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Apr 6, 2020

COVID 19 - The Liability of China under International Law For Damages Suffered


 

1. 0 INTRODUCTION

In the period of 20 years, China has taken the World through a gruesome path, twice. After being criticized for a slow response to SARS, China is once again facing global scrutiny for its handling of the new 'Coronavirus'. China repeated the obstruction of information that worsened the SARS crisis 18 years earlier. In that case, China tried to cover up the SARS epidemic, which led WHO member states to adopt the new International Health Regulations in 2005. In both cases, China and the world would have been spared thousands of unnecessary deaths had China acted forthrightly and in accordance with its legal obligations. 

REVITALISING NIGERIA’S COMATOSE HEALTH SECTOR:POST-CORONAVIRUS ERA BY DEBO OLADINNI, ESQ


As I pen down my thoughts this morning, the 5th day of April, 2020, I am not in animal spirits, as the pandemic Coronavirus (COVID-19) continues to increasingly spread like wildfire across Nigeria and also globally. Like a bull in the china shop, it is threatening to decimate and ravage the world's population gradually. The virus has literally held the world populace hostage, as the only means of escaping from its blood testy jaws is to hibernate in our respective abodes and maintain strict hygiene by washing our hands with soap and water (as there is no vaccine available yet), amongst other preventive measures issued by the World Health Organization (WHO) and the Nigeria Centre for Disease Control (NCDC). 

The essence of this write-up is not to criticise the Federal Government of Nigeria, but to urge the Government to do the needful by ensuring the health sector is properly funded. The era of the Government at all levels paying lip service to the health sector, in terms of adequate funding, going forward should be gone with the wind. Clearly, the world was/is largely unprepared for the outbreak of this plague-like virus, as even first-world countries, with well-funded health sectors are battling tooth and nail to checkmate the spread of the virus. This fact should serve as a wake-up call to Nigeria, whose successive leaders have over the years under funded the health sector.

While surfing the internet for information relating to disease prevention, I was jolted by the heart wrenching caption of This Day Newspaper of 5th March, 2020 which stated: "FG Budgets 8 Naira for Disease Prevention of Each Nigerian in 2020". I must say that the said newspaper article is a must-read for all Nigerians to appreciate the extent of the retrogression of the Nigerian health sector. Our health sector is still in the wilderness, going round in circles with no hope in sight of reaching Canaan land anytime soon. The article revealed that only a paltry sum of N1, 673, 486, 127 was allocated to the Nigeria Centre for Disease Control (NCDC), the country's national public health institute (established in 2011), essentially saddled with the responsibility of epidemic preparedness, detection and response to infectious disease outbreaks and public health emergencies for over 200 million Nigerians. Unfortunately, a visit to the website of the NCDC would reveal that the above mentioned budgeted sum will be expended on preventing and managing Lassa fever, Ebola, Coronavirus (COVID-19) Yellow fever, Cholera, Meningitis, Measles etc; running, funding and maintenance of the six Departments (four of which are technical Departments) created by the NCDC namely the: Surveillance and Epidemiology Department, Public Health Laboratory Services Department, Health Emergency Preparedness and Response Department, Prevention Programmes and Knowledge Management Department, Administration and Human Resources Department and the Finance and Accounts Department. In order to appreciate the dire straits, foisted upon the Nigerian health sector by meagre funding over the years, I would proceed to quote copiously, portions of the pungent This Day Newspaper article  earlier referred to which served as a catalyst to my writing this article. The said article stated in part as follows:

"…NCDC's counterpart in the United States, the Centre for Disease Control (CDC) will spend $6.594 billion on epidemic preparedness this year, which is about N2.34 trillion, an amount that exceeds Nigeria's entire Federal Ministry of Health allocation for five years. This means, if the CDC budget is spread across the population, the centre will spend at least 20 dollars (N7, 200) on epidemic preparedness for every American resident, while Nigeria, a country which prides itself as the giant of Africa and the economic hub of the black continent, will spend eight naira on same disease prevention and management in a full year per citizen.... The health sector generally has had one of the lowest budget allocations in the country, even far lower than sectors relatively not as crucial as the health sector. This is despite the pledge made by the country in April 2001 during the 'Abuja Declaration' where it, along with other heads of state under the African Union platform, declared to increase health budget allocation to 15 per cent of the entire national budget every year. Since the Declaration, the highest health allocation for Nigeria was in 2012 where 5.95 per cent was allotted to the sector. In 2014, it allocated N216.40 billion to healthcare, representing 4.4 per cent. In 2015, it was N237 billion, which represents 5.5 per cent of the entire budget, same with 2016 (4.23 per cent), 2017 (4.16 per cent), 2018 at 340.5 billion (3.9 per cent), and 2019 at N315.6 billion (4.1 per cent)…the Nigerian government, again in 2020, followed the same trend with only 4.14 per cent of the entire budget allocated to the health sector, amounting to N427 billion; an allocation less than 25 per cent of what CDC alone will spend on epidemic preparedness. But the World Health Organisation (WHO) says for Nigeria to be seen to have prioritised healthcare, it must at least spend a minimum of N6, 908 per Nigerian in a year, which when multiplied by 200 million people will amount to N1.38 trillion, which is around 12 per cent of Nigeria's entire budget for 2020… For instance, Rwanda reportedly devoted 18 per cent of its total 2016 budget to healthcare. Botswana budgeted 17.8 per cent to health; Malawi, 17.1 per cent, Zambia, 16.4 per cent and Burkina Faso, 15.8 per cent. But Nigeria still lags behind in this regard, which has had direct consequences on the funding capacity of the Health Ministry and its affiliated agencies and parastatals, thereby making the fight against poor healthcare very unrealistic."

The above quoted portions of the article perfectly reflect the unfortunate doldrums that the Nigerian health sector is enmeshed in due to lack of proper funding. There is no gainsaying the fact that there is no use crying over spilt milk. It is time for the Government to seize the bull by the horn by adequately funding the health sector in tandem with global best practices. The outbreak of the deadly pandemic Coronavirus has shown that we cannot always resort to medical tourism to meet our medical needs. It is apparently clear that the Government must go back to the drawing board to re-strategize and chart a way forward, in order to revive our comatose health sector.  To my mind, the only way forward is for the Government to prioritize and adequately fund the health sector. Fortunately, the Federal Government of Nigeria can resort to its 359-page blue-print National Action on Health Security (2018-2022), which is a "comprehensive multi-sectoral plan that integrates multiple work plans including REDISSE, NCDC Strategy Plan, AMR Action Plan, and immunizations plans, addressing the major gaps identified by the Joint External Evaluation (2017) and Performance of Veterinary Services (2010) assessments, and prioritizing them by national strategies and risks. As such, the NAPHS is an "overarching" plan and can be used to create linkages and monitor progress of major health security initiatives."

Flowing from the above, can the Federal Government religiously, diligently and steadfastly implement the NAPHS, in order to ensure the Nigerian health sector is revamped, revitalised and repositioned to meet the health needs of all Nigerians? Most humbly and with all due respect, I must state that Nigeria is a country, whereby successive Governments have expended so much funds in drawing up plans, without the will to implement them. In this wise, I must plead that in relation to the health sector (and in fact all sectors), it can no longer be business as usual, bearing in mind the words of the 34th President of the United States of America, Dwight D. Eisenhower " In preparing for battle I have always found that plans are useless, but planning is indispensable."

Apr 3, 2020

CORONA VIRUS: Enforcement of Lockdown and Brutalisation of Citizens | Dele Adesina SAN


It is no longer news that on the wake of the Coronavirus pandemic, the Federal Government of Nigeria and various State Governments put in place some drastic measures to prevent the spread of the life-threatening scourge. The danger posed to humanity and Nigerian citizens inclusive, by the ravaging pandemic has been taken very seriously by governments all over the world. For this purpose, the President of the Federal Republic of Nigeria announced a total lockdown of Lagos, Abuja and Ogun States in the national broadcast of March 29, 2020. Other State Governments have followed suit through the announcement of various restrictions and stay-at-home Orders by Executive Orders and/or regulations pursuant to their powers under the relevant enabling Quarantine Act.

The concern of this write-up is the manner of enforcement of such Executive Orders, restrictions and regulations by the law enforcement agencies and men of the Nigerian Army which has brought with it Police brutalisation, dehumanization and outright death of the citizens. The Tribune of today published the story of someone that was killed in Ogunnu, a suburb of Warri in Delta State, while driving for refusing to stop when he was reportedly flagged down by the security personnel. These various acts of brutalisation and dehumanization of citizens must be condemned in its entirety. It is an extra-judicial killing, it is illegal and absolutely unconstitutional.

It needs to be emphasised that the very reason for the announcement of these stay-at-home Orders and other restrictions on movements is essentially to save lives. Hence, the phrase: stay-at-home to stay safe. If the objective of a policy is to save lives, it is therefore totally illogical and inherently contradictory to kill in order to enforce safety measures. Indeed the point must be made for the umpteenth time that it is the business of the regular Police to enforce and maintain law and Order in the society as distinct from the Armed Forces whose duty is to protect the nation against external aggression and internal insurrection. The objective of the measures will be defeated if human lives are wasted, treated with disdain and their Human Rights violated with reckless abandon.

We saw a good example of how to enforce law and Order by the reported arraignment and conviction of twelve (12) persons for violating the provisions of Ekiti State Coronavirus Prevention of Infection Regulations 2020. The violators were tried and fined by the Chief Magistrate Court of Ekiti State. We advise everyone involved in the enforcement of these Orders in the different States of the Federation to take que from this example by arresting the violators and arraigning them before the appropriate Court for trial and sanction if found guilty. To do otherwise is to resort to self-help which is a product of executive lawlessness, an anathema and abomination in a constitutional democracy such as ours.

I call on the civil populace to see the reason behind the restrictions and other safety measures and directives to put up with the momentary inconvenience in order to experience the long term gain for ourselves, our families, the Nation and in the interest of public health and public safety. May I also say that any further act of brutalisation, dehumanization and unprofessional conduct on the part of the law enforcement agencies should be reported to the nearest Nigerian Bar Association Branch or directly to the Inspector-General of Police for necessary actions. With regards to the Armed Forces, report should be directed to the Defence Headquarters by sending text or WhatsApp messages through the telephone numbers provided by the Headquarters of the Nigerian Army.

Let us join hands together in unity of purpose to fight the Coronavirus war and live after the guaranteed victory.

Dated April 3, 2020.
Dele Adesina SAN

CORONA VIRUS: ENFORCEMENT OF LOCKDOWN AND BRUTALISATION OF CITIZENS


It is no longer news that on the wake of the Coronavirus pandemic, the Federal Government of Nigeria and various State Governments put in place some drastic measures to prevent the spread of the life-threatening scourge. The danger posed to humanity and Nigerian citizens inclusive, by the ravaging pandemic has been taken very seriously by governments all over the world. For this purpose, the President of the Federal Republic of Nigeria announced a total lockdown of Lagos, Abuja and Ogun States in the national broadcast of March 29, 2020. Other State Governments have followed suit through the announcement of various restrictions and stay-at-home Orders by Executive Orders and/or regulations pursuant to their powers under the relevant enabling Quarantine Act.

The concern of this write-up is the manner of enforcement of such Executive Orders, restrictions and regulations by the law enforcement agencies and men of the Nigerian Army which has brought with it Police brutalisation, dehumanization and outright death of the citizens. The Tribune of today published the story of someone that was killed in Ogunnu, a suburb of Warri in Delta State, while driving for refusing to stop when he was reportedly flagged down by the security personnel. These various acts of brutalisation and dehumanization of citizens must be condemned in its entirety. It is an extra-judicial killing, it is illegal and absolutely unconstitutional.

It needs to be emphasised that the very reason for the announcement of these stay-at-home Orders and other restrictions on movements is essentially to save lives. Hence, the phrase: stay-at-home to stay safe. If the objective of a policy is to save lives, it is therefore totally illogical and inherently contradictory to kill in order to enforce safety measures. Indeed the point must be made for the umpteenth time that it is the business of the regular Police to enforce and maintain law and Order in the society as distinct from the Armed Forces whose duty is to protect the nation against external aggression and internal insurrection. The objective of the measures will be defeated if human lives are wasted, treated with disdain and their Human Rights violated with reckless abandon.

We saw a good example of how to enforce law and Order by the reported arraignment and conviction of twelve (12) persons for violating the provisions of Ekiti State Coronavirus Prevention of Infection Regulations 2020. The violators were tried and fined by the Chief Magistrate Court of Ekiti State. We advise everyone involved in the enforcement of these Orders in the different States of the Federation to take que from this example by arresting the violators and arraigning them before the appropriate Court for trial and sanction if found guilty. To do otherwise is to resort to self-help which is a product of executive lawlessness, an anathema and abomination in a constitutional democracy such as ours.

I call on the civil populace to see the reason behind the restrictions and other safety measures and directives to put up with the momentary inconvenience in order to experience the long term gain for ourselves, our families, the Nation and in the interest of public health and public safety. May I also say that any further act of brutalisation, dehumanization and unprofessional conduct on the part of the law enforcement agencies should be reported to the nearest Nigerian Bar Association Branch or directly to the Inspector-General of Police for necessary actions. With regards to the Armed Forces, report should be directed to the Defence Headquarters by sending text or WhatsApp messages through the telephone numbers provided by the Headquarters of the Nigerian Army.

Let us join hands together in unity of purpose to fight the Coronavirus war and live after the guaranteed victory.

Dated April 3, 2020.
Dele Adesina SAN

Mar 31, 2020

INVITATION TO NIGERIAN BAR ASSOCIATION WOMEN FORUM VIRTUAL MENTORSHIP SESSION



You are invited to participate in our innovative lunchtime mentoring session holding tomorrow Wednesday 1 April  2020.

Discussions will be led by our esteemed Senior Advocates of Nigeria, Mia Essien, SAN, Abimbola Akeredolu, SAN and Prof Toyin Akintola.

*Main Topics:*
1. Professional Development

2. Managing Practice in a Coronavirus Environment; and

3. Understanding Mentoring


Sub-Topics as time will permit are Self Development, Advocacy Skills, Dealing with Sexual Harassment in the Workplace, Work-life Balance, Choice of Life Partner. 

Time: 1pm - 2:30pm.

Link to connect: Here


Download Microsoft Team now.  Look forward to meeting you tomorrow and be sure to inform others.

The Coronavirus Pandemic: A Separation of "The Human" From "The Natural"




The Corona-Virus Disease (COVID- 19), famous for its widespread, has killed tens of thousands of people across the globe and has raisedan indispensable question in the minds of many; whether the Chinese government can be held liable in Negligence, whether the pandemic is an ‘act of God’. In the legal community, an act of God is a concept that allows a party exemption from instances of strict liability and negligence. This article is concerned primarily with the debate, whether the corona-virus pandemic is an act of God or an act of man.

The 1926 Quarantine Act and the Nigerian Reality



As the world battles the Corona-Virus Disease (Covid-19), emergency legislations are being enacted globally.[1] Some governments have invoked the provisions of relevant legislations to declare a state of emergency, to enable them legally enforce total shutdown of cities, provide relief packages, and fast track the mass production of health equipment.[2] Alongside the unified effort by the Nigerian federal government, governors have been on the front line of combating the disease, as a couple of them have issued directives and regulations to enforce the shutdown of their respective states.

Mar 29, 2020

Stay Productive during the Isolation Period - Dele Adesina SAN


Dear Colleagues, I recognise that as lawyers, we live a very busy life. Our time and attention are usually divided between reading, drafting, court appearances, client meetings and research work to mention a few all aimed at servicing the needs of our Clients. Our Profession is a jealous Profession which possesses us absolutely day and night. Consequently, a sedentary lifestyle and self – isolation at home may be alien to some of us. Though staying home to stay safe has become a task that must be done, we can still be productive while observing these safety measures by investing the time we have at home rather than spending it.

We can invest the time by drafting those outstanding briefs and pleadings, vetting of documents, reading our law reports, researching into specific areas of legal interest and of course audio and video calls and conferencing with clients to render both curative and preventive legal advice and opinions.

Recognising that health is wealth, exercising the body is also of paramount interest. We must remain active so as to prevent weight gain and  strengthen our immune system as this will make us less susceptible to infections including that of the Corona Virus. We must continue to take the necessary precautions to prevent the spread of the virus and flatten the curve. It is my confident belief that the earth will reject Coronavirus in all its entirety because the earth is given by God to the children of men. Surely the end of the virus is coming soon. Our expectations shall not be cut-off.

I urge you to stay alive as we will all rise from this challenge stronger, healthier and with a determined mind to continue to serve the interest of our clients, our nation and justice in general.

My warm greetings to you and your family.
Thank you.

Dele Adesina SAN

#securethefuture
#nigerianlawyers

Mar 28, 2020

COVID-19: The Doctrine of Frustration and Force Majeure





The Doctrine of Frustration postulates that if an event or series of events occurs without the fault of any of the parties which hinders or prevents the performance of the duty under the contract, such contract is discharged and is considered terminated. Such event fundamentally changes the circumstance and strikes at the root of the agreement, This is expressed in Latin as “Non haec in foedera veni”. See NWAOLISAH V. NWABUFOH (2011) 14 NWLR (PT. 1268) 600; WECO ENGINEERING AND CONSTRUCTION CO. LTD v. DUFAN (NIG) LTD & ANOR (2019) LPELR-47211(CA), CHANDLER V. WEBSTER [1904] 1 KB 49.

Mar 27, 2020

Why there is No Extension for Payment of Bar Practising Fees



Over the past few days, many lawyers have requested for an extension of the deadline for payment of Bar Practising Fees due to the recent global state of events and stay at home orders being directed by various State Governments. 

The cause for this call is no other than the pandemic which is currently putting the world on mandatory holiday. It is argued that some practitioners may not be able to adequately provide for themselves, let alone afford the practising fees at this time when the courts and their chambers are closed.

However, the truth is that the NBA President, Paul Usoro SAN really cannot do anything about it. Many lawyers may be unaware but the provision for payment of Bar Practice Fees is provided in Rule 9 of the RPC.

Furthermore, Article 4 (1) (b) of the NBA Constitution also stipulates that Bar Practice Fees be paid by end of March for lawyers to enjoy the full membership benefits of the NBA, including having right of audience in court and right to vote and be voted for at the NBA Elections.

Therefore, if the deadline were to be postponed, it will require an amendment of the NBA Constitution which can only be effected at the Annual General Meeting of the NBA. More so, calling an extraordinary AGM is also impossible in view of the COVID-19 pandemic.

Lawyers should also note that the
NBA does not have the power to amend the Rules of Professional conduct, only the Bar Council has.

The valid date for the Annual Payment of Practice Fees of Nigerian Bar Association(NBA) is between Ist January to the 31st of March every year and due to the foregoing, lawyers are encouraged to take advantage of the online payment options here

https://nigerianbar.org.ng/membership-portal

Mar 26, 2020

Restriction Of Movement In The Corona Era | Adetutu Akinyemi


In the wake of the infiltration of the corona virus disease (COVID-19), into Nigeria, the Federal and State governments have had to impose strict measures to curb the spread of this deadly disease. One of such measures is the restriction of social gatherings across the states.

In Lagos state, the limit on social and religious gatherings is 20. However, this restriction has caused some legal brows to be raised.

Does this mean that this restriction on social gathering is illegal or unconstitutional?

Let us have a look at the law. The Quarantine Act of 1926 ( an ancient legislation which is long overdue for review) clearly empowers the President, among other things, to make regulations for preventing the spread/transmission of any infectious disease within Nigeria. Section 4.
By virtue of Section 8, the Governor of a state may also do likewise.

Most importantly, the grund norm of the Land, the 1999 Constitution of the Federal Republic of Nigeria as amended ,which provides for the citizens' right to personal liberty, peaceful assembly and freedom of movement stipulates that these rights may be restricted and derogated from in the interest of defence, public safety, public order, public morality or public health. Section 45.

These statutory provisions have established that the government has the power to impose certain restrictions in necessary circumstances such as the issue of this pandemic we currently have in our hands. However, such restriction must have been made PURSUANT to a law.

In Lagos and other parts of Nigeria, is there any law, regulation or even executive order that we can lay hold on in support of this current restriction? That is the issue.

Although, it is highly unlikely that any one would break this 'law' in the interest of self preservation, it is not impossible that such could happen. Under which law would such 'offender' then be prosecuted? 

After all, where there's an offence, there's a punishment. In the light of this, the Executive Order No. 2020.4 (Temporary prohibition of large assemblages and event, Temporary School Closures, Prohibition of excessively passengers in commercial vehicles) by the Ekiti state government is highly commendable.

Also praise worthy is the step taken by  Lagos State House of Assembly in passing the Bill for A LAW TO COMBAT AND STOP THE SPREAD OF THE CORONA VIRUS PANDEMIC IN LAGOS STATE AND FOR CONNECTED PURPOSES. 

By this, the government would now have the legal standing to impose penal sanctions on anyone in breach of the "stay at home order", and restriction of movement generally meant to help contain the spread of covid-19 virus. 

That is how things should be done in a democratic era.

Adetutu Akinyemi was called to the Nigerian bar in 2017. She enjoys litigation practice and is currently based in Lagos where she practices.





Highlights of the Report on the Future of FinTech in Nigeria – Olayanju Phillips



Introduction

In light of the rapid adoption of technology in the financial services sector, the Securities and Exchange Commission (“the SEC” or “the Commission”) spearheaded the development of a regulatory framework for the operation of FinTechs in Nigeria with the inauguration of a FinTech Roadmap Committee (“the Committee”) at the 3rd quarter meeting of its Capital Market Committee (“CMC”) in 2018.[2]


The terms of reference of the Committee were as follows:

  • Develop a FinTech roadmap for the Nigerian Capital Market;
  • Inform the SEC on approaches to innovation within the Financial Services sector;
  • Promote access to capital in the Financial Services sector;
  • Enhance financial inclusion in our economy;
  • Foster greater transparency within the Financial Services sector;
  • Enable more efficient compliance in regulator regime;
  • Serve as a think tank which will provide guidance on independent research for examining the role and value of FinTech in the financial ecosystem; and
  • Seek efficient and responsible policy regulatory regimes that balance financial innovation and consumer protection.

Data Privacy and Protection under the Nigerian Law – Francis Ololuo



Introduction

The 21st century, commonly dubbed “the information age” with its greatest invention, the internet, has brought about fast and easy dispensation of personal information or data. With an estimated 2.96 billion social media users worldwide, social media is the greatest accomplice to the speedy dispensation of personal information around the world.[2] Virtually everybody on the planet has their personal data i.e., name, address, pictures, email address, bank details, or medical information online. These data reveal sensitive personal information that can be exploited to harm users unscrupulously for economic gain. Thus, it is has become important to protect these data and regulate the way data is used. One should be able to decide whether or not they want to share some information, who has access to it, for how long, for what reason and to be able to modify some of this information, if necessary.[3]

Mar 19, 2020

The NBA can reconstruct the Nation by positively impacting on our democratic process | Dele Adesina SAN


 Egbe Amofin ni Eko, the Lagos Branch of the main Egbe Amofin held its annual lecture in honour of Pa Tunji Gomez yesterday. The lecture is an annual event organised to honour the memory of Pa Gomez, who was one of the strong leaders of Nigerian Bar Association, Lagos Branch and Egbe Amofin in Lagos.

Effects of Corona Virus on Global Taxation | Kofoworola Omowale Q.


The rapid outbreak of the coronavirus is alarming and the world is grappling with it. The virus has adverse effects on the health sector and its implications on commercial transactions are reshaping the global economy. 

Mar 17, 2020

Dele Adesina SAN, Femi Falana SAN & 6 others Inaugurated as NBA Ikeja Branch Patrons


The NBA Ikeja Branch, on Tuesday 17th March, 2018, inaugurated eight (8) new Patrons for the Branch. These Patrons are P.O. Jimoh-Lasisi, Layi Babatunde, Kemi Pinheiro, Rowland Otaru, Dele Adesina, Wemimo Ogunde, Femi Falana (all of whom are Senior Advocates of Nigeria), and Mrs Roli Craig. The Patron's Investiture Ceremony also provided an opportunity to honour accomplished and very supportive seniors and elders of the Branch. It was also an occasion for fund-raising to complete the Bar Centre under construction.

Mar 14, 2020

The Challenges of Executive Immunity Clause in the Constitution of the Federal Republic Of Nigeria, 1999 | Dele Adesina, SAN, FCIArb




AN ADDRESS DELIVERED TO THE PARTICIPANTS OF THE EXECUTIVE INTELLIGENCE MANAGEMENT COURSE, INSTITUTE FOR SECURITY STUDIES, ABUJA ON 9TH DAY OF JUNE, 2011




I consider it a great honour once again to be invited to this year’s Executive Intelligence Management Course of this great Institute to deliver a paper on the topic “The Challenges of the Immunity Clause in the Constitution of the Federal Republic of Nigeria 1999”2 I recall that I was here last year to address you during a similar Course.  Once again, I thank you for this invitation.

Mar 13, 2020

Dele is unbeatable in terms of his leadership capacity at the Bar- Chief J.K Gadzama SAN



Former Chairman of the Nigerian Bar Association (NBA) Section on Public interest  and Development Law ( SPIDEL) Chief Joe Kyari Gadzama SAN, last today in Abuja described Mr. Dele Adesina SAN as unbeatable in terms of his leadership capacity at the Bar.

Chief Gadzama stated this while receiving Mr. Adesina and his team who paid him a courtesy call at the J-K Gadzama Court in Abuja.  He said "In terms of capacity  in the present context you are unbeatable. But what is the assurance that the process will be transparent and the results of the exercise will reflect the votes and  will of the people.
"You were the General Secretary of the NBA  when I was chairman of Abuja branch and your record of  achievements are there for all to see".


Chief Gadzama also said: "I  believe  in the regional groups,  I am a trustee of the Arewa Lawyers Forum and therefore  cannot go against the decision of Egbe Amofin and their  candidate. When you stepped down for Mr. Oluwarotimi  Akeredolu SAN in 2008, some of us were not happy with you.


You have a huge support base in my branch, most of the people in your entourage are my people  and I cannot say no to you.You don't need  NBA Presidency to get to the top, it is all about service to God and humanity. If you believe you can serve the association now,  please go on. Iwill consult with my people to agree on who to support in the race"

In his response, a Partner in J-K Gadzama LLP, Mr. Mohammed Mongono said: "Be rest assured that you have no problem with me and those who will listen to me. Others may come but one is matured to take his own  position, so feel free to visit us any time. Mongono also stated that nobody has the institutional memory more than Mr. Adesina and therefore  he has  all their  support.  He complained  that nobody was appointed into the Electoral Committee of the NBA   from Maiduguri, Biu and  Damaturu branches of the NBA
and that as a former chairman of Maiduguri Branch, he  was disappointed at this and does not know what they have  done to deserve this. 



He assured Mr. Adesina of the support of the law firm in this journey.

Dele Adesina SAN Quote on prosperity of young lawyers  


We need a prepared leadership and not an accidental leadership. Only a prepared leadership can guarantee success for his organization or his society. The prosperity of the young generation of lawyers in this country today may appear uncertain but believe me that it is possible for you individually and collectively to succeed and prosper in the Profession. You know what? I wish to say that if it is possible, it is practicable and if it is practicable, then, it is realizable once we apply ourselves spiritually, physically and professionally to the ideals and ethics of the Profession. The truth is that you must be determined and cut the right picture for you to succeed. As I always say, your picture determines your future.


Culled from Dele Adesina SAN's Goodwill Message To The Young Lawyers Forum (Y.L.F) Ilorin Branch, on the occasion of their Annual Bar Dinner which held on 7th December, 2019

Mar 12, 2020

LAWYER ASKS COURT TO SET ASIDE 2019/2020 NDDC BUDGET SUBMITTED BY BUHARI TO NATIONAL ASSEMBLY OVER NON-INAUGURATION OF GOVERNING BOARD


Says only the Governing Board has the power to submit budget, award contracts, etc.

Challenges Inauguration of NDDC Advisory Committee without Board.

Lagos-based lawyer and human rights activist, Mr. Inibehe Effiong, has dragged President Buhari, the Attorney General of the Federation, Abubakar Malami SAN and the National Assembly before the Federal High Court in Abuja over the President's 'illegal' submission of the 2019 and 2020 budget estimates of the Niger Delta Development Commission (NNDC) to the National Assembly without and in the absence of the Governing Board of the NDDC.

The case which was filed on Wednesday, 11th March, 2020 with Suit No: FHC/ABJ/CS/349/2020 also has the Minister of Niger Delta Affairs, Godswill Akpabio, the NDDC and the Ag. Managing Director and head of the Interim Management Committee of the NDDC, Prof. Kemebradikumo Daniel Pondei, as 4th, 5th and 6th Defendants, respectively.

Effiong in his Originating Summons asked the court to determine the following four questions:

"Whether by the provisions of Section 18 (1) of the Niger Delta Development Commission (Establishment etc.) Act, 2000, the President of the Federal Republic of Nigeria can validly submit estimates of expenditure and income (budget estimates) of the Niger Delta Development Commission to the National Assembly without and/or in the absence of the governing Board of the Commission."

"Whether the 2019 and 2020 estimates of expenditure (budget estimates) of the Niger Delta Development Commission is not ultra vires, illegal, invalid, null and void having been submitted to the National Assembly by the President without and/or in the absence of the governing Board of the Niger Delta Development Commission in view of the express provisions of Section 18 (1) of the Niger Delta Development Commission (Establishment etc.), 2000."

"Whether the Interim Management Committee appointed by the President of the Federal Republic of Nigeria to manage and supervise the affairs of the Nigeria Delta Development Commission, can legally exercise the power exclusively vested in the governing Board of the Commission, including entering into contracts and expenditure of the funds of the Commission, in view of the express provisions of Sections 8 and 14 (3) of the Niger Delta Development Commission (Establishment etc.), 2000."

"Whether the existence and inauguration of the governing Board of the Niger Delta Development Commission is a condition precedent to the inauguration of the Niger Delta Development Advisory Committee; a body statutorily charged with the responsibility of advising the governing Board and monitoring the activities of the Commission in view of the provisions of Section 11 (2) of the Niger Delta Development Commission (Establishment, etc.) Act 2000."

In his 40 paragraphs affidavit with 8 exhibits attached, Effiong stated that he is from the Niger Delta Region. He sated that President Buhari dissolved the extant Board of the NDDC headed by Senator Victor Ndoma-Egba in January 2019 and appointed an Interim Management Body to manage the affairs of the NDDC. He stated that Buhari in October 2019 wrote to the Senate seeking the confirmation of a new 16 member governing Board which has Dr. Pius Odubu from Edo State as chairman which was approved by the Senate.

Effiong deposed that despite the approval of the governing Board by the Senate, Buhari unilaterally suspended the inauguration of the Board and continued to retain the Interim Management Committee now head by Professor Pondei.

According to the activist, Buhari on the 26th November, 2019 submitted the 2019 and 2020 budget estimates of the NDDC to both Houses of the National Assembly without and/or in the absence of the Governing Board of the NDDC which attracted condemnation from the National Assembly, and that the Senate during its Plenary on Tuesday, 26th November, 2019 passed a resolution directing its Committee on Niger Delta Affairs not to recognize the Interim Management Committee but to relate only with the approved governing Board of the Commission when considering the budgets.

"Following the condemnation of the President's submission of the said budget estimates without and/or in the absence of the governing Board of the NDDC by the National Assembly and the resolution of the Senate, the President by a letter dated 23rd December, 2019 formally notified the Senate of his decision to "put on hold" the governing Board appointment confirmed by the Senate "to allow the Interim Management Committee to manage the Commission pending the outcome of the Forensic Audit." Effiong said.

According to the lawyer, in contravention of the earlier Senate resolution, the Senate Committee on Niger Delta Affairs recognized the Interim Management Committee while considering the 2019 budget of the NDDC on the 12th February, 2020 and allowed the said Interim Management Committee to defend the 2019 budget and that on Wednesday, 4th March, 2020 and Thursday, 5th March, 2020 the House of Representatives and the Senate respectively considered and passed the 2019 budget estimates of the NDDC without and/or in the absence of the governing Board of the Commission.

He also deposed that the National Assembly is currently considering the 2020 budget estimates of the NDDC without and/or in the absence of the governing Board.

Effiong also complained that on 10th March, 2020, President Buhari constituted and inaugurated the Niger Delta Development Advisory Committee at the Council Chamber, State House, Abuja, consisting of the nine Governors of the Niger Delta States and other persons appointed by the President without and/or in the absent of a governing Board for the Niger Delta Development Commission.

In his written address, the Lagos lawyer argued that the power to submit estimates of the expenditure and income of the Commission is statutorily vested in the Governing Board of the NDDC and not the president. He contended that the role of the President is that of agency; in the sense that the President merely acts as the courier of the Governing Board. The President, he argued, cannot perform his role under Section 18 (1) of the Act without and in the absence of the Governing Board. He said that a contrary interpretation will do direct violence to the spirit and letters of the NDDC Act.

Effiong further argued that "only the Governing Board of the Commission can exercise the power exclusively vested in it by the NDDC Act. There is no part of the said Act that empowers the President to put the existence of the Governing Board "on hold" and arrogate the statutory power of the Governing Board to an Interim Management Committee. The Interim Management Committee led by the 6th Defendant is an aberration and has no statutory backing"

On the inauguration of the Niger Delta Development Advisory Committee, Effiong submitted that "the existence of the Governing Board of the Commission is a condition precedent to the constitution of the Niger-Delta Development Advisory Committee. This is only logical since the advisory committee is required to advise the Governing Board. It is therefore my respectful contention that the inauguration of the Advisory Committee by the President is premature and against the due process of law and the intendment of the NDDC Act without and/or in the absence of the governing Board." He argued.

Effiong prayed the court to declare that the President cannot validly submit the budget estimates of the NDDC to the National Assembly without and/or in the absence of the governing Board of the Commission. He therefore asked the court to set aside the 2019 and 2020 budget estimates of the NDDC submitted to the National Assembly by Buhari.

He also prayed for an order of injunction restraining the Interim Management Committee from exercising the power of the Board. Finally, he asked that the court should declare that the inauguration of the NDDC Advisory Committee was premature and against the due process of law.

Effiong told the court that "the Defendants should not be given a free hand to run the country amok without recourse to the dictates of the law. That will only lead to one result – anarchy. This Court has a sacred duty to halt descent into anarchy and uphold the rule of law. It is only by so doing that the future of Nigeria as a democratic country can be guaranteed."

No date has been assigned for the hearing of the case.

Lawyer Profile: MFON EKONG USORO



Mfon Ekong Usoro holds an LL.M in Maritime Laws from University College London, an LLB (Hons) from the University of Buckingham, B.L (Hons) from the Nigerian Law School and a BSc (Hons) Sociology from the University of Calabar. 

She is on leave of absence as the Managing Partner of Paul Usoro & Co., a leading law firm in Nigeria. Usoro has extensive and current experience in trade in services, participation in negotiations at diplomatic meetings and achieving consensus for adoption of negotiated instruments amongst member States at the regional and continental levels.

Relevant Regional, Continental and International Experience

Usoro is the Secretary General of the Memorandum of Understanding on Port State Control for West and Central African Region (Abuja MoU) – an Inter-Governmental Organization operating under a Cooperative Agreement with the International Maritime Organization with full diplomatic status. 

The Abuja MoU comprises of 22 member States abutting the Atlantic from Mauritania to South Africa. As the Secretary General, Usoro established teams of experts from member States for the development of constitutive documents, port State Control procedures, takes the lead in negotiation and secures adoption of those documents by the member States and has successfully attained a high level of harmonization of procedures, implementation and coordination among the member States. She has held the position for over 8years.

Mfon Usoro has at various times consulted for the African Union Commission. Working with a group of experts, she was pivotal to the drafting and negotiation of the African Union Maritime Transport Charter 2009. She is periodically invited by the African Union Commission Department of Infrastructure to participate in workshops/chair meetings held in Addis Ababa, Cairo etc. 

Usoro is a member of the African Network for Women in Infrastructure (ANWIn), an African Union Commission initiative.

Mrs Usoro also consulted for UNEP [Nairobi] and UICN [Senegal] to work with two other consultants from South Africa and Togo for the revitalization of the Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central Africa Region [Abidjan Convention].

Usoro was for several years, the sole Maritime legal consultant to the Maritime Organization for West and Central Africa (MOWCA), an inter-governmental body of countries in West and Central Africa headquartered in Cote d' Ivoire. In that capacity produced the:

- Memorandum of Understanding on the Establishment of a Regional Integrated Coastguard Network in the West and Central Africa Region 2008. As the Chairperson of the Ad-Hoc Committee on the Establishment of the Sub-Regional Integrated Coastguard Network negotiated and developed a consensus MOU among member States for presentation to and adoption by the Ministers of Transport of the sub-regional organization.

- Draft Framework for Sub-regional Cabotage and the Memorandum of Understanding on Sub-regional Cabotage in October 2001.
Usoro was appointed in 2009 to chair the ministerial committee of the Maritime Organisation of West and Central Africa (MOWCA) regional Maritime Development Bank in 2009.

For a period spanning over a decade, Usoro regularly attends meetings of the Implementation of IMO Instrument Sub-committee of the MSC Committee of the International Maritime Organization in London and has been privileged to chair twice the IMO Workshop for Secretary General and Database Managers of Regional Port State Control regimes.

She for more than a decade has been actively involved in discussions on liberalization of legal services including attending meetings at the WTO as a member of the International Bar Association Bar Issues Commission, International Trade in Legal Services.
Relevant National Experience
Mfon Usoro is a trade law expert and represents the Nigerian Bar Association at the Nigerian Coalition of Services Industry (NCSI). Mfon was recently appointed the Chairperson of the National Consultative Forum on Trade and Trade Related Negotiations, NOTN.
She was privileged to lead the brainstorming sessions at the services industry consultation on the Nigerian Draft Schedule of Specific Commitments organized by the Nigerian Office for Trade Negotiations in February 2020. She participated as a panelist in 2 panels at the recent National AfCFTA Forum on "Effective Implementation for Industrialization and Inclusive Economic Development in Nigeria" on 5-6 December 2019 co-organized by the United Nations Economic Commission for Africa (UNECA).

At the level of the NBA and apart from representing the NBA at NCSI, Usoro was the Alternate Chairperson, NBA Liberalization of Legal Services Working Group (2012-2014) and past Chairperson, NBA Section on Business Law.

Mfon Usoro is the pioneer Director-General and Chief Executive Officer of Nigerian Maritime Administration and Safety Agency, (NIMASA) and she left the Agency in 2007. She is the chairperson of the Inter-Ministerial Committee for the Finalization of the National Transport Policy for Nigeria.


Corporate Boards
Usoro currently serves as Chairperson, Board of Directors of TIB Asset Management Limited; a Non-Executive Director (Independent), on the board of The Infrastructure Bank Plc; a Non-Executive Director (Independent), on the board of First City Monument Bank Ltd; a Non-Executive Director, on the board of Board of Geometric Power Limited.
National Honours.

Mfon Usoro was conferred with the Officier de L'Ord de Mono, a national honour of the Republic of Togo in 2002; and Chevalier de l'Ordre du Merite Maritime, a National honour of the Republic of Cote D' Ivoire in 2015.


EMPLOYERS’ OBLIGATION TO GIVE WORK/EMPLOYMENT REFERENCES UNDER THE NIGERIA DATA PROTECTION REGULATION (NDPR) 2019 / Olumide Babalola

From time immemorial, whenever an employee moves to a new employment, it had been a standard practice for employers of labour to give employment/work reference to the prospective employers of such former employees. 

The contents of such references varied on case-by-case basis and in most cases, the employees subject matter of the references had little or no knowledge of same and consequently had no control over the transferor or the recipient of such information which may make or mar them in their career pursuit. 

 

With the global prominence of data protection laws and regulations came the need to now interrogate what used to be the routine practice of further processing employees' personal data without their informed and express consent and thereby violating their rights to privacy in the process except certain other validating factors exist.

 

A lot has been said and written about employers' (as data controllers and/or administrators) obligations to their staff under the Nigeria Data Protection Regulation but it must be emphasized that such duties do not end upon cessation of master/servant relationship but endures for as long as the servant's record are retained by the master, hence accentuating the importance of making and updating employees' data-retention policies by employers of labour. That is not however the focus of this intervention. 

 

Can employers lawfully send their ex-employee's references without their informed consent?

 

By virtue of Article 2.2 of the NDPR, personal data can only be lawfully processed where:

 

a)        Data subject has given consent for specific purposes;

b)       Necessary for performance of contract;

c)        Necessary for compliance with legal obligation;

d)       Necessary to protect vital interest of data subject;

e)        Necessary to perform task in public interest

 

 

Now, we will consider all the indices of lawful processing of data to ascertain whether or not sending of references falls under any of them while bearing in mind the meaning of employee references (according to https://www.inc.com/encyclopedia/employee-references.html) thus:

 

"Employee references are the positive or negative comments about an employee's job performance provided to a prospective employer. In most cases, a prospective employer will contact a person's current or former employer to seek references as part of the process of considering that person for a new position. Prospective employers check references during the interview process in order to ensure that a candidate's assertions about his or her job skills and work experience are accurate. In fact, obtaining references is one of the most important parts of the hiring process because it can provide valuable information that sets one candidate apart from others and facilitates a sound hiring decision."

 

 

On Employee's consent and necessity of processing for performance of contract

 

Experience has shown that the data subject is seldom or never aware of the request for his employment reference proceeding from his current employer to the former employer, hence an employee's consent is hardly sought and/or obtained before the exchange of such pleasantries between his past and prospective employers. 

 

Assuming the employee's consent is even sought and obtained, it is our modest opinion that such cannot constitute valid consent since it couldn't have been freely given, knowing fully well that his chances of securing the new job may be dependent on favourable reference from his ex-employer, hence such consent is induced especially since the employee may not know the contents.

 

 The provision of article 2.3(ii)(d) of the NDPR is instructive in this respect thus:

 

 "Data Controller is under obligation to ensure that consent of a Data Subject has been obtained without fraud, coercion or undue influence; accordingly:

......

d) when assessing whether consent is freely given, utmost account shall be taken of whether, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary (or excessive) for the performance of that contract." (Emphasis mine)

 

From the foregoing provision, it is our considered opinion that: (a.) The status and bargaining power of an employer (past or present) constitutes undue influence on an employee to give consent for the processing of his personal data in order to secure another employment and (b.) Most employment offers/contracts are made subject to references from past employers which, in our humble opinion, is not necessary for the performance of the subsequent contract except in cases of crime or other vices. 

 

 

Necessary for legal obligation

 

A legal obligation has been defined as any obligation from time to time created by any enactment or authority. The Labour Act, Cap 198, Laws of the Federation 1990 (LA) is the principal law regulating labour relations in Nigeria but out of its 92 sections none is expressly dedicated to employer's obligation to provide work reference or work certificate.

 

Sections 7, 8 and 9 of the LA expressly list matters that must be contained in an employment contract but the obligation to provide employment/work reference is conspicuously absent and thereby activating the canon of interpretation of ejusdem generis rule to dislodge any suggestion that employment reference is contemplated by the relevant sections. See Federal Republic of Nigeria v Ibori (2014) LPELR- 23214 (CA).

 

From the foregoing, we again, modestly conclude that, under the extant LA, an employer does not have any legal obligation to give employees reference/work certificate with or without request.

 

 

Public Interest

 

Employment contracts are, by their nature, private agreements with the exception of employments with statutory flavour, which are arguably public matters, since the government is the employer and wages are paid from public funds.

 

The Nigerian Supreme Court in Centre for Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666) 518 @ 583, defined the term "public interest" as:

                                                           

"...the general welfare of the public that warrants recognition and protection of something in which the public as a whole has a stake especially, an interest that justifies government regulation."

 

Admittedly, although the public is interested in how public funds are spent, this writer modestly thinks, positing that employment reference is a matter of public interest is, drawing the principle too far, except always, such employee's subsequent employment constitutes grave danger to the state as a whole.

 

From the apex court's definition above, can one now say that a civil servant's employment reference concerns the general welfare of the public that warrants recognition and protection simplicita? I humbly, think not!

 

 

 

Vital interest of the employee

 

Although vital interest is not specifically defined under the definition article of the NDPR, an inference can be drawn as to its meaning from article 2.12(f) thus:

 

"The transfer is necessary in order to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent; provided, in all circumstances, that the data subject has been manifestly made to understand through clear warnings of the specific principle(s) of data protection that are likely to be violated in the event of transfer to a third country…"(Emphasis mine)

 

Indubitably, good references are in the interest of an employee, but the NDPR is clear that, processing such without consent can only be lawful where done in the data subject's vital interest and it is our belief, that except of course, where the employee is bedridden and is unable to give consent but that is rarely the case where employers give references without recourse to the employees.

 

Flowing from the above, this writer opines that, an employer's provision of employee's reference to a third party without the employee's express consent does not fall under processing in the latter's vital interests contemplated under paragraph d of article 2.2(ii) of NDPR.

 

 

Performance of contract

 

Article 2.2(ii) provides that:

 

"Without prejudice to the principles set out in this regulation, processing shall be lawful if at least one of the following applies:

……

Processing is necessary for the performance of a contract to which the Data Subject is party or in order to take steps at the request of the Data Subject prior to entering into a contract." (Emphasis mine)

 

From the clear provision above, it appears settled that, an employer is at liberty to provide employee's work reference without the requirement of seeking further consent once such a clause is embodied in their employment contract or any other written agreement between the parties.

 

The problem that arises here is, where there is no such clause in the employment contract, would such processing still be lawful? This poser seems to have been answered by the National Industrial Court of Nigeria (NICN) in the case of Kelvin Nwaigwe v. Fidelity Bank Plc (unreported Suit No. NICN/LA/85/2014) where Kanyip, J. (as he then was) held that:

 

"I am persuaded by the force of these UK case law authorities that in appropriate cases there is an implied term in contracts of employment imposing duty on the employer to provide work reference in respect of its employee, whether former or existing. The defendant in the instant case is a Bank and hence a financial institution. This means that the defendant has an obligation to give a work reference to, or in respect of, the claimant, which work reference must be true, accurate, fair and not misleading to a future employer; and I so find and hold. In this respect, relief (c) claimed by the claimant succeeds in terms of the defendant giving a true, accurate, fair and not misleading reference of career record on demand to the claimant." (Emphasis mine)

 

Although the decision above was handed down pre-NDPR days, this writer is of the considered view that, the reasoning of the court importing the implied obligation to provide work reference, remains the law in Nigeria until set aside by the appellate court.

 

Conclusively, as held by the NICN above, in appropriate cases, employers are at liberty to give work reference to their employees' (past or present) prospective employers without seeking further consent on the strength of the contract of employment pursuant to article 2.2(ii)(b) of the NDPR provided always that the reference must true, accurate, fair data of the employee.

Olumide writes from Lagos, Nigeria and can be reached via olumide@olumidebabalolalp.com