) n general.
 Kunle Edun
 National Publicity Secretary, NBA.
About Outsourcing and Offshoring your Legal Services ! Kelechi Achinonu

About Outsourcing and Offshoring your Legal Services ! Kelechi Achinonu


A bit of curiosity got me thinking
and trying to understand the difference between Legal Process Outsourcing and
Legal Service Offshoring. I did a bit of research and then thought to share my
now better grasp of both concepts.


 Legal Process Outsourcing refers to assigning
law-related tasks to an external firm (locally or globally) that is able to
handle those tasks efficiently. Legal Services Offshoring refers to getting
your legal work done in a different country, usually to leverage cost
advantages.
I know they really seem alike, but
one differentiating element turns out to be LOCATION.
For example, let’s assume a tech
company in Nigeria decides to contract a law firm in Nigeria to carry out all
law-ish activities, now that’s outsourcing. But in the case where the same tech
company contracts a law firm in India to carry out the law-related tasks,
that’s offshoring.
Yea, I know it still sounds
somehow….
Okay,
let’s look at some of the benefits and challenges for both concepts. 




This
is what I think. Whether you decide to outsource or offshore your legal tasks,
you should really consider the following:
1.     Competence and
efficiency of the contracting firm
2.     The flexibility of
communication between both parties (to what extent would technology be
leveraged to enhance communication)
3.     The flexibility of
availability for both parties (for instance, in the case of emergency sit-down
talks)
4.     Confidentiality and
Information security ( your data should be really important to you)
5.     Laws and regulations
that would guide such contractual relationship
6.     Your own peace of mind.
Thanks
for reading!
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