THE ADVOCATE ISSN 0339 VOLUME 21 2019 The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, 1-17

ISSN (03339), year (2019),

@ The Law Students’ Society, OAU

All rights reserved: apart from any fair dealing for the purpose of private study, research, criticism, review, no part of this work may be reproduced, stored in any retrieval system or transmitted in any form or by any means of electronic, mechanical, photocopying or recording without the written permission of the copyright owners. The Law Students' Society shall be duly acknowledged as the source of such fair deal material. All correspondence shall be addressed to the Editor- in-Chief, The Advocate, Law Students' Society, Faculty of Law, Obafemi Awolowo University, Ile Ife, Nigeria.

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THE ADVOCATE ISSN 0339 VOLUME 21 2019 The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria 1-17

PROFILE OF SEBASTINE T. HON, SAN, FCIArb.

[A] PERSONAL DETAILS Full Name : SEBASTINE TARTENGER HON, SAN, FCIArb. Date Of Birth : 9TH DECEMBER, 1967 Place Of Birth: KANO Local Govt. Of Origin: GBOKO State Of Origin: BENUE Marital Status: MARRIED WITH THREE CHILDREN Religion : CHRISTIANITY

OFFICE CONTACTS 1. S. T. HON (SAN) & Co. (Lawshield Partners) 16 Dan Suleiman Street Utako, District, buja.

2. S. T. HON (SAN) & Co. (Lawshield Partners) No. 10 Lane Off Emekuku Street D/Line, Port Harcourt. Office Tel: 084899167

[C] EDUCATIONAL QUALIFICATIONS WITH DATES * ST. FRANCIS PRIMARY SCHOOL, GBOKO, : 1974-1980 (FIRST SCHOOL LEAVING CERTIFICATE)

* KINGS COMPREHENSIVE COLLEGE, MKAR, GBOKO: 1980-1985 (GCE/SCHOOL CERTIFICATE)

* PRIVATE CANDIDATE 1986 (GCE A/LEVEL)

* SCHOOL OF BASIC STUDIES, MAKURDI, BENUE STATE: 1985-1987 (IJMB)

* UNIVERSITY OF JOS, JOS, NIGERIA: 1987-1990 (LL.B HONS)

* NIGERIAN LAW SCHOOL, LAGOS: 1990-1991 (BL) III THE ADVOCATE ISSN 0339 VOLUME 21 2019 The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria 1-17

[D] ELEVATION TO RANK OF SENIOR ADVOCATE OF NIGERIA,

SAN The Legal Practitioners Privileges Committee, in 2008, elevated SEBASTINE TARTENGER HON to the rank of SENIOR ADVOCATE OF NIGERIA, SAN. He was the only applicant elevated that year as an academic, owing largely to his quite onerous task of combining research and book writing with legal practice.

[E] AWARD OF FELLOWSHIP OF CHARTERED ARBITRATORS

After undertaking mandatory study at the Chartered Institute of Chartered Arbitrators (Nigeria), S.T. Hon, SAN, was inducted as a Fellow of the Chartered Institute of Arbitrators, the highest any person can attain in arbitration. This was on 21/11/2014; and that is why he adds the following acronym to his name: FCIArb.

[F] PRACTICAL EXPERIENCE 1. Joined EnefiokUdoh& Co. (Barrister & Solicitors), No. 148, Oron Road, Uyo, as a Solicitor/Advocate in office: 1991-1992 (NYSC).

2. Set up private law firm called S. T. Hon & Co. (Gaskiya Chambers), No. 88/89, Amadu Bello Way, Gembu, Taraba State. (1992-1995).

3. Joined C.A. Idye& Co. (Barristers & Solicitors), No. 10 Capt. Down's Road, Gboko Benue State as a Solicitor/Advocate in August, 1995 till January, 1996. 4. Joined J.L.D. Dagogo& Co. (Barristers & Solicitors), No. 20 Aggrey Road, Port Harcourt, as Solicitor/Advocate, 1996-2000.

5. Set up S. T. Hon & Co. (Mimi Chambers), later S.T. Hon (SAN) & Co. (Lawshield Partners), since 2000, and is the Managing Solicitor.

6. He has practiced law as Barrister and Solicitor in all strata of courts and Tribunals (e.g. Election Tribunals) in Nigeria, including the Supreme Court of Nigeria.

7. Has as his clientele responsible corporate bodies like the National Assembly, the Federal Ministry of Justice, the Economic and Financial Crimes Commission, EFCC, the Central Bank of Nigeria, National Agency for Food and Drug Administration and Control (NAFDAC), Standards Organisation of Nigeria (SON), NEXIM Bank, some State Governments, Local

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Governments, Communities, Commercial Banks, oil Companies, Communities, private individuals, etc.

8. Cherishes legal practice, especially advocacy, which if coupled with his background as a researcher, produces wonderful results in court.

[G] RESEARCH AND LITERARY WORKS

SebastineTartenger Hon, SAN,FCIArb.,is an astute and relentless writer, author and public affairs commentator. His contributions to the development of legal and other literature include the following:

1. Co-author of: MANAGEMENT OF PRIMARY SCHOOLS AT THE THIRD TIER OF GOVERNMENT IN NIGERIA: A LEGAL MANUAL (Based on Decree No. 3 of 1991; and published in 1992 during NYSC).

2. Author of CONSTITUTIONAL LAW AND JURISPRUDENCE IN NIGERIA (Based on the Constitution of the Federal Republic of Nigeria, 1999 and published in 2004).

3. Author of LAW OF EVIDENCE IN NIGERIA: SUBSTANTIVE AND PROCEDURAL (Published in 2006).

4. Author of CIVIL PROCEDURE IN NIGERIA [FEDERAL HIGH COURT, STATE HIGH COURTS AND FCT ABUJA HIGH COURT] (Published in 2008).

5. Author of S.T. HON'S LAW OF EVIDENCE IN NIGERIA, VOLS. I AND II (Published in 2012)

6. Author of S.T. HON'S CONSTITUTIONAL AND MIGRATION LAW IN NIGERIA (Published in 2016)

7. Author of NIGERIAN LEGAL DICTION AND PHRASEOLOGY (Manuscript).

8. Author of NIGERIA FROM MEDIEVAL TIMES TO THE YEAR 2000: FACTS, FIGURES AND DETAILS (Manuscript).

9. Has written countless articles on knotty legal and current issues in notable Nigerian dailies/magazines. V THE ADVOCATE ISSN 0339 VOLUME 21 2019 The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria 1-17

[H] COMMENTS BY JURISTS AND OTHER SENIOR LAWYERS ON HIS PUBLICATIONS AND OTHER CONTRIBUTIONS TO THE DEVELOPMENT OF THE LAW

[i] PART OF SPEECH DELIVERED BY HE, PROF. YEMI OSIBANJO, SAN, AT THE PUBLIC PRESENTATION OF CONSTITUTIONAL AND MIGRATION LAW IN NIGERIA, ON JULY 12, 2016

Since 2013 when I started reading books written by SebastineHon, I have discovered that he is fearless and forthright. He discusses topics not covered by any other author in Nigeria and takes a strong position, backed up with good arguments. He is still a young man and I believe the sky is just his beginning. I honestly commend him for the weighty contributions he has made to the development of law in Nigeria.

[i] EXTRACT FROM FOREWORD WRITTEN BY A.I KATSINA-ALU, J.S.C., TO CONSTITUTIONAL LAW AND JURISPRUDENCE IN NIGERIA (2004), AUTHORED BY S.T. HON

Having carefully gone through the Book: CONSTITUTIONAL LAW AND JURISPRUDENCE IN NIGERIA written by SEBASTINE TAR. HON, a legal practitioner of immense practical experience, I am delighted to write a foreword thereto. The author has, through incisive and extensive research, brought out not only the most salient points, but has relied on reigning or current judicial pronouncements by courts of superior record in Nigeria, including the Supreme Court, on the provisions of the Constitution of the Federal Republic of Nigeria, 1999, and other topical issues in constitutional jurisprudence. Of particular interest is the avalanche of decisions of courts of foreign jurisdictions, like the United States of America, Canada, Britain, India, Australia, Ghana, Zimbabwe, Sierra Leone, etc…. I make bold to say that to the best of my knowledge, no single source material on constitutional law and jurisprudence in Nigeria has covered the ground in a most incisive manner.

A.I. KATSINA-ALU, Justice of the Supreme Court (then) January, 2004

[ii] BACK OF THE BOOK COMMENTS ON CIVIL PROCEDURE IN NIGERIA (2008), AUTHORED BY S.T. HON

This book on Civil Procedure and Practice, written by a very seasoned legal practitioner, is exhaustive on all the topics covered. The author's deep VI THE ADVOCATE ISSN 0339 VOLUME 21 20199 The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria 1-17

research, laced with latest decisions of the Supreme Court and the Court of Appeal, makes it most practical in all ramifications. His exhaustive treatment of the newest innovation in civil practice in Nigeria – the FRONT LOADING PROCEDRUE- caps it all the Book is simply and uniquely inviting to all legal minds.

HON JUSTICE IORHEMEN HWANDE Chief Judge, Benue State (2008)

This is a veritable scholarly work that will surely meet the need of lawyers and the bench, I recommend to all.

HON. JUSTICE ICHE N. NDU, OFR Chief Judge, (2008)

S.T. Hon Esq. must be commended for his prodigious effort in writing the book CIVIL PROCEDURE IN NIGERIA(FEDERAL HIGH COURT, STATE HIGH COURTS AND F.C.T. ABUJA HIGH COURT) VOLUME 1. It is gratifying to note that he has done some comparative analysis and appraisal of the various Rules of the High Courts in Nigeria and has taken into account the new High Court Rules of Lagos and Rivers States, which introduced the advanced procedure called “FRONT LOADING.”

O.C.J. OKOCHA, ESQ., MFR, SAN, JP PORT HARCOURT (2008)

This is a monumental masterpiece on the topics covered. The citation of hundreds of current decisions of the Supreme Court and Court of Appeal of Nigeria makes the Book a must acquire for all lawyers, Judges and the academia. I hereby strongly and unreservedly recommend it.

B.M. WIFA, OFR, SAN PORT HARCOURT (2008)

This book is very well researched, very detailed and most useful to the legal profession in Nigeria. All legal practitioners, University teachers, law students, Judges and researchers interested in the practical aspects of our law will find it an invaluable asset. I highly recommend it to all and sundry. I commend the author for a very well written book for which he can be justifiably proud.

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B.E.I. NWOFOR, SAN PORT HARCOURT (2008)

This new book on Civil Procedure and Practice in the High Court provides the users – lawyers, litigants, students and Judges with a comprehensive and up to date treatment of some of the topics that are encountered in everyday practice. It is a Book laced with current decisions of the Appellate Courts and therefore the most up to date Book on the topics treated by the author. It is a very good and useful book.

I.A. ADEDIPE, SAN PORT HARCOURT (2008)

This is a very remarkable and diligently researched work on Civil Procedure in Nigeria. The use of recent authorities is commendable. It is written in such a simple style that is both creditable and a rarity in most legal academic work. It is a highly recommended text for Judges, legal practitioners, academicians, students and even non-lawyers who wish to have a grasp of civil procedure in Nigeria.

B.I. HOM, SAN MAKURDI (2008)

It gives me the greatest pleasure to introduce the author of this Book. He is Mr. Sebastine Tar Hon. The author is not new as a writer of law Books. His latest attempt on “Civil Procedure and Practice” speaks for itself. It is a Chapter-by-Chapter discussion of Civil Procedure and Practice in Nigerian Courts…. It is… a necessary Book on practice and procedure which should serve as a reference book for Scholars, Researchers, Judges, Legal Practitioners, etc. The book contains contributions of a prolific writer whose aim and ambition is to simplify the reading, understanding and practice of law by Legal Practitioners, Judges, Law Lecturers, Law Student and persons associated with the law. I therefore do not hesitate to recommend the Book to the legal environment.

F.A. OSO, SAN PORT HARCOURT (2008)

[iii] EXTRACT FROM NEWSPAPER REVIEW OF S.T. HON'S LAW OF EVIDENCE (2012),PUBLISHED IN THE GUARDIAN, THISDAY AND THE NATION NEWSPAPERS, RESPECTIVELY, OF 14TH MAY, 2013, BY DAVID O. EZAGA, SAN,

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The greatest tribute which must be paid to Sebastine Hon, SAN with respect to the publication of his book entitled: S.T. Hon's Law of Evidence is his ability to assemble together, report and discuss very recent decisions delivered by both local and foreign courts. Over 50 reported and unreported decisions delivered in 2012 alone have been cited and discussed in the book; while over 500 decisions made between 2006- 2011 have been cited and amply discussed, bringing the total to about 550 very current decisions. And approximately 3,251 decisions have been reported in both Volumes of the book. There is no doubt that this is one book no serious-minded practitioner, researcher, jurist or student can afford to ignore. All I can say is great kudos to this respected author.

DAVID O. EZAGA, SAN PORTHARCOURT, 14TH MAY, 2013

[iv] EXTRACT FROM SPEECH OF DELE ADESINA, SAN, ON THE PUBLIC PRESENTATION OF S.T. HON'S LAW OF EVIDENCE IN NIGERIA, VOLS. I AND II, AT THE YAR'ADUA CENTRE, ABUJA, ON 21ST MAY, 2013

S.T. Hon, SAN is a well respected lawyer whose contributions to the development of the law cannot be quantified. It is most amazing that he combines with ease practice of the law in the courts with writing very voluminous books. He is aliving icon who must be celebrated by all….

DELE ADESINA, SAN MAY, 2013.

[I] EXTRA CURRICULAR ACTIVITIES

1. Has regularly been invited by some Nigerians Universities as a Guest Lecturer on chosen topics in Constitutional Law. 2. Has also severally delivered credit-earning lectures to lawyers at the instance of both the National Secretariat and the Port Harcourt Branch of the Nigerian Bar Association, NBA. 3. Has delivered, on invitation, papers bordering on topical legal issues in seminars and symposia organised by the various levels and departments of Government. 4. Was Alternate Chairman to the Editorial Board Committee of the Nigeria Bar Association (National) between 2012 and August, 2014. 5. Was the Chairman of the Continuing Legal Education/Seminar Committee of the NBA, Port Harcourt Branch, between 2012 and April, 2014, having previously served as Consultant to that Committee. IX THE ADVOCATE ISSN 0339 VOLUME 21 2019 The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria 1-17

6. Is a Consultant on Constitutional Law, Law and Practice of Evidence and General Civil Practice. 7. Engages in sporting activities like badminton and table tennis. Has intention of joining a golf course. 8. Member, Legal Practitioners Privileges Appeal Committee (2014) 9. Member, Governing Council, Benue State University (2016-date)

[J] LEISURE Reading/researching, doing Church work and playing badminton.

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THE ADVOCATE ISSN 0339 VOLUME 21 2019 The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria 1-17

THE PRESIDENT’S ADDRESS

irst of, all glory and adoration is to the Almighty God, the author and finisher of fate, for the successful fixation of the 35th edition of the International FAdvocate Journal of Law. A journal, like the Havard Law Review Journal, whose primary purpose is to publish a journal of legal scholarship. It is a journal which enjoys wide acknowledgement for its polished, vast and brilliant collection of articles of unquestionable intellectual value and practical utility.

Mindful of our leading position in Nigeria as a high flying student body, we have deployed careful editorial techniques through our lecturers who devotedly ensure proper editing of papers, of even persons who are supposedly authorities in various fields just to endeavour we hoist perpetually the flag of excellence.

A publication of this type which was initiated in 1972 as a replica of student-run journal organization of other ivy league universities involves a great financial standing to be published. It is the tradition that the journal be published in honor of legal luminaries as a way of celebrating their achievements and contributions to the legal sphere. This year's edition was especially dedicated to the illustrious life of a legal juggernaut of great legal industry both in litigation and academics.

We publish this edition in honor of Chief Sébastine Tartenger Hon, SAN, FCIArb. Over the years, the likes of Chief F. R. A. Williams, SAN; Mr. G. O. K. Ajayi, SAN; Chief M. Q. Akpofwe, SAN; Dr. Mudiaga Odje, SAN; Chief Afe Babalola, SAN; Chief Wole Olanipekun, SAN; Prince Lateef Fagbemi, SAN; Mr. Yusuf Alli, SAN; Mr. Ahmed Raji, SAN; Mr. Gbenga Oyebode, MFR; Chief Anthony Idigbe, SAN; Mallam Abubakar Malami, SAN and so many others, have all been bestowed this honor of publishing this journal of rich history.

Apart from being a forum for legal scholarship, the journal has two other goals. First, the journal is designed to be an effective research tool for practicing lawyers and students of the law. Second, it provides opportunities for members of the publication committee to develop their own editing and writing skills.

As the 57th President of our prestigious faculty, I am more than delighted to write this address as this was a mere dream some months back. No greater a dream than the operation of rule of law in recent time in this supposedly democratic dispensation.

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Today, more than ever, lawyers are needed to champion the cause for the observance of civic laws. The situation is that the Executive arm of government have repeatedly display a show of disobedience to court orders without being checked. A government that selectively prosecute alleged looters who have swindled through various political offices whether elected or appointed. If you are not with the government of the day, then, be ready to face charges of money laundering or looting of public funds. If you have siphoned public funds while in office and you wish to escape prosecution, all you need to do is criss cross political parties and always make sure you are with the ruling party.

It was M. I. Jegede in 1993 that said the height of executive lawlessness is the disobedience to court orders which has become such a common feature that the very essence of law in society has been put in doubt. The litmus test for the existence for the rule of law and a functioning democracy as stated by Mike Ikhariale, is to determine how readily do members of the society, either high or law, comply with court orders. The issue is a matter of grave concern, more prevalent in Military dispensation as noted by the Supreme Court in the case of Governor of v. Ojukwu (1986).

It is even more sad that a civilian democratic dispensation would treat court orders with levity and contempt and as such, the confidence reposed in the court by the public would be lost and this would greatly result into anarchy instead of the operation of the rule of law.

The current government, evidenced in the recent case of Sowore v. DSS (2019), where Justice Taiwo granted bail to the defendant and the federal government through the Department of State Security Service, are yet to release as appropriate the defendant. This is inconsistent with the order of the court and the rule of law. The law confers on the court the discretion to grant defendants in any case bail excepting certain circumstances where the law provides that a defendants may not be released on bail.

This mere act of executive lawlessness as described by the first emeritus professor in Nigeria, Professor David A. Ijalaye SAN in one of his notes and commentaries on executive lawlessness in Nigeria address issues as it develops with the inception of democracy in Nigeria that one of the bane of our collective development in Nigeria is the issue of gross impunity and executive lawlessness "which has been manifested largely in two arms of the government i.e. the executive and legislature", quoting "our Baba" as Emeritus Professor D. A. Ijalaye SAN is fondly called by those he lectured. It is quite unfortunate that he has retired from active service when I got admission to study law at the Prestigious Faculty of law. XIV THE ADVOCATE ISSN 0339 VOLUME 21 2019 The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria 1-17

The content of the 35th edition of the Advocate Journal is greatly unique with contributions from the "big fish" of the legal profession like the jurists of all time: Professor Ben Nwabueze SAN, Emeritus Professor David A. Ijalaye SAN, Professor Paul Idornigie SAN, FCIArb, Dr. Ayodele Gatta and the honoree himself, Chief Sébastine Tartenger Hon SAN, FCIArb. It addresses issues that are highly sensitive and topical with faultless accuracy. It brings the readers face to face with the current legal and jurisprudential realities. The contents and arguments are supported by law, and logic. Infact, the contributors are highly cerebral figures and colossus of the legal profession.

We sincerely thank Professor Paul Idornigie SAN, the current Director General of the Institute of Advanced Legal Studies, who amidst his very tight and busy schedule find time to send a most timely paper on Arbitration. We are eternally grateful to you Sir. We cannot short our eyes at your enviable contributions to the development of the legal education within and outside Nigeria.

I am also mostly grateful to Emeritus Professor David A. Ijalaye SAN. He is a very accommodating father figure to the society even in retirement. May God continue to uphold and nourish you for greater good, sir. Amen.

I must also extend my hands of gratitude to the jurist of all time, Professor Ben Nwabueze SAN, who submitted his paper exactly 15 days after we submitted our call for paper to him on REVOLUTION, a very sensitive issue to pervading the social fabric in Nigeria.

To the Pope of Law, Professor Ademola Popoola whose depth and understanding of the law is unmatchable. We are very grateful for your receptive nature to contribute to the success of this Journal.

Our appreciation also goes to our staff advisers and lecturers of the Faculty, in no particular order, the Dean Faculty of Law, Professor Babafemi Odunsi, Dr. M. O. Adeleke, Dr. S. A. Coker, Dr. M. A. Lateef, and our staff editors; Mrs A. O. Adejumo, Mr. N. K. Adegbite, Mrs Ayoola Abuloye, Mr. O. B. Adegbite, and Mr. O. O. Odunniyi.

Special appreciation and congratulations goes to all members of the editorial committee for their sacrifice for giving us the best edition of the ADVOCATE JOURNAL ever. To the student Editor-in-Chief, Adegbola Adedayo, thank you very much for delivering a topnotch journal. You have left a dynamic imprints on the walls of history of our dear society. I am very proud to have him as my editor. He is extensively vast and highly deep in research paper. XV1 THE ADVOCATE ISSN 0339 VOLUME 21 2019 The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria 1-17

If I failed to appreciate the entire of league of law students, I would have been ungrateful. I really appreciate all law students for their mandate and support during my tenure. I pray God will replace my tenure with a more achieving and fruitful set of executives even though we faced financial challenges which seems insurmountable. But we thank God in the end.

To the "LUMINESCENTS", I am eternally indebted to you for serving with me. Even though we all have our own faults, your purpose driven zeal to serve cannot be exchanged for anything.

If they will ever report my relationship with you all, let them say I worked with selfless men who are selfless in the days of rain and notwithstanding the harshness of the sun. Let them say I lived in the days of great unity and uncommon togetherness. Let them say I lived among men who were ready to sacrifice anything for what they truly believe in. I will never forget our hard times in office.

If I would ever come back into the world, and asked to walk this path again, I would choose IFELAW again and again. God bless IFELAW. God bless Nigeria.

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FROM THE DESK OF THE EDITOR-IN-CHIEF

oremost, all praises, glory and adoration to the Fountain of knowledge, the Alpha and Omega of all affairs, He alone wills what becomes a success. This is Fthe 35th edition of the International Advocate journal, a journal that has stood the test of time. The publication of this year's Advocate Journal is a continuation of the legacy established in 1972. The Advocate Journal is an assemblage of research work from legal juggernauts in the corporate sector, academics and litigation. It contains works from astute researchers in the academics, prominent practitioners at the bar, students, alumni and particularly, it houses articles from the emerging area of Alternative Dispute Resolution. This year's edition contains contents on case law review, the prospect of taxation of crypto currency, the position of law on pre- election matters, two research work on the prosecutory powers of the Attorney General, Aviation Law, corporate governance, the issue on constitutional responsibilities of the legislature under the presidential constitution of Nigeria, among others.

The sojourn was not a smooth sail, we were faced with heavy tides and tempest at various junctions, but for the tenacity of the gallant editorial team and the indomitable Executive council, we were able to berth at the port of glory. About hundred persons were reached out to for contribution in the Advocate Journal, though many submitted and were not recommended for publication by our grand editors, so many did not fulfill promise of submission. Regrettably, we could not get submission from the bench, owing to the fact that it was the period of the judiciary's vacation, while many others were occupied with election tribunal. Many practitioners we reached out to were either abroad for professional courses or busy with election tribunals. The editorial team humbly urges the faculty to, if possible contribute or give a directory of standard to this journal which has attained recognition in many law firms, faculty and institutions' library. Also, Call for papers were extended to some universities in London and India, but for many reasons, were unable to deliver. I implore the subsequent administration to improve on the Advocate Journal and do a proper follow up on those that are yet to deliver. Though the Journal is primus Inter pares in Africa, it is yet to be the best of the Law Students' Society, Obafemi Awolowo University.

This address will be grossly insufficient without special gratitude to the prestigious honouree of this edition. Out of his indispensable choked schedule, he graciously granted us audience. A perusal of his profile is an obvious credential of excellence! A

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combination of great excellence in academics and practice. He surely has a chapter in the history of legal profession and his standards are worthy of emulation. It is of utmost importance that our grand editors are appreciated. They are best described as teachers rather than lecturers. Mrs. Adejumo, an academician per excellence, whose brilliant advice and contribution cannot be disassociated from the success of this publication. She allowed unlimited access to her, with listening ears. Always motivated to render support in all ramifications. She made all insurmountable a cakewalk. Mr. Kehinde Adegbite, a man whose words echo wisdom. He never hoards knowledge and most amazingly, he gives lessons from his experience and mistakes. Mrs. Ayo Abuloye, is greatly appreciated for her motherly role. She is overtly disposed to be a corner stone of success. Mr Sola Adegbite, a custodian of uprightness and staunch disciple of perfection, he expends immense energy on the success of students. Special gratitude to Dr. M.A. Lateef and Mr. Ore Oduniyi, they are teachers whose tales should be told several generations to come. This charter of appreciation will definitely be incomplete without appreciating Professor Popoola's contribution and fatherly role. He is definitely a special brand of human, made by God. He is popularly called the Pope of law, I think he is best revered as Solomon of our generation because his spectrum of knowledge surpasses the ambit of law! The amiable president, thank you so much for this life time opportunity. The General Secretary, Ilori Oluwatimilehin, you are worthy of admission into the Hall of Fame of the society. To my editorial board, you are the best team anyone would ever work with.

An ocean of ink will be exhausted if appreciating all efforts is attempted. The sweat and pain was worth it. The story we have been a part of in the Law Students' Society, shall live long in the minds of men. God bless IFELAW, God bless Obafemi Awolowo University!

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TABLE OF CONTENT

1. Prosecutory Powers of the Attorney General…………………….. 1 Chief Sebastian Tar. Hon, SAN, FCIArb

2. Executive and Legislative Lawlessness: A Challenge To The Rule of Law in Nigeria…………………………………………………………. Emeritus Professor D.A. Ijalaye, SAN

3. The Realisation of Our Aspirations and Dreams For A New and Better Nigeria Calls for A Radical Change in Governance and Society Known in Common Parlance as A Revolution……………………………….. Professor Ben Nwabueze, SAN

4. Principles and Techniques of Alternative Dispute Resolution……. Professor Paul Obo Idornigie, SAN, PhD, FCIS, FCIArb (UK)

5. Constitutional Status and Responsibilities of the Legislature Under the Presidential Constitution of Nigeria…………………………………. Professor Ademola Popoola

6. Regulatory Interventions In Combating The Phenomenon of Bird Strike as a Causative Factor in Aviation Accidents/Incidents in the Nigerian Aviation Industry…………………………………………………….. Dr. Ayodele Gatta, ACIArB (UK)

7. Corporate Leadership and Gender Diversity: A Case for Nigeria………………………………………………….. Dr. M.A. Lateef

8. An Appraisal of the Supreme Court's Decision in the Onshore/Offshore Offshore Oil Dichotomy Case of A.G. Abia & 35 Ors. V A.G Federation ……………………… Kunle Muideen Ogunfowodu & Ore Oduniyi

9. Privacy of Electronic Communications in the Workplace………….. Nonso Anyasi

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10. The Promise of the Singapore Conventions in Dispute Resolution- What does the Future Hold?………………………………………… Toheeb O. Amuda, AICMC

11. Pre-election Dispute in Nigeria: Appraisal of the Fourth Alteration No 21 Act, 2017 of the 1999 Constitution of the Federal Republic of Nigeria ……………………………………………………………. Mohammeed A. Oyelade

12. Data Protection in Nigeria Under the NITDA Data Protection Regulation 2019………………………………………………………………….. Levi A. Chiefuna

13. Apparaising The Legal Issues in Cryptocurrency Taxation…………. Tijesuni A. Ijitona

14. The Scope of Prosecutory Powers of the Attorney General and the Parameter of Public Interest…………………………………………… Adedayo A. Adegbola

XXI ARTICLE 231 PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL BY CHIEF SEBASTINE TAR. HON, SAN 1

ESTABLISHMENT OF OFFICE OF THE ATTORNEY-GENERAL

Taking after the botched 1989 Constitution of the Federal Republic of Nigeria, the framers of the 1999 Constitution made the following provisions establishing the office of the Attorney-General and also defining his powers:

150(1) There shall be an Attorney-General of the Federation who shall be the Chief Law Officer and Minister of the Government of the Federation.2

The phrase “Chief Law Officer” was included in a functional Constitution in Nigeria for the first time, hence there is need, at this stage, to examine vast judicial opinions on the interpretation and effect of the above provisions. Commenting on the similar provisions in respect of a State Attorney-General, the Supreme Court held in State vs. Matthe3 was follows:

It is to be noted that the Attorney General of any State of the Federation is provided for under sectionn195(1) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 to the effect that the Attorney General of a State is the Commissioner for Justice and the Chief Law Officer of the State.

In Elelu-Habeeb vs. Attorney General of the Federation,4 the Supreme Court, per Mohammed, J.S.C. (as he then was), lead judgment, held thus:

[T]he 1st respondent, the Honourable Attorney-General of the Federation [is] the Chief Law Officer of the Federation appointed under section 150 of the …Constitution, who is therefore not only the guardian of the Constitution but also the protector of the same….

1. Chief Sebastine Tar. Hon, SAN, is the author of, amongst other texts, Constitutional Law and Jurisprudence in Nigeria (2004); Law of Evidence in Nigeria: Substantive and Procedural (2006); Civil Procedure in Nigeria, Vol. 1 (2008); S.T. Hon's Law of Evidence in Nigeria, Vols. 1 & 2 (2012); S.T. Hon's Constitutional and Migration Law in Nigeria (2016) and S.T. Hon's Law of Evidence in Nigeria, 3rd Edition, 2019, etc. 2. See, also, section 195(1) of the Constitution, which has established the office of Attorney-General of a State. 3. (2018) 9 NWLR (Pt. 1625) 399 at 411-412 S.C. 4. (2012) All FWLR (Pt. 629) 1011 at 1050 S.C. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 24

On his own part, Adekeye, J.S.C., on page 1079, described the Attorney General of the Federation thus:

It has been firmly decided in many decided cases of this Court that the Federal Attorney-General is the Chief Law Officer of the Federation, he is the custodian and protector of the Constitution. He is competent to be sued in any suit against the Federal Government or any of its agencies.

He concluded that in any action where (a) interpretation of the Constitution as it affects democratic governance in Nigeria; (b) the doctrine of separation of powers is to be tested; and (c) there exists a threat to the independence of any of the three arms of government, “the Attorney-General of the Federation must be an inevitable party.”5

In Attorney General of Rivers State vs. Attorney General of Akwa Ibom State,6 his lordship, I.T. Muhammad, J.S.C. (as he then was), described the offices of the Attorney General of the Federation and the Attorneys-General of the States, as follows:

Offices of the Attorneys General of the Federation and of a State Government are created by the Constitution (section 150 and 195 of the Constitution of the Federal Republic of Nigeria, 1999, respectively). The officer occupying the office whether at the federal or state level, is appointed and/or removed at the pleasure of the President of the Federation or a State Governor (Section 150(1) and 195(1) of the Constitution of the Federal Republic of Nigeria, 1999). Their main function is advising the Federal/State Government including the parastatals on legal matters and prosecuting or defending court cases for or against their respective government. Therefore, reference in this matter to the Attorney-General of Rivers or Akwa Ibom State means, without mincing words, reference to the Rivers State or Akwa Ibom State Government as the case may be. Equally, reference to the Attorney-General of the Federation means reference to the Federal Government of Nigeria.

5. Reliance on Attorney General of vs. Attorney General of the Federation (2007) All FWLR (Pt. 364) 238 and Attorney General of Rivers State vs, Attorney General of Akwa Ibom State (2011) All FWLR (Pt. 579) 1023. 6. (2011) All FWLR (Pt. 579) 1023 at 1092 S.C. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 25

Even before the botched 1989 and the 1999 Presidential Constitutions, the Court of Appeal, in Esokoro vs. Government of ,7 Tobi, J. C. A., as he then was, held thus:

I now turn to the 2nd respondent - the Attorney-General of the State. He is not only the Head of the Ministry of Justice, but also the Chief legal adviser of the Government. He is basically responsible for government actions and in actions.8

In Attorney General of Kano State vs. Attorney General of the Federation,9 however, the Supreme Court held that even though the Attorney-General of the Federation or of a State can be sued for and on behalf of the Federal Government or a State Government as the case may be, the claim or complaint must be “directly against the State or Federal Government concerned.” Also, in Attorney General of vs. Attorney General of the Federation,10 the apex Court held that although the Attorney General of the Federation can be sued as a defendant in all civil matters in which a claim is being made against the Federal Government or its agencies, where the suit as constituted cannot be effected against the Federal Government but against a concerned agency of the Government, the proper defendant should be the agency concerned and not the Attorney General of the Federation.

As the Chief Law Officer of the State, the Attorney-General has the power to institute in any court of competent jurisdiction any civil proceedings, with or without a relator, involving the rights and interests of the public, which he deems necessary for the enforcement of the law, the preservation of order and the prevention of public wrongs.11

Be that as it may, the mere fact that there is no person occupying the office of the Attorney General at a given time does not mean a suit cannot be commenced in the name of the Attorney General. This is because the holder of the office is different from the office. These were the high points of the Supreme Court decision in the case of Attorney General of the Federation vs. All Nigeria Peoples Party.12 Tobi, J.S.C., who delivered the lead judgment,

7. (1991) 4 NWLR (Pt. 185) 322 at 336 C.A. 8. See, also, F.C.S.C. vs. Laoye (1989) 2 NWLR (Pt. 106) 652 at 700 and Nigeria Engineering Works Ltd. vs. Denap Limited (2002) FWLR (Pt. 89) 1062 at 1086-1087. 9. (2007) All FWLR (Pt. 364) 238 at 261 S.C. 10. (2007) All FWLR (Pt. 379) 1218 S.C. 11. Attorney General of the Federation vs. Attorney General of (1982) 12 SC 274 at 306. 12. (2004) FWLR (Pt. 190) 1458. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 26 held that the office of the Attorney General being a creation of the Constitution, “unless or until the office is abrogated, it will continue in perpetuity. And any suit by or against the Attorney General will in law be absorbed by the office, which never dies unless the Constitution abrogates it.” He further distinguished the facts of this case from the facts in Attorney General of vs. Hassan, supra, by saying that whereas in Hassan's case, the Solicitor-General had tried to perform the functions of the Attorney General, in the present case, all that happened was that the office of the Attorney General, which is a creation of the Constitution, filed an appeal. This, the Supreme Court held, was okay constitutionally.

In conclusion, the word “and” in subsection (1) of section 150 has a conjunctive connotation. This means that the Attorney General must also be a Minister of the Government of the Federation. In practice, he is normally called Attorney General of the Federation and Minister of Justice. The combination of the two offices into one is not proper, especially where Ministers are appointed as a mark of political patronage. The Attorney- General is supposed to be the stopgap between the government and the common man, hence to make a politician the Attorney-General will most likely rubbish the sacred nature of this office. An amendment of section 150 is, therefore, hereby suggested, to make provision for two appointees – one as the Attorney General – and the other as Minister of Justice.

Public prosecutions The power of a sitting Attorney-General to undertake prosecution of offences for and on behalf of the State is, without doubt, one of the most important ministerial duties assigned to him by the Constitution. This can be gathered from the clear and unequivocal wordings of section 174 of the Constitution, which is in parimateriawith section 211, the only difference being that while section 174 deals with the Attorney General of the Federation, section 211 deals with that of the State. The said section 174 provides as follows:

174(1) The Attorney-General of the Federation shall have power – (a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court- martial, in respect of any offence created by or under any Act of the PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 27

National Assembly' (b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and (c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. (2) The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department. (3) In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.

The courts have interpreted the above provisions to mean that the Attorney- General has absolute powers, from the facts available to him, to institute criminal proceedings against any person who is capable in law of being prosecuted, which powers are unquestionable. Thus, in Ameh vs. State,13 Okoro, J.S.C., delivering the lead judgment of the Supreme Court, held, interpreting similar provisions with respect to an Attorney-General of a State, as follows:

By section 211(1) of the 1999 Constitution of the FRN (as amended), the Attorney General of a State is empowered to institute and undertake criminal proceedings against any person before any court of law, amongst other duties. 14

Such absolute powers include his discretion to choose whom he will prosecute; and this cannot be questioned by anybody, including the courts. Thus, in Ogunjobi vs. State,15 Fabiyi, J.S.C., delivering the lead judgment of the Supreme Court, held thus:

The point of discrimination raised on behalf of the appellant when it was maintained that others who counter-signed cheques like the appellant were not prosecuted is a non-issue. It has to do with public

13. (2018) 12 NWLR (Pt. 1632) 99 at 113 S.C. 14. Of course, he cannot, from the clear provisions of section 211(1)(a), no power to undertake criminal proceedings before a court martial. 15. (2013) All FWLR (Pt. 670) 1195 at 1214 S.C. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 28

policy. The Attorney-General is in charge of his official duties and it is presumed that he knows what to do in any given situation without any undue prompting. In this respect, I was not taken in by the ploy embarked upon by the appellant who should dance to the tune dictated by him.14

This discretion to prosecute applies to all other persons to whom the Attorney- General has delegated his powers. Thus, in Agundi vs. C.O.P.,16 the Court of Appeal held that the Director of Public Prosecutions, DPP, has discretion on whom he will prosecute and that this discretion cannot be challenged by anybody.

When the Attorney-General takes a decision either to prosecute or to take over prosecution or even to discontinue prosecution, the courts always stand aloof and indeed resist any attempt to challenge such exercise of powers. Thus, in George vs. F.R.N.,17 the Court of Appeal held that the court has no power to question the exercise by the Attorney-General of his powers as spelt out in the Constitution and that the limits to such powers are as named in the Constitution itself. Relying on a good number of decisions,18 Ogunbiyi, J.C.A., as he then was, held on page 68 that various judicial authorities have also emphasised that “the court cannot by any means curtail, restrict, or prevent the powers of the Attorney-General under the said section 174;” concluding that the powers of the Attorney-General are discretionary and cannot be questioned by the courts.

DEFENCE POWERS

As shown in some of the cases analysed above, the Attorney-General has constitutional power to defend the Federal or State Government, as the case may be, in civil cases. His powers to defend a criminal matter instituted by his office was, however, not tested until recently.

In Idowu vs. Okanlawon,19 the Court of Appeal held that since the Office of the Public Defender (Department of Citizen's Rights) of Lagos State was

16. (2013) All FWLR (Pt. 660) 1247 C.A. 17. (2011) 10 NWLR (Pt. 1254) 1 C.A. 18. Bagudu vs. FRN (2004) 1 NWLR (Pt. 853) 182 at 202; Attorney General of vs. Attorney General of the Federation (2002) 9 NWLR (Pt. 772) 222 at 419; Abacha vs. FRN (2006) 4 NWLR (Pt. 970) 239 and Alamieyeseigha vs. FRN (2006) 16 NWLR (Pt. 1004) 1 at 82. 19. (2015) 17 NWLR (Pt. 1489) 445 C.A. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 29 established as an independent body from the State Ministry of Justice, defence undertaken by counsel from that Department for an accused person being prosecuted by the State did not infringe of the fundamental rights of the appellant.

In the case of State vs. Matthew,20 the respondent was arraigned for conspiracy to commit armed robbery and armed robbery. On account that he was not represented by counsel, the learned trial Judge ordered the Legal Aid Council to assign a counsel for him. At the adjourned date, both a counsel from the Council and a set of counsel from the Office of the Public Defender (Department of Citizens' Right) under the Ministry of Justice in , announced their appearance for the respondent. The counsel from the Legal Aid Council, consequently, applied to be discharged from the case, which was granted. The full trial proceeded, with the respondent not objecting to the appearance of those other counsel. On appeal against conviction, the respondent asked the Court of Appeal to quash the said conviction on the ground that he had been prosecuted and defended by counsel from the State. The Court of Appeal agreed with him, quashed his conviction and ordered a trial de novo before another Judge. The State appealed to the Supreme Court, which allowed the appeal. The apex Court held on page 413 thus:

It is clear from section 211(1)(b) and (c) that the power of the Attorney General is not just prosecutorial but also defensive when the occasion warrants after all the Attorney General is for all including the State. Also, the prosecution of an accused in a criminal trial is not compromised because a lawyer(s) from a department under the Ministry of Justice takes up his defence while the department of public prosecutions is prosecuting. It is taking independence of an arm of justice too far to insist that it is only a counsel from the legal aid council or private practice that can carry out the defence. This is technicality taken to a ridiculous extent as if the argument is to be extended [to] the courts presided by the judges would be debarred from adjudicating once a government functionary is involved since the pay of a judge comes from government coffers.

20. (2018) 9 NWLR (Pt. 1625) 399 S.C. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 30

The Supreme Court took time to explain the import of the decision of the Court of Appeal in the earlier case of Idowu vs. Okanlawon, supra. This was because, according to the apex Court, the Court of Appeal, in State vs. Matthew, supra, sought to differentiate Idowu vs. Okanlawon, on the ground that while the office of the Public Defender (Department of Citizens' Right) was stated to be independent of the StateMinistry of Justice, the one in Ogun State was not stated to be so independent. The Supreme Court held that the distinction was immaterial. Peter-Odili, J.S.C., who delivered the lead judgment, held on page 411 thus:

The distinction as proffered by the court below is not as simple as that explanation is forgetting the reality on ground which is which is that even though, by the Lagos State legal instrument creating the Public Defender or Department of Citizens' Rights had specified its independence, all the same the lawyers therein are of Lagos State Government whose head is the Chief Law Officer and Attorney General and Commissioner of Justice, Lagos State.

From the above decisions, therefore, counsel in the Department of the Ministry of Justice can rightfully and lawfully represent accused persons as defence counsel.21

DELEGATION OF POWERS

The Attorney-General, under section 174 or 211 of the CFRN 1999 as amended, can lawfully delegate any of the powers exercisable by the occupant of that office, as can be seen through the cases. The power to delegate can be gathered from the phrase “by him in person or through officers of his department” in sections 174(2) and 211(2), respectively, of the Constitution.

DELEGATION TO OFFICERS OF THE ATTORNEY-GENERAL'S DEPARTMENT

The power of the Attorney-General to delegate his powers to officers of his Department or lawyers in his chambers, from the express provisions of

21. Query: Are these decisions correct in law, in view of the tendentious and biased manner criminal prosecutions are sometimes done in Nigeria? The Supreme Court, with respect, may have to revisit these decisions in future. (1986) 1 NWLR (Pt. 18) 650 S.C. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 31

174(2) and 211(2), respectively, of the Constitution, is not in doubt, as affirmed by superior courts of record in Nigeria.

One of the earliest decisions where similar provisions were tested was the case of Ibrahim vs. State,22 where the constitutionality of a Senior State Counsel signing an information for and on behalf of the Attorney General, pursuant to a legal notice from the Attorney General authorising the Director of Public Prosecutions and other officers of his department to perform on his behalf his powers under section 191(1) and (3) of the 1979 Constitution,23 was in issue. The Supreme Court, in rejecting the contention that the Information was invalid, held that the Attorney general has power to delegate all his powers of instituting, taking over and discontinuing criminal proceedings in any court.24 It further held that under section 191 of the Constitution, the Attorney General is a law and master unto himself and that the only sanction against him for abuse of his discretion is the reaction of his appointor or adverse public opinion that might force him to resign. It concluded that the Attorney General has unfettered discretion to give general or specific delegation of his powers.

The Court of Appeal also held in Akinwunmi vs. State 25 that a state counsel is competent to sign an information to be filed in the High Court on behalf of the Attorney General; and that it cannot be said that the said counsel has usurped the powers of the Attorney General. The Court of Appeal further held that there is presumption of regularity with respect to official acts. 26

In Unipetrol Nig. Plc vs. ESBIR,27 it was argued that it is only an Attorney General that can institute criminal proceedings in court; hence a criminal instituted by a lawyer in the Attorney General's office was incompetent. The Supreme Court rejected this argument, holding that the Attorney General can either undertake a civil or criminal prosecution or defence himself or can delegate that duty to a lawyer in the Ministry of Justice. Therefore, that the charge filed by a lawyer in the Ministry of Justice was not invalid.

The next question is whether, as held by the Court of Appeal in Akinwunmi28 vs. State, supra, there is a fixed presumption that the Attorney-General has

22. (1986) 1 NWLR (Pt. 18) 650 S.C. 23. Ipissimaverbis of section 211(1) and (3) of the 1999 Constitution. 24. Reliance on State vs. Ilori (1983) 1 SCNLR 94. 25. (2013) All FWLR (Pt. 690) 1369 C.A. 26. See, also, FRN vs. Adewunmi (2007) 10 NWLR (Pt. 1042) 399. 27. (2006) All FWLR (Pt. 317) 413 S.C. 28. (2007) All FWLR (Pt. 368) 978 S.C. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 32 generally delegated his functions to lawyers in the Ministry of Justice. The Supreme Court answered this question in the affirmative, in the case of F.R.N. vs. Adewunmi, where it held that the officers in the Attorney General's office do not need express authorisation before they can file criminal charges. Kalgo, J.S.C., who delivered the lead judgment, held on page 994, after alluding to sections 174 and 211, thus:

The provisions of the sections presume that any officer in any department of the Attorney-General's office is empowered to initiate criminal proceedings unless it is proved otherwise. This will not be in conflict with our decision in Att.-Gen., Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483, where the main controversy was that there was no incumbent Attorney-General who could have donated the power to discontinue criminal prosecution in the case concerned. There is also no doubt in my mind that Mrs. Fatunde, an assistant chief legal officer in the Federal Ministry of Justice, DPP's office, is an officer in one of the departments [in the office] of the Attorney-General of the Federation and is highly qualified to institute criminal proceedings against the respondent.

The next question is whether, as amongst the counsel in the Attorney-General's Department, there can be delegation of duties or taking over of functions. The Supreme Court appears to also have answered this in the affirmative, in the case of Ameh vs. State.29 The question here was whether the counsel from the Attorney-General's office who had applied for leave to prefer a charge to the High Court Judge must be the same officer in that department to sign the charge once leave was granted by the Judge. For, it was argued that where the applying officer was different from the drafter of the charge, the said charge was invalid. The Supreme Court rejected these arguments. It accepted the common ground of counsel that from the phrase “by him in person or through officers of his department” in section 211(2) of the Constitution, the Attorney- General can delegate any of his functions to any counsel in his chambers. On the question of the validity of the charge, however, the apex Court agreed with the Court of Appeal that the charge was not invalid. Okoro, J.S.C., who delivered the lead judgment, gave his reasons on page 114 thus:

29. (2018) 12 NWLR (Pt. 1632) 99 S.C. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 33

My reason is not far-fetched. Where one counsel in the office of the Attorney General has drafted an application for leave to proffer a charge against an accused person but before the charge of filed, the said counsel if either indisposed or has gone on leave or some other unforeseen incidents occur, will it be reasonable to put the process in the cooler pending when that officer will resume duties whereas there are other competent officers in the Ministry? I do not think that is the way to go. There is nothing legally wrong with the signing of the charge by G.P. Olorunnuhe, Esq., thought it was drafted by his colleague Mrs. Deborah Ajayi, the two of them being law officers in the chambers of the Attorney-General [of] Kogi State.

DELEGATION TO OTHER LAWYERS IN THE PUBLIC SERVICE

Sections 174(2) and 211(2) of the Constitution are silent on whether the Attorney-General can delegate his powers to lawyers employed in the public service of either the Federation or that of a given State in the Federation. In spite of this obvious lacuna, superior courts of record in Nigeria, led by the Supreme Court, have always validated charges filed by such public officers, even when there is no express delegation of powers to them by the concerned Attorney-General.

In F.R.N. vs. Osahon,30 the question was whether without the fiat of the Attorney General of the Federation, a police officer who is a qualified legal practitioner could validly file charges against accused persons under the provisions of the Miscellaneous Offences Decree No. 20 of 1984. The Supreme Court was fully empanelled; and in deciding the appeal, it took into account the provisions of section 174(1) of the Constitution. The Supreme Court (Katsina-Alu and Musdapher, JJ.S.C., as they were then, dissenting), held that the police officers could lawfully file the charges. It found, relying on a previous decision,31 that the prosecutorial powers of the police are even sanctioned by section 174(1)(b) of the Constitution, which has in it the phrase “any other authority or person.” Belgore, J.S.C., as he then was, in his lead judgment, held on page 2001 as follows:

30. (2006) All FWLR (Pt. 312) 1975 S.C. 31. Comptroller Nigeria Prison Service vs. Adekanye (No. 1) (2002) FWLR (Pt. 120) 1650 PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 34

The same “any other authority or person,” appears in section 174(1)(b). If there is any aspect of ambiguity, it could be the word “person.” The police force is an authority of the Federal Government. But as the Constitution provides “any person,” does it mean the floodgate is opened for all persons (whether legally qualified or not) to prosecute criminal proceedings in any court in Nigeria?... To appear in all superior courts of record in Nigeria to prosecute any case, civil or criminal, the person is presumed to be a legal practitioner as provided in the Legal Practitioners Act. So the words “any… person” presumes as “represented by a legal practitioner.” And for “any other authority” presupposes that the authority could be represented by a legally qualified person either in that authority or engaged for the purpose by that authority.

His lordship further reasoned on page 2002 that “any other authority or person” can “definitely institute criminal prosecution;” and that the prosecutorial powers of the Attorney General of either the Federation or of a State are not exclusive, as any other person can prosecute. However, that the Attorney General can take over any such prosecution or discontinue it by entering a nolle prosequi.

Since the decision in Osahon's case, supra, the Supreme Court and the Court of Appeal have maintained a straight face on this issue of delegation of the powers of the Attorney-General. Thus, in Amadi vs. F.R.N.,32 the Supreme Court held that the word “may” in section 211(2) of the Constitution does not limit the delegation of the Attorney General's powers to only officers of his department, but has extended delegation of such powers to other bodies or institutions like the various State Commissioners of Police, the Nigeria Customs Service, the Federal Board of Internal Revenue and recently the Economic and Financial Crimes Commission, EFCC. The Supreme Court agreed with the learned trial Judge that the rationale for such delegation is the need for speedy dispensation of criminal justice. It concluded that once the Attorney-General delegates his powers to prosecute, any officer in the institution to which delegation of such powers is made is competent to sign a charge pursuant to such delegation and that no court has power to challenge the exercise of the powers of the Attorney-General.33

32. (2008) 18 NWLR (Pt. 1119) 259 S.C. 33. See, also, Pharma Deko Plc vs. N.S.I.T.F.M.B. (2011) 5 NWLR (Pt. 1241) 431 C.A. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 35

Similarly, in Amah vs. F.R.N., the Supreme Court, relying on a great deal of previous decisions, 34 held, per Peter-Odili, J.S.C., that there was no need for counsel employed by the EFCC to be given a fiat of the Attorney-General before he could file criminal charges; further holding that this was “the current position of the law.”

This was a matter where the authority of the EFCC to prosecute was challenged, on the ground that the EFCC did not exhibit the fiat of the Attorney-General to file the charges. Kekere-Ekun, J.S.C., who delivered the lead judgment, held on page 186 thus:

Section 211 of the Constitution makes similar provisions for the office of the Attorney-General of a State in relation to offences created by or under any law of the House of Assembly. Section 174(1)(b)&(c), which refers to proceedings initiated by “any other authority or persons,” is a clear indication that the power of the Attorney-General, Federal or State, to institute criminal proceedings, is not exclusive to his office.

The rationale for, and the limitations on, such delegated powers were stated in Amadi's case, supra, and adopted by the Supreme Court in Amah vs. F.R.N., supra, on page 187, thus:

…. In view of the High premium attached to speedy disposal of criminal cases, the Attorneys General of the States delegate their powers to the various State Commissioners of Police who institute and prosecute criminal matters in the name of the Commissioners of Police. Such powers are also delegated to the Federal Board of Internal Revenue, Nigeria Customs Service and lately EFCC by the Attorney General of the Federation. This arrangement is made possible subject to the provisions of section 174(1)(b), (c) and 211(1)(b), (c) of the Constitution of the Federal Republic of Nigeria, 1999, which provide that the Attorney General of the Federation or State, as the case may be, shall have power to take over and continue any such criminal proceedings initiated by any other authority or person, to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by any other authority or person.

34. Dariye vs. F.R.N. (2015) 10 NWLR (Pt. 1467) 325; Kalu vs. F.R.N. (2016) 9 NWLR (Pt. 1516) 1; Nyame vs. F.R.N. (2010) 7 NWLR (Pt. 1193) 344; Saraki vs. F.R.N. (2016) 3 NWLR (Pt. 1500) 531; Shema vs. F.R.N. (2018) 9 NWLR (Pt. 1624) 337; Amadi vs. F.R.N. (2008) 18 NWLR (Pt. 1119) 259, etc. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 36

The next question is whether a State Attorney-General can validly authorise a Federal Agency like the EFCC to prosecute State offences. The answer, on the authorities, is in the affirmative. Thus, the Supreme Court refused to quash the charges against the appellant in Shema vs. F.R.N.,35 when an objection based on this was taken by him. The apex Court hinged this on the need to free the anti- corruption fight from the legal shackles and mines laid by lawyers, further holding that the mere fact that the charges were filed under the appellation “Federal Republic of Nigeria” was of no moment.

Conversely, too, the question whether a Federal Government prosecutorial agency has power to institute criminal proceedings in a State with the consent or autorisation of the Attorney-General of that State was answered in the affirmative by the Court of Appeal in Akingbola vs. F.R.N.,36 where the Court of Appeal held, relying on a previous decision,37 that in spite of section 211(1)(b) of the Constitution, the Economic and Financial Crimes Commission, EFCC, can competently file charges before a State High Court and that a State Attorney-General does not have monopoly to file such charges. Further, that the EFCC does not need the fiat of a State Attorney-General to file those charges.

DELEGATION TO PRIVATE LEGAL PRACTITIONERS

The Attorney-General can also competently engage a private legal practitioner to lead the team of lawyers from his department to undertake criminal prosecution;38 and this cannot be said to amount to the private practitioner engaging in private prosecution. It has also been held that an Attorney-General can brief a private legal practitioner and that this power of delegation cannot and should be inquired into by the court.39 The Supreme Court, inF.R.N. vs. Adewunmi,40 also held that nothing in section 174 of the constitution forbids the Attorney General of the Federation from briefing a private lawyer to prosecute a criminal charge on his behalf.

However, it was held in C.O.P. vs. Tobin41 that a private prosecutor needs the Attorney-General's fiat to prosecute. It has also been held that a private legal

35. (2018) 9 NWLR (Pt. 1624) 337 S.C. 36. (2013) All FWLR (Pt. 683) 1955 C.A. 37. Amadi vs. FRN (2008) 18 NWLR (Pt. 1119) 259 at 276 S.C. 38. Akinwunmi vs. State (2013) All FWLR (Pt. 690) 1369 C.A. 39. Adekanye vs. FRN (2005) All FWLR (Pt. 252) 514 C.A. 40. (2007) All FWLR (Pt. 368) 978 S.C. 41. (2009) All FWLR (Pt. 483) 1302 C.A. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 37 practitioner who had held a watching brief for the prosecution at the lower court needs the Attorney-General's fiat or authorisation to file a notice of appeal, failing which any notice of appeal filed by him is null and void. 42

It must be noted, too, that delegation powers of the Attorney-General to a private legal practitioner need not be done personally by the Attorney-General for it to be valid. Thus, in State vs. Anibijuwon II,43 the Court of Appeal held that it is not only the Attorney-General that can delegate his powers to a private legal practitioner; and that where the Solicitor-General signs a fiat delegating prosecutorial powers to such legal practitioner, this will be valid delegation. The Court of Appeal further held that the rule that delegated power cannot be delegated does not apply to criminal matters but only to civil cases.

The next question is whether governmental prosecution agencies can, on their own, engage private legal practitioners to represent them in court. The answer, on the authorities, is in the affirmative. Thus, in F.R.N. vs. Martins,44 the Court of Appeal, relying on a previous decision of the Supreme Court,45 held that notwithstanding the constitutional prosecutorial powers of the Attorney- General, whether of the Federation or of a State, the EFCC can lawfully prosecute a matter either through its officers or by briefing a private legal practitioner to do the prosecution on its behalf. It concluded, however, that the Attorney-General has right at any time to take over or to continue with the prosecution or to enter a nolle prosequi.46

POWER OF STATE ATTORNEY GENERAL OVER FEDERAL CAUSES AND OFFENCES

The Supreme Court held in Amoshima vs. State47 that by virtue of section 211 of the 1999 Constitution, as amended, officers in a State Attorney-General's chambers are eminently qualified to prosecute the offence of robbery in any High Court of a State.

Also, in Nyame vs. F.R.N.,48 it was argued inter alia that since by section 120 of

42. Ikpongette vs. C.O.P. (2009) All FWLR (Pt. 471) 996 C.A. 43. (2009) 1 NWLR (Pt. 1123) 597 C.A. 44. (2012) 14 NWLR (Pt. 1320) 287 C.A. 45. FRN vs. Osahon (2006) 5 NWLR (Pt. 973) 361 S.C. 46. See, also, George vs. FRN (2011) 10 NWLR (Pt. 1254) 1 C.A. 47. (2011) All FWLR (Pt. 597) 601 S.C., (2011) 14 NWLR (Pt. 1268) 530 S.C., reliance on Tanko vs. State (2009) 4 NWLR (Pt. 1131) 430 S.C. 48. (2010) 7 NWLR (Pt. 1193) 344 S.C. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 38 the Constitution, the moneys allegedly misappropriated or embezzled by the appellant who was the former Governor of Taraba State, belonged to that State, the Economic and Financial Crimes Commission, EFCC, lacked prosecutorial powers or locus standi to institute those criminal charges against the appellant. It was further argued that by section 211 of the Constitution, only the Attorney-General of Taraba State had power to institute those criminal proceedings. The Supreme Court dismissed those arguments. Relying on several provisions of the EFCC (Establishment) Act, 2004, the apex Court held that the prosecutorial powers of the EFCC were statutory and had support in section 174 of the Constitution, since the EFCC is an agency of the Federal Government. It concluded, relying on its previous decision,49 that since both the Federal and State Governments have joint responsibility to fight corruption, there is nothing wrong in a Federal agency like the EFCC instituting criminal charges over offences that look like State offences, once they border on corruption.50

POWER TO TAKE OVER OR ENTER NOLLE PROSEQUI

In Olusemo vs. C.O.P.,51 it was held that the Attorney-General has discretion under the Constitution to take over criminal prosecution; but that he cannot be compelled by any person, including the court, to do so.

The provisions of section 211(1)(c) were considered in State vs. Okonipere,52 where it was alleged in an affidavit that the Governor of Rivers State had directed the Attorney-General of the State to either enter a nolle prosequi or discontinue the pending criminal matter on appeal; but that the Director of Public Prosecutions was defying the directives issued to him in that regard. It was held that under the constitutional scheme of Nigeria, the Attorney- General has power to discontinue any criminal proceeding undertaken by him or taken over by him before judgment is delivered and that if the DPP defies any direction of the Attorney-General in this regard, such DPP would be said to be “on a frolic of his own and also acting mala fide.”53

Once the Attorney-General enters a nolle, the proceedings cum prosecution

49. Attorney General of Ondo State vs. Attorney General of the Federation (2002) 9 NWLR (Pt. 772) 222 S.C. 50. See generally, too, Amadi vs. FRN (2008) 18 NWLR (Pt. 1119) 259 S.C. 51. (1998) 11 NWLR (Pt. 575) 547 C.A. 52. (2011) All FWLR (Pt. 598) 993 C.A. 53. Per Eko, J.C.A. (as he then was), on page 1003. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 39 must stop and the court is mandatorily restrained from taking any step that would undermine in any way the potency of such nolle. Thus, in Audu vs. Attorney General of the Federation,54 the Supreme Court held in emphatic terms thus:

At any stage of any criminal proceedings before judgment, the Attorney-General of a State or the Attorney-General of the Federation may enter a nolle prosequi either by stating in court or filing appropriate processes to inform the court that the State intends that the proceedings abate. Once this is brought to the notice of the presiding judge, the accused person shall be discharged immediately from the charge the nolle prosequi was filed or entered. The judge has no power to question the Attorney-General as to why he filed a nolle prosequi. My Lords with the filing of nolle prosequi by the Chief Law Officers in Kogi State and Nigeria on the same day reference was made to the Court of Appeal for determination, the learned trial judge ought to have discharged the appellant and struck out the case since the case i.e. charge No. KG/EFCC/1/2006 was no longer in existence.

The apex Court concluded that on the filing of the nolle prosequi by the Attorney-General, the trial court ought to have discharged the appellant and struck out the case and not to have proceeded to make reference on questions of law to the Court of Appeal. It also held that the questions referred to the Court of Appeal became academic questions in view of the nolle entered by the learned Attorney-General. Consequently, the Supreme Court struck out the questions referred by the learned trial Judge to the Court of Appeal.

EXTENT OF POWERS OF THE ATTORNEY-GENERAL

It can be gleaned from the above that the Attorney-General is not only the Chief Law Officer of Government, he is also the Chief Prosecutor of the Federation/State, whose powers cannot be lightly challenged. The 'supremacy' of the Attorney-General over all other officers of the Justice Ministry concerning legal matters is further reinforced by several superior court decisions, in both civil and criminal matters. For instance, in Ezomo vs. Attorney General of Bendel State,55 the Solicitor-General of the old Bendel

54. (2013) All FWLR (Pt. 667) 607 at 623 S.C. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 40

State had taken a legal step that was suggestive of a covet challenge on the powers of the Attorney-General of the State. The Supreme Court, relying on constitutional provisions, held that the action of the Solicitor-General was null and void. The apex Court further held that the Attorney-General is a “law unto himself,” hence is “not under the control of anybody or authority.” A similar view was expressed by the Supreme Court in the case of Attorney-General of Kaduna State vs. Hassan.56

Also, in State vs. Ilori,57 the Supreme Court was of the view that “the Attorney- General has at common law, been a master unto himself, a law unto himself, and under no control whatsoever, judicial or otherwise.” This case bordered on the power of the Attorney-General to enter a nolle prosequi. Concluding, the Supreme Court held on page 179 that the Attorney-General's power is “no doubt, a great ministerial prerogative coupled with grave responsibilities.” Similarly, relying on Ilori's case, supra, and George vs. F.R.N., supra, the Supreme Court held in Shema vs. F.R.N.58 tersely as follows:

That argument in my humble view is for the Katsina State Attorney General to push forward and not for any other person or even the court as the powers of the Attorney General pursuant to section 211 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (CFRN) are not subject to review by any court of law….59

In Attorney-General of Ogun State vs. Egenti,60 the Court of Appeal held that the powers of the Attorney-General under the Constitution are unchallengeable, hence while exercising those powers, the Attorney-General is not obliged to give any reasons or explanations; and that no court of law has the power to pronounce on the validity, vel non, of those powers. Therefore, that while a person aggrieved by the exercise of such powers can initiate other proceedings against the Attorney-General, such a person cannot ask the court to review the exercise of those powers.

Indeed, in Amaefule vs. State,61 the Supreme Court described the Attorney-

55 (1987) 11 QLRN 124 S.C. 56. (1985) 2 NWLR (Pt. 8) 438 S.C. 57. (1983) 2 SC 155. 58. (2018) 9 NWLR (Pt. 1624) 337 at 387 S.C. 59. See, also, Komolafe vs. F.R.N. (2018) 15 NWLR (Pt. 1643) 507 at 519 S.C. 60. (1986) 3 NWLR (Pt. 28) 256 C.A. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 41

General as a 'god.' Also, in Attorney-General of the Federation vs. Ajayi,62 the Court of Appeal held that the Attorney-General, under the law, is not expected to take dictations from anybody, including his appointor.

Why then is the Attorney General so powerful? Aniagolu, J.S.C, gave an insight into this in the case of Attorney-General of Kaduna State vs. Hassan, supra, thus:

Ideally, I think the makers of the constitution were wise to make it so, because whereas the Solicitor-General the Director of Public Prosecutions (D.P.P.) and all the other officers down the line in the Ministry of Justice are by designation, civil servants who are not answerable politically for acts done in the Ministry, the Attorney- General is both the legal as well as the political officer who is answerable politically for acts done in the Ministry. And since the powers exercisable ..., in many cases-, may have political over or undertones... it is only fair that he should be left solely with the juridical power to take the steps resulting in those decisions, so that whatever may be the political effects of the legal steps he has taken, he is fully and personally answerable for them-for good or for bad.

It can be seen from the above, therefore, that in Nigeria, the Attorney-General holds the ace in criminal matters. Subject only to a few limitations, the Attorney-General, whether of the Federation or of a State, enjoys enormous powers in criminal prosecutions. The framers of the Nigerian Constitution wanted it that way; but then no layer of power is ever absolute, hence we shall, brevimanu, examine the limits of such powers.

CONCLUSION: LIMITS OF THE POWERS OF THE ATTORNEY- GENERAL

In spite of the apparently sweeping powers of the Attorney-General as analysed above, there exist solid limitations on those otherwise wide powers. For instance, the wide powers of the Attorney-General notwithstanding, he shall not be allowed, in the purported exercise of his powers, to infringe on other provisions of the Constitution. Thus, in Anyebe vs. Adesuyin,63 the Court

61. (1988) 2 NWLR (Pt. 75) 156 S.C. 62. 1996) 5 NWLR (Pt. 448) 283 C.A. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 42 of Appeal held thus:

Under section 191(3)64 however, he is expected to have regard to the public interest, the interest of justice and the need to prevent abuse of legal process. It must be said here in parenthesis that the Attorney- General, either of the Federation or a State, cannot use his powers under section 191 of the 1979 Constitution to subvert the other provisions of the 1979 Constitution.

Also, under section 174(3) of the 1999 Constitution, in the exercise of his powers in criminal matters, the Attorney-General “shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.” In Attorney-General of Kaduna vs. Hassan, supra, Irikefe, J.S.C., had this to say:

The exercise of the powers vested in the Attorney-General under the section cannot bear a mechanical or automation approach, particularly in a situation where issues of high state policy are involved, which would require to be balanced one way or another, before action is taken.

Similarly, in Edet vs. State,65 the Supreme Court held that the action of the Attorney-General, of bringing more than one criminal action in different courts against an accused person amounted to an abuse of process under a similar provision in the 1979 Constitution. But the apex Court, quite surprisingly, with respect, refused to void the second trial that was held to be an abuse of process.

In the Zimbabwean case of Nyakabambo vs. Minister of Justice, Legal and Parliamentary Affairs,66 the High Court of Zimbabwe held, interpreting a similar provision under the Constitution of that country, that in spite of the wideness of his powers under the Constitution, the Attorney-General must nevertheless act reasonably and without malice, culpable ignorance and negligence.

In State vs. Ilori, supra, the Supreme Court held that the Attorney-General is

63. (1997) 5 NWLR (Pt. 505) 403 at 432 C.A. 64. Of the 1979 Constitution, which is now section 211(3) of the 1999 Constitution as amended. 65. (1988) 12 SCNJ (Pt. I) 79. 66. (1989) (1) ZLR 16. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 43 also subject to control by public opinion and the authority of the parliament or legislature. This is true because if there is much public outcry against the actions of an Attorney-General, the legislative arm of government, which is a check on the executive, will call for and pressurise for his removal.

A person aggrieved by any action taken by the Attorney-General can proceed through a civil action to recover damages or compensation from him, as was done in Attorney General of Kaduna State vs. Hassan, supra.67

The powers conferred on the Attorney-General no matter how wide, do not allow the Attorney-General to file a defective charge; as any objection taken against such a defective charge should not be seen as a challenge on the powers of the Attorney-General, but as being against the incompetent action taken out by him.68 Also, in Martins F.R.N.,69 it was argued that listing in the Information filed at the High Court by the EFCC of a private lawyer and his subsequent signing of a notice of appeal to the Court of Appeal were illegal acts, which contravened section 174(1), (2) and (3) of the Constitution, in that the said lawyer had previously not only criticised the appellant, but had also written a petition against him. It was argued that allowing the said lawyer to prosecute the appellant amounted to unleashing the appellant's hater on the appellant. Even though the Supreme Court dismissed these arguments as “outrageous,”it made the following findingson page 537, which amounted to a curtailment on the powers of the Attorney-General:

The prosecutorial powers vested on the Attorney-General of the Federation by section 174 of the Constitution, inter alia, to institute and undertake criminal proceedings against any person before any court of law; to take over and continue such criminal proceedings instituted by any other person; and to discontinue such criminal proceedings, does not extend to his appointing legal practitioners, who have no manifest interest in the outcome of the case, to prosecute or undertake criminal proceedings in any court of law in Nigeria.

The implication of the above finding is that, in spite of his wide constitutional powers, the Attorney-General cannot appoint a private Legal Practitioner to prosecute a matter in which he has vested interest that would compromise the

67. Attorney General of Ogun State vs. Egenti, supra. 68. Okoli vs. State (1992) 6 NWLR (Pt. 247) 381 C.A. 69. (2018) 13 NWLR (Pt. 1637) 523 S.C. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 44 position of the State; rather he is at liberty to appoint a Counsel whose interest is in the jailing of the accused person.

The Attorney-General is duty-bound to protect the citizens of Nigeria against arbitrary executive acts. By virtue of his unique position, he acts as a link between the common man and the other organs of State. Thus, his duty to prosecute criminals is not higher than his duty to protect citizens from executive lawlessness.70

In the case of Madukaegbu vs. State, 71 the appellant's counsel had written several letters to the Attorney-General, requesting for statements of witnesses not included in the proofs of evidence. He later served a notice for inspection of the documents on the prosecuting counsel, which also did not yield results. Frustrated, he wrote a petition to the Attorney-General against the said prosecuting counsel. This, too, was not fruitful, leading him to file a Motion seeking to quash the charges on the basis that the appellant was not afforded enough materials for his defence. Even though the majority judgment of the Supreme Court refused to quash the charge, Eko, J.S.C., in his dissenting judgment, gave the following food for thought opinion on page 62, which indicted the Attorney-General:

I agree that section 211(1) of the Constitution has vested enormous prosecutorial powers in the Attorney-General of a State. However, those powers donated to the Attorney-General are not to be used, nor are they intended to be used by him, to do mischief or abuse of powers. The Attorney-General, as a functionary of the State and a public officer is enjoined, by section 15(5) and paragraph 9 of the Code of Conduct for Public Officers in Part 1 of the Fifth Schedule to the Constitution, not to do or direct to be done, in abuse of his office, any arbitrary act prejudicial to the rights of any other person, including the appellant.

The Attorney-General cannot, in the guise of public interest, decline to prosecute or discontinue the prosecution of a person for an offence and then turn around to seek to determine his guilt for the same offence through other disciplinary proceedings not in accordance with the law; as to allow that would be a travesty of justice.72

70. Attorney General of the Federation vs. Ajayi, supra. 71 (2018) 10 NWLR (Pt. 1626) 26 S.C. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 45

The courts have, indeed, never wavered in scorning abuse of office of sitting Attorneys General. Thus, in County & City Bricks Dev. Co. Ltd. vs. Hon. Minister of Environment, Housing and Urban Dev.,73 the Supreme Court, per Eko, J.S.C., held at page 504 as follows:

The incumbents of the office of the Attorney-General of the Attorney- General of the Federation are men of honour who should be seen to be so. Like Caesar's wife; those men who occupy that hallowed seat since its inception in England in 1461; should be seen to live above board. These persons are expected to be men who should; like Thomas More… King Henry VIII's Attorney-General “who at the pain of death resisted every effort by the King to break the law of the realm.” Not be seen to publicly lick their own sputum. They should be men of candour and valour. The prevarications, the hallmark of the instant case, created the unfortunate impression that those incumbents occupying the seat of the 2nd respondent who succumbed to the [cajoling] of the 3rd-8th defendants had failed, in their courage, to be fair to all concerned.

The courts have also frowned at sitting Attorneys General accepting private briefs, even from their appointors. Thus, in INEC vs. Kalu,74 the Court of Appeal held that he is incapable of accepting private briefs while still occupying that office, even if his appointer is a party in the suit. This, according to the Court of Appeal, is because the Constitution has specifically defined his duties and that accepting private briefs is not mentioned in the Constitution. He can also not, the Court further held, act as amicus curiae, except if invited by the court. The Court of Appeal concluded that by section 211(3) of the Constitution, the powers of the Attorney General of a State are limited by the duty on him to act in the public interest and to avoid abusing his otherwise wide powers. Therefore, that any Attorney General who accepts a private brief, even if from his employer, will be deliberately navigating outside these constitutional limitations; hence the Courts must intervene to stop him.

In the final analysis, therefore, even though a sitting Attorney-General no

72 Anyebe vs. Adesuyin (1997) 5 NWLR (Pt. 505) 403 at 440. 73 (2019) 5 NWLR (Pt. 1666) 74 (2004) All FWLR (Pt. 199) 1383 C.A. PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL 46 doubt has enormous prosecutorial powers vested on him by the Nigerian Constitution, those powers are limited by the Constitution itself and by settled case law.

CHIEF SEBASTINE TAR. HON, SAN Managing Solicitor S.T. Hon (SAN) & Co. Abuja, Port Harcourt and Makurdi. 08033395045 Email: [email protected], [email protected] ARTICLE47 2 THE REALISATION OF OUR ASPIRATIONS AND DREAMS FOR A NEW AND BETTER NIGERIA CALLS FOR A RADICAL CHANGE IN GOVERNANCE AND SOCIETY KNOWN IN COMMON PARLANCE AS A REVOLUTION by Professor Ben Nwabueze

INTRODUCTORY

Our beloved country, Nigeria, is today (July 2019) going through the pangs of death, and needs to be saved. The principles and institutions of government – particularly the Rule of Law and Justice – are withering and are in need of restoration. Democratic rule, that is say, rule of the people by the people, is being emasculated, and is in need of sustenance and revitalisation. Freedom is being trampled upon, and needs to be unchained. The instruments of peace, order and security are in a state of malfunction, featuring killings, and displacement of persons, kidnappings, banditry, armed robbery, terrorism and other acts of criminality, and need re-activation. The moral and ethical foundations of the state are decaying and need to have fresh life breathed into them. Our lives have been greatly impoverished, with poverty, hunger, hardship and misery now the lot of millions of people, and need revival. In short, nothing is working, yet the country must be made to work. To get the country to work again, as it did before 2016, requires a radical change in the political, social and economic system, irrespective of how the change is brought about, whether by peaceful or violent means. Such radical change is what is known, in common parlance, as a Revolution.

THE NIGERIA OF OUR DREAMS

Specifically, the Nigeria of our dreams demands the creation of a new, better Nigeria anchored on the hallowed principles and concepts of: (i) nationhood and infusing in the people the spirit of Nigerianism; (ii) a civil society that is vibrant in talk as well as activist in action; (iii) a democratic society; (iv) a free society; (v) a just society; (vi) a society permeated by the spirit of the laws; (vii) a society permeated by an ethic of public probity and accountability; (viii) a society permeated by a habit of ordered behaviour and peaceful co- THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 48

existence; (ix) transcending all the above-named concepts is the fundamental principle of the Rule of Law.

It is sad that, in this country, the word “revolution”, irrespective of the context in which it is used, conjures in the minds of people the spectre of bloody violence, but it is not, and need not necessarily be so. As with Karl Marx himself, a revolution in his conception does not necessarily imply a civil war or violent revolt by the oppressed and exploited classes, although he does not also exclude the use of violence should it become necessary. In Nigeria as in the rest of Africa, the use of violence may turn on how bad and desperate the situation is, the feasibility of a common violent action in a society divided by fundamental cultural or racial differences; it may also turn on whether the violent action is spontaneous or not, and the chances of success. The moral justification of violence itself as a means of bringing about radical change, even in the fight for liberation from an oppressive colonial regime, is not free from disputation.

While it is not proposed to enter into a discussion of the issues raised by a violent revolution, I am not unmindful of its evil consequences. A violent revolution is too much of an ill wind that lumps all together, the good and the rotten, the selfless and the corrupt looters, for indiscriminate buffeting or liquidation. A peaceful revolution led by a leader suitably fired by a revolutionary fervour is preferable; exceptionally, however, violence may be justifiable where the situation is so hopeless and rotten as requires blood to clean it up.

It must be acknowledged that a violent revolution, especially the violence of a shooting war, is the quickest and the most effective way to bring about radical change in governance and society. A war creates a necessity, and necessity is the mother of change; it dictates and compels certain ways of living; it faces people with situations which leave them no choice but to follow patterns of behaviour dictated by war conditions, and war conditions often overturn established habits, customs and relationships. It was the violence of the French Revolution in 1789, the bloodiest of revolutions, that transformed France's aristocratic society, with its gross inequalities, social injustices and feudalistic values, into the democratic society that it eventually became, a change which, in the course of time, swept across the whole of Europe. It is fair to say that European society and polity are what they are today largely because of the French Revolution. There can be no doubt that, in a situation of pervasive massive rottenness and decadence in society, such as existed in France before the Revolution THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 49 and such as the situation in Nigeria today is dangerously approaching, a violent revolution can be effective and useful in cleaning the society of rottenness and in bringing forth a new, rejuvenated society.

“It was the French and not the American Revolution,” writes Hannah Arendt, in her book titled On Revolution (1963), p. 55, “that set the world on fire.” By arousing in the masses the spirit of republicanism, equality, nationalism and revolutionary action, it marked the turning point in the history of human affairs not only in France but also in the whole of Europe and indeed the world at large. Ever since that momentous event, “it has been common to interpret every violent upheaval, be it revolutionary or counter-revolutionary, in terms of a continuation of the movement originally started in 1789, as though the times of quiet and restoration were only the pauses in which the current had gone underground to gather force to break up to the surface again – in 1830 and 1832, in 1848 and 1851, in 1871, to mention only the more important nineteenth-century dates. Each time adherents and opponents of these revolutions understood the events as immediate consequences of 1789”. In this view, therefore, the French Revolution is a permanent, perpetual, continent-wide (even world-wide) revolution which, with interludes of quiet, has continued up to the present day.

The bloody violence of the French Revolution should not lead us to think that violence is necessarily inseparable from a revolution or that a call for a revolution is necessarily a call for the overthrow of government by violent or unconstitutional means, in the absence of utterances or actions suggesting such an intention.

The story of the French Revolution need to be considered together with that of the American Revolution to determine whether violence is of the very essence of a revolution, and that without the element of violence, we cannot meaningfully speak of a revolution. The American Revolution began with violence, the violence of a War of Independence to liberate the American colonies from the yoke of British rule. But, apart from the war, the American experience was a revolution in the additional sense of a series of events, starting with war, but including non-violent events, that revolutionalised American government, society, ethic, values and culture generally. It was a long-drawn-out process, spanning a protracted period of intense, frenzied actions, before, during and after the war, the most historic of which (apart from the war itself) was the Declaration of Independence by force in 1776. The Declaration is not just a document proclaiming the independence of the thirteen American colonies from Britain; it is, additionally, a document embodying the commitment of Americans to certain moral principles accepted by all as creating a binding, non- THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 50 renunciable obligation to live by those principles as a code of conduct – the principles of equality and justice, human dignity and human rights, both civil and political rights.

The war itself had a momentous effect on American society, transforming it from what it was before into a republican one, a society bristling with republican ideas and an egalitarian ideology. In the more familiar language used by Alexis de Tocqueville in 1835 to describe American society, the Revolution had transformed it into a “democratic society”, that is to say, a society characterised, not by equality among its members, but by equality of condition, or, what he calls “a republican condition of society” – a society in which the members are independent of each other, none being subservient to another, as in an aristocratic society, where every wealthy aristocratic “constitutes the head of a permanent and compulsory association, composed of all those who are dependent upon him, or whom he makes subservient to the execution of his designs”.

Gordon Wood has described the change in a language that gives a vivid insight into the character of the change: “The republican society and culture that gradually emerged after the Declaration of Independence” he wrote, “were decidedly different from what had existed earlier. The older hierarchical …..society of the eighteenth century – a patronage world of personal influence and vertical connections whose only meaningful horizontal cleavage was that between gentlemen and common people – this old society…….now finally fell apart, beset by forces released and accelerated by the Revolution, to be replaced over the subsequent decades with new social relationships and new ideas and attitudes, including a radical blurring of the distinction between gentlemen and the rest of society.”

In a passage quoted by Wilson McWilliams at the beginning of his essay, “On Equality as the Moral Foundation for Community”, Tocqueville says that “equality of condition….. possesses all the characteristics of a Divine decree: it is universal, it is durable, it constantly eludes all human interference, and all events as well as all men contribute to its progress”. Equality is equity (i.e. justice) is a time-honoured maxim, positing equality and justice as the moral foundation for community, a foundation without which no community of people can exist in peace and harmony or hope to progress. By transforming American society into one based on equality of condition and justice, the Revolution helped to lay a foundation for peace and progress in the country. THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 51

The American colonies fought an eight-year brutal war to end political domination from outside, but it was, more essentially, a war to win for Americans, as individuals, freedom to be themselves – to think, feel, believe, act, speak and move about as they liked with only minimum interference by others, especially government. The liberty of the individual was the rallying dogma, and its attainment by means of a war was what, more than anything else, gave the war the character of a revolution. Liberty of the individual was the end sought to be attained, and liberation of the colonies from outside political domination through a war was only a means to that end. The Revolution gave birth to a republic that was “the greatest instrument of human liberty ever made”. Liberty of the individual was thus the foundation, the moral foundation, on which the American polity was built.

Americans were mobilised and came out to fight for their liberty as individuals, and thousands perished for the cause of individual liberty. Thus did the liberty of the individual become embedded as a cardinal principle of American society and government. “The killing and dying in our revolutionary war had a clear purpose and justification: the defence of liberty, the re-establishment, in the words of the Declaration of Independence, of the “unalienable rights” with which all human beings are “endowed by their Creator”.

As another of its significant effects, the American War of Independence and the necessity and war conditions it created imposed a unity on the revolting colonies, and through its crucibles a nation, the American nation, was forged. Thus, it helped to settle the National Question for America, although the problem was not of the intractable nature it has in Africa, since the population of the thirteen American colonies in revolt consisted predominantly of people of the same culture, i.e. Englishmen.

The war and the revolution it triggered had yet another significant by-product. “From the fiery crucible of the revolution, there was to emerge, phoenix-like, a revivified citizenry”, a citizenry imbued with the spirit of civic virtues – the virtues of honesty and integrity, discipline, self-restraint and moderation, obedience to the laws, love of country and patriotism, etc.

The culminating event of the revolution was the adoption of “a Constitution for the United States of America” in 1787. The significance of the Constitution in this connection lies partly in the principles, ideas and the frame of government enshrined in it but more perhaps in the democratic process by which it was adopted – through a National Convention in Philadelphia and state ratifying Conventions. In the result, the new republic was anchored upon a solid moral foundation resting on the will and THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 52 consent of the whole people – on “a voluntary social compact……established by peaceful debate”, rather than by imposition by the will and power of an imperial sovereign or a dominant ruling group in the country.

In addition to the democratic process used in adopting it, the constitution establishes a framework of government deliberately framed to conform to what James Madison called the “genius of the American people” and to suit the perceived character, habits and morals of the American people as then “constituted” by their tradition and way of life as well; as to further mould them in the “habits of right action” – in the habits of self-restraint and moderation. In other words, the Constitution was intended to, and did, influence the development of the character, habits and morals of the American people. In drawing up the Constitution, writes Robert Goldwin, the framers “did not want to leave Americans just where they were, but, rather, starting where they were, they wanted to make them better.”

The framers of the American Constitution believed that the end of individual liberty for which Americans fought the War of Independence could best be achieved in a “republic” by which was meant, according to their particular conception of the term, not a democracy, neither direct democracy nor one elected by the entire mass of adult citizens, but rather a form of government resting on the consent of the people conceived in a restricted sense as well as ensuring the protection of life, liberty and property. Though not democrats in the sense just stated, they were republicans and liberals, their intention being to “establish a liberal framework of government, though it could be, and later was, democratised to a degree that, for a time, would astonish the world.”

The American Revolution was able to transform American government, society, ethic, values and culture in part because of the quality of the men who led it, the revolutionary leaders, otherwise called the Founding Fathers: men like George Washington, first president, John Adams, second president, Thomas Jefferson, third president, James Madison, fourth president, Alexander Hamilton, Benjamin Franklin, to name only the better known among them. The American revolutionary leaders have been described as “civic-minded philosopher-statesmen”, an extraordinary galaxy of men of good character, good education, integrity, honesty and sincerity, with a deep concern for the public good and a scorn for self- enrichment. They were able to implant in American society an enlightened ethic, ethos and values through the “brilliance of their thought, the creativity of their politics” and their extraordinary ability to combine “ideas and power, intellectualism and politics” without getting alienated from the people and without becoming THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 53 obsessed with votes. Because they “saw themselves as part of an organic social community linked through strong personal connection to those below them”, they were also able to maintain with the people an intimate relationship devoid of any feelings of alienation. They set themselves up in the role of educators of the people, “models or guides for citizens' behaviour”. Through their prodigious literary output – in pamphlets, broadsides, articles in periodicals and newspapers, letters and speeches – they tried to mould standards of opinions and behaviour.

Through the high moral quality of the leadership provided by its leaders, the revolution gave rise to a significant by-product, viz a national ethic of Truth and Morality. Truth acquired the status of a cardinal principle of behaviour, especially in the conduct of public affairs.

The obsessive concern for truth and morality and the growth of newspapers were accompanied by the growing power of public opinion. “The Revolution in America transformed it (i.e. public opinion) and gave it its modern significance”; a significance well-attested in the description of public opinion as:

“that invisible guardian of honour – that eagle eyed spy on human actions – that inexorable judge of men and manners – that arbiter, whom tears cannot appease, nor ingenuity soften – and from whose terrible decisions there is no appeal……It became the resolving force not only of political truth but of all truth – from disputes among religious denominations to controversies over artistic taste. Nothing was more important in explaining and clarifying the democratisation of the American mind than this conception of public opinion. In the end it became America's nineteenth-century popular substitute for the elitist intellectual leadership of the Revolutionary generation.

The rationale for this conception of public opinion and for its role as arbiter of right behaviour was that it was “the combined product of multitudes of minds thinking and reflecting independently, communicating their ideas in different ways, causing opinions to collide and blend with one another, to refine and correct themselves, leading toward 'the ultimate triumph of Truth'. Such a product, such a public opinion, could be trusted because it had so many sources, so many voices and minds, all interacting, that no individual or group could manipulate or dominate the whole. Considering that public opinion may be, and often is, in the words of John Stuart Mill, the “opinion of a collective mediocrity”, indeed, a small minority, the THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 54 acceptance of this rationale for its nature and role in America during the Revolution and in the decades following immediately thereafter “required an act of faith, a faith that was not much different from a belief in the beneficent workings of providence,” but it was one of the significant by-products of the Revolution that had helped transform American society and politics. How different indeed were the American revolutionary leaders from their Nigerian counterparts of today!!

What the American Revolution shows is that, whilst violence may serve as a trigger, the real essence of a revolution is the radical nature of the change in governance and society which it triggers. It is in this sense that the American Revolution provides an abiding lesson for us in Nigeria and in the rest of Africa. An African leader or anyone aspiring to be a leader of an African country cannot afford not to read the book titled the Moral Foundations of the American Republic, 3rd edn (1986), edited by Robert Horvitz.

If, from what is said above, the true essence of a Revolution is not whether violence is the thing that triggers it, but rather whether what it triggers is in the nature of a radical change in governance and society, then, there is warrant for the well-established appellation, Industrial Revolution, which is the most classic example of a radical peaceful change in the economic sector of society that took place in the 19th century in England, France and certain other countries of Europe.

The liberation of Africa from colonial rule was also not the product of violence or a Liberation War except in the case of ten countries (Algeria, Zimbabwe, Guinea- Bissau, Mozambique, Angola, Namibia and Kenya where a liberation war took place); it was a revolution by reason of a radical change in world affairs which it triggered, and which indisputably qualified it as a revolution. Hence it is referred to as the African Revolution, just as the radical but peaceful changes in the industrial sector of the economy in England, etc, is called the Industrial Revolution; which goes to show that violence or war is not an inseparable or inexorable ingredient of a revolution, or, putting it differently, that a radical change in governance or society can take place without violence or war.

With respect to the radical change brought about by the liberation of Africa from colonial rule, the change is warrantedly tagged the African Revolution because, though peaceful and non-violent except in the ten countries mentioned above, it changed not only the course of Africa's history but that of the rest of the world as well. It brought Africa to the centre of world affairs, and to the notice of millions of people across the globe, who otherwise would have remained, as before, in blissful THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 55 ignorance of the continent. With the exception of the two World Wars, few other events in the 20th century have impacted upon world affairs as much as the liberation of Africa from colonial rule. As Basil Davidson puts it, “a whole continent seemed to have come alive again, vividly real, bustling with creative energies, claiming its heritage in the human family, and unfolding ever more varied or surprising aspects of itself. The world became a larger and a happier place.” Herein, then, lies the central significance of Africa's independence. Its impact is in some ways comparable to that of America's independence, which entitles it (i.e. Africa's independence) to be tagged a Revolution.

In our own day, there has occurred a series of events that swept across the globe in 1989 – 94, ushering in peaceful, non-violent but radical change in governance, especially as regards the freedom of the individual, a change so radical as to warrant its being acknowledged throughout the world as a Revolution, the Democratic Revolution as it is known. Tom Mathew describes the transition to democracy world- wide during this period as “the greatest expansion of freedom in human history.” The description is largely true.

The freedom ushered in by the Democratic Revolution, 1989 – 94, includes, notably, freedom of expression and the press, peaceful assembly and association, and movement. Underlying these freedoms and providing support for them is the freedom to protest; democracy encapsulates as among its essential elements the freedom to protest and, above all, to mobilise the people in support of grievances against the government's handling of public affairs. Unless the people can be effectively mobilised in support of grievances against the government's policies and actions, the democratic freedoms ushered in by the democratic revolution have not much practical effect. Accordingly, the mobilisation of the people in support of a call on government for change in government policies and actions is not a call for its overthrow by violent or unconstitutional means. It is only a call for government to change its policies and actions, or otherwise resign; a call for the resignation of government, even if such resignation be coerced, is not unconstitutional; it is a means of change in governance sanctioned by democracy – see section 306 of the Constitution of Nigeria.

Indeed, the transition constitutions of certain African countries carry further the protection of the right to protest and to mobilise the people in support of the call for change. Thus, the Constitution of Cape Verde, as amended in 1990, in an article (art. 18), titled “The Right to Resist”, provides that “all citizens have the right to disobey any order which offends their rights, liberties and guarantees”. In equally direct and THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 56 unequivocal words, the transition Constitution of Congo (Brazzaville) 1992, in a preamble, proclaims it “the right and obligation of every citizen to resist by civil disobedience” any attempt to exercise power “in a tyrannical manner”. So also the people of Chad, in the preamble to their transition Constitution (1996), “proclaim solemnly” their “right and duty to resist and disobey any individual or group of individuals or any corps of state that would …..exercise power in violation of the present Constitution”. Similar but less direct provisions are also contained in the transition Constitutions of Benin 1990 and Uganda 1995.

Nigeria transited to democracy in 1999 without a transition constitution strictly so- called; it did so under the pre-existing 1979 Constitution which, for purposes of such transition, is re-issued as the 1999 Constitution without putting it through the democratic process of adoption by the people at a referendum, as was the case in most of the countries that transited to democracy during the period. Hence all the fumbling, all the jitters that grip us whenever a call is made for a revolution, even though nothing is said or done manifesting unmistakably an intention to topple the government by violent or unconstitutional means. There can be no gainsaying the fact that Nigeria is over-due for a Revolution – for a radical change in governance and in society.

THE RADICAL CHANGE IN GOVERNANCE AND SOCIETY THAT COMES WITH A REVOLUTION MUST ENCOMPASS NATIONAL TRANSFORMATION, NATIONAL RE-BIRTH AND NATIONAL UNITY

The word “transformation” means, according to the dictionary definition of it, “a change in condition, nature or character of a thing”; a “change into another substance.”

Now, a new approach in the management of the economy, which was what the Transformation Agenda of the Goodluck Jonathan Administration envisaged and pursued, may well bring about a great improvement in the economy in the form of enhanced growth and development and provision of welfare services, but such improvement cannot in any meaningful sense be described as changing the Nigerian economy into something radically different in nature or character or “changing it into another substance”. Transformation, because of the radical nature of the change it brings about, necessarily imports a revolutionary change in the condition, nature or character of governance and society. There is implicit in it, as stated below, the notion of a revolution. It is therefore a misconception to call President Goodluck Jonathan's agenda a Transformation Agenda. THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 57

The misconception involved is pungently articulated by Basil Davidson writing about Ghana under Kwame Nkrumah. “The economic policies of 1964 and after”, he wrote, “were, in fact, another version of the old 'policy of growth' which argued that a mere adding to what already exists must in due course change what already exists. But countries without modern industry do not become industrialised countries merely by 'growing'. Far from that, the process has always demanded more or less a complete break with what 'already exists', just as during the industrial revolutions of England, France or other technologically advanced countries…..Merely adding to what already existed, in this situation, was only a way of piling frustration on confusion.” 1

The Transformation Agenda of the Jonathan Administration is inadequate for another, more fundamental reason. It has absolutely nothing to do with, not a word to say about, the transformation of our society from the moral decadence into which it has sunk. No agenda, in the context of Nigeria, is worth being called a Transformation Agenda which does not aim at the moral and ethical transformation of our society. Its focus must embrace the entire society, not the economy alone. What this country desperately needs is, not just economic transformation, but also social and ethical transformation, which needs a social and ethical revolution for its accomplishment. I can think of nothing more disastrous for this country than an enhanced economic growth and development built or superimposed upon a morally and ethically decadent society, a society bereft of a sense of justice, probity, integrity, accountability, civic virtues and noble values.

The Vice-President to President Jonathan, in a speech at the Obafemi Awolowo Prize for Leadership Award Ceremony on 6 March, 2013 said that Government planned, as part of the Transformation Agenda programme, to establish mega universities, each of which can take up to 200,000 students. The establishment of such universities will be a disaster, a disastrous misplacement of priorities, when it is taken in the context of the incredible decline in educational standards in the country as attested by the phenomenon of near-illiterate university graduates, the existence of “magic schools” all over the country whose students are guaranteed automatic success in the school certificate examination, not of course by merit; certificate racketeering; examination malpractices; etc.

Social and ethical transformation aims at the creation of a new society. The creation of such a new society would entail change of two types – a radical transformation of the material conditions of society and what has been called an “inner mutation”, i.e. a spiritual or mental transformation in the attitudes and behavioural patterns of the individual members of society. The “inner mutation” called for goes beyond

1. Basil Davidson, Black Star : A view of the Life and Times of Kwame Nkrumah (1973), pages 196 – 197. THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 58 transformation in mental attitudes, and must extend to radical change away from the present prevailing moral degeneracy or moral bankruptcy, as manifested in crimes involving fraud or dishonesty, like examination malpractices and certificate racketeering; corrupt practices in all its forms, including bribery and money laundering; sexual immorality; juvenile delinquency; etc, all of which, in the main, originated or became accentuated in the unbridled quest for money and the money culture it gave rise to.

Undeniably, the new society to be created in the wake of such national transformation and comprising all the elements described above implies a social revolution, which must embrace a revolution in morals, that is to say, an ethical revolution.

THE FUNCTION OF THE POLITICAL LEADERSHIP IN THE MOVEMENT FOR RADICAL CHANGE IN GOVERNANCE AND SOCIETY

The story of the American Revolution shows that the political leadership in a country has a crucial role in bringing about radical, i.e. revolutionary, change in governance and in the society at large. It shows that the leadership must be one with plenty of energy, a high amount of energy characteristic of the youth, the energy of youth, the kind of energy that will enable the leadership to engage in the ardous task of mobilising the people for national transformation, mobilisation of the people for such a purpose being one of the most ardous tasks of political leadership. The wear and tear and stresses of life, coupled with health and other challenges, rob everyone of us, after the age of 70 years, of the energy required for the job of governing a country like Nigeria. Our Constitution should, therefore, prescribe an upper age limit for the presidency, say, 70 years or lower, as is the case in some countries of the world, and as is done for non-elective public offices in Nigeria.

In addition to the sort of education that would enable the leadership to combine “ideas and power, intellectualism and politics”, the type of leadership needed for our country has to be one, not only committed to democracy and constitutionalism, but also one at once dedicated, single-minded, selfless, disciplined, patriotic and highly motivated in the national interest with a deep concern for the public good and the welfare of the people, a leadership able to mobilise the various strata of society for the cause of good governance, national transformation, national re-birth and national unity, and prepared to commit suicide by sacrificing its vested economic interest in the preservation of the status quo. It must be a leadership whose sincerity of purpose THE REALISATION OF OUR ASPIRATIONS AND DREAMS ... 59 is so transparent as to induce people to adopt the desired new patterns of behaviour in place of the old ones and whose dedication to the cause is sufficiently total and selfless to inspire confidence, a leadership that is seen to be practising what it preaches. People cannot be persuaded by the leadership to be tolerant, honest, sincere, public-spirited, patriotic, fair-minded, law-abiding, devoted, disciplined, etc, if the leaders themselves do not practise those virtues. Far from inspiring popular change in the desired directions, a leadership that does not practise what it preaches, and is not seen to be doing so, creates disillusion and disenchantment among the people. It must also be a leadership that is able to impart to the society at large enlightened ethos and values and a national ethic of truth and morality, and has itself demonstrably internalised the ethic of humility and tolerance of differing opinions, an ethic that regards public office as a public trust and its holder as a servant of the people, not their master and oppressor, and bound to the people by the obligation of probity and accountability.

We should be honest to ourselves and admit that the lack of a leadership of the type suggested above is a major part of the country's problems that fuel the call for a Revolution; we are fighting our shadows by hunting down those calling for a Revolution - for a radical change in governance and society.

Professor Ben Nwabueze Lagos, 21st August, 2019 ARTICLE 603 PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR)

By Prof Paul Obo IDORNIGIE, SAN PhD, FCIS, FCIArb (UK)+

INTRODUCTION

At one time, the thought of someone seeking legal redress especially in civil matters was that of suing and “going to court”. However, it has become a notorious fact that disputes, unlike wine do not improve by aging: many things happen to a cause and to parties in a dispute by the simple passage of time. Delay in settlement or disposal of conflicting claims is indeed a primary enemy of justice and peace in a community.

The question that has been with civilization since the dawn of recorded history has been how to find a reliable, expeditious and satisfactory dispute settlement mechanism which is inexpensive, reasonably quick and accessible to the whole community. This is a realization of the fact that in such communities, disputes are bound to arise.

It is debatable whether in an African setting, litigation has been the main forum for resolution of disputes. However, the judicial process tends to transform social, political and economic disputes into legal disputes. Not only are some problems ill suited to a proper or full resolution through the adversarial process, the process may accentuate and exaggerate disputes rather than resolve them. As the courts grew, delays, formalities, technicalities, publicity, alleged corruption and the like crept in. The “win/lose” syndrome associated with litigation is so well known.

If we concede that litigation was the main forum for dispute resolution, from resolving disputes in a fixed and identifiable place called a court or courtroom, it is often that some disputes can be taken away from the court to any place – “out of court” for neutrals appointed by or on the instructions of the parties, to resolve. When disputes are settled 'out of court', the focus on interests and needs of the parties and the society rather than the rights of the individual changes the way in which disputes are categorized, analyzed and processed. This requires a total re-orientation and change of attitude and hence the concept of Alternative Dispute Resolution (ADR) processes. Interestingly, the holy books support the ADR processes1.

+Research Professor of Law, Senior Advocate of Nigeria (SAN), Chartered Secretary, Chartered Arbitrator and Notary Public for Nigeria; Nigerian Institute of Advanced Legal Studies, Abuja, Nigeria: Email: [email protected] or [email protected] PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 61

In this article, therefore, we will give an overview of the Principles and Techniques ADR processes.

MEANING OF ALTERNATIVE DISPUTE RESOLUTION (ADR)

ADR is an acronym that has several meanings essentially because there is no agreement on what the acronym stands for. Does the word 'A' stand for 'alternative', 'appropriate' or 'amicable'? If it is 'alternative', the next question is 'alternative to what'? 'Alternative' to litigation or mediation or conciliation or settlement. This raises the question of what is the primary forum for the resolution of disputes. When a dispute arises, do you attempt at settlement first or you resort to litigation immediately? Do the alternatives complement the traditional forum or displace it?This is so because much of ADR's value lies in the notion of a spectrum of dispute resolution mechanisms, with alternatives adding to, rather than replacing the litigation option. It is safe to assert, therefore, that ADR describes processes which add to and enhance the range of resources and mechanisms to settle disputes. Essentially the processes change our focus on how disputes are categorized, analysed, and processed.

In the western world, ADR may be defined as a range of procedures or processes that serve as alternatives to litigation through the courts for the resolution of disputes, generally involving the intercession and assistance of a neutral and impartial third party. In some definitions, and more commonly, (most jurisdictions), it excludes not only litigation but all forms of adjudication.2 These other forms include arbitration. However, even Brown and Marriott now argue that it includes arbitration thus:3

It is now widely accepted - including by the authors of this work – that arbitration, contractual adjudication and other forms of dispute determination by a third party are also forms of ADR. The view that ADR is (or should be) alternative to all forms of third party determination and should embrace only non-adjudicatory process is no longer seriously propounded.4

1 See Genesis 18:16-33, Matthew: 5:9, 5:25-26, and 18:15-17 and Holy Quoran 49:9. 2 See generally Brown H and Marriott A ADR Principles and Practice (2ndEdn, Sweet & Maxwell, 1999) pp 12-20, Macfarlane J (ed) Rethinking Disputes: The Mediation Alternative (London: Cavendish Publishing Ltd, 1997), Mackie K et al The ADR Practice Guide: Commercial Disputes Resolution (3rdEdn, Tottel Publishing, 2007) and Leornard L Riskin and James E Westbrook: Dispute Resolution and Lawyers(2ndEdn, West Group, 1997). , Asouzu A AInternational Commercial Arbitration and African States: Practice, Participation and Institutional Development (Cambridge: Cambridge University Press, 2001) p 13, Blackaby Nigel and Partasides Constantine Redfern and Hunter on International Arbitration (6th Edn, Oxford University Press 2015) 1 and Orojo J O and Ajomo M A Law & Practice of Arbitration and Conciliation in Nigeria (Mbeyi& Associates (Nigeria) Ltd, 1999) p 4. 3. See Brown H and Marriott ADR Principles and Practice (3rd Edn, Sweet& Maxwell, 2011), pp 1-13. 4. See also Karl Mackie e al (n 2) t 3-39, Susan Blake, Julie Browne & Stuart Sime A Practical Approach to Alternative Dispute Resolution (2ndEdn, Oxford University Press, 2012) p 22, Michael Mcilwrath and John Savage International Arbitration PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 62

ADR can also be defined as a system of dispute resolution which is non-binding and by non-binding is meant the absence of imposed sanctions. In other words, the parties are under no obligation to comply with any decision or determination resulting from the process, if indeed there is one. Nor are the parties obliged to participate in or continue with the process in the absence of express contractual provision to that effect.5 In this sense, arbitration is excluded. However, for purposes of this article, we will consider arbitration as part of the ADR processes. Despite the conceptual and jurisprudential issues arising from what is or is not ADR, mediation/conciliation is at the core of ADR processes while negotiation is common to all processes.

It is now generally recognized that other processes and forms include private judging, expert determination/appraisal, med-arb, Ombudsman, early neutral evaluation, mini-trial (executive tribunal), and court annexed arbitration.6 Broadly, all processes can be divided into two: adjudicatory and consensual and the hybrid combinations in between them.

Whatever the viewpoint, ADR is like a confluence with many tributaries.7 Lest we are misunderstood, we are merely saying that there are alternatives to litigation. Of course, we still go to court when the goal is to protect someone's rights, clarify a point of law or set a standard for public behavior or pursue post-election grievances. In the case of post-election, the procedure is stipulated in the Constitution8 and Electoral9 Act. However, it is advisable to establish a nexus between a dispute and a process so as to determine the process that is most appropriate. Thus we should know when to go to court or go out of court. We will now examine the contours of ADR.

MEANING OF ARBITRATION

Generally the essence of arbitration is that a dispute has arisen or potential for a dispute will arise and the parties, instead of going to the conventional courts, decide to refer the dispute to a private tribunal (arbitrator[s]) for settlement in a judicial manner. The implication of that agreement is that the decision of the arbitral tribunal (called an award) will be binding on them. In order to ensure that such a method of settling disputes is effective, assistance is usually given by the ordinary machinery of

and Mediation: A Practical Guide (Alpena an den Rijn, Kluwer Law International, 2010) p 11. 5. Sutton, St David et al: Russell on Arbitration (23rd Ed, Sweet & Maxwell, 2007), p 47 and Paul Obo Idornigie, Commercial Arbitration Law and Practice in Nigeria, (Lawlords Publications, 2015) 28. 6. Mackie K et al, (n 2) at 1 7. For example, in the case of Arbitration, we have pure commercial arbitration, maritime arbitration, construction arbitration, rent review and property valuation arbitration, commodity trade arbitration, agricultural property arbitration and consumer disputes arbitration. Similarly the fields of activity in Mediation include commercial and civil disputes, family disputes (separation, divorce, etc), employment disputes, community and neighbourhood issues, victim/offender mediation and reparation (restorative justice), environmental issues and international issues. In the case of Negotiation, virtually everything can be negotiated. 8. See section 153(1)(f) and Third Schedule, Part I (F) of the 1999 Constitution, as amended PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 63 law to ensure that such awards can be enforced. Similarly, as a safeguard against impartiality and absence of due process, the court can, in certain instances, impeach an award. Significant features of arbitration include: Ø The agreement to arbitrate – there must be an agreement to arbitrate - the foundation stone of commercial arbitration save investment treaty arbitration or arbitration conducted under the provisions of a statute. Thus other than arbitration arising from a treaty or statute, commercial arbitration arises from the agreement to arbitrate. Such agreement can be a clause in the contract or a separate contract usually referred to as 'submission agreement'. The agreement must generally be in writing. Ø Arbitration can ad hoc or institutional, that is, the conduct of the reference is either based on institutional rules or without institutional rules. The very popular arbitral institutions are the London Court of International Arbitration (LCIA) and the International Commercial Centre (ICC). Ø Choice of arbitrators – it is the parties that choose their own arbitrators or third parties authorized by the parties. This distinguishes arbitration from litigation. Thus the arbitrators are chosen by the parties, or an institution, court or other appointing authority. Ø The decision of the arbitral tribunal is usually referred to as an award. The award distinguishes arbitration from mediation. This is so because the award is final, binding, conclusive and generally non-appealable but can be set aside. Ø Enactments on arbitration usually provide for grounds for setting aside an award. In consequence, an arbitral award cannot be set aside on flimsy grounds but grounds set out in the enactments or rules. Ø An arbitral award is enforced like a court judgment. Ø There are no rigid formalities like litigation and there is confidentiality and privacy of arbitral proceedings. Ø Arbitration – anchored on fundamental principles – party autonomy, arbitrability, separability, judicial non-intervention and kompetenz- kompetenz.10

REQUEST FOR (OR NOTICE OF) ARBITRATION

Once it is established that there is a proper and valid agreement to arbitrate and a dispute has arisen within the context of the agreement, a request for (or notice of)

9. See Electoral Act, 2010 as amended 10. Paul O Idornigie, “Anchoring Commercial Arbitration on Fundamental Principles” inThe Arbitrator & Mediator, The Journal of The Institute of Arbitrators & Mediators, Australia (2004) 23 (1), p 65 11. See Article 4 of the ICC Rules. See also Article 1 of the LCIA Rules, Rule 1 of the ICSID Institution Rules and Article 2 of the AAA International Arbitration Rules 12. See Article 3 of the UNCITRAL Arbitration Rules, 2010. See also Article 4 of the Australian Centre for International Commercial Arbitration Rules and Article 3 of the Arbitration Rules of the Lagos Regional Centre for International PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 64 arbitration is issued. Whereas under the ICC Rules11, it is referred to as 'request for arbitration', under the UNCITRAL Arbitration Rules12 , it is referred to as 'notice of arbitration'. We must state that the UNCITRAL Arbitration Rules are generally used for ad hoc arbitrations while the institutions have their own rules. Similarly whereas the notice of arbitration is usually sent and delivered to the other party, in the case of institutional arbitration the notice (request) is addressed to the relevant institution and the institution notifies the other party.

Whether it is referred to as notice or request, the usual contents are: a) A demand that the dispute be referred to arbitration; b) The names and contact details of the parties; c) Identification of the arbitration agreement that is invoked; d) Identification of any contact or other legal instrument out of or in relation to which the dispute arises or, in the absence of such contract or instrument, a brief description of the relevant relationship; e) A brief description of the claim and an indication of the amount involved, if any; f) The relief or remedy sought; g) A proposal as to the number of arbitrations, language and place of arbitration, if the parties have not previously agreed The notice may also include a proposal for the designation of an appointing authority.

There may be an issue as to when the arbitral proceedings actually commence. Under the principle of party autonomy, the parties should determine this but if not determined, it may be deemed to commence on the date on which the notice of arbitration is received by the other party.13 In the case of institutional arbitration, the date of receipt by the institution of the request shall be treated as the date on which the arbitration is commenced.14 It is important to record when the proceedings actually commenced for purposes of statutes of limitation.15 This is so because the statute applies to arbitration the same way it applies to litigation. Consequently, if the proceedings are commenced after the statutory time limit, the proceedings may be declared statute barred.

CONSTITUTING THE ARBITRAL TRIBUNAL

According to the provisions of section 57 of the Act16 'arbitral tribunal' means a sole arbitrator or a panel of arbitrators. The key to an efficient arbitration lies in the

Commercial Arbitration 13. Arbitration and Conciliation Act, Cap A18, LFN, 2004 (“the Act), section 17 14. Art 4.2 of the International Chamber of Commerce(ICC) Rules, 2017, Art 1.4 of the London Court of International Arbitration(LCIA) Rules, 2014 15. Limitation Act of the FCT, section 7 16. ibid PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 65

choice of the arbitral tribunal. Many arbitral practitioners consider that choice to be the single most important decision that the parties make. The importance of this was succinctly stated in Jones v Lebental 17 and adopted with approval in Kano State Urban Development Bank v Fanz Construction Ltd,18 per Agbaje, JSC that “parties took their arbitrator for better or worse both as to decision of fact and decision of law”.

Whereas in jurisdictions like England, 19 there is presumption of a sole arbitrator, that of Nigeria (and the UNCITRAL Model Law)20 it is a tribunal of three unless a contrary intention is expressed. In practice, it is not advisable to nominate an arbitrator in the substantive contract as the nominee may die, unavailable, not possess the qualities for the particular dispute. Usually the qualifications will be stated instead of appointing the arbitrator in advance.

In constituting the arbitral tribunal, therefore, reference must be made to the applicable rules and the decisions of the parties as to whether it should be a sole or more arbitrators. There is also the need to determine whether an umpire will be appointed. Under the English Arbitration Act,21 the parties are free to agree on the number of arbitrators to form the tribunal and whether there is to be a chairman or umpire. There is no such provision in the Nigerian law. Where there is to be a chairman, he is usually chosen by one of three methods: a) By the agreement between the parties; b) By agreement between the party-appointed arbitrators; or c) By appointment by a relevant institution (appointing authority) such as the ICC, LCIA, AAA, CIArb, Lagos Regional Centre or one of the many other institutions around the world.

Care should be taken to ensure that the arbitrator appointed is independent and impartial otherwise these are grounds for challenge of the appointment of an arbitrator. The basic test is whether grounds exist from which a reasonable person would think that there was a real likelihood that the arbitrator could not, or would not, fairly determine the issue on the basis of the evidence and arguments to be adduced before him. 22 In the area of appointment, institutional arbitration tend to have an edge over ad hoc arbitration in the administration of the proceedings, choice of arbitrators, fees, etc. It should be borne in mind that where an appointment is properly challenged, an arbitrator can be removed and replaced.23

17. (1898) 58 LT 406 at 408 18. (1990) 4 NWLR (Pt 142) 1 at 43 19. See Arbitration Act, 1996, section 15(3) 20. See the Act, section 6 and Article 10(2) of the UNCITRAL Model Law 21. See section 15(1) of the English Arbitration Act 1996 22. The Act, sections 8-9 23. ibid, section 11 PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 67

PRELIMINARY MEETING 24

Once a notice of (request for) arbitration is properly served and an arbitral tribunal is constituted, a Preliminary Meeting is usually held. In preparing for the meeting, a proper Notice and Agenda should be circulated to the arbitral tribunal and parties and their counsel.

The following matters are usually considered at the Preliminary Meeting: a) Introductions and Appearances b) Appointment of Registrar or Confirmation of appointment of Registrar c) Confirmation that the Arbitrators were appointed by the parties and/Appointing Authority eg the Chief Judge of the FCT upon an application for that purpose. d) Confirmation that the appointment is in line with the arbitration agreement. e) Challenges and Disclosures f) Do the parties have any objection to the Arbitrators' appointment? g) Do the arbitrators have anything to disclose? h) Confirmation of the date of commencement of arbitration i) Outline of Claims/Dispute/Likely Issues I. Claimant's Summary II. Respondent's Summary and counterclaim, if any. III. Is there a concurrent arbitration or dispute? What are the claims and issues? (if it includes monetary claims, then also approximate value) j) Powers of the Arbitrators I. Can Arbitrators decide on the basis of fairness and equity (ex aequo et bono)? II. Can Arbitrators decide as amiable compositeur? III. Should the arbitrators appoint experts/assessors? And will the parties be calling expert witnesses of their own? k) Preliminary Issues l) Consider whether specific issues in the dispute can be split. If so, parties to expressly consent. m) Consider whether it would be necessary to make awards on different issues at different stages. n) Venue of arbitration. o) Sitting days (Weekdays, Weekends, Holidays). p) Sitting hours. q) Language of this arbitration (and arrangements for translation and interpretation). PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 68

r) Do the parties require tape recording and transcripts of evidence and/or proceedings? s) Is consolidation with any concurrent arbitration necessary? t) Procedural Issues u) Documents-only or full hearing. v) Submission of Witness Statements. w) Compilation of Bundle of documents – agreed bundles or separate bundles. x) Do the parties require inspection at locus? y) Do the parties intend to make opening submissions? z) Do the parties intend to make closing submissions? aa) Pleadings bb) Issues for Determination: By agreement of parties or to be submitted individually? cc) Formal pleadings or Statement of Case. dd) How much time do the parties require for filing of Pleadings? ee) Will requests for particulars/further particulars be necessary? ff) Communications and General Directions gg) Notification or confirmation of email, telephone and physical mail addresses of the parties or counsel. All communications with the Registrar. hh) Fax, letters, email, with arbitrators and Registrar ii) Posts and courier jj) Telephone communications with arbitrator only in emergency and notification to the other party kk) Fees & Costs ll) Arbitrator's fees mm) Assessment of Administrative Costs nn) Sharing/Recovery of costs oo) Method of payment (time, nominated account, etc) pp) Closing qq) Any other matter rr) Adjournment

At the end of a Preliminary Meeting, a Procedural Order or Order for Directions will be issued detailing how the proceedings will be conducted. The Order may be amended as appropriate in the course of the hearing. In the case of ICC arbitration, a similar order is called Terms of Reference.25

24. Idornigie (n 5) 227 PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 69

PRE-HEARING REVIEW

A pre-hearing review is usually held where there is going to be a hearing. The purpose of the pre-hearing review is to a) enable the arbitrator to satisfy himself that all previous directions given in the Procedure Order have been or will be complied with; b) consider whether there is need for any further direction; c) ensure that issues between the parties have been identified; d) exploring the ways of shortening the hearing; e) whether there is the need to decide any issue as a preliminary issue; f) arrange for appropriate bundles of documents; and g) to ensure that the hearing will start in an efficient manner on the due date.

CONDUCT OF ARBITRATION

Right to Representation – Each party has a right not only to be present but to be represented by Counsel of his choice or other advisers unless that right has been excluded by agreement. It should be noted that under the Nigerian Arbitration Rules, parties can only be represented by legal practitioners as defined in the Legal Practitioners Act, 2004. The consequence of this is that foreign lawyers cannot appear as Counsel in Nigeria where the arbitration is domestic.26

Equal Treatment of Parties – if the principle of party autonomy is the first principle to be applied in relation to procure in international arbitration, equality of treatment of the parties is the second and it is of the same importance. The principle is given express recognition in international instruments27, municipal laws 28 and rules 29.

Taking evidence on oath – a witness can be examined on oath or affirmation

Evidence gathering – adversarial or inquisitorial, admissibility, proof, facts, experts, presentation of witnesses, procedure for taking evidence. These are matters to be addressed at the Preliminary Meeting. It should be noted that the International Bar Association (IBA) has prepared rules for taking evidence in international arbitration and also has conflict rules.30

Note taking/Recording/Transcription – the arbitrator can take notes in full, or jots

25. ICC Rules, Art 23 26. Arbitration Rules, Art 4 27. 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Award, Article V(I)(b) 28. The Act, section 14 . 29. LCIA Rules, Article 14.1(i) and UNCITRAL Arbitral Rules, 2010, Article 17 30. IBA Rules on the Taking of Evidence in International Arbitration, 2010 available at https://www.ibanet.org/ Document/Default.aspx?DocumentUid=68336C49-4accessed 23 October, 2019 and IBA Guidelines on Conflict of Interest in International Arbitration, 2015, available at https://sccinstitute.com/media/37100/iba PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 70

them down as reminders, engage a Registrar, engage a Transcriber, record proceedings on tape or video. Note taking is very important so as to remind the arbitrator and parties the evidence especially on findings of fact.

Identification of issues It is advisable that at the Preliminary Meeting, parties are directed to identify issues for determination and whether some issues must be determined before the others or whether there are interlocutory applications.

Pleadings/Memorials – the form must have been agreed at the preliminary meeting. How are they to be exchanged – concurrently or consecutively? The usual order is Points of Claim, Point of Defence, Reply and Rejoinder.31

After pleadings have been exchanged, there may be request for production of additional documents.

Hearing32 – oral, documents or both; dates for hearing, length of hearing, etc. If a hearing is expected to last for more than a day or two, a great deal of expense can be saved if the order in which witnesses are to be called is known in advance, so that the opposing party can dispense with the attendance of his witnesses that are not needed. It must be stressed that in Nigeria, the Evidence Act33 does not apply to arbitral proceedings but the rules of evidence apply. Accordingly, section 15(3) of the Act provides that it the arbitrator that determines the admissibility, relevance, materiality and weight of any evidence placed before it.

USUAL ORDER OF EVENTS AT THE HEARING

At the Preliminary Meeting, the parties may agree that the arbitration will be 'documents only' in which case, there will be no oral hearing. However, where the parties agree that there is going to be a hearing, the usual order is as follows: a) Opening statements of the Parties b) Evidence in chief of the claimant's 1st witness c) Cross-examination of the claimant's 1st witness d) Re-examination of the claimant's 1st witness e) Evidence in chief, cross-examination and re-examination of the Respondent's 1st witness (All these are repeated for other witnesses) f) Closing speech for the respondent g) Closing Speech for the claimant. h) Post-Hearing Briefs

_publications_arbitration_guidelineaccessed 23 October, 2019 31. The Act, section 19 PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 71

NOTE: It is the duty of the arbitrator to adopt procedures that suits a particular proceedings Powers of the tribunal e.g. appoint experts, order interim measures. All these should be raised at the preliminary meeting

Settling and offering to settle a dispute – with or without prejudice. The policy of the law is to encourage settlements. Thus you can write a letter on “without prejudice basis'. There can be an offer expressed to be made 'without prejudice save as to costs' or words to that effect. Such offers may not be disclosed to the arbitrator until he has issued an award on all matters except costs. Such an offer is usually called a 'Calderbank offer' – after the name of the case in which the procedure was first approved by the English courts. The purpose of a Calderbank offer is to enable the party making the offer (if it is rejected) to bring it to the arbitrator's attention at the end of the reference. This may be by way of providing the arbitrator with an envelope containing the offer, with instructions not to open it until he has decided everything except costs.

ROLE OF TRIBUNALS The sources of powers of the arbitral tribunal are statutory, express, implied and terms of trade. Whatever is the source, the arbitrator is the master of procedure – as soon as an arbitrator is appointed, he takes charge of the proceedings. The arbitral tribunal has specific powers to rule on its competence and give orders, awards, correct awards, interest on awards, security for costs, and determine fees if not determined by an institution. Thus an arbitral tribunal a) may rule on its own substantive jurisdiction;34 b) decide matters by a majority;35 c) may rule as to whether the tribunal is properly constituted; d) may rule as to whether the proceedings are within the reference; e) may admit objections to jurisdictions; f) may decide where and when any part of the proceedings is to be held; g) may appoint experts;36 h) may order a claimant to provide security for costs; i) may dismiss a claim for want of prosecution; j) may proceed ex parte; 37and k) ensure equal treatment of parties38.

Role of Parties – derived essentially from the Principle of Party Autonomy – the

32. See UNCITRAL Notes on Organising Arbitral Proceedings, Vienna, 1996. See also the Act, section 20 33. The Evidence Act, 2011, section 256(1) 34. The Act, section 12 35. Ibid, section 26(2) 36. ibid, section 22 37. ibidsection 21 38. ibid, section 14 PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 72

parties are empowered to determine the following: a) Receipt of written communications – how communications are to be written and served.39 b) Appointment and number of arbitrators.40 c) Challenge of Procedure – if there is cause to challenge the appointment of an arbitrator.41 d) Request for interim measure of protection.42 e) Determination of Rules of Procedure – how the arbitral proceedings will be conducted.43 f) Place of Arbitration. There is a difference between the legal seat of the arbitration and place of hearing. It is for the parties to determine all these.44 g) Commencement of Arbitral Proceedings.45 h) Language of proceedings.46 i) Statements (or Points) of Claim and Defence – how and when they are to be prepared and served.47 j) Hearing and Written Proceedings – whether there will be a hearing and how the documents are to be prepared and served.48 k) Default of a party – generally if there is a default of a party without showing sufficient cause, the arbitral proceedings shall proceed.49 l) Choice of Applicable Law – this applies to international arbitration. m) Appointment of Experts.50 n) Form and content of Award.51

MULTI-PARTY ARBITRATION52

This normally arises where there is a main contract and sub-contracts especially in construction cases. Without the authority of the parties, arbitrators do not have the powers to consolidate or order consecutive or concurrent hearings.Should the same tribunal be appointed? It's a matter for the parties. There are usually statutory or institutional provisions for consolidation. However, under the Act, there is no such provision.

39. Ibid, section 56 40. Ibid, sections 6 and 7 41. Ibid, section 9 42. Ibid section 13 43. Ibid, section 47 44. Ibid, section 16 45. Ibid, section 17 46. Ibid, section 18 47. Ibid, section 19 48. Ibid, section 20 49. Ibid, section 21 50. Ibid, section 23 51. Ibid, section 26 52. Multiple Party Actions in International Arbitration (ed Permanent Court of Arbitration) [OUP 2008) PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 73

ROLE OF THE COURTS

According to the provisions of section 34 of the Act, the courts cannot intervene in arbitral proceedings except as provided by the Act. The relationship between national courts and arbitral tribunals swings between forced cohabitation and true partnership. Arbitration is dependent on the underlying support of the courts which alone have the power to rescue the system when one party seeks to sabotage it.

The courts are involved in the arbitral process in three main ways, namely, before, during and after the arbitral proceedings. Where an arbitral institution is involved, the position will be different as such institutions provide some of the support that the arbitral process requires other than going to court. The relationship between courts and ad hoc arbitration has been compared to a relay race: Ideally, the handling of arbitral disputes should resemble a relay race. In the initial stages, before the arbitrators are seized of the dispute, the baton is in the grasp of the courts; for at that stage there is no other organization which could take steps to prevent the arbitration agreement from being ineffectual. When the arbitrators take charge they take over the baton and retain it until they have made an award. At this point, having no longer a function to fulfill, the arbitrators hand back the baton so that the court can in case of the need lend its coercive powers to the enforcement of the award.

The courts can intervene in the following instances: a) Section 2 of the Act – Arbitration agreement irrevocable except by agreement or leave of court. b) Sections 4 and 5 of the Act – Stay of Proceedings. c) Section 7 of the Act – Appointment of Arbitrators. d) Sections 9 and 10 of the Act – Challenge of Arbitrators/Failure or impossibility to act. e) Section 13 of the Act – Interim measure of protection. f) Section 23 of the Act – Power of court to order attendance of witness. g) Section 29 of the Act – Application for setting aside an arbitral award and remission of award. h) Section 30 of the Act – Setting Aside in case of misconduct by arbitrator and removal of an arbitrator. i) Section 31 of the Act – Recognition and enforcement of award. j) Sections 32 and 52 of the Act – Refusal of enforcement of award.

53. See UN General Assembly Resolution 35/52 of 4 December, 1980. PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 74

OTHER ADR PROCESSES

The UNCITRAL adopted Conciliation Rules on 23 July 1980.53 The UNCITRAL Conciliation Rules provide a comprehensive set of procedural rules upon which parties may agree for the conduct of conciliation proceedings arising out of their commercial relationship. The Rules cover all aspects of the conciliation process, providing a model conciliation clause, defining when conciliation is deemed to have commenced and terminated and addressing procedural aspects relating to the appointment and role of conciliators and the general conduct of proceedings. The Rules also address issues such as confidentiality, admissibility of evidence in other proceedings and limits to the right of parties to undertake judicial or arbitral proceedings whilst the conciliation is in progress

In 2002, UNCITRAL adopted the Model Law on International Commercial Conciliation. In 2018, UNCITRAL adopted the Model Law on International Commercial Mediation and International Settlement Agreement Resulting from Mediation. In the 2018 Model Law, mediation is defined to include conciliation.55

Mediation means a process whether referred to by the expression mediation, conciliation or an expression of similar import, whereby parties request a third person or persons to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The mediator does not have the authority to impose upon the parties a solution to the dispute.56

To avoid uncertainty resulting from an absence of statutory provisions, the Model Law addresses procedural aspects of mediation, including appointment of conciliators, commencement and termination of mediation, conduct of the mediation, communication between the mediator and other parties, confidentiality and admissibility of evidence in other proceedings as well as post-mediation issues, such as the mediator acting as arbitrator and enforceability of settlement agreements. The Model Law provides uniform rules on enforcement of settlement agreements and also addresses the right of a party to invoke a settlement agreement in a procedure. It provides an exhaustive list of grounds that a party can invoke in a procedure covered by the Model Law.

The UNCITRAL Model Law on Mediation can be used as a basis for enactment of legislation on mediation, included, where needed, for implementing the United Nations Convention on International Settlement Agreements Resulting from

54. See UN General Assembly Resolution 57/18 of 24 January, 2003 55. See UN General Assembly Resolution 73/199 of 20 December, 2018 56. UNCITRAL Model Law on International Commercial Mediation, Art 1.3 PRINCIPLES & TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) 75

Mediation

There are other ADR processes with standard procedures like Expert Determination and Dispute Resolution Board. There are still others like Med-Arb, Ombudsman and Mini-tribunal

All these other processes have their own techniques and principles.

CONCLUSION

In this article, we have discussed the contours of the alternative dispute resolution (ADR) processes. We are not saying that all disputes are amenable to the ADR processes but that we must choose the appropriate process for a particular dispute. This requires legal engineering such that the process should fit a dispute – there must be a nexus between them..

The fields to which ADR principles can be applied are never closed. Thus the categories can be enlarged. For instance, ADR principles can be used for pre-election disputes. Unlike a completed house or painting, ADR processes are like works in progress.

For the purpose of this article, we have discussed how the practice and procedure relating to arbitration. This can extended to other processes like mediation and conciliation. ARTICLE 767 REGULATORY INTERVENTIONS IN COMBATING THE PHENOMENON OF BIRD STRIKE AS A CAUSATIVE FACTOR IN AVIATION ACCIDENTS/INCIDENTS IN THE NIGERIAN AVIATION INDUSTRY. *Ayodele Gatta

ABSTRACT

To a majority of non-aviators, the thought of bird strike as a causative factor in aviation accidents/incidents is an impossibility. However statistics on the causative factors in aviation accidents/incidents indicate that there is a preponderance of aviation accidents and more especially incidents traceable to bird strike. The economic loses emanating from aviation incidents caused by bird strike is astronomic.

This paper examines the regulatory measures put in place by aviation agencies in combating the menace of bird strike in the aviation industry. The paper proffers measures at ensuring that aviation operations are insulated from the menace of bird strike. The paper concludes that except stringent measures are adopted by the Nigerian Civil Aviation Authority, the dangers posed to aviation operations by bird strike would continue to occasion huge economic losses to the industry.

INTRODUCTION

A bird strike is defined as a collision between a bird and an aircraft which is in flight or on a takeoff or landing roll. The term is often expanded to cover other wildlife strikes – with bats or ground animals. Bird strike is common and can be a significant threat to aircraft safety1.. A bird strike sometimes called bird strike, bird ingestion (for an engine) bird hit, or BASH (for Bird Aircraft Strike Hazard) – is a collision between an airborne animal usually a bird or bat) and a human made vehicle, especially aircraft. The term is also used for bird deaths resulting from collisions with human made structures such as power lines, towers and wind turbines2

AyodeleGatta B.A (Hons); M.A (English); M.Sc (Ibadan); LL.B (Benin); LL.M; M.Phil; Ph.D (Ife); .B.L; ACIArB (U.K) Formerly Lecturer Department of Law Fourah Bay College, University of Sierra - Leone. 08023199237. [email protected] 1. Bird strikes' www.skybrary.aero.7index7Php accessed 9th April 2016. 2. https:/wn.m.wikipedia.com accessed 9th April 2016. REGULATORY INTERVENTIONS IN COMBATING THE PHENOMENON...... 77

As a causative factor in aviation accident/incidents, it is imperative to state that bird strikes are linked more to aviation incidents rather than accidents. The implication of the foregoing is that in reality, the end result of a bird strike on an aircraft is the occurrence of air incident rather than an accident.

Aviation incidents, unlike accidents, are of different categories but a common denominator is the absence of fatality and minimal damage to aircraft and aviation infrastructure. However, there have been instances wherein bird strikes have resulted in aviation accidents. Thus, there is a nexus between aviation accidents and incidents – accidents being the farthest point in the incident spectrum measured in terms of fatalities and damage to equipment and aviation infrastructure.

The gravity of bird strike as a causative factor in aviation accidents/incidents is of great concern amongst stakeholders in the aviation industry. This is largely due to the losses emanating from aviation accidents/incidents resulting from bird strikes. Non – aviators, on the other hand, are largely oblivious of the phenomenal damage which bird strike can inflict on aviation operations. This is because a bird, in comparative terms, with result to size is often minute vis-à-vis- the human made vehicle especially an aircraft and hence the erroneous belief that a bird cannot wreak damage on an aircrafton takeoff, landing or in flight and hence cannot by any dint of imagination be a causative factor in aviation accident/incidents.

However, this presumption is non-sequituras evidence and statistics abound of accidents/incidents traceable to bird strike in aviation operations

A CONCEPTUAL ANALYSIS OF BIRD STRIKE AS A HAZARD TO THE SAFETY OF CIVIL AVIATION OPERATIONS

Bird strikes are a significant threat to flight safety and have caused a number of accidents with human casualties. The number of major accident involving civil aircraft is quite low and it has been estimated that there is only about one accident resulting in human death in one billion flying hours. The majority of bird strikes (65%) cause little damage to the aircraft; however the collision is usually fatal to the birds involved3

Most accidents occur when there is a collision involving a bird (or birds) and the widescreen or a bird (or birds) is sucked into the engines of mechanical aircraft. These cause annual damage that have been estimated at $400 million within the United States of America alone and up to $1.2 billion to commercial aircraft worldwide4

3. ibid 4. ibid REGULATORY INTERVENTIONS IN COMBATING THE PHENOMENON...... 78

Bird strikes happen most during take-off or landing, or during low altitude flight. However, bird strikes have also been reputed at high attitudes, some as high as 6,000m (20,000ft) to 9,000 (30,000ft) above sea level. The majority of bird collisions occur near or on airports (90% according to the ICAO) during take – off, landing and associated phases5.

The point of impact is usually any forward facing edge of the vehicle such as a wing leading hedge, nose cone, jet engine cowling or engine inlet6.Jet engine ingestion is extremely serious due to the rotation speed of the engine fan and engine design. As the bird strikes a fan blade, that blade can be displaced into another blade and so forth, causing a cascading failure. Jet engines are more particularly vulnerable during the take – off phase when the engine is turning at a very high speed and the plane is at a low attitude where birds are more commonly found7.

Bird strikes can damage vehicle components, or injure passengers. Flocks of birds are especially dangerous and can lead to multitude strikes and damage. Depending on the damage, aircraft at low attitude or during take – off and landing often cannot recover in time, and thus crash, as in the case of U.S Airways Flight 15498.

Many air crashes have been caused by bird strike and in Nigeria many aircraft have been sent for maintenance after they were damaged by bird strikes which usually keep such aircraft out of operation for weeks9. Bird strike has severally threatened safety and led to aircraft damage that cost domestic airlines about N15 billion annually. According to the Federal Airports of Nigeria (FAAN) in 2006, bird strikes caused 115 incidents and accounted for about 60% of the total air incidents that year10. The Federal Government estimates about 10,000 purported bird strikes in 2009 - a 32 percent increase over the 7,600 reported strikes in 200811.

There has been a rising concern over the spate of air crashes as a result of bird strike in recent times12. In the United States, it was after the bird strike of flight 1549 over Hudson River that the U.S aviation industry recognized that birds were a significant threat and that more action needed to be taken to mitigate the risk to aviation safety by bird strike. Statistics with respect to losses in the aviation industry as a result of the menaceof the bird strike is colossalBetween 2008 and 2010 (a period of 24 months)

5. ibid 6. ibid 7. ibid 8. ibid 9. ibid 10. ChineduEze,'Bird Strike May lead to Air crash, DG.NCAA warns'Thisday(Lagos, 11 February, 2011) 29; ‘Bird Strike; Menace to Aircraft, threat to Safety'ThisdayTheSunday Newspaper(Lagos, 25 April 2010); Shola Adekunle'Airlines Lose N15bn annually to bird strike – Demuren'Nigerian Tribune (Ibadan, 17 February, 2011) 21 11. ibid 12. ChineduEze. 'Bird strikes: Menace to Aircraft. Threat to safety' ibid. REGULATORY INTERVENTIONS IN COMBATING THE PHENOMENON...... 79

Aero contractors lost abort N39 million ($260,000) in revenues and repairs anytime each of its aircraft is struck by a bird. Aero in the said period suffered 37 bird strike incidents – 19 on takeoff, 18 on landing and half of these took place at the Lagos Airport. A typical bird strike would affect the aircraft's nose. That is the cone where the radar is. This costs about $400,000; it could destroy the engine where the turbine blade, the thrust and the horoscope are located. It could affect the windscreen, which is $10,000. It can affect the airframe and could take the aircraft out for two weeks. Each time there is bird strike, the airline loses about $260,000 of revenue and on cost of repairs.13. The cost associated with bird strikes is enormous and this includes direct repair cost(Aircraft ferry, repairs at LufthansaTechnik in Cologne, Germany: replacement of parts) indirect cost (insurance premium) and lost revenue opportunities while the damaged aircraft is out of service14.In the developed countries, the airport authority pays the airline compensation for such damages; but Nigeria is an exception15.

Modern jet engines have the capability of surviving an ingestion of a bird. Small fast planes, such as military jet fighters, are at higher risk than big heavy multi-engine ones. This is due to the fact that the fan of a high-by pass turbo fan engine, typical on transport aircraft, acts as a centrifugal separation to force ingested materials (birds, ice etc) to the outside of the fan's disc. As a result, such materials go through the relatively unobstructed by pass duct, rather than through the core of the engine, which contains the smaller and more delicate compressor blades. Military aircraft designed for high speed flight typically have pure turbojet, or low bypass turban fan engines, increasing the risk that ingested material will get into the core of the engine to cause damage16.

The highest risk of bird strike is during the takeoff and landing phases in low altitudes within the vicinity of the airports. It is atthis period that bird strike poses considerable damage to aviation operations. However, there have been some isolated instances of bird strike at very high altitudes.

CASE STUDIES OF AVIATION INCIDENTS TRACEABLE TO BIRD STRIKES IN NIGERIA

Bird strike is a common threat to aircraft safety and has caused a number of fatal accidents17.A catalogue of air mishaps caused by bird strike include the following: an Ethiopian Airline Boeing 737, in 1988 sucked pigeons into both engines during take- off and then crashed in an attempt to return to the Bashir Dar Airport; of the 104

13. ibid. 14. ibid 15. Kelvin Osa-Okunbor'Bird strikes: AON seeks accounts reconciliation with FAAN'The Nation (Lagos, 27 April, 2010) 37 16. accessed 9th April 2016 17 . accessed 9th April 2016. REGULATORY INTERVENTIONS IN COMBATING THE PHENOMENON...... 80 people aboard 35 died and 21 were injured. In another incident in 1995, a Dassault Falcon 20 crashed at Paris airport during an emergency landing attempt after sucking lapwings into an engine which caused an engine failure and a fire in the airplane fuselage; all 10 people on board were killed. In Nigeria, a number of aircraft have also experienced collision with birds while on navigation; on the 19th day of April, 2010 at Dana Air aircraft was struck by a bird while it was taking off at the domestic wing of the International Airport, Abuja. It had 97 passengers on board. A few days after the Dana Air aircraft incident, another bird strike took place in the same week at the Margaret Ekpo International Airport, Calabar when an Arik Air aircraft with registration 5N-MJE was hit by a bird as it arrived the airport from Lagos. The bird, a black kite (known as Milvus migrants) damaged the landing gear, leaving the aircraft dysfunctional. On the 24th December, 2008 an Arik Air Boeing B737–700 aircraft at the Port-Harcourt International Airport Omagwaen route Lagos picked a bird as it was taking off. As the aircraft took off with high velocity, suddenly the thrust began to ebb, the sound of the engine because cranky and the aircraft began to lose attitude. The passengers were scared stiff and some moment later, the pilot announced that the aircraft had “picked a bird” as it was taking off and it entered one of the engines. The pilot had to make an air return back to Port-Harcourt airport. It landed few minutes later. Also on the 11th day of April 2010, as passengers were waiting for Nigeria Eagle Airlines (former Virgin Nigeria Airways) aircraft which was expected to arrive from Port-Harcourt to Lagos to pick passengers to Abuja, information came that the aircraft had a bird strike as it left Port-Harcourt airport. It damaged the engine18.

Bird strike as a threat to aviation safety is a recurring decimal in aviation operations in Nigeria. The phenomenon of bird strike has led to the grounding of the operations of many aircraft with consequential loss of revenues arising from such incidents. In addition is the cost of repairing damaged parts affected by bird strikes. While most of the bird strikes reported in the Nigerian aviation industry concerned incidents of aircraft collision with lone birds, however there have been reported incidents of collisions with a flock of birds. On January 15, 2009 U.S Airways flight 1549 from La Guardia airport Charlotte/Douglas International Airport ditched into the Hudson River after experiencing a loss of both turbines. It was suspected that the engine failure was caused by running into a flock of geese at an altitude of about 975m (3,200ft) shortly after takeoff. All 150 passengers and 5 new members were safety evacuated after a successful water landing19.

REGULATORY INTERVENTIONS IN COMBATING BIRD STRIKE IN

18. ChineduEze 'Bird strike: Menace to Aircraft, Threat to safety' Thisday The Sunday Newspaper (Lagos, 25 April 2010).66 19.

THE NIGERIAN AVIATION INDUSTRY

Airport development projects are some of the largest infrastructure projects a city, region or nation may undertake. They are also enormously capital intensive ventures, often among a nation'smost resource and time consuming public work projects. From initial conception to ultimate completion, the process of planning, financing, designing and constructing a new airport, or expending an existing one, can consume more than a decade of time and hundreds of millions of dollars20.

Consequent on the construction of airport infrastructure, several issues compete for the attention of the authorities. One of such issues is ensuring the safety of aviation operations into, out of and within the vicinity of such airports. This calls for a robust regulatory policies and interventionist measures aimed at ensuring that flight safety is not jeopardized. In this direction, the Nigeria

Civil Aviation Regulations (NCARs) make provisions for the effective management of wildlife around the airports. It becomes imperative to discern why the management of wildlife should be integrated with the NCARs. The reason is not farfetched, airport construction projects often consume a vast swathe of land which are often situate in virgin lands far removed from the hustle and bustle of commercial and city life. Some airports have progressively seen the vanishing of lush vegetation around the aerodrome facilities giving way to the modern needs of housing and shelter. An example is the Ikeja Airport which in the 60s was far removed from city but has progressively merged with the city of Ikeja-Lagos. However there are still some forms of vegetation around the vicinity of some airports. This vegetation is often homes to some form of wildlife especially those of the avian class; birds, kites, bats and others.

The presence of wildlife as a result of vegetation around the vicinity of airports has elicited some regulatory responses in combating the menace of wildlife, especially birds to the safety of civil aviation operations. Under the provision of NCARs 12.623 provisions are made for aerodrome wildlife planning and management.

The forgoing section applies to aerodromes. (1) that are located in a defined area and that in the opinion of the authority should be certified in the public interest and to enhance the safe operations of the aerodromes

(2) that have a waste disposal facility within 13km of the geometric centre of the aerodrome;

20. Paul Stephen DampseyAirport Planning and Development Handbook: A Global Survey (New York: Mcgraw Hill, 2000) REGULATORY INTERVENTIONS IN COMBATING THE PHENOMENON...... 82

(3) that had an accident where a turbine powered aircraft collided with wildlife other than a bird and suffered damage, collided with more than one bird or ingested a bird through an engine; or

(4) where the presence of wildlife hazards, including those referred to in IS 12.6.23.1 has been observed in an aerodrome flight pattern or movement area. Sub-section 12.6.23.3 applies to all aerodromes;

A critical analysis of the provisions of NCARs 12.6.23.1 shows its applicability to all aerodromes irrespective of their location. This is because bird strike as a phenomenon in aviation accidents/incidents are not localized to any airport moreso when it is borne in mind that most airports being far removed from residential areas and ensconced within the vicinity of vegetation could still attract the presence of wildlife especially birds. This imperils the safety of civil aviation operations.

The aerodrome operator is under an obligation to keep records of all wildlife strikes at the aerodrome, including those reported by pilots, ground personnel and aircraft maintenance personnel when they identify damage to an aircraft as having been caused by a wildlife strike21. The obligation to keep records of wildlife strikes is a corollary of the function of the Nigerian Civil Aviation Authority's responsibility for the collation, and maintenance of a data bank of aviation and aircraft accidents,incidents, and occurrences and promote accident prevention programmes22.

The wildlife hazards referred to under the wildlife planning and management sections of the regulation includes but are not limited to black kites, egrets, hawks; swallows; goats; dog. The list is not exhaustive and the wildlife hazards are listed in a descending order from the most hazardous to the least hazardous with respect to the risk. The hazards listed in the implementing standards (IS)12.6.23.1 have the potential to cause an incident outlined in the Regulations23.

By virtue of the provisions f NCARs8.5.1.22 the pilot in command is under an obligation to submit without delay an air traffic incident report whenever aircraft in flight has been endangered by birds. In the event that a bird constitutes an in-flight hazard or an actual bird strike occurs, the pilot-in an command shall, without delay

(1) Inform the appropriate grand station whenever a potential bird hazard is observed; and

21. Nigerian Civil Aviation Regulations 2012, s 12.6.23.2 22. Nigerian Civil Aviation Act 2004, s 31(j) 23. Implementing Standards 12.6.23.1 to the Nigerian Civil aviation Regulations 2012. 24. Ibid REGULATORY INTERVENTIONS IN COMBATING THE PHENOMENON...... 83

(2) Submit a written bird strike report after landing24.

On the 8th day of May, 2011 a Lagos Bound Arik Air flight from Owerri struck birds which knocked off one of the aircraft engines. The incident forced the aircraft to lose altitude as the pilot declared emergency landing when the managed to fly the aircraft safely to the Murtal aMohammed International Airport, Lagos. The Aircraft was a Boeing 737-700 New Generation Aircraft flight W3 596; The second engine of the aircraft was struck by birds immediately after take-off from the Sam Mbakwe Airport, Owerri25.However, the NCAA in reaction to the incident did withdraw the license of the pilot and co – pilot for the failure of the crew to land at the nearest airport after the bird strike26.

Cognizable from the provisions of NCARs 8.5.1.22 is the fact that “bird strike” as a phenomenon that threatens the safety of civil aviation is classified as incidents. They are so classified, so long as they do not occasion fatalities. Bird strikes as incidents in the aviation industry are meant to be reported compulsory to the appropriate authorities. In the pre-Civil Aviation Act, 2006 years, so many incidents were left unreported. The report of bird strikes to the appropriate authorities would go a long way in combating in menace of bird strike as threatsto aviation safety.

COMBATING THE MENACE OF BIRD STRIKES AT AERODROMES: MEASURES, POLICIES AND PROGRAMMES

In Nigeria, the Federal Airport Authority of Nigeria(FAAN) as the manager of the 22 airports in the country is saddled with the responsibility of combating hazardous problems that may jeopardize the safety of civil aviation. This responsibility includes combating the menace of bird strike. This responsibility can be situated within the ambit of FAAN's functions which include to develop, provide and maintain at airports and within the Nigerian airspace all necessary services and facilities for the safe, orderly, expeditious and economic operation of air transport27.

FAAN had, pursuant to its statutory responsibility in ensuring safety initiated moves at installing the Merlin Aircraft Bird Strike Avoidance Radar System which is one - of-the-art devices in real time detection, tracking and warning of hazardous bird activities at airfields and airports28.

There is also, currently, a bird hazard control program of the Ornithology Unit of the Directorate of Environment Services at the nation's international airports. In

25. ChineduEze 'Heroism as Arik Pilots fly Bird Struck plane to Lagos' Thisday (Lagos, 9 May 2011) 8. 26. ibid ChineduEze 'Arik may clash with NCAA over license withdrawal' Thisday (Lagos,20 May 2011) 30 27. Federal Airport Authority of Nigeria Act Cap F5 LFN a 2010, s 3(a) 28. WoleShadare'FAAN, airlines to tackle bird strikes at airports' The Guardian (Lagos, 8 June 2010) 7. 29. ibid REGULATORY INTERVENTIONS IN COMBATING THE PHENOMENON...... 84

addition, there is a pilot project on the “phoenix bird deterrent systems” which is an automated equipment devised to produce different cries of sound to scare birds29. Irrespective, of the installation of the aircraft birds strike avoidance radar system at Abuja airport, an industry expert opined that the devise would not stop the problem on its own; emphasizing the fact that air traffic controllers have roles to play in warning pilots on the movement of birds in and around the airports. The chairman of the Technical and Administrative Review Panel in Domestic Airlines, Group Captain John Obakpolor noted that birds were on their seasonal autumnal migration southwards and consequently canvassed the collaborative effort of ATCs in combating the menace of bird strike despite the installation of automated devices with respect to same30.There are four directives given to a flight crew and technical hands as a way to check bird strikes which include checking airport documentation and NOTAM (notice to air men) for information about permanent or seasonal bird problems at both departure and destination airports31. Pilots should plan to fly as high as possible because it is only one percent of general aviation bird strikes that occur above 2,500ft (but there was a jet airlines that struck a vulture at 37,000ft off the West African Coast!)32.

Pilots should avoid flying over bird and wildlife sanctuaries, landfill sites and fish packing facilities. Pilots should also avoid flying along rivers or shore lines, especially at low altitudes because birds, as well as pilots, use these navigational features33.

Agricultural practices, such as subsistence farming within the vicinity of aerodromes should be outlawed – this is due to research findings which show that birds are often attracted to areas where there are clusters of insects. Insects are often seen in agricultural farms which act as habitat to such insects.

Another measure which could be efficacious is the erection of human effigies or mannequins which tend to indicate presence within the green areas of the airport. Birds are often scared by such effigies.

Predatory birds could also be of some utility in combating bird strike within the airport vicinity.

Such birds of prey could be nurtured to act as predators to birds which constitute hazard to the safety of flight operations. In numerical strength such predatory birds are to be less in population vis-a-vis- the hazardous birds. However, this method of combating bird strike has its own drawback. In instances where such birds of prey

30. ChineduEze 'Tackle Bird strike Menace at Airports, NAMA urged' Thisday (Lagos, 12 October 2012) 31. ibid “Bird strikes: Menace to Aircraft; Threat to safety” Thisday ibid 32. ibid REGULATORY INTERVENTIONS IN COMBATING THE PHENOMENON...... 85 have a high reproductive rate, they too could become a source of bird strike to aviation operations thereby becoming counterproductive and consequently defeating the main objective of their introduction to the airport infrastructure.

CONCLUSION

From the earliest stages of civil aviation bird strike has been identified as a potential and causative factor in aviation incidents/accidents all over the world. Though the outcome of bird strike on aircraft in flight has seldom resulted in accidents, there have been some isolated cases of accidents with fatalities resulting from bird strike on aircraft in navigation. ICAO nation states have adopted pro-active measures in combating the menace of bird strike. This is because of the serious threat which bird strike poses to the safety of flight operations. While it is an indubitable fact that a 100% eradication of birds within the vicinity of aerodromes is not feasible when cognizance is taken of the presence of vegetation around the vicinity of most airports, the activities of avian creatures should be regulated to the barest minimum. The upsurge of birds within aerodrome facilities can be effectively tackled through a proper information dissemination and consequent action by the authorities concerned.

Regular interventions in the area of wildlife management as provided for under the Nigeria civil aviation regulation (NCARs) should be scrupulously enforced through the provision of instruments and equipment for combating bird strike.

33. ibid ARTICLE86 9 AN APPRAISAL OF THE SUPREME COURT'S DECISION IN THE ON SHORE/OFF SHORE OIL DICHOTOMY CASE A-G ABIA & 35 ORS. v A-G FEDERATION.

Kunle Muideen Ogunfowodu* Oreoluwa Omotayo Oduniyi**

ABSTRACT.

This study will attempt to appraise the decision of the Supreme Court in the instant case and seek to evaluate the salient issues therein by critically examining the decision in the instant case and make germane recommendations on the perceived short comings of the judgment. During the high rise of the Niger- Delta crisis over the struggle for the control of the vast resources of the region which was embroiled in turmoil over the struggle for the control of the vast resources of the region. and one of the causes of this crisis is associated with the confusion over the terms resource control and increase in revenue.

All these was a result of the crude oil-natural resources which were exploited from the region and eventually led to degradation of the lands and water ways and with seemly nothing to show for it by the oil producing States and other States in the Federation in terms of infrastructures and human development. This led to questions being raised as to the concerning the resource control and demand for more increase in revenue.

1.0. INTRODUCTION

The issue of resource control and revenue sharing has been a long-standing issue which had resulted into a conflict between the Federal and State Government. This conflict made the Federal Government of Nigeria to institute a matter against all the states of the Federation at n Supreme Court. for the purpose of resolving the issue. in the widely reported case of Attorney-General Federation v Attorney General Abia State & 35Ors.1

One of the issues that was contended was the determination of the ownership of the

* LL.B (Hons.) (OOU), LL.M (OOU), B.L., Assistant Chief State Counsel, Ogun State Ministry of Justice, Government Secretariat, Abeokuta, NIGERIA. Tel: +234 (0) 8065209369. E-mail: [email protected], ** LL.B (Hons.) (Ife), LL.M (Ife), (M. PHIL Candidate) (Ife), B.L., Lecturer, Department of Public Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, NIGERIA. Tel: 08034147245; E-mail: [email protected] AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 87 southern (seaward) boundary of each of the littoral States for the purpose of determining the of amount resources accruing to the littoral States and the ownership of the offshore seabed. The Federal Government contended that the seaward boundary of these states is the low-water mark of the land surface or the seaward limit of the inland waters within the state. On the other hand, the littoral States do not agree with the Federal Government's contentions. All the States claimed that their s territories extend beyond the low-water mark into the territorial water and even into the continental shelf and the exclusive economic zone. They maintained further that the natural resources from the offshore are derivable from their respective territories and in respect thereof, each is entitled to “not less than 13 percent” allocation as provided for in Section 162 2 Constitution of the Federal Republic of Nigeria (CRFN).

Under the Nigerian Law, the ownership of natural resources is vested in the Federal Government but the 1999 Constitution states that a revenue formula whereby States with natural resources being exploited within their territory, are entitled to certain percentage of the revenue accruing directly to the Federal account from such exploitation3 This section has provided, guarantee that State entitled to the 'Derivation formula'. This is in view of the fact that the natural resources in contention in these offshore zones are located in their seabed.4

2.0. CLARIFICATION OF TERMS

2.1. OWNERSHIP

Ownership could be described as the bundle of rights allowing one to use, manage, and enjoy property; including the right to convey it to others. It implies the right to possess a thing, regardless of any actual or constructive control. 5 The owner of the property is not subject to the right of another person.6 The owner, has the full and final right of alienation or disposition of the property, and he can exercise the right without seeking the consent of another party, because as a matter of law and fact there is no other party right over the property that is higher than this' 7 Ownership consists of an innumerable number of claims, liberties, powers and immunities with regard to the thing owned and that the various claims constitute the content of ownership8

2. Constitution of the Federal Republic of Nigeria 1999 3. Ibid 4. Op. cit. 1 5. Bryan A. Garner, Black’s Law Dictionary 9th Edition, 2009 West, A Thomson Reuters pg. 1215 6. Ibid 7. Chief Abraham & ors v Olorunfumi, 1991 8. Dias R.W.M Jurisprudence, 4th ed (Butterworts publishers, London, 1985) 70 AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 88

2.2 . OFFSHORE

The offshore is that ground that is between the original high-water and low-water mark. This both prima facie and of common right belong to the king, both in the shore of the sea and the shore of the arms of the sea.9 The Oxford Advance Learners Dictionary10 defines offshore to mean 'at the sea and not far from the land'. The Encarta World English Dictionary11 has this to say; 'on or over land that is near water, especially away from the land towards the sea.' 12

2.3 . SEABED

Seabed is simply the sea floor, the ground underlying the ocean, over which nations may assert sovereignty, especially if underlying their territorial waters. 13 The Encarta dictionary14 defines it 'as the floor of ocean, the ground at the bottom of the ocean'. It is simply the floor of the sea and nothing more. The offshore seabed of Nigeria includes the territorial sea, Exclusive Economic Zone and Continental Shelf.15

2.4. RESOURCE

Resource is a source of supply or support: an available means. It could also mean a natural resource of wealth or revenue.16

2.5. REVENUE

Revenue is the total income produced by a given source (a property expected to yield a large annual revenue), the gross income returned by an investment, it could also mean a government department concerned with the collection of the national revenue. 17

3.0 ONSHORE/OFFSHORE OIL DICHOTOMY

Considering the 1960 and 1963 constitutions, sections 134 and 140 respectively, the

9. Okon E and Essien A, Law Making Process in Nigeria-At the National Assembly and States Houses of Assembly, (Spectrum Books Ltd., Ibadan, 2005) 10. (2002 Edition) 11. (2008 Edition) 12. Ibid 13. Bryan G, The Black Law Dictionary, 9th Edition, (West, a Thomson Reuters, 2005)pg. 1466 14. Ibid 15. Atake F, Nigerian Supreme Court’s Ruling on Low Water Mark of The Land Surface for State-Federal boundary Determination on 11 May, 2011 accessed 19, July, 2019 16. Merriam Webster, Webster New Explorer Encyclopaedia Dictionary Published in 2006 pg. 1565 17. Op. cit 16, page 1573 AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 89

Continental Shelf of Nigeria going up to 200 nautical miles was deemed to be part of a region for the purpose of paying 50 per cent derivation. The constitution stated that for the purpose of derivation, a state that has a coast is deemed to be the owner of the continental shelf. That was how the issue of derivation evolved. It was by virtue of Decree 9 of 1971 that a former Head of State, Gen. 's administration introduced the onshore/offshore dichotomy and it was abolished three times, first in 1975, second in 1979 and then in 1992, until it was reintroduced under the administration of Chief .18

In the real sense, the dichotomy is still in place to the extent that the Abrogation Act of 2004 drastically reduced the constitutional provisions and the internationally recognized boundary definition of continental shelf from 200 nautical miles to 200 feet isobaths (which is a mere measure of the low water mark (depth) of the land surface of a littoral state rather than the areal measurement) A The Constitution, in section 2(2), 3(1) (2) and in the First Schedule thereto, provides that there are 36 states in the Federation. Accordingly, all the lands, hills, streams, savannahs, deserts, rivulets, rivers, seas and oceans in or abutting on to this aggregate of territories must be in a particular state to be part of Nigeria. As said in law, Ipso facto, any argument distinguishing any of the foregoing features from any or all of the 36 states is non sequitur and sophistic.19

In the 1960 Constitution that ushered in Independence, elaborate provisions were made in sections 133-139 for revenue allocation. Of particular importance to this case is section 134(1), which reads: 20

There shall be paid by the Federation to each Region a sum equal to 50 per cent of the proceeds of any royalty received by the Federation in respect of any mineral extracted in the Region and any mining rents derived by the Federation during that year from within that Region… This provision was replicated in section 140(6) of the Republican Constitution (1963). For the purpose of this section, as said by the constitution, the continental shelf of a Region shall be deemed to be part of that Region. It should be noted that this provision dovetails into Article 76 of the United Nations Convention on the Law of the Sea, 1982, which provides that: The Continental Shelf of a Region shall be deemed to be part of that Region. That is international law.

4.0 . AN APPRAISAL OF THE DECISION OF THE SUPREME COURT IN ATTORNEY –GENERAL ABIA v ATTORNEY GENERAL FEDERATION

18. Ifeanyi Izeze,Onshore/Offshore Dichotomy: Supposing We Resurrect It Again?accessed 19, July, 2019 19. Ibid 20. Op. cit. 19 AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 90

As earlier indicated in this paper, the issue of resource control and revenue increase was first taken to the Supreme Court for determination in the case A-G Federation v A-G Abia & Ors21 wherein the judgment of the Supreme Court was decided in favour of the Federal Government. To be precise some issues were not dealt with. t d. For instance, the court did not fix an appropriate revenue allocation formula for Nigeria. It did not also settle properly the issue of onshore/offshore oil dichotomy and the issue of who had the right to the oil in the continental shelf in line with available judicial precedence. The need to succinctly appraise that judgement is necessary for readers of this paper to have intelligible understanding of the topic of discussion.22

In the case, the Attorney General of the Federation and Minister of Justice took out a writ of summons praying the Supreme Court for;

“A determination of the seaward boundary of a littoral Statewithin the Federal Republic of Nigeria for the purpose ofcalculating the amount of revenue accruing to the FederalAccount directly from any natural resources derived from thatState pursuant to section 162(2) of the Constitution of the Federal Republic of Nigeria 1999.” 23

There arose a dispute between the Federal Government, on the one hand, and the eight littoral States of Akwa Ibom, Bayelsa, Cross-River, Delta, Lagos, Ogun, Ondo and Rivers States on the other hand as to the southern for seaward boundary of each of these States. The Federal Government contended that oil exploration in the offshore part of the territorial waters was not a property of the host states and communities but that of the Nation as a whole and so revenue derived there from belonged 'ipso facto' to the Federal Government.24

All the States on the other hand argued that they were entitled to the revenue derived from such exploration. The territorial sea is the water area starting from the baseline and moving towards the sea. This is an area that is usually contested by States. A breadth of between 5 to 12 miles is what most maritime States accept as the proper boundary. The baseline is the coastal belt. The International court of justice (ICJ) however recommends the straight baseline rule followed by countries like Norway. This is based on the principle that the belt of territorial waters must follow the direction of the coast. The Supreme Court of Nigeria decided in favour of the Federal Government in the substantive suit but failed to decide on an appropriate revenue allocation formula. 25

21. Nigerian Supreme Court Reports 2001 22. Akaninyene Saviour Thompson, Master’s Thesis in Global Political Studies:The Right of The Niger Delta People of Nigeria To Resource Control, pg. 294 23. S.C. 2001:28 24. Ibid 25. Ibid AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 91

In resolving the conflict, the court relied on the American case of United States v State of California 26 The Court also relied on certain colonial orders in council. The orders include, The Colony of Nigeria (Boundaries) Order in Council 1913, The Nigerian Protectorate Order in Council 1992, The Lagos Local Government (Delimitation of the Town and Division into Wards) Order in Council 1950, the 1951 (Nigerian Constitution) Order in Council, No.1172 and The Northern Region, Western and Eastern Region (Definition of Boundaries) Proclamation 1954 made under the 1951 Order in Council. This Order of 1951 introduced into Nigeria a Federal system of government 27

The Supreme Court of Nigeria in this case was faced with an important situation. This case established a locus classicus in judicial precedent. The court was faced with a dearth of current legislation on the points of law raised. It decided that the bed of the territorial sea, exclusive economic zone and continental shelf of Nigeria did not form part of the littoral States but rather “belonged” to the Federal Government.28 The decision of the Supreme Court was predicated on the following:

That the boundaries of the littoral States ended at the low-water mark by virtue of certain colonial Orders in council, which in the opinion of the court were still Valid laws, limiting such boundaries to the sea; That by virtue of its nature, these offshore zones are not part of the territory of Nigeria, but rather extra-territorial terrain conceded to Nigeria by International law; That since international responsibility may arise from such offshore zones and the constitution of Nigeria confers on the federal government the duty of handling external affairs, such offshore zones cannot be regarded as part of the Littoral States; That the extensive control and management, inclusive of the powers to make Laws, conferred by the Territorial Waters Act, Exclusive Economic Zone Act and the Sea Fisheries Act on the federal government raised the inference that ownership of such zones could not be vested in the littoral states 29

The Court examined the provisions of the 1982 United Nations Convention on the law of the sea (LOS), including Articles 2, 3, 55, 57, 76, 77 and 78 before arriving at its decision. Ogundare JSC who read the lead judgment stated thus:

The sum total of all I have been saying above is that none of the Territorial Waters Act,S ea Fisheries Act and Exclusive Economic Zone Act has extended the land territory of Nigeria beyond its constitutional limit, although the Acts give municipal effect to international treaties entered into

26. U.S reporter, 1658-1661 27. Op. cit. 26 28. Ibid 29. Op. cit. 28 AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 92

by Nigeria by virtue of its membership as a sovereign state, of the comity of Nations. These treaties confer sovereignty and other rights on Nigeria over certain areas of the sea, the Atlantic Ocean.30

The decision of the Court simply divested littoral States which are mainly in the region of the Niger Delta, the right to administer and benefit from resources within the continental shelf which are contiguous to their territory. The Court stated that though a coastal State can exercise sovereign rights over its continental shelf that does not make the shelf part of her land territory over which it has absolute and exclusive control. It went further to state that the sovereign right of such a State was a limited kind only. 31

It is pertinent to note that though the case under discussion determined the issue of control over the continental shelf, other important issues came up for determination. Hence it's unique and important nature.32

The legal issues raised are as follows: (i) What is the procedure for making provision for the formula for distributing the amount standing to the credit of the Federation Account pursuant to section 162 of the constitution? (ii) As from what moment in time do the state governments become entitled to receive their share of the amount standing to the credit of the Federation account? (iii) Pending the arrival of the moment mentioned in question (iii) what provision should be applied to the distribution of the amount mentioned in question (iv) Whether there is any legal basis for the Supreme Court to make an order against the plaintiff for an account of money in the Federation Account. (v) Whether it is lawful for the Federal government to appropriate one percent of the amount in the Federation Account to the Federal capital territory. (vi) Whether it is lawful to deduct moneys from the Federation Account to service or pay debts owed by the Federal government. (vii) Whether it is lawful for moneys intended for local governments or for purposes of primary education to be paid to any person or authority other than the state government. (ix) And whether the Supreme Court has jurisdiction to grant a declaration, which will serve no useful purpose.33

30. Ibid 31. Ibid 32. Ibid 33. Op. cit. 32 AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 93

In the above case under examination, the littoral states had counter claimed against the plaintiff, the Federal Government, on the grounds that it was entitled to at least 13 % of the share of revenue accruing to the Federation Account derived from minerals. The littoral states relied on Section 162(2) of the 1999 constitution of Nigeria which provided for the derivation principle. The proviso to subsection(2) reads:

“Provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen percent of the revenue accruing to the Federation Account directly from any natural resources”. 34

This 13% as pointed out by the States was the barest minimum the States were entitled to under the constitution. The States also relied on the revenue allocation provision and decrees, particularly Allocation of Revenue (Federation Account, etc) (Amendment) Decree 1992, No. 106 of 1992 which amended the Allocation of Revenue (Federation Account, etc) Act, caps 16 Laws of the Federation 1990. The Plaintiff and the Federal Capital Territory sought to rely on the provision of paragraph (d) (IV) of Section 1 of Cap.16 Laws of the Federation (as amended) which was an imposition of the Military. This law purported to have amended subsection (i) of Section 149 of the Constitution and provided that 1% of revenue accruing to the Federation Account be given to the Federal Capital Territory. 35 The Supreme Court declared the provision null and void for being inconsistent with the provisions of Section 162 of the Nigerian Constitution, 1979.

It stated thus; Paragraph (d)(iv) of Section 1 of Cap 16 (as amended) in so far as it provides for one percent of the revenue accruing to the Federation Account derived from minerals, it is equally in-consistent with Section 162(2) of the Constitution. The result is that paragraph (d) of Section 1 of Cap. 16 (as amended) is inconsistent with the provisions of the Constitution and to that extent, Section 1 is void 36

The court relied on its earlier judgement in Attorney General Bendel State v Attorney -General Federation & Ors 37 in deciding this point of law. The court went further to hold that the Constitution of the Federal Republic of Nigeria 1999 having come into force on 29/5/99; the principle of derivation under proviso to Section 162(2) of the Constitution came into operation.38

Despite accepting that the derivation principle as provided by the constitution was in operation, the court quite surprisingly refused to accede to the request of the

34. Ibid 35. Cap.16 Laws of the Federation of Nigeria(1990). 36. Supra. Pg.670 37. (1983) A.N.L.R. 208 38. Ibid AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 94

Defendant Littoral States that at least they should be entitled to 13% of the revenue accruing to the Federation Account which was even the barest minimum recommended by the Constitution. The Court held that by the use of the expression “not less than 13%”, discretion is given to the lawmakers as to the figure to be used; that discretion according to the learned justices is not for the court to exercise but for the president, as prescribed authority, when making a modification Order or the National Assembly when enacting a law pursuant to Section 162(2).

However, as a fallout of the decision enumerated above, “the President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo issued an order titled: Allocation of Revenue [Federation Account Etc.] [Modification] Order, Statutory Instrument No. 29th May, 1999. The Order sought to modify Cap. 16 [as amended] to bring it into conformity with the provisions of the Constitution, by which it gave the entire 7.5 percent of the Federation Account represented by the annulled section 1 (d) of the Cap.16 to the Federal Government.” 39

Dissatisfied with this Order, all the States of the Federation sued the Federal Government before the Supreme Court again claiming for the following declarative reliefs: (i) A declaration that paragraphs 2 (1) (a) and (3) of the Allocation of Revenue [Federation Account, Etc] [Modification] Order, 2002 are unconstitutional, null and void and of no effect whatsoever. (ii) An order directing the Defendant to calculate 7.5 percent of the Federation Account and divide and distribute the same amongst the parties hereto and each of the Local Government Council in the States of the Federation as approved in the Allocation of Revenue [Federation Account, Etc.] Act, Cap. 16, Laws of the Federation of Nigeria 1990” 40

The Court considered sections 1(1), (3), 4(1), 6(1), 162(2), (2) & (3) and 315(1), (3) and (4) of the Constitution of the Federal Republic of Nigeria 1999 while determining the issues 41 raised by both parties and all the seven [7] Justices unanimously dismissed the suit against the States on the ground that “ exercise of the power to modify the allocation formula in the existing Allocation of Revenue [Federation Account, Etc] Act [Cap. 16, Laws of the Federation of Nigeria, 1990] as amended by Allocation of Revenue of Revenue [Federation Account Etc] [Amendment] Decree [No. 106 of 1992] is constitutional and within the scope of his right under the Constitution. Except in military regime, the supreme law is the Constitution itself. That is why this is stated clearly in section 1 42 of the Constitution

39. Attorney-General Abia State & Ors. v Attorney –General of Federation[2003] 4 NWLR Pt. 809 Pg. 129 40. Op. cit. 39 41. Supra Para. D-H Pg176 42. Section 1(1) ‘This Constitution is supreme and its provisions shall have binding force on all authorities and person AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 95 of 199 and that the President power to modify the existing law is constitutional. 43

5.0 THE EFFECT THE JUDGEMENT OF THE ON SHORE –OFF SHORE OIL DICHOTOMY CASE

As has been stated earlier, the case under examination is a unique one because salient issues in the Nigerian polity especially as touching the resource control issue and revenue allocation came up for the determination. It was a great opportunity for the Court to do justice to the people of the Nigeria especially Niger Delta by interpreting the law judiciously. The court also had the opportunity of putting its stamp on the issue of revenue allocation, particularly the hot issue of revenue allocation formula. 44

The judgment of the Court in both suits 45 in certain respects is commendable because first, the Court upheld the Constitution of the Federal Republic of Nigeria and more or less enumerated the steps to take in amending an existing Act while in the A-G Federation and A-G Abia & Ors which dwelled on the issue 'recourse control' and 'increase in revenue' made took a bold step because it is rare to see a Court in a developing nation, especially within an African Nation like Nigeria, declaring an action of an incumbent government null and void. 46 The Court held that the plaintiff, the Federal Government of Nigeria at the first instance was obliged to comply with the provisions of the Nigerian Constitution. The Court held further that the following policies and / or practices of the plaintiff (Federal government of Nigeria) are unconstitutional, being inconsistent and in conflict with the 1999 constitution, that is to say:

(i) Exclusion of natural gas as constituent of derivation for the purpose of the proviso to Section 162 (2) of the 1999 constitution. (ii) Non-payment of the shares of the 10th defendant () in respect of proceeds from capital gains taxation and stamp duties. (iii) Funding of the judiciary as a first line charge on the Federation Account. (iv) Servicing of external debts via first line charge on the Federation Account. (v) Funding of joint venture contracts and the Nigerian Petroleum Corporation (NNPC) priority projects as first line charge on the Federation Account. (vi) Unilaterally allocating 1% of the revenue accruing to the Federation Account to the Federal Capital Territory. 47

throughout the Federal Republic of Nigeria.” “(2) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void.” (2) 43 Ibid Per Belgore JSC delivering the leading Judgement para. Para H-A Pg.181-182 44. Op. Cit 22 page 280 45. A-G Federation v A-G Abia State & Ors and A-G Abia State & Ors v A-G Federation supra 46. A-G Federation v A.G Abia pg. 654. 47. Ibid AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 96

The court further granted an injunction restraining the plaintiff from further violating the Constitution in the manner so declared above. This is a very courageous and commendable declaration. This shows that the court is not completely a “lame duck” as some people may want to believe. 48

6.0 . ERROR OF THE SUPREME CURT

Despite the bold move by the Court, it is however alarming that the Court in another breadth chose to refuse the request by the littoral States for the Court to declare them entitled to at least 13% of the revenue accruing to the Federation Account which was the barest minimum recommended by the Constitution. The Court made this refusal despite agreeing with the States that Section 162(2) of the Constitution made provision for 13% based on the derivation principle. 49

This was a contradictory decision by the Supreme Court. It is also equally surprising and disappointing that the Court chose to rely on some archaic colonial Orders in council like the Nigerian (Boundaries) Order in council 1913, to arrive at some of its decisions. Some of these Orders have completely outlived their usefulness; some have become o+bsolete while others have become anachronistic. The Court also shied away from its responsibility of interpreting the constitution when it refused to settle the issue of revenue allocation formula for Nigeria, thus creating a lacuna in the jurisprudence of Nigeria. This gives room for unsavory speculations that the some of the decisions may have been politically motivated. The last is still yet to be heard on the issues.

It is clear that the Supreme Court erred in the following :: i) Applying the rules for determining the beginning of the territorial sea to the question of title to or sovereignty over the continental shelf. ii) Holding that a coastal states territory ends at the shore line or low water mark. iii) Denying the maritime territory is territory; iv) Denying the sovereignty of coastal states over the continental shelf, in spite of the clear provisions of article 77 of the 1982 convention on the law of the sea which states expressly that: “The coastal state exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.” 50

48. Ibid 49. Professor I.E. Sagay, SAN :The “Resource Control” Case: Where The Supreme Court Erred accessed 26September, 2018. 50. Ibid AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 97

This may be called 'limited' sovereignty as the called it. But it is the highest interest and title that can be had over the continental shelf. The latter as submerged territory, really has only one importance or relevance – resources contained therein. For this purpose, the coastal state has absolute sovereignty and title. The 1982 Convention makes this quite clear at paragraphs 2 and 3 of Article 77 thus:

1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. 3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. 51

If the exclusive rights of the coastal state are inherent, and require no action or claim on its part to establish them, how different is this right from rights over land territory?52

7.0 THE SUPREME COURT DECISION IN THE 'OIL DICHOTOMY' CASE –A POLITICAL SOLUTION

Immediately after the decision of the Supreme Court, which had far-reaching adverse financial implication for certain littoral states, the federal government base on what it termed a political solution to the issue 53 The federal government appointed a presidential committee under the chairmanship of the then works and housing minister, Chief Tony Anenih, to find a political solution to the crisis emanating from the Supreme Court's judgment. The committee recommended that there should be legislative intervention in the form of an enactment by the national assembly that the natural resources found offshore be deemed to be found within the territory of the adjacent littoral states for the purpose of the application of the derivation principle. 54 In itself there is nothing new about legislative intervention after a rather controversial decision. The case of RV Keyn,55 for example resulted in legislative

51. Op. cit. 50 52. Ibid 53. By excluding offshore seabed from the ambit of the derivation formular certain littoral states such Akwa Ibom, Bayelsa, cross River, Rivers and Ondo state, which have virtually no onshore oil deposits but merely offshore, are adversely affected financially by the Supreme Court’s decision. See “Supreme Court ruling: How does it affect the states?” Thursday newspaper 8 April, 2002, 54. The committee however felt that a long term solution to the onshore / off shore issue raised by the supreme court would require constitutional amendment. See oma Dseba (2002) cited in Edwin Egede, Who Owns the Nigeria Offshore Seabed: Federal or State? An Examination of the Attorney General of The Federation V. Attorney General Od Abia State & 35 Ors Case accessedon 12 December, 2018 55. 1976 AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 98

intervention through the Territorial Waters Jurisdiction Act 1878. 56 Exclusive Economic Zones 1990 and South African Maritime Zone Act No 15 of 1994. 57

Further to the committee's recommendation the Nigerian president, Olusegun Obasanjo sent a bill to the national assembly. The purpose of the bill to be cited as the allocation of revenue (Abolition of Dichotomy in the application of the principle of Derivation) Act was to abolish the onshore/off share dichotomy created by the Supreme Court decision in the application of the principle of decision. The bill as originally sent to the national assembly provided in section 1(2) that:

“As from the commencement of this act, the contiguous zone of a state of the federation shall deemed to be part of that state for the purpose of computing the revenue accruing to the federation account from the state pursuant to the provision of sub section (2) of section 162 of the constitution of the federal republic of Nigeria 1999. 58

In passing the bill the national assembly however tendered with section 1(2) and replaced Contiguous Zone with the Continental Shelf and Exclusive Economic Zone contiguous to the littoral state. As a result of this amendment there was a statement between the president who insisted on restricting the application of the abolition of this dichotomy to the contiguous zone and the national assembly, which took the view that such abolition should extend to the continental shelf and the exclusive economic zone. 59

Over a year the president proposed, as a means to achieve a compromise, to replace the contiguous zone, as contained in the original bill and the continental shelf and economic zone inserted by the national assembly with the phrase 200-metre water depth isobaths. 60 The president, in his letter dated 5 February 2003 to the senate, purported to be guided by article 76 of the canted national convention on the law of the sea in making his compromise proposal. 61

However the 200-metre water depth appears to be a throwback to the 1958 convention on the continental shelf in which the 200-metre depth or exploit ability criteria was use to describe the continental shelf.62 The modern law of the sea, as contained in article 76(1) of the LOSC, utilizes the different criteria of natural

56. Op. cit. 55 57. MOHAMMED Ganiyat Bukola, Ownership and Control of Mineral Resources Under the Shariah And Nigerian Statute: A Comparative Analysis 58. See Oma Djeba and Bature Umar (2002), Obasanjo moves against onshore /offshore Dichotomy: sends abolition bill to N / Assembly “cited in Edwin Egede’s Article (supra 59. Op. cit. 58 60. Ibid 61. Ibid 62. See Art 1 of the 1958 General convention on the continental shelf (1958) 53, A SLI 858 –862 AN APPRAISAL OF THE SUPREME COURT'S DECISION.... 99 prolongation of the land territory distance of 200 nautical miles. It is therefore difficult to imagine why the president, if the purported to be acting in he with article 76, should have any object to retaining the term continental shelf. To make doubly sure that this is in here with article 76 of the convention the definition section of the act could further provide that the term continental shelf as contained in the act should be as define in the united nations convention on the law of the sea 1982 or as from time to time defined by any subsequent convention brining on Nigeria.63

After much disagreement between the executive and the legislative arm, the latter has accepted the compromise proposal of the president. On 9 January, 2004, the president presented a bill which was approved and passed by the senate and the house of representative on 20 January, 2004 and 10 February, 2004 respectively64

8.0 . CONCLUSION

This paper analysed the dispute both between the Attorney-General Abia & 35 Ors v Attorney General Federation and Attorney General of the Federation and Attorneys- General of Abia and other littoral States. It is submitted that while the latter expected justice concerning the demands for financing development programmes, differentials in earnings of the Federal Government that exceeds theirs by far, the law prevailed in favour of the Federation. 65

This Court ruling represents one of the numerous features of neo-liberalization that complements neo-liberalism and marginalization in Nigeria, like elsewhere in the developing countries. Despite being favoured by its own contrived neo-liberalisation (following the British colonial neo-liberalism) since the first decade of post-colonial Nigeria, the Federal Government has resorted to a political solution in order not to leave the littoral states to return “home empty handed” by offering them some amount of the revenue that it collects into the Federal pool. 66

This demonstrates the Federal Government's own awareness of the challenges posed by the prevailing bad governance to the transition from statehood to nationhood that has remained elusive. In connection with the latter matter it must be recalled that exploitation decimating the littoral States, as well as the rest of the Niger Delta, has led to a series of declarations of self-determination by its ethnic nationalities in post- colonial Nigeria. The 30-month-long Biafra-Nigeria civil war remains a stark reminder of this challenge. 67

63. See example Mauritius zone Act No 13 of 1977; Ghana’s Mauritius zones (Delimitation) law 1986; Namibia’s territory sea and Exclusive economic zones 1990 and south Africa’s maritime zone Act No 15 of 1994. 64. Kola Ologbondiyan, Senate passes onshore Bill, cited in Edwin’s article. 65. G.I. Ettah; J.K. Ukwayi; R. Ingwe:The Contest for Oil/Resources in a Federal System: The Onshore Offshore Dichotomy Case between the Federation of Nigeria versus Abia and the Littoral accessed 19 July, 2019. 66. Ibid 67. Ibid AN APPRAISAL OF THE SUPREME COURT'S DECISION.... ARTICLE 12100 THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION - WHAT DOES THE FUTURE HOLD? AUTHOR: Toheeb O. Amuda, 1 Esq. LL.B, BL, AICMC.

Toheeb is a Legal Practitioner and an Associate at the Law Firm of Dorothy Ufot & Co. Lagos, Nigeria. He is an Investment Consultant with Certification from the World Bank Group on investing in Emerging Markets and Developing Economies (EMDEs). He is a Chartered Mediator and Conciliator. He can be reached via [email protected]

Phone Number: (+234)9092434762

1.0. ABSTRACT.

On the 26thof June, 2018 the United Nations Commission on International Trade Law [UNCITRAL] approved the final drafts of the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention). The convention follows the steps of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter referred to as the New York Convention). It aims to create a regime for the recognition and enforcement of international commercial mediation.

In this Paper, the author highlights the provisions of the Singapore Convention and whatNigeria needs to do in order to benefit from this emerging development. The author also examine the concept of mediation as an Alternative dispute resolution and concludes by recommending some reforms that need to be made to the existing legal framework of alternative dispute resolution in Nigeria. Keywords: Dispute Resolution, Investments, Singapore Convention.

2.0. INTRODUCTION.

International trade, Foreign Direct Investments, Foreign Portfolio Investments, Public-Private Partnerships (PPP), Domestic Investments, International and local contracting and a host of others are all drivers of a nation's economy. One common line that however runs through all contracts for these investments and partnerships is

1. Toheeb O. Amuda, LL.B, BL, AICMC. Toheeb is a Legal Practitioner and an Associate at the Law Firm of Dorothy Ufot & Co. Lagos, Nigeria. He is an Investment Consultant with Certification from the World Bank Group in Investing in Emerging Markets and Developing Economies (EMDEs). He is a Chartered Mediator and Conciliator. He can be reached via [email protected]. THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 101 the provision for a dispute resolution clause.

International investors and increasingly domestic investors and partners are disposed to adopting alternative dispute resolution clauses in their various contract documents. One of such common clauses is the resort to Arbitration in case of a dispute when negotiation has broken down. These business moguls shy away from resorting to litigation due to the enormous amount of time and effort involved in resolving a matter in the Nigerian courts. Their attitude is not misplaced. Time is of essence in the business world. Businessmen detest being locked down with time- consuming activities such as litigation. They will rather prefer a faster and efficient approach and continue with their daily activities.

The story is often told of a matter within the Nigerian jurisdiction. The matter first came up in a court where a certain young man was a clerk. The matter was still in court undergoing one form of adjournment or the other, on one substantive or procedural point of law or the other. The young man proceeded to England to study Lawand returned to Nigeria with an LL.B degree. The young man was called to the bar and was eventually appointed as a Judge of a High Court. He was promoted to the Court of Appeal and coincidentally, was a member of a panel of judges who heard the same matter on appeal. The matter was litigated upon for almost two decades!

As a result of this type of tardiness associated with litigation, businessmen therefore opt for Arbitration since they are assured of the speedy process and that the final resulting Award is enforceable pursuant to the New York Convention which has also been domesticated in Nigeria and enforced by the superior Courts.

However, while arbitration is still effectively used as a dispute resolution method in commercial disputes, the succour which Arbitration provides might notbe as pleasant as it once was. Arbitration proceedings now extend to three to four years before delivery of the Final Award and after delivery of the Award,the problem of enforcement in superiorcourts arises.A fortiori, arbitration is not as cheap as it seems, taking into account the fees paid to counsel, the tribunal's fee and the Arbitration Centre administration fees, arbitrationappears to bequiteexpensive. This situation has made a number of International commercial partners start shifting towards mediation.

3.0. THE SHIFT TOWARDS MEDIATION.

With the attendant effects of Arbitration highlighted above, mediation is increasingly used in international and domesticcommercial practice as an alternative to litigation THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 102

and even arbitration. Indeed, newer data suggests that parties'arbitrator selection patterns have significantly changed over the past years. The candidate's approach to settlement facilitation and his or her abilities in this regard have become an important consideration in the selection process of arbitrators.2

The Global Pound Conference Series provides valuable insights in this regard. This series of more than thirty conferences across the globe asks its participants (commercial parties, counsel, arbitrators, mediators and other stakeholders) for their experience and needs regarding alternative dispute resolution. The result is an unprecedented set of data, indicating how parties to international commercial contracts prefer to resolve their disputes today and in the future. 3

A study by Pricewaterhouse Coopers and the School of International Arbitration in 2008 4 showed that 34% of arbitration proceedings, which constitutes a material portion, settle during the course of arbitral proceedings. In China, for instance, approximately fifty per cent of parties explicitly request settlement facilitation from the tribunal during their arbitration. 5

There may be many reasons why parties to a dispute would prefer to settle instead of resolving the dispute through continuous litigation, including arbitration. These reasons may include the benefit to resolve a conflict before investing and, thus, by sparing costs and time, avoiding a possible inability to collect or implement an award, duration of enforcement, continuity of business, and so forth.

4.0. WHAT IS MEDIATION?

Mediation is an informal process in which a neutral intermediary, the mediator assists the parties in reaching a settlement of their dispute, based on the parties' respective interests. The mediator cannot impose a decision and the settlement agreement has a force of contract. Mediation is an offshoot of negotiation. However, instead of the two parties trying to solve every problem arising from the dispute, a third person is there to help the parties in the negotiation. The mediator has no vested interest in the outcome of the case other than to help the parties resolve their differences.

2. Ema Vidak-Gojkovic, Lucy Greenwood & Michael McIlwrath, Puppies or Kittens? How To Better Match Arbitrators to Party Expectations, in AUSTRIAN YEARBOOK ON INTERNATIONAL ARBITRATION 2016 61, 64–65 (Christian Klausegger et al. eds., 2016) 3. Global Pound Conference Series, Available Online at https://www.imimediation.org/, Accessed on 20th September, 2019. 4. Andrey Panoy / Sherina Petit, Amicable Settlement in International Arbitration, The European, Middle Eastern and African Arbitration Review 2015. 5. Gabrielle Kaufmann-Kohler, When Arbitrators Facilitate Settlement: Towards a Transnational Standard, 25 ARB. INT’L 187–205 (2009) THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 103

Conciliation is often used as a synonym for mediation and they in fact have some similarities. The process of conciliation is however, much more interventionist than mediation. A major difference is that the conciliation body will present its terms of settlement. That is, it reaches an agreement for the parties and presents it to them. The parties are free to accept or reject it.

4.0.1. LEGAL FRAMEWORK OF MEDIATION IN NIGERIA.

In Nigeria, mediation can be a Private Mediation or Court Annexed. Private mediation involves the parties seeking the assistance of an independent third party who offers his or her services on a commercial basis. Judges also encourage mediation and reconciliation between the Parties and as such, court-annexed mediation involves matters which have already been filed in Court, but with directives from Court that parties should settle the dispute through mediation and whatever mediation settlement agreement is reached by parties is entered as the judgment of the Court.

The Preamble to the High Court of Lagos State (Civil Procedure) Rules 2019 provides inter alia:

“Accordingly, the Rules are designed to promote a just determination of every civil proceeding without undue delay, expense and technicality and to facilitate amicable resolution of disputes by the use of Alternative Dispute Resolution (ADR) mechanism.”

Order 2 Rule 1 (c)(i) also provides that the court has the overriding objective of

“mandating the parties to use Alternative Dispute Resolution (ADR) mechanism where the court considers it appropriate and facilitating the use of such procedure”

Rule 15 (3) (d) Rules of Professional Conduct 2007 also provides that

“In his representation of his client, a lawyer shall not- fail or neglect to inform his client of the option of alternative dispute resolution mechanisms before resorting to or continuing litigation on behalf of his client.”

The use of mediation is also specifically provided for in some national agency laws. THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 104

Section 2(a) of the Consumer Protection Council Act Cap 25, LFN 2004 and Section 29 of the Environmental Impact Assessment Act, Cap E12, LFN 2004 are examples. Mediation rules are also incorporated in the Practice Directions of Multi-Door Courthouses such as the Practice Directions of the Lagos Multi-Door Courthouse issued by the Chief Judge of Lagos State. Mediation settlement agreements reached by parties at the Lagos Multi-Door Courthouse are enforceable under the Lagos Multi-Door Courthouse Law (LMDC Law). 6

4.0.2. THE PRINCIPAL CHARACTERISTICS OF MEDIATION. 7

1. Mediation Procedure is Non-Binding Until A Final Agreement Has Been Signed: A party to a mediation cannot be forced to accept an outcome that it does not like. Unlike an Arbitrator or a Judge that gives an Award/Decision, the mediator role is to assist the parties in reaching a settlement of the dispute. Parties control the process and outcome. The Mediation becomes binding when parties have reached a conclusion and a final settlement has been drafted and signed.

2. Mediation is a Confidential Procedure: In mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. In order to promote resolution of the dispute, if a party disclosed confidential information or make admissions, that information cannot be used in subsequent court litigation or arbitration. Whatever is said or done in mediation remains confidential. Confidentiality allows the parties to negotiate freely and productively without fear of publicity.

3. Mediation is an Interest Based Procedure: In litigation and Arbitration, the result of a case revolves around the facts of the dispute and the applicable law. But in mediation, the law is not strictly applied, rather, the interests of the parties i.e. the future of their business relationship rather than their past conducts is the driving factor.

4. Mutual Gain: Each party's interest is met and enhanced.

4.1.3. MERITS OF MEDIATION. 8

1. Mediation is relatively inexpensive. 2. Mediation is time saving and swift: Mediation does not run by a clogged court schedule and there is no appeal to a higher court. Mediation sessions can be easily scheduled any time at the mutual convenience of the parties and the mediator and

6. Section 19 of the Lagos Multi-Door Courthouse Law. 7. Mr. Debo Olufeko, Introduction to Mediation, Paper Presented at the ADR Training of the Lagos Court of Arbitration on February 4 2017. 8. Ibid THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 105

can take place in a variety of locations. There are minimal sessions and court adjustment system is weeded out. 3. Mediation is relatively simple: There are no complex procedural or evidentiary rules which must be followed. Parties are able to talk to each other and remember the good old days. 4. Mediation allows the parties to revise and adjust the scope of their conflict: In a trial, the initial pleadings and rules of procedure limit the issues which a party can raise. In mediation, as circumstances change, so can the topics for discussion. This increased flexibility makes it easier for negotiators to act as problem-solvers instead of adversaries. 5. Mediation allows for flexible solutions and settlements: Mediation allows the parties to agree to a settlement requiring a self-restraining action by one party which was not originally envisioned or something beneficial to the other party.

4.1.4. STAGES IN THE MEDIATION PROCESS. 9

There is no universally accepted mode of mediation. It depends on whether the parties approached a private mediator, institutional mediator or a multi-party mediation. It may also depend on if the mediator is a sole mediator, co-mediator and the nature of the dispute. There may also be variations where the parties are represented and allowance has to be made for the mediator advocates. Whatever shapes it takes, it will involve about five to seven stages or morefor instance, where visit to the site is necessary. The stages may include: 1. Pre-mediation Meeting 2. Mediator Sets the Stage 3. Parties tell their stories 4. Mediator identifies and frames issues and sets the Agenda for Negotiation 5. Mediator assists in generating Alternatives 6. Mediator encourages parties to select from the Alternatives 7. Mediator assists in preparing the Agreement and Ends the Mediation

1. Pre-mediation Meeting: This is also called Pre-Mediation Sessions. It involves the Mediator contacting and establishing a relationship with the parties and their representatives after being appointed by the Parties or a Mediation Institution before the mediation schedule date. This is mostly used in commercial environments to bring all participants together to discuss the method of proceeding before the formal mediation commences.

2. Setting the Stage: During this process, the mediator meets with the parties and commences the mediation. The mediator identifies himself and the parties and

9. Ibid THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 106

explains the purpose of the mediation. The mediator explains his role and highlights issues such as confidentiality, neutrality and impartiality and he also explains the voluntariness of the mediation. The mediator gives an overview of the process, time limits, necessary documents to be exchanged and parties endorsement of the ground rules.

3. Parties Tell their Stories: During this stage, the mediator listens to each party explain their respective situation. He calms and reassures the parties and clarifies and identifies the concerns that are central to each person so as to have better insight into the situation and to help the other person get a better sense and appreciation of each other's perspectives and feelings.

4. Mediator Identifies and Frames Issues and Sets Agenda for Negotiation: During this stage, the mediator sets the agenda for the negotiation by summarizing areas of agreement and disagreement and stating issues to be resolved in a neutral and mutual terms endorsed by the parties.

5. Mediator Assists in Generating Alternatives: During this stage, the mediator helps parties consider a variety of options for resolving the situation. The mediator uses both facilitative and evaluative skills (Caucuses/Private Meeting) while keeping a focus on the needs and interests of the parties.

6. Mediator Encourages Parties to Select from the Alternatives: During this stage, the mediator helps parties move toward agreement by considering the options generated and selecting those most workable and acceptable to all. The mediator encourages selection of alternatives which appear to be acceptable to both parties using BATNA (Best Alternative to Negotiated Agreement) and WATNA (Worst Alternative to Negotiated Agreement)

7. Drafting an Agreement, Adjournment or Termination: During this stage, the mediator prepares a clear and detailed agreement. Parties review the agreement and sign it. If the parties do not reach an agreement, the mediator summarises the issues identified and any progress made. The mediator thanks the parties and end the mediation session.

4.1.5. MEDIATION INSTITUTIONS.

The following are some available mediation institutions in Nigeria: 1. The Association of Multi-Door Courthouses of Nigeria (AMDCN) Lagos, Abuja, Kano, Akwa Ibom, Abia, Kaduna, Cross River, Delta, Kastina, Akure, THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 107

Borno and Bayelsa. 2. The International Chamber of Commerce (Nigeria) 3. National Industrial Court of Nigeria, ADR Centres 4. Citizen Mediation Centres 5. Lagos Chamber of Commerce Arbitration Centre.

5.0. THE UNITED NATIONS CONVENTION ON INTERNATIONAL SETTLEMENT AGREEMENTS RESULTING FROM MEDIATION.

On the 26th of June, 2018 the United Nations Commission on International Trade Law [UNCITRAL] approved the final drafts of the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) 10 and Amendments to the Model Law on International Commercial Conciliation (the Model Law). 11 This approval follows three years of intense deliberation among the 85 member states and 35 international governmental and non governmental entities comprising the commission to develop a multilateral convention that would promote the enforce ability of international commercial settlement agreements reached through mediation in the same way that the 1958 New York Convention facilitates the recognition and enforcement of international arbitration awards. 12 The convention takes effect once three member states ratify it.

The Convention provides a uniform, efficient framework for the recognition and enforcement of mediated settlement agreements that resolve international, commercial disputes as provided by Article one of the Convention. 13 The 16-Article Convention was adopted by the U.N. General Assembly on December 20, 2018, 14 and was open for signature by all states from August 1, 2019. 15

Prior to the convention, if an international disputant settled a case through mediation, it would usually be required, where a party to the agreement did not perform his part of the settlement, to enforce that settlement agreement as it would any other contract: by bringing a brand new action in the contractual counter-party's own country. This usually results in a lot of litigation to enforce a settlement that was probably designed, at least in part, to avoid litigation in the first place. 16 The Preamble to the

10. United Nations, Report of UNCITRAL, Fifty-first session (25 June-13 July 2018), UNCITRAL, UN Doc. A/73/17 (2018), Annex I. 11. UNCITRAL Model Law on International Commercial Conciliation with Guide to Enactment and Use 2002, para. 55. 12. Planned and Possible Future Work—Part III, Proposal by the Government of the United States of America: Future Work for Working Group II, Note by the Secretariat, UNCITRAL, UN Doc. A/CN.9/ 822 (2014). 13. Article 1 of the Singapore Convention. 14. U.N. Commission on Int’l Trade Law, Report on the Work of Its Fifty-First Session, U.N. Doc. A/73/17, ¶ 49 (2018), http://legal.un.org/docs/?symbol=A/73/17 (noting the finalization of the Convention); U.N. Commission on Int’l Trade Law, Report on the Work of Its Fifty-First Session, U.N. Doc. A/73/17, U.N. Doc. A/73/17, at Annex I (2018). 15. Article 11 of the Singapore Convention. 16. Patrick R. Kingsley; The Singapore Convention on Mediation: Good News for Businesses, Available at https://www.law.com/thelegalintelligencer/2019/01/09/the-singapore-convention-on-mediation-good-news-for- THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 108

Convention reads:

“The Parties to this Convention, ·Recognizing the value for international trade of mediation as a method for settling commercial disputes in which the parties in dispute request a third person or persons to assist them in their attempt to settle the dispute amicably, ·Noting that mediation is increasingly used in international and domestic commercial practice as an alternative to litigation, ·Considering that the use of mediation results in significant benefits, such as reducing the instances where a dispute leads to the termination of a commercial relationship, facilitating the administration of international transactions by commercial parties and producing savings in the administration of justice by States, ·Convinced that the establishment of a framework for international settlement agreements resulting from mediation that is acceptable to States with different legal, social and economic systems would contribute to the development of harmonious international economic relations, Have agreed as follows:”

The convention then proceeds to outline the regulation of international mediated settlements. Article 1 relates to the scope of application of the Convention, Article 1.1 provides:

1. This Convention applies to an agreement resulting from mediation and concluded in writing by parties to resolve a commercial dispute (“settlement agreement”) which, at the time of its conclusion, is international in that: (a) At least two parties to the settlement agreement have their places of business in different States; or (b) The State in which the parties to the settlement agreement have their places of business is different from either: (i) The State in which a substantial part of the obligations under the settlement agreement is performed; or (ii) The State with which the subject matter of the settlement agreement is most closely connected.

The Convention however excludes certain settlement agreement from its scope. These include settlement agreements: THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 109

(a) Concluded to resolve a dispute arising from transactions engaged in by one of the parties (a consumer) for personal, family or household purposes; (b) Relating to family, inheritance or employment law.

The Convention also does not apply to:

(a) Settlement agreements: (i) That have been approved by a court or concluded in the course of proceedings before a court; and (ii) That are enforceable as a judgment in the State of that court; (b) Settlement agreements that have been recorded and are enforceable as an arbitral award. 17

This restriction is necessary to avoid situations in which the judge could pressure parties into a settlement. However, if someone other than the judge mediates a dispute during litigation, a resulting settlement is still covered.

The exclusion of settlements enforceable as judgments was designed to avoid overlap with Hague Conference instruments 18and to avoid parties having two routes to seek relief based on one settlement agreement. 19 If overlap had been permitted, parties to a dispute could simply have used whichever framework is most useful in a given situation. 20 Moreover, because not all states will be parties to both conventions, permitting overlap would have avoided the risk that some situations may not be covered in a given state. 21 To be affected by this exclusion, a mediated settlement would have to be approved by a court or concluded before the court during proceedings in a manner that enables the settlement to be enforced as a judgment in the courts of that state, 22 such as consent Judgments.

Mere involvement of a judge in the mediation does not suffice for the exclusion to apply. 23

businesses/ (Accessed on the 10th of April, 2019) 17. Article 3 of the Singapore Convention 18. The 2005 Choice of Court Agreements Convention and The Draft Judgments Convention 19. See, e.g., Intervention of the European Union, in UNCITRAL Audio Recordings: Working Group II (Arbitration and Conciliation), 64th Session, Feb. 2, 2016, 15:00-18:00, Available at https://icms.unov.org/CarbonWeb/ public/ uncitral/speakerslog/35633c76-b3fd-4a5e-acd6-c34f2783c6cb; 20. See, e.g., Intervention of Switzerland, in UNCITRAL Audio Recordings: Working Group II (Dispute Settlement), 65th Session, Sept. 20, 2016, 14:00-17:00, Available at https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/ 8096936f-ec1f-4ab1-b1af-b2857cbd2f34. 21. See, e.g., Intervention of the United States, in UNCITRAL Audio Recordings: Working Group II (Arbitration and Conciliation), 64th Session, Feb. 3, 2016, 10:00-13:00, Available at https://icms.unov.org/CarbonWeb/public/uncitral/ speakerslog/3e4f5de6-6aec-45bc-bd1e-a419612128a5. 22. Article 1(3)(a) of the Singapore Convention. 23. See, e.g., intervention of the Chair, in UNCITRAL Audio Recordings: Working Group II (Dispute Settlement), 65th Session, Sept. 14, 2016, 9:30-12:30, https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/f5c9b0ea-5f54-4158- a198-d0ea83b3c9a3. THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 110

Furthermore, the exclusion of judicial settlements only covers instances in which the parties to the dispute get a court to ratify the settlement while they both still accept the settlement and no relief is needed; granting a request for relief under the Convention does not qualify as “approval.” Additionally, mediated settlements are not excluded from the scope of the Convention merely because they can be recognized as a judgment, as long as they cannot also be enforced as a judgment. 24 Thus, if a limitation period for enforcement has passed in a particular jurisdiction, thus rendering a court-approved mediated settlement no longer enforceable as a judgment in that jurisdiction, that mediated settlement may then come within the scope of the Convention (even if it can still be recognized as a judgment in the state in which it was issued). 25

Article 2 which is the definition section defines 'international', 'in writing' and 'mediation'. 26 Article 3 provides that each party to the Convention shall enforce a settlement agreement in accordance with its rules of procedure and under the conditions laid down in the Convention. It therefore encourages state parties to maintain a pro-settlement attitude. Article 4 provides for the requirements for reliance on settlement agreements while Article 5 provides for the grounds for refusing to grant relief. Article 6 relates to Parallel applications or claims made by parties to a Settlement Agreement, Article 7 relates to reciprocal respect to other laws or treaties of a state party to the convention, Article 8 deals with reservations of a state party, and Article 9 provides that the Convention and any reservation or withdrawal thereof shall apply only to settlement agreements concluded after the date, when the Convention, reservation or withdrawal thereof enters into force for the Party to the Convention concerned.

Article 10 provides that the Secretary-General of the United Nations is designated as the depositary of the Convention, Article 11 deals with signature, ratification, acceptance, approval, accession and Article 12 relates to Participation by regional economic integration organizations.

Article 13 deals with Non-unified legal systems, Article 14 provides for the entry into force, Article 15 deals with Amendments to the Convention and Article 16 provides for Denunciations. States are now beginning to sign the Singapore Convention. As at 7thAugust, 2019, 46 Countries including Nigeria have signed the Convention. 27

24. Article 1(3)(a)(ii) of the Singapore Convention. 25. Timothy Schnabel; The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements; Pepperdine Dispute Resolution Law Journal [Vol. 19: 1] 26. Article 2 of the Singapore Convention 27. Straits Times, Key Facts About the Singapore Convention on Mediation, Available at (https://www.straitstimes.com /singapore/key-facts-about-the-singapore-convention-on-mediation) Accessed on 10th September, 2019. THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 111

6.0. CONCLUSION.

As the world of business continues to evolve, there is a need for Nigeria to act in line with this development to attract the necessary investment needed to grow the economy. Domesticating the Singapore Convention is one of the ways to achieve this. Parties need to be assured that there is an enabling environment to cater for their dispute resolution whenever it arises, this in turn boost investors' confidence.

With the adoption of the United Nations Convention on International Settlement Agreements Resulting from Mediation, mediation practice is set to welcome a boost.

7.0. WHAT THE FUTURE HOLDS IN NIGERIA.

With Nigeria opening up its international trade borders through concerted efforts such as the signing of the African Continental Free Trade Agreement (AfCFTA), the deliberation by ECOWAS of a regional currency, ECO, set to kick off by 2020, trade and commerce in Nigeria is set to continue expanding. As it appears, with the coming into force of the Singapore Convention, mediation clauses in international commercial agreements will become widespread. Investors and business partners will now become more disposed to insert mediation clauses in their commercial contracts and that will be on the assurance of an enforceable instrument in Nigeria.

In order for Nigeria not to miss out from this emerging development, the following are some of the reforms that will need to be made:

1. Review the Arbitration and Conciliation Act (ACA) 2004.

Pursuant to Section 12 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), no treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly. 28 Therefore, before an international instrument can become enforceable in Nigeria, it must have been domesticated either entirely as a new law or incorporated in an existing law.

This was the effect given to the New York Convention. Nigeria became signatory to the New York Convention on 17 March, 1970 and adopted both the reciprocal and commercial reservations. The convention entered into force on 15 June, 1970. The Convention was domesticated in Nigeria in Schedule II of the Arbitration and Conciliation Act 2004.

28. Section 12(1) 1999 Constitution of the Federal Republic of Nigeria (as amended), THE PROMISE OF THE SINGAPORE CONVENTION IN DISPUTE RESOLUTION .... 112

Nigeria is also a signatory to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965 (The ICSID Convention) and the ICSID Convention was domesticated in Nigeria by the enactment of the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act 2004.

For Nigeria to benefit from the promise which the Singapore Convention has to offer, there is a need for a review of the Arbitration and Conciliation Act and incorporating the Singapore Convention as a Schedule.

2. Sensitizing Judges, Arbitral institutions/bodies and other stakeholders in dispute resolution on the Singapore Convention. This will ensure a reciprocal recognition and enforcement of the Convention in line with international best practices.

3. Update the Nigeria Law School and University Curricula. Course Contents being thought to students on dispute resolution need to be updated to include the Singapore Convention. This is to better equip them with the right and updated knowledge in advising and representing their clients both international and domestic. 113 ARTICLE 13 BARRISTER MOHAMMEED A. OYELADE ALUMNUS OF FACULTY OF LAW, OBAFEMI AWOLOWO UNIVERSITY, ILE-IFE, OSUN STATE LEGAL ASSOCIATE, AFE BABALOLA SAN & CO [email protected] 08132504902; 07032571601

PRE-ELECTION DISPUTE IN NIGERIA: APPRAISAL OF THE FOURTH (4TH) ALTERATION NO 21 ACT, 2017 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA.

ABSTRACT

“Without justice being freely, fully and impartially administered, neither our Persons, nor our rights, nor our property, can be protected. And if these, either of them, are regulated by no certain laws, and are subject to no certain principles, and are held by no certain tenure, and are redressed when violated, by no certain remedies, society falls of all its value; and men may as well return to a state of savage and barbarous Independence”. - JOSEPH STORY

The Law is not static, but is subject to continuous change. When we come across certain legislations, we tend to believe that it will solve specific problems in the society. It is however interesting that many deeds of Man have not been catered for by any law. In this contribution, the inevitability of the dynamism in our law, the essence of Pre-election suits in Nigeria and how the courts have reacted to issues of law as it relate to Pre-election dispute in Nigeria would be examined holistically.

INTRODUCTION

Pre-elections dispute in Nigeria as the phrase connotes, principally deals with the issues arising from the results of primary elections held by different political parties. An aggrieved person who is dissatisfied with the process, conduct and result emanating from a primary election can challenge same in court by following the laid down procedure governing it. PRE-ELECTION DISPUTE IN NIGERIA ... 114

Pre-election dispute encompasses the stage of conducting party primaries to holding of actual elections1. It permeates through the stage of primary election and gives rise to the question of whether or not the candidate of a political party has been duly nominated and other issues pervading the entire political party machinery. Where the court finds that a candidate has not been duly nominated, such candidate would be disqualified. Where the court finds otherwise, candidacy shall be validated.

THE SELECTION OF CANDIDATES IN A PRIMARY ELECTION

It is expected for every political party to field candidates for elective positions, of which the deadline set by the Independent National Electoral Commission (INEC) must be met. A Political party in this instance can carry out this exercise diversely. The 1999 Constitution of the Federal Republic of Nigeria and Electoral Act 2010 has given political parties the latitude to choose between Direct primary, Indirect primary or Consensus. Political parties must issue a 21 day notice to INEC of its intention to conduct its primary by which its candidate for General election will emerge. Section 87 of the Electoral Act 2010 states:

(1) A Political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions. (2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries. (3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party. (4) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below: a. In case of nomination to the positions of Presidential candidate, a party shall i. Hold a special presidential convention in the Federal Capital Territory or any other place within the Federation that is agreed by the National Executive Committee of he party where delegates shall vote for each aspirants at the designated center; and ii. the aspirant with the highest number of votes at the end of voting, shall be declared the winner of the presidential primaries of the political party and the aspirant name shall be forwarded to the Independent National Electoral Commission as the candidate of the party. b. in case of nomination to the positions of Governorship candidate, a political party shall, where it intends to sponsor candidates-

1. Olubukola&Anor v. A.G of Lagos state &ors (2016) LPELR – 41451(CA) PRE-ELECTION DISPUTE IN NIGERIA ... 115

i. hold a special congress in the state capital with delegates voting for each aspirants at the congress to be held at a specific date appointed by the National Executive Committee of the party; and ii. the aspirant with the highest number of votes at the end of voting, shall be declared the winner of the primaries of the political party and the aspirant's name shall be forwarded to the commission as the candidate of the party for the particular state. c. in the case of nomination to the position of a candidate to the Senate, House of Representatives, and State House of Assembly, a political party shall, where it intends to sponsor candidates- i . hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively with delegates voting for each of the aspirants in designated center on specified dates; and ii. the aspirant with the highest number of votes at the end of voting shall be declared winner of the primaries of the party and the aspirant's name shall be forwarded to the commission as the candidate of the party.2

It is important to note that it is the National Executive Committee of a political party that is empowered to conduct primary election for the selection of the candidates of the political party for any general election, and not the State Executive committee and any primary election conducted by a State Executive Committee to select candidates for election is illegal.3

A typical example of the power wielded by the National Executive Committee of a party was exercised in the 2019 Governorship primary election of the All Progressives Congress (APC). The National Working Committee panel of the APC declared Prince Dapo Abiodun as the Governorship candidate in the 2019 election. However, the State chapter working committee declared Adekunle Akinlade as the Governorship candidate. By virtue of the provisions of the law that it is only the National Executive Committee that has the power to conduct primary election, Prince Dapo Abiodun was declared winner of the primary election. In their words, “As far as the APC is concerned, this committee is the constituted one for the conduct of the election by the party. If there is an election for the emergence of any other candidate, we are not aware of it in Ogun state, rather than the one so announced by this committee”. No truth can be far from this!

WHO CAN CHALLENGE THE OUTCOME OF A PRIMARY ELECTION

Ordinarily, courts are not inclined to interfere with the affairs and activities of a political party. The business and how political parties conduct their activities cannot

2. Section 87 of the Electoral Act 3. Emenike v. PDP (2012) 12 NWLR (Pt. 1315) 556 PRE-ELECTION DISPUTE IN NIGERIA ... 116

and would not be the business of any court of law. The reason for this is because by undertaking to be a member of an association (Political party), you have subscribed to the laws guiding the activities of the party. However, this is not to say that resolutions of a political party cannot be challenged in court. Where a party guideline and constitution is inconsistent with extant laws or where a political party acts arbitrarily, courts would not hesitate to intervene. In the selection of candidate, an aggrieved person who believes the party has flouted its constitution or guidelines, can challenge it in court.

In Tarzoor v. Ioraer[2016] 3 NWLR (Pt. 1500) 463, in the lead judgment of Rhodes- Vivour, JSC in PDP v. Sylva (supra) at 125, paras. D-E, the Supreme Court held thus:

“…where the political party conducts its primary and a dissatisfied contestant at the primary complains about the conduct of the primary, the courts have jurisdiction by virtue of the provisions of Section 87 (9) of the Electoral Act to examine if the conduct of the primary election was conducted in accordance with the party's constitution and Guidelines. This is so because in the conduct of its primaries, the courts will never allow a political party to act arbitrarily or as it likes. A political party must obey its own constitution.” 4

Also important is the sound note of warning by the Supreme Court in C.P.C. v. Ombugadu [2013] 18 NWLR (part 1385) 66 where Ngwuta, JSC held thus: “An army is greater than the numerical strength of its soldiers. In the same vein, a political party is greater than the numerical strength of its membership just like a country, for instance, Nigeria, is greater than the totality of its citizens. It follows that in the case of a political party, such as the 1st appellant herein, the interest of an individual member or a group of members or a group of members within the party, irrespective of the place of such members or a group in the hierarchy of the party must yield place to the interest of the party. It is the greed, borne of inordinate ambition to own, control and manipulate their own political parties by individuals and groups therein and the expected reaction by other party members that result to the internal wrangling and want of internal democracy that constitute the bane of political parties in Nigeria…” 5

4. Tarzoor v. Ioraer [2016] 3 NWLR (part 1500) 463 at 529, para.G 5. C.P.C. v. Ombugadu [2013] 18 NWLR (part 1385) 66 at 129 to 130, paras. F-E PRE-ELECTION DISPUTE IN NIGERIA ... 117

It is for this major reason that courts would not fold their arms by allowing parties to be anarchical when they are expected to be democratic. As a matter of fact, the political idiosyncrasies in our political system have not stopped the arbitrary act of political parties.

In as much as it is permissible for an aggrieved person to challenge the primary election of a political party, that opportunity is not open to “everybody” who may wish to, just because they are members of the party. The legal dichotomy must be noted in that the locus standi to challenge a primary election accrues only to a person who had contested the primary election alongside the purported winner. In other words, the legal right for an aggrieved person to challenge a primary election in court is that he must show that he was a participant in the said primary. Where an aggrieved person did not participate in the primary election, he does not possess the required locus to challenge same in court.

The legal framework that lays credence to this is section 87(9) of the Electoral Act, 2010. For ease of reference, it provides:

“Notwithstanding the provisions of the Act or rules of the political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State, or FCT, for redress”. 6

Section 87(9) of the Electoral Act, 2010 is intended to vouchsafe to actual applicants who participated in their party primaries the right to impugn the conduct of such primaries for non-compliance with the provisions of the Electoral Act and Guidelines of their parties. It serves the useful purpose of providing avenues whereby aggrieved persons could be heard and air their disenchantments.

Before a plaintiff can successfully invoke the jurisdiction of the Court pursuant to the provisions of section 87(9) of Electoral Act, the complaint must be in relation to the conduct of primaries for the selection or nomination of a candidate by a political party. The section envisages that an aggrieved party should have an avenue to lay a complaint and ventilate his grievance for the purpose of seeking redress.

6. Ogara v. Asadu (2014) LPELR-22862(CA) PRE-ELECTION DISPUTE IN NIGERIA ... 118

The power of an aggrieved aspirant who is not satisfied with the conduct of the primaries by his party to elect a candidate must bring himself within the purview of section 87(9) of the Electoral Act, 2010 (as amended). 7 It is only if he can come within the provisions that his complaints can be justiciable as the courts cannot still decide as between two or more contending parties which of them is the nominated candidate of a political party; that power still resides in the political parties to exercise.

JURISDICTION OF COURT TO DETERMINE COMPLAINTS UNDER SECTION 87(9)

A close perusal of provisions of section 87(9) of the Electoral Act 2010 would disclose that there are three courts clothed with the jurisdiction to entertain suits under section 87(9) of the Electoral Act, to wit: The Federal High Court, the High Court of the state and the High Court of Federal Capital Territory. Hitherto, an aggrieved aspirant in a primary election can apply to any of these courts to ventilate his grievances and while he does that, no notice of preliminary objection can succeed on the ground that any of these three courts lacks jurisdiction to entertain the suit. Simply speaking, if a primary election was held in , an aggrieved person, also an aspirant in the primary, can choose to challenge the outcome of the primary by applying either to the High Court of Sokoto state or any Federal High Court in Nigeria or The High Court of the Federal Capital Territory.

It was not until 2017, in the case of Mailantarki v. Tongo [2018] 6 NWLR (Pt. 1614) 69, where the Supreme Court took a sharp departure from the extant law as explained above.

In that case, the Appellant& Respondent herein contested the primary election for the nomination of candidate to be sponsored by the 2nd Respondent, the All Progressives Congress (APC), to contest the House of Representatives seat for Gombe-Kwami- Funakaye South Federal Constituency of Gombe state. The 1stRespondent won the primary of which the Appellant appealed to the National Assembly appeal committee of the party. His grouse was that the 1st Respondent (winner) was still a card-carrying member of the PDP and so, he was not qualified to contest under the APC. The Appeal Committee found for him and made a recommendation to the National Working Committee of the party to allow the Appellant to re-contest the seat. However, the APC NWC still sent the name of the 1st Respondent to the 3rd Respondent (INEC) as its candidate for that seat.

7. Ardo v. Nyako (2014)LPELR-22878(SC) PRE-ELECTION DISPUTE IN NIGERIA ... 119

The Appellant initiated a suit vide an originating summons at the High Court of the Federal Capital Territory for the enforcement of the decision of the appeal committee, that the 2nd Respondent (APC) could not submit the name of the 1st Respondent to the 3rd Respondent (INEC) and that he was the rightful candidate of the 2nd Respondent (APC) for the election. The 1st Respondent filed a Notice of preliminary objection as well as his counter-affidavit and written address in which he also contended that he won the primary election, having fulfilled the pre-requisites of contesting an election. Not only that, he was a bonafide member of the 2nd Respondent and the court cannot enforce the resolutions reached by the appeal committee of the 2nd Respondent (APC).

At the conclusion of hearing, the court dismissed the Notice of preliminary objection. On the substance of the substantive suit, the court gave judgment in favour of the Appellant and granted all the reliefs sought by the Appellant.

Aggrieved, the 1st Respondent appealed to the Court of Appeal, contending that the High Court of Federal Capital Territory does not have jurisdiction to hear and determine a subject matter which occurred in another state where the court in that state has jurisdiction. The court of appeal, on that basis, struck out the suit.

The Appellant, dissatisfied, then appealed to the Supreme Court and argued that the suit filed at the F.C.T High Court touched on the Primaries held by the 2nd Respondent (APC) in Gombe state; that the suit was filed to enforce the decision of already taken by the National Assembly Appeal committee of the 2nd Respondent (APC), and which decision had been forwarded to the APC Headquarters for implementation.

In resolving the legal impasse, the Supreme Court agreed with the 1st Respondent counsel that the High court of FCT lacks jurisdiction to entertain the suit. In the lead judgment read by Eko JSC, they had this to say:

“The decision to file this suit in the FCT High Court far away from Gombe State where the cause of action arose cannot be anything but a sheer decision to abuse the judicial process. It was a decision to actuate forum shopping. It is a specie of abuse of judicial process. Forum shopping denotes a rather reprehensible practice of choosing the most favourable territorial jurisdiction or court in which a matter or cause may be entertained and adjudicated upon”. PRE-ELECTION DISPUTE IN NIGERIA ... 120

The Supreme Court had to distinguish between subject matter jurisdiction and territorial jurisdiction vis-à-vis section 87(9) of the Electoral Act of 2010. The question is can an aggrieved aspirant institute his action before any of the courts referred to in section 87(9) irrespective of the territorial jurisdiction of such court? The jurisdiction of a court to entertain a cause or matter is prescribed by the Constitution of the Federal Republic of Nigeria 1999 or by statute.Section 257(1) of the 1999 Constitution provides for the subject matter jurisdiction of the High Court of the FCT. The jurisdiction conferred by section 87(9) of the Electoral Act, 2010 is in addition to the jurisdiction conferred by the Constitution. Section 255(1) of the 1999 constitution provides for the establishment of the High Court of the Federal Capital Territory, Abuja, just as section 270(1) of the Constitution provides for the establishment of a High Court for each state of the Federation. There cannot be any doubt that the territorial jurisdiction of the High Court of the FCT is restricted and confined to causes and matters that arise within the Federal Capital Territory.

Having explained how the validity of a candidacy can be challenged in relation to acts of a political party, another nature of pre-election suit is the qualification of an Aspirant to contest the main election in the first place. It is pertinent to note that for every elective post in our Political system, there are certain requirements that every candidate for every elective post must fulfill before he can be qualified to contest an election.

Qualification to contest an election is a condition precedent to participate in the election, as a candidate has to be qualified as required by the relevant laws before he can contest an election of which votes would be cast for him.8 Once a candidate is found not to be legally and lawfully qualified to have contested an already conducted election, the election is that, in law, that candidate did not participate in or contest in the election.

In the same vein, there are certain impediments that can disqualify a candidate to contest an election. For clarity, the qualifications and disqualifications of Candidates to contest any elective position in Nigeria as laid down in the constitution are produced hereunder, albeit, our focus would be on the National Assembly and Governorship election.9

8. Abdullah v. Suleiman &Ors (2011) LPELR-9219(CA) 9. Ijiogu v. Irora (2009) 4 NWLR (Pt. 132) 513 @ 561 PRE-ELECTION DISPUTE IN NIGERIA ... 121

NATIONAL ASSEMBLY

QUALIFICATIONS 65(1):- Subject to the provisions of section 66 of this constitution a person shall be qualified for election as a member of

(a) the Senate, if he is a Citizen of Nigeria and has attained the age of 35 years; and (b) the House of Representatives, if he is a Citizen of Nigeria and has attained the age of 30 years; (2):- A person shall be qualified for election under subsection (1) of this section if: (a) he has been educated up to at least Secondary School Certificate level or its equivalent; and (b) he is a member of a political party and is sponsored by that party.

DISQUALIFICATIONS 66(1):-No Person shall be qualified for election to the Senate or the House of Representatives if:

(a) Subject to the provisions of section 28 of this constitution, he has voluntarily acquired the citizenship of another country other than Nigeria or except, in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country; (b) under any law in force in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; (c) he is under a sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other sentence imposed on him by such a court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court; (d) within a period of less than 10 years before the date of an election to a legislative house, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct; (e) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in any part of Nigeria; (f) he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment PRE-ELECTION DISPUTE IN NIGERIA ... 122

thirty days before the date of election; (g) he is a member of secret society; (h) he has presented a forged certificate to the Independent National Electoral Commission.

GOVERNORSHIP

QUALIFICATIONS 177. A person shall be qualified for election to the Office of the Governor of a State if- (a) he is a citizen of Nigeria by birth;

(b) he has attained the age of thirty-five years; (c) he is a member of a political party and is sponsored by that political party; and (d) he has been educated up to at least School certificate level or its equivalent.

DISQUALIFICATION 182(1) No person shall be qualified for election to the office of Governor of a state if-

(a) Subject to the provisions of section 28 of this constitution, he has voluntarily acquired the citizenship of another country other than Nigeria or except, in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country; or (b) he has been elected to such office at any two previous elections; or (c) under any law in force in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or (d) he is under a sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other sentence imposed on him by such a court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court; or (e) within a period of less than 10 years before the date of an election to a legislative house, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct; or (f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in any part of Nigeria; or (g) being a person employed in the public service of the Federation or of any PRE-ELECTION DISPUTE IN NIGERIA ... 123

State and has not resigned, withdrawn or retired from such employment thirty days before the date of election; (h) he is a member of any secret society; or (i) he has presented a forged certificate to the Independent National Electoral Commission.

Going by the above explanations of how only an Aspirant in a primary election possesses the locus standi to challenge the nomination of a candidate, it undisputedly means that it is only the Aspirants who physically participated in the primary election that are allowed by law. Interestingly, it is also possible for someone who did not participate in a primary election to challenge the nomination of a candidate. All required by the law is for a prospective litigant to come under section 31(5) of the Electoral Act, 2010 (as amended). Section 31(5) provides:

“Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any documents submitted by that candidate is false may file a suit at the High Court of a State or Federal High court against such person seeking a declaration that the information contained in the affidavit is false”.

There is no doubt that this aspect of challenge to the qualification of a candidate is not in any way related to the conduct of primary election. Strictly, to come under section 31(5) of the Electoral Act is to challenge the information supplied by a candidate in his Form CF001, submitted to INEC.The Form CF001 generally, is for candidates to answer questions bothering on whether or not they meet the requirements set out by the constitution, as subscribed above.

WHETHER THE QUALIFICATION OF A CANDIDATE TO CONTEST AN ELECTION IS A PRE-ELECTION OR POST-ELECTION MATTER/ TIME WITHIN WHICH PRE-ELECTION SUIT CAN BE FILED

The qualification of a candidate has, overtime, given rise to arguments in several quarters where some are of the opinion that where a candidate is found not to be qualified to contest an election to the National Assembly or to the Office of the Governor, it must be raised timeously. Hence, it is a pre-election matter. Some others have also argued that the qualification of a candidate is a subject matter within the Jurisdiction of the Election Petitions Tribunal and not otherwise. That argument was unnecessary in the first place, because both propositions are correct. However, it PRE-ELECTION DISPUTE IN NIGERIA ... 124

must be noted that it is within the prerogative of the person contesting the qualification of a candidate to raise it either at the pre-election stage or post-election stage (Election Petitions Tribunal). As noted herein above that by virtue of section 31(5) &87(9) of the Electoral Act, that any person as well asa contestant in a primary election can challenge the nomination of a candidate, if such candidate eventually wins the main election, his qualification to contest can also be challenged in the Election petition Tribunal under section 138(1) of the Electoral Act, 2010 (as amended).

If a court has given a pronouncement on the qualification of a candidate at the pre- election stage, the principle of “Estoppel per rem judicatum” would apply. i.e the Plaintiff is estopped from raising it at the Election Tribunal as a Petitioner or where the question of qualification of a candidate is a pending subject in a pre-election suit, the Election Tribunal lacks jurisdiction to entertain it. It would only amount to an Abuse of court process.

Conclusively, the debate as to whether the qualification of a candidate is a pre- election or post-election suit should take a perpetual terminus.

All suits arising from complaints under section 31(5) & 87(9) of the Electoral Act 2010 are have been adjudged to qualify as pre-election suits. In other words, the National Assembly, in its wisdom, enacted a new legislation governing same. Now, there is a timeframe within which such suits can be filed in court. Section 285(9) of the 1999 Constitution is clear on this. This section provides:

285(9):- “Notwithstanding anything to the contrary in this constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit”.

To activate this constitutional clause, a pre-election suit must be filed within 14days from the occurrence of event or cause of action. Once the 14days lapses, the court have no jurisdiction to entertain it. Therefore, a cause of action is statute-barred if legal proceedings cannot be commenced in respect ofsame, because the period laid down by the limitation law had elapsed. The one million naira question is, what is cause of action and when does the 14days in a pre-election suit begin to count or when does the cause of action arise?

A cause of action is defined to be a state of facts that entitles a party to maintain an action.(See Black's Law Dictionary 10th edition Edited by Bryn and Garner).10

10. APC &Anor v. Faniyan&Anor 11. Baruwa v. APC (2019) LPELR-47723 (CA PRE-ELECTION DISPUTE IN NIGERIA ... 125

The 14 days in a pre-election suit begins to run the moment there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed. Cause of action arises the date the event occurred or the decision/action complained of was made.11 For example, if a prospective litigant receives the Form CF001 of a candidate from INEC as stipulated under section 31(4) of the Electoral Act, 2010 (as amended), the cause of action immediately arises and the 14 days begin to count therefrom.

The 4th alteration was promulgated in order to avoid the situations in the past where parties filed pre-election matters several days or weeks or months after the cause of action arose and caused distractions to the occupant of the office so much that the occupant's effectiveness and efficiency as an elected leader or representative is negatively affected.12

THE PROCEDURAL NATURE OF FOURTH (4TH) ALTERATION AND ITS RETROSPECTIVE EFFECT

While Stakeholders are appreciating the introduction of the 4th Alteration into our legislation, it is a disappointment for Political actors who have instituted suits bothering on the nomination/qualification of a candidate long before the coming into force of the 4th Alteration. It is an extant principle of law that no Law should operate retrospectively. The Supreme Court, in various pronouncements, declared the 4th Alteration to operate retrospectively since it deals with procedure.

The whole gravamen of the 4th Alteration of the 1999 Constitution in respect of Pre- election matters vis-à-vis the procedural effect provides for the following

Section 285(9): “pre-election suit must be filed within 14 days from the cause of action”.

Section 285(10): “a court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit”.

Section 285(11): “It went further to state that “an appeal from a decision in a pre- election matter shall be filed within 14 days from the date of delivery of the judgment appealed against”.

12. Baruwa v. APC (2019) LPELR-47723 (CA) PRE-ELECTION DISPUTE IN NIGERIA ... 126

Section 285(12): “An appeal from a decision of a court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal

According to the Supreme Court, the purport and essence of a limitation law is that where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. An action instituted after the expiration of the prescribed period is said to be statute-barred. The essence is that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had elapsed. The conspicuous effect of a limitation law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period.

It is now settled law that presumption against retrospective construction has no application to enactments which only affect procedure and practice of the courts.13

The jurisdiction of a court to entertain a cause or matter is conferred by the law creating it. The Superior courts of record are creation of the 1999 Constitution (as amended). Where the same Constitution makes specific provisions for the time within which certain causes or matters are to be heard and determined, the affected courts have no discretion to exercise.

One cannot hurriedly forget the political setback suffered by Politicians when the apex court interpreted the 4thAlteration to apply retrospectively since it deals with procedure. The suit between Olusegun Abraham and Governor RotimiAkeredolu of Ondo State in respect of the validity of the All Progressives Congress (APC) Governorship Primary that produced the latter is still fresh in our memory. By the time the matter got to the Supreme Court, the suit suffered a legal obstacle as the new constitutional provision had been interpreted by the apex court to be applicable to all pre-election cases that preceded the 4thAlteration to the Constitution.

Like Abraham, a House of Representatives Aspirant in the Ifelodun/Odo- Otin/Boripe Federal Constituency of Osun State for the 2015 election, MrAyodeleKusamotu, got the shock of his life when the Supreme Court on February

13. Baruwa v. APC (2019) LPELR-47723 (CA) PRE-ELECTION DISPUTE IN NIGERIA ... 127

15, 2019, struck out his pre-election suit.

For the avid readers, see other cases like Toyin v. PDP (2019) 9 NWLR (Pt. 1676); Gusau v. APC (2019) LPELR-46897 (SC);Baruwa v. APC (2019) LPELR-47723 (CA); King v. Chandra Dharma (1905) 2 KB 335 @338; Amadi v. INEC (2013) 4 NWLR (Pt. 1345); Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61); Adah v. NYSC (2004) 13 NWLR (Pt. 891); Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Odedo v. PDP (2013) LPELR 24738 (SC)

CONCLUSION Over the years, we have been faced with the daunting challenge of quick decisions on pre-election cases lingering in courts for many years. The introduction of the 4th alteration is a huge step in solving this problem. Truthbe told, with the enactment of the 4th Alteration, one must appreciate the whole essence of the dynamism in our law to focus and put our jurisprudence in the proper direction.

We are made to understand that when an amendment confers substantive rights, it is prospective (not retrospective), but when an amendment confers procedural rights, it is retrospective (not prospective). It ultimately means that substantive rights are related to persons while procedural rights relate to the courts. The 4thAlteration describes how a court can be vested with jurisdiction to entertain pre-election suits. It is procedural in nature and the retrospectivity is therefore not in doubt. Indeed, the 4thAlteration is “aroundpegin a roundhole”.

COMMENTS

The Paper is quite good and the subject matter it addresses is timely. It will contribute to knowledge and be a good resource to readers. The writer should read the paper all over again, more painstakingly, and try address necessary typographical issues as well as the issues raised in the comments above. The Paper is of publishable quality. ARTICLE 14128 PRIVACY OF ELECTRONIC COMMUNICATIONS IN THE WORKPLACE – NONSO ANYASI

ABSTRACT

The world has now gone digital, and instant messaging and virtual communications has become the order of the day. The need for physical or hard-copy letters has been obviated by the introduction of electronic messaging. Meddlesome interlopers no longer need to have access to the physical copy of a message to be able to access its contents, as electronic messages are stored on various points, including the sender's device, the receiver's device, as well as the server. Employees communicate with each other, and with their clients through their official email address. They utilise other electronic communication platforms and also access the internet on the computers provided by their employer, and on the company servers. Some employers feel that employees abuse this privilege by engaging in private ventures with the company equipment. Hence, employers may feel constrained to monitor the activities of their employees over the company's computer system. This treatise examines the global legal framework which guarantees the fundamental rights to an employee's privacy vis-à-vis the business needs of an employer to monitor communications over its computer system.

INTRODUCTION

The right to privacy is a fundamental right which is protected by the constitution as well as a host of international instruments. In as much as the right to privacy itself is codified within descriptive parameters, the concept of privacy has proved to be an abstraction vis-a-vis the rapid developments in the technological sector, which makes it difficult to place it within descriptive parameters. Privacy can be said to be a largely relative concept as beliefs about privacy are rooted differently in every society and culture, and there is no universal definition that is applicable in all countries.1 It can be defined within the milieu of personal autonomy or within the context of control over the intimacies of personal identity,2 or control over information about oneself. Legal scholars have proffered various definitions of the concept of privacy. Gross views privacy as the condition of human life in which acquaintance with a person or with affairs of his life which are personal to him is

1. E.M. Bakibinga, ‘Managing Electronic Privacy in the Telecommunications Sub-sector: TheUgandan Perspective’ (2004), accessed on September 10,2019 via http://thepublicvoice.org/events/capetown04/bakibinga.doc 2. T Gerety, ‘Redefining Privacy’ (1997) 12(2) Harv C R-C L L Rev 236. PRIVACY OF ELECTRONIC COMMUNICATIONS 129 limited.3 Bloustein sees privacy as an interest of human personality, and to protect an individual's privacy is to protect the individual's personality, independence, dignity and integrity.4 Westin defines privacy as a claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others.5

It is indeed difficult to develop a single comprehensive definition of the concept of privacy. Legal scholars, however, accept by consensus that some certain parameters appear to cut across the various definitions and conceptions of privacy. These parameters revolve around control over one's persons, and information about oneself.

DE-ABSTRACTION OF THE CONCEPT OF PRIVACY

The need for privacy can be traced back to the Neanderthal age when man felt the impulsion to cover his nakedness from the prying eyes of his fellow man. As man began to embrace development and progress, his notion of privacy expanded to include the concept of his personal space and family. When man started acquiring properties, his personal space became more pronounced as there was a category of properties that were shielded away from the public glare.

With the rapid developments in technology, man's notion of privacy was expanded to include his communications. Hence, international instruments such as the International Covenant on Civil and Political Rights (ICCPR) have guaranteed the right to privacy which covers these four broad aspects: bodily privacy and personal space, family privacy, the integrity of the home, and correspondence/ communications. In contemporary society, these four aspects have transmogrified into the following spectrums:6 a. Bodily privacy: This is the protection of the physical body against unwarranted invasive procedures such as body search, drug testing, cavity searches, genetic tests, etc. b. Territorial privacy: this is the protection of a defined territory by setting limits against intrusions. It could be the domestic environment such as the home, or the workspace, or other public spaces. Territorial privacy protection includes protection against unwarranted entry and searches, video surveillance, and ID Checks.

3. H Gross, ‘The Concept of Privacy’ (1967) 42(1) N Y Univ L Rev 30, 35– 36. 4. E Bloustein, ‘Privacy as an Aspect of Human Dignity: An Answer toDean Prosser’ (1964) 39 N Y Univ L Rev 962–1007, 971. 5. AF Westin, ‘Privacy and Freedom’ (1970) New York: Atheneum330–64. 6. EPIC and Privacy International, Privacy and Human Rights (2006), accessed on 8th September, 2019 via http://www.privacyinternational.org/survey PRIVACY OF ELECTRONIC COMMUNICATIONS 130 c. Communications privacy: This is concerned with the protection of communications made using the various modes of communications i.e. telephones, postal mail, e-mail, fax, instant messaging, and other technologies. d. Information privacy: This encompasses the right of individuals to control personal information about them, such as their financial and medical information held by other parties, and the creation of rules governing the collection and handling of this information. This is also known as Data Protection.7

PRIVACY AS A FUNDAMENTAL HUMAN RIGHT

It is pertinent to examine the proper legal status of the right to privacy as a fundamental right. The concept of fundamental human rights is one which has guaranteed the continued liberty of human beings in the midst of anarchy and chaos. It is submitted that without some certain sets of rights and civil liberties, the expectancy of life would be unreasonably short, brutish, and nasty like it was during the Hobbesian era.8

It is a trite jurisprudential aphorism that some rights are more intrinsic than the others because, without these categories of rights and liberties, there would be no rationale for existence as a human being. These rights, such as the right to life, personal liberty, movement, fair hearing, freedom of thought, religion, and conscience, etc., are rightly termed as fundamental human rights because they define the basis of our existence as human beings. It is submitted that it would be impossible for one to exist as a human being without these rights.

There are other categories of rights which are mere civil liberties. These are largely social and economic rights which are not technically fundamental or essential to one's existence as a human being. For example, the purported right to vote and be voted for,9 the right to good governance,10 the right to education, the right to a clean environment,11 amongst others, are mere civil, political or economic liberties. A derogation from any of these rights would not directly threaten the continued existence of any human being. The effect of the deprivation of franchise right, or the

7. David Banisar, ‘Linking ICTs, The Right to Privacy, Freedom of Expression and Access to Information’ (2010) East African Journal of Peace & Human Rights, Vol 16:1, Page. 125. 8 See Military Governor of Lagos State v Chief EmekaOdumegwuOjukwu (1986) NWLR (Pt. 18) 621. 9. The right to vote and be voted for or franchise rights, which is often mistaken for a fundamental right is nothing more than a mere civil liberty in most legal systems. See NonsoAnyasi, ‘Electoral Accountability Under The Nigerian Social Contract’ (2019) available online via http://www.opinionnigeria.com/electoral-accountability-under-the-nigerian-social-contract- by-nonso-anyasi/ 10. In Nigeria, this right to good governance which is largely codified in Chapter II of the 1999 Constitution has been declared to be non-justiciable by virtue of Section 6(6)(c) of the 1999 Constitution. See also the case ofA.G Ondo v A.G Federation (2002) 9 NWLR (Pt 772), 222. PRIVACY OF ELECTRONIC COMMUNICATIONS 131 right to education cannot be compared to the effect of the deprivation of the right to life, or the right to personal liberty.

Having thus established the dichotomy between these categories of human rights, it becomes pertinent to classify the subject matter of this thesis into its proper category. Is the right to privacy a fundamental right strictusensu? Or is it a mere social and/or civil liberty? Is the right to privacy sine qua non to the fundamental existence of any human being? The importance of this distinction cannot be overemphasized for the purposes of this article.

The right to privacy has been long recognized by the international community as a fundamental human right which is available to every human being, regardless of age, sex, or status. Hence, the protection of privacy was expressly codified in the Universal Declaration of Human Rights (UNDHR) in the following terms:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”12

The opening clause of the above article13 has given the right to privacy the universal protection which transcends the right into the realm of a fundamental right.14 The second clause in this article places an active responsibility on the government of every nation to take steps to ensure that the right to privacy of its citizens is guaranteed and protected against any arbitrary attack or interference.15 Sovereign states discharge this legal duty by proactively legislating to protect the right to privacy. They also equip their judiciary to protect their citizens in the event of a breach of the right to privacy.16 It has been held that a sovereign state will be in breach of its sovereign duty to protect and guarantee this right to privacy as guaranteed by international instruments under the principle of state positive obligation where its judiciary wrongly refuses to hold that the fundamental right to privacy of its citizen has been breached, in action for the enforcement of fundamental rights.17

Privacy rights are however not absolute, regardless of being fundamental. As a common law right of personality, it is necessarily limited by the legitimate interest of others and the public interest.18 Section 45 of the Nigerian Constitution contains

11. See the case of Centre for Oil Pollution Watch v NNPC (2019) 5 NWLR (Pt. 1666) 518 12. Article 12 of the Universal Declaration of Human Rights. 13. “No one shall…” 14. See also, Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR). 15. See also Article 17 (2) of the ICCPR. 16. This is known as the principle of state positive obligations. 17. Barbulescu v Romania(2017) ECtHRApplication No. 61496/08. 18. J Neethling, JM Potgieter PJ Visser, Neethling‘Law of Personality’ (2005) Durban: Butterworthsat pg. 25 PRIVACY OF ELECTRONIC COMMUNICATIONS 132 provisions which justify the limitations of the right to privacy in Section deserving cases. The Nigerian Court of Appeal in interpreting the provisions of Section 45 of the Constitution commented on the legal basis for the restriction of the right to privacy which is enshrined in Section 37 of the Constitution as follows:

“Section 37provides for the guarantee and protection of the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications. This is a fundamental right which cannot be waived. However, Section 45(1) of the Constitution provides that nothing shall invalidate any law that is reasonably justifiable ina democratic society in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.” Per Ogunwumiju JCA19

Without the right to privacy, human beings can simply not exist comfortably as humans. This is one of the unique features which separates humans from other higher animals. It is generally settled amongst legal scholars that privacy is an essential human need.20 It is also said to be a valuable and advanced aspect of personality.21

PRIVACY OF ELECTRONIC COMMUNICATIONS

The need for the protection of the right to privacy (in the workplace) has become more pronounced with the recent technological advances. The internet of things has unified the entire world into a global village that can be accessed from the remotest part of the world. It is submitted that the privacy of individuals and their communications is under serious risk, given the present modes of communication available.

Previously, when the major modes of communication were by telephone and letters, the protection of the right to privacy of correspondence was very straightforward. No one, not even the government could listen to your telephone conversations, or read your letters without getting a valid court order authorizing them to do so. However, the same cannot be said for electronic means of communication. People continue to rely on their belief that the contents of e-mails, like phone calls, are sacrosanct and what is “said” in e-mail communication remains “confidential” to everyone other than the parties to them. However, that expectation of privacy is breaking down by the day. E-mails should more properly be viewed as a “postcard” or a conversation

19. Okafor&Ors v Ntoka&Ors (2017) LPELR-42794 (CA). See also the case of FRN v Daniel (2011) LPELR-4152 (CA) 20. A Rengel, ‘Privacy as an International Human Right and the Right to Obscurity in Cyberspace’ (2014) 2(2) Groningen J Int L 33 at 34. 21. AdedejiAdekunle and IrekpitanOkukpon, ‘The Right to Privacy and Law Enforcement, International Data Privacy Law’, (2017) Oxford University Press, Vol. 7, No. 3 at Page 203. PRIVACY OF ELECTRONIC COMMUNICATIONS 133 over a speakerphone, both open and available to a passerby to hear or see, than like a private “confidential,” “sealed” letter.22

The reason for the reduced confidentiality in electronic mails is not far-fetched, but due to the nature of the mails themselves. Emails are stored at multiple locations: on the sender's computer, the sender's Internet Service Provider's (ISP) server, and on the receiver's computer. Deleting an email from the inbox doesn't mean there aren't multiple other copies still out there. Emails are therefore vastly easier to be accessed than phone records. Furthermore, due to their digital nature, they can be stored for very long periods of time. Hence, this pervasiveness of e-mail underscores the ubiquitous role of digital communication in the workplace.23

EMAIL PRIVACY IN NIGERIA.

There is no special legal framework guarding the privacy of emails in Nigeria. The most fundamental protection is that afforded by Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides blanket protection over the privacy of Nigerian citizens, their homes, correspondence, telephone conversations, and telegraphic communications.

Unlike other Western states, the Nigerian legislature has not yet provided direct legislation to govern the protection of personal information contained in electronic and telegraphic communications. The Cybercrime (Prevention and Prohibition) Act, 2015 contains some provisions which attempt to criminalise undue interference with electronic communications in Nigeria.24 Recently, the National Information Technology Development Agency (NITDA) introduced the Nigerian Data Protection Regulation 2019 to regulate and protect the personal data and information of Nigerians against abuse by the data handlers and processors.25

EMAIL PRIVACY IN THE WORKPLACE

The employee's right to privacy in the workplace is a growing controversial legal topic, especially in the era of over-dependence on the computer and electronic mails in the ordinary course of business. Developments in technology have enabled employers to monitor all communications made by their employees using official computer systems. Employers can monitor the employee's use of the internet and the company e-mail.

22. People v. Klapper, —N.Y.S.2d—, 2010 WL 1704796, at pg. 5 (Crim. Ct. N.Y. Co. April 28, 2010). 23. Smith and Tabak, ‘Monitoring Employee Emails: Is There Any Room For Privacy?’ (2009) Academy of Management Perspectives, November Edition at page 33. 24. See Sections 11 – 14, and 31 of the Cybercrimes (Prohibition and Prevention) Act, 2015. 25. The Nigerian Data Protection Regulations (NDPR) 2019 which was modeled after the European General Data Protection Regulations (GDPR) is not a creation of the Nigerian legislation and therefore does not have the primary force of law which a statute would have. PRIVACY OF ELECTRONIC COMMUNICATIONS 134

Although this unfettered power of the employer to monitor the employee's internet usage and email communication may appear to be a violation of the employees' privacy rights, it is usually allowed under most international jurisdictions. Other employee activities which are not carried out over the employer's computer system (such as private conversations) and certain physical spaces in the workplace (like locked desk drawers) receive more privacy protections.26

Emails generally are considered to be the property of the company if they are sent or received over the company's computer system. From the employer's perspective, this is a business resource paid for by the employer and is to be used only for business purposes.27 Therefore, it has been argued that e-mail messages and telephone conversations made on behalf of the employee in the course of business should be made available for review for legitimate business and security reasons.28

JUSTIFICATION FOR MONITORING EMPLOYEE COMMUNICATIONS

It has been proposed that employers have a legal right to monitor and view employee email sent over the company network provided that they have a valid business purpose for doing so.29 Most employers have installed technology over their networks which filter and read through all email communication to check for productivity, illegal usage and other related issues. Employers sometimes rely on employee emails during trials as evidence to prove employee misconduct or wrongdoing. Employers also have the right to track and monitor the websites visited by their employees over the company network.30 They sometimes block employees from accessing certain sites or limit the amount of time an employee may spend on certain sites to enhance productivity.31

Michael Miller argues that the employer has every right to monitor their employee's activities during work hours and while they are on the company property for reasons ranging from legal issues, productivity issues and security issues. 32 He submits that an employer has a duty to ensure that its internet and communications network is not being utilised by the employee for illegal purposes which could incur severe

26. FindLaw, ‘Privacy in the Workplace: Overview’ (2019) © Thomas Reuters. Accessed on August 15, 2019 via https://employment.findlaw.com/workplace-privacy/privacy-in-the-workplace-overview.html 27. See McLaren v Microsoft Corp Microsoft 1999 Tex. App. LEXIS 4103, 1999 WL 339015 (Tex. Ct. App. 1999) 28. VerineEtsebeth, ‘Monitoring and Surveillance in the Workplace: Lessons Learnt? – Investigating the International Legal Position’ (2007) Conference on Digital Forensics, Security and Law, 2007 at Page 8. 29. OnyinyeNwabuezi, ‘The Right To Privacy vs Business Safe Guards’ (2019) © LinkedIn Articles Accessed on August 29, 2019 via https://www.linkedin.com/pulse/right-privacy-vs-business-safe-guards-onyinye-onyinye-nwezi-nwabuzor/ 30. Ibid. 31. AmericanManagement Association, ‘AMA Study, Workplace Monitoring&Surveillance: Policies and Practices’ (2001). Available online via http://www.amanet.org/research/pdfs/emsfu-short.pdf 32. Michael Miller, ‘Is it Safe?’ (2008) Macmillan Publishers. 33. For example, Section 14 of the Cybercrime Act 2015 criminalizes the storing of child pornographic content on a computer system. PRIVACY OF ELECTRONIC COMMUNICATIONS 135 penalties on the organisation. For example, some laws forbid the viewing or posting of certain materials.33 Where an employee accesses these prohibited materials through the work computer system, this information would be stored on the company's servers which could be viewed by government/security personnel during an audit. Furthermore, employers are also responsible for the conduct of their employees through the common law doctrine of responde at superior. A third party who sustains injury through the misconduct of an employee may hold the employer accountable if the employer knew about the misconduct but failed to prevent it, or even where the employer was not aware but should have known about the said misconduct.34 Miller also argues that some employees utilise their work hours in engaging in non-work activities. He suggests that the monitoring of the employee's activities over the work system enables the employer to ascertain the productivity of the employee. Sherman agrees with Miller by positing that curtailing lost productivity as a justifiable motive for employee monitoring.35

Miller further argues that some employees may resort to divulging the business secrets of their employers to competitors through email communication. Hence, an employer may feel justified in monitoring the communications done over the work system to ensure that sensitive information is not being wrongfully transmitted. He further acknowledges that the entire computer system of an organisation could be put at risk by the simple click of an innocuous link by an employee. He submits that the monitoring of an employee's activities over the computer system will assist the company to avoid the financial repercussions of a virus attack on the workplace server.36

These arguments made by Miller to justify the need for the monitoring of employees communications over the workplace computer system are geared at enhancing and promoting the business needs of the employer. Nwabuezi, however, cautions that there is the need to balance the legitimate business needs of employers with the fundamental right to privacy of an employee. She rightly submits that the monitoring activities of an employer over the workplace computer system should be done in accordance with the provisions of the law.37

34. Sexual harassment is a good example of the application of this doctrine. Chevron Oil was made to pay a $2.2 Million settlement to a group of employees who were offended that an inappropriate e-mail titled “25 Reasons Why Beer Is Better Than Women” was allowed to circulate on the company’s e-mail system. The plaintiffs were able to establish that Chevron failed to provide the proper controls to prevent offensive messages from being circulated. 35. Sherman, M. A. ‘Webmail at work: The case for protection against employer monitoring.’ (2007). TouroLaw Review. Accessed on August 1, 2019, via http://ssrn.com/abstract=978075 36. Examples of such malware attacks are reported in https://krebsonsecurity.com/2019/07/quickbooks-cloud-hosting-firm- insynq-hit-in-ransomware-attack/ and https://www.cnbc.com/2019/06/26/baltimore-florida-ransomware-attacks-kick- off-new-era-for-ransomware.html. 37. OnyinyeNwabuezi, ‘The Right To Privacy vs Business Safe Guards’ (2019) © LinkedIn Articles Accessed on August 29, 2019 viahttps://www.linkedin.com/pulse/right-privacy-vs-business-safe-guards-onyinye-onyinye-nwezi-nwabuzor/ PRIVACY OF ELECTRONIC COMMUNICATIONS 136

The Nigerian Data Protection Regulation 2019 contains provisions which provide that controllers and processors of personal information should inform data subjects and get their consent before processing Personal Information.38 Hence, employers are mandated to put their employees on notice whenever they plan to monitor the employee's communications over the work system, in order to satisfy this requirement of the law. This writer respectfully submits that any monitoring activity which is conducted on the electronic communications of an employee over the work system without first informing and/or seeking the consent of the employee to the said monitoring shall amount to a breach of the fundamental right to privacy of that employee.

The decisions of American and European judges on this issue suggests that it is safer for employers to have their employees sign a computer and network usage39 policy, which typically will set forth that their email is to be used only for business purposes and grants the employer the right to monitor email and computer usage. This agreement or policy once signed by an employee deprives the employee of any reasonable expectation of privacy and means their emails are open to being searched by an employer.

It has been argued that even where an employer fails to seek consent or give notice to an employee before engaging in monitoring activities, the employer should not be held liable for the breach of the employees right to privacy because an employee does not have a reasonable expectation of privacy to his or her email at work for a variety of reasons. For example, an American Court has held that emails used in a business context are simply a part of the office environment, the same as a fax or copy machine, in which you don't have a reasonable expectation of privacy. 40Another American court has found that by corresponding with other people at work, work email was inherently work-related, and thus there could be no reasonable expectation of privacy.41

This writer is not aware of any decided case which relates to the issue of monitoring of an employee's electronic communications in Nigeria. This may be due to the high level of nonchalance to the relevance of the protection of data privacy in Nigeria by the stakeholders and also the novelty of the concept of data protection in Nigeria. Therefore, many companies operating in Nigeria are presently likely to get away with their deliberate and inadvertent infringements on the privacy rights of their

38. See Articles 2.2 (a) and 2.3 of the Nigerian Data Protection Regulations 2019. 39. See Restuccia v Burk Technology 1996 Mass Super LEXIS 367 (Super Ct (Mass) Aug 13 1996) and Copland v United Kingdom (2007) ECHR 253

40. See McLaren v Microsoft Corp Microsoft 1999 Tex. App. LEXIS 4103. 41. See Michael A. Smyth v The Pillsbury Company, 914 F. Supp. 97 (E.D. Pa. 1996). PRIVACY OF ELECTRONIC COMMUNICATIONS 137 employees, as a result of the dearth of enforcement procedures. Hence, it is pertinent to resort to an understudy of the attitude of foreign Courts to the issue of privacy of employee emails, with the aim of proposing reforms for the Nigerian legal system.

EMPLOYEE PRIVACY CLAIMS IN OTHER JURISDICTIONS: AMERICA VS EUROPE

Unlike in Nigeria, the jurisdiction of the American and European Courts is constantly being invoked to decide claims of breach of the employee's fundamental right to privacy arising from workplace monitoring in a number of cases. There is however a great dichotomy in the approach of the American Courts to the issue of employee privacy rights and expectations, as opposed to the attitude of their European counterparts.

The American Courts have been known to apply a two-fold condition to determine the merits of claims submitted for breach of the right to privacy in the workplace arising from electronic monitoring of employee emails. These conditions are that the employee must have a reasonable expectation of privacy and that the intrusion or monitoring must be considered highly offensive to a reasonable person.42 A reasonable expectation of privacy is most likely to occur when the actions of the employer suggest that such privacy is a condition of work. This was apparent in the case of Smyth v.Pillsbury 43 where the Defendant Company introduced an intranet- based e-mail system and issued a policy that messages on this system would remain confidential. The Plaintiff employee then sent several provocative e-mails to his supervisor. Despite the confidentiality policy the company reviewed these communications, determined the messages to be unprofessional, and dismissed the Plaintiff. The United States District Court for the Eastern District of Pennsylvania upheld the Defendant's monitoring and the dismissal of the Plaintiff, on the ground that the Plaintiff could not establish that he had a reasonable expectation of privacy. The judge's ruling emphasized that e-mail communications are entirely voluntary (unlike other monitoring efforts such as drug testing) and that employers' interests in preventing unprofessional comments in the workplace take precedence over employee privacy expectations.44 This decision in Smyth v Pillsbury established the precedent which was followed in subsequent cases. In Garrity v John Hancock 45 two female employees forwarded sexually explicit jokes to third parties. One of their co-workers complained after receiving such an email. The company had an email policy providing that “messages that are defamatory, abusive, obscene, profane, sexually-orientated, threatening or racially offensive” are prohibited. Their

42. Ibid. 43. Michael A. Smyth v The Pillsbury Company, 914 F. Supp. 97 (E.D. Pa. 1996). 44. Rustad, M. L., &Paulsson, S. R. ‘Monitoring employee e-mail & internet usage: Avoiding the omniscient ElectronicSweatshop: Insights from Europe.’ (2005)University of Pennsylvania Journal of Labor & Employment Law,7, 829–904. PRIVACY OF ELECTRONIC COMMUNICATIONS 138 employment was consequently terminated. The Court in reaffirming the essential precedents of the primacy of the employer's interests in preventing harassment and ensuring a professional work environment as held in Smyth v Pillsbury dismissed the privacy based action brought by the two women stating that employees do not have any reasonable expectation of privacy pertaining to work-related emails. The court further held that the employer's right and duty to limit harassment in the workplace outweighs any rights the plaintiffs' thought they had in respect of privacy. 46

In one of the few cases where the American Courts were given an opportunity to acknowledge the potential for privacy claims in employees' emails is the 1990 case involving Burke Technologies.47 At the time, Burke Technologies had an internal e- mail system, but no policy and no notification about possible monitoring. The company president had used a special password to access the email of one of its employees and found several emails between that employee and another employee, which contained reference to an extramarital affair between the president and another employee. The two employees were both fired for excessive use of e-mail, although the content of messages was never cited as a basis for the dismissals, and the two sued, claiming they had a reasonable expectation of privacy that the employer violated. The employees claimed that their messages were unlawfully intercepted. The court disagreed. But when the employer sought to have the employees' complaints of privacy violation dismissed, the court declined to do so, citing “general issues of material fact as to whether the plaintiffs had a reasonable expectation of privacy in their e-mail messages.” 48 However it appears that this case was settled out- of-court as there are no further references to the continuation of the case. The denial of the employer's motion to dismiss the Plaintiff's claims of privacy invasion makes this a unique case that discloses the willingness of the courts to grant claims where a reasonable expectation of privacy can be established by the Plaintiff.

The decisions of American Courts on workplace e-mail monitoring have been largely pro-employer, as both of the requirements needed to establish an action in privacy violation have been highly elusive and difficult to prove by employees. It has been submitted that the American Courts are not sympathetic to “reasonable expectations of privacy” claims given the inherently non-private nature of most work environments and the employer's ownership of the computer and network resources.49 It has been further submitted that the second condition of “highly offensive to a reasonable person” test is also a difficult standard to meet, as

45. Garrity v John Hancock Mutual Life Insurance Company 2002 US Dist. LEXIS 8343(D Mass. May 7, 2000) 46. See also Thygeson v US Bancorp 2004 US Dist. LEXIS 18863 (D. Ore. Sept 15, 2004). 47. Restuccia v Burk Technology Inc., 1996 WL 1329386 (Mass. Super. 1996). 48. Sargent C.F ‘Electronic Media and the Workplace:Confidentiality, Privacy and Other Issues.’ (1997) Boston Bar Journal, 41(May/June). 49. Gabel, J. T. A., & Mansfield, N. R. ‘The Information Revolution and Its Impact on the Employment Relationship: An Analysis of the Cyberspace Workplace.” (2003) American Business Law Journal, 40(2), 301–353. PRIVACY OF ELECTRONIC COMMUNICATIONS 139 monitoring employee work behavior is typically an employer prerogative.50

In the European judicial sector, the situation is much different. In the United States, while it appears that privacy is viewed as a commodity which can be bartered or contracted away when individuals feel it is in their interests to do so, in Europe, however, privacy is viewed as more fundamental, something that persons cannot be induced to forfeit, even by virtue of a contract or agreement. At the center of European policy on the right to privacy is Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 was established to protect personal privacy during the era of accelerating computer and information technologies. 51 The article acknowledges that everyone has a right to respect for his private and family life, his home and his correspondence and also that individuals have a right to the secrecy of correspondence that extends to communications made while at work.52

The European Courts have on different occasions upheld the fundamental status of the right to privacy in electronic communications. In the case of Onof v Nikon 53 where the Defendant Company retrieved and read the Plaintiff's stored e-mails marked “personal”, and consequently dismissed him for engaging in personal pursuits in violation of company policy. The French Supreme Court ruled that the employer is not permitted to read the employee's e-mail and that doing so is a violation of the fundamental right of secrecy in one's private correspondence even if that correspondence is conducted on the employer's e-mail system and in violation of company policy. Similarly, in the case of Copland v UnitedKingdom,54 the Plaintiff successfully claimed against her employer for monitoring her phone calls and e- mails over the workplace system.

Recently, the European Grand Chamber of the European Court of Human Rights in the locus case of Bãrbulescu v Romania55 re-affirmed the status of the right to privacy as a fundamental right. The Applicant, in this case, Mr Barbulescu, a native of Romania was employed as an engineer and was asked by his employer to set up an instant messenger account for work purposes. The employer subsequently monitored Barbulescu's messenger usage and observed that Barbulescuwas contacting his brother and fiancée for personal reasons. Barbulescudenied the

50. Fazekas, C. P. ‘1984 is Still Fiction: Electronic Monitoring in the Workplace and U.S. Privacy Law.’ (2004) Duke Law and Technology Review, 15. 51. Lasprogata, G., King, N. J., &Pillay, S. ‘Regulation Of Electronic Employee Monitoring: Identifying Fundamental Principles Of Employee Privacy Through A Comparative Study Of Data Privacy Legislation In The European Union, United States and Canada.’ (2004) Stanford TechnologyLaw Review, 4. 52. Ibid. 53. Onof v Nikon France (Arret No. 4164 (Fr. Oct 2 2001). 54. Copland v United Kingdom (2007) ECHR 253 55. Barbulescu v Romania (2017) ECtHRApplication no. 61496/08 Accessed via http://hudoc.echr.coe.int/eng?i=001- 177082. PRIVACY OF ELECTRONIC COMMUNICATIONS 140 allegations. The employer then provided a transcript of the personal messages to Barbulescu and dismissed him for using the employer's resources for personal purposes. The employer cited his actions as a violation of the company's internal regulations which prohibited the personal use of computers, photocopiers, telephones or telex or fax machines. The Company's internal regulations did not contain any reference to the possibility for the employer to monitor the employee's communications. Aggrieved with his dismissal, Mr Barbulescu approached the Bucharest County Court 56 praying the court to set aside his wrongful dismissal, to order his employer to pay him his outstanding wages, and also made a claim for damages arising from the manner of his dismissal, and also to reimburse his costs and expenses. The Applicant argued that an employee's telephone and email communications from the workplace were covered by the notions of “private life” and “correspondence” and were therefore protected by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. He also submitted that the decision to dismiss him was unlawful and that by monitoring his communications and accessing their contents his employer had infringed criminal law. The County Court, however, rejected his arguments and position, holding that his dismissal was lawful. Dissatisfied, the Applicant appealed against this decision to the Bucharest Court of Appeal, contending that the County Court had not struck a fair balance between the interests at stake, as it had unjustly prioritized the employer's interest in enjoying discretion to control its employees' time and resources over the applicant's reasonable expectation of privacy. The Court of Appeal however dismissed his appeal, holding that the internet is a tool made available to employees by the employer for professional use, and that the employer is entitled to set rules for the use of this tool, by laying down prohibitions and provisions which employees must observe when using the internet in the workplace; it is clear that personal use may be refused. The Applicant who was dissatisfied with the decision of the Court of Appeal dragged his sovereign government to the Chamber of the European Court of Human Rights, claiming that the Romanian Government had refused to protect his fundamental right to privacy by deciding the labour dispute in his favour. The Chamber in its judgment acknowledged that employees can have a reasonable expectation of privacy in the workplace. The Chamber engaged in a balancing exercise between the privacy rights of the individual and the legitimate interests of the company to prove an alleged breach of discipline. The Chamber held that the Romanian courts had struck a fair balance between the competing rights of the employee and employer. Its reasoning was that the Applicant had assured his employer that the use of the messenger service was solely for professional purposes and the employer when accessing the messages, would have anticipated the messages to only contain work-related information. The Chamber subsequently held that the domestic courts had maintained an appropriate balance between the privacy

56. Equivalent of the High Court of a State in Nigeria PRIVACY OF ELECTRONIC COMMUNICATIONS 141 rights provided for under Article 8 of the Convention and the interests of the employer, thus dismissing the Applicant's claims.

Unperturbed, the Applicant appealed against this decision of the Chamber to the Grand Chamber of the European Court of Human Rights. The Grand Chamber in its decision held that the earlier Courts had failed to correctly strike the balance between the competing Applicant's right to privacy under Article 8 and the business interests of the employer. The Grand Chamber took the opportunity to develop the law at this intersection between privacy and employment rights. The Grand Chamber held that the following factors must be considered in determining if an employee's right to privacy prevails over an employer's legitimate interests in monitoring communications:

a. Prior Notice: an employee must receive prior notice about any monitoring activity. The notice must be clear, given in advance and must state the nature of the monitoring.

b. The Extent of Monitoring: consideration must be given to the breadth and depth of the monitoring. A distinction should be made between an employer monitoring the flow of communications (which is permissible) and the employer actually reading the content of personal communications (not permissible).

c. Legitimate Justification: the employer must provide legitimate reasons for monitoring the employee's communications and their content. A greater degree of justification will be required where the employer proposed to actually read or intercept the content of any communications.

d. Alternatives: it is pertinent to ascertain whether a less intrusive method to achieve the monitoring could have been used, in line with general data protection rules that data processing should be adequate, relevant, and not excessive.

e. The Consequence of the Monitoring: The consequence of the monitoring must be clearly explained to the employee, especially where he can be dismissed as a result of the findings of the monitoring.

f. Employee Safeguards: the employer cannot access the actual content of the communications concerned unless the employee has been notified in advance PRIVACY OF ELECTRONIC COMMUNICATIONS 142

of the employer's intent to do so.

Ultimately, in an 11-6 decision, the Grand Chamber of the European Court of Human Rights overturned the earlier decision of the Lower Chamber and held that the Applicant's right to privacy was indeed breached by his employer. The Grand Chamber also berated the Romanian Government for failing to protect the right to privacy of the Applicant when he had approached their judiciary, and granted his claims for monetary reliefs. The Grand Chamber particularly noted that sovereign governments have an obligation to make laws for the enforcement of the provisions of international conventions, and also to actively provide redress for the breaches to the fundamental rights of citizens through their judiciary.

CONCLUSION

The Nigerian Courts have not yet had the opportunity to determine a claim for the breach of an employee's privacy rights. If such a scenario should arise, the National Industrial Court will be the proper forum for the determination of such dispute. There is no doubt that the judges of the National Industrial Court are highly amenable to be persuaded by the decisions of foreign judges, as the recent decisions of that court show a high proclivity towards the application of international best practices by the Nigerian Labour Court with a pro-employee inclination.57 The Nigerian Courts may thus be more inclined to follow the reasoning and decisions of the European Court of Human Rights, especially the recent decision of the Grand Chamber in the case of Bãrbulescu v. Romania, than to follow the position of the American Courts on workplace privacy, especially given that the Nigerian privacy law system bears more similitude to the European system than the American privacy laws. Therefore, employers should endeavour to strictly follow the rule laid down by the European Grand Chamber in Bãrbulescu v. Romania before engaging in employee monitoring activities or stand the risk of being sued for the award of heavy damages for the breach of employee privacy rights.

57. See the cases of Aloysius v Diamond Bank (2015) 58 NWLR (Pt. 199) 92, 134; AkinfemiwaAkinyinka& Anor v More Time CO2 Gas Plant Limited and Ors (Unreported Suit No NIC/377/2008); Aero Contractor Co of Nigeria Ltd v National Association of Aircraft Pilots and Engineers (NAAPE) &Ors (Unreported Suit No: NICN/LA/ 120/2013); Andrew Monye v Ecobank Nigeria Plc (Unreported Suit No NICN/LA/06/2010). ARTICLE 11435 APPRAISING THE LEGAL ISSUES IN CRYPTOCURRENCY TAXATION Tijesuni A. Ijitona LLB 5, Faculty Of Law, Obafemi Awolowo University, Ile-Ife. [email protected] 09033004345

ABSTRACT

In the last decade, financial technology has witnessed the emergence of yet another innovation. Formally introduced in 2009, with the first and most popular cryptocurrency, Bitcoin, this virtual currency is touted as a bonafide alternative to the traditional money system. Cryptocurrency has now become popular as there are currently no less than a thousand different types of cryptocurrencies along with dozens of mediums for storing and transferring cryptocurrencies between virtual wallets globally. In spite of the increasing escalation in cryptocurrency transactions, its reception as well as legal status often varies across jurisdictions. This mainstream popularity and acceptability accorded to cryptocurrency as an alternative to fiat currencies has brought about numerous fiscal and legal implications.

Against this backdrop, this article seeks to appraise the pertinent legal issues arising out of cryptocurrency taxation in Nigeria. To this end, this article shall first clarify what cryptocurrencies are and how they differ from fiat currencies. Afterwards, the legal status of cryptocurrency is considered. Next, the concept of taxation is briefly discussed along with an overview of the basis of taxation in Nigeria. Subsequently, the attitudes of other jurisdiction towards cryptocurrencies taxation is examined. Further, the question of whether or to what extent cryptocurrency taxation may be accommodated under the Nigerian tax law is considered. Finally, recommendations are made and this paper ultimately concludes that the tax regime in Nigeria may not sufficiently accommodate the assessment of cryptocurrency as a tax base in the view of increasing global acceptance of this intangible medium of exchange. Keywords: Cryptocurrency, Virtual Currency, Bitcoin, Digital Wallet

INTRODUCTION

The term “virtual currency” or cryptocurrency refers to a medium of exchange created and stored electronically, using encryption techniques to control the creation of monetary units. Essentially, cryptocurrency is a medium of exchange existing entirely in an intangible form but can be substituted for legal tenders.1 It has been APPRAISING THE LEGAL ISSUES IN CRYPTOCURRENCY TAXATION 144 called one of the “greatest technological breakthroughs since the Internet.”2 Since the creation of the first class of decentralized cryptocurrency in 2009 by a computer programmer using the pseudonym “Satoshi Nakamoto” 3 the concept of wealth creation, banking, commerce and law have been forced to pick up various outlandish forms in order to properly fit into this digital era.

It is important to state that virtual currency or cryptocurrency is completely different from “electronic money”. Article 2 of the Electronic Money Directive defines electronic money as monetary value as represented by a claim on the issuer, which is issued on receipt of funds for the purpose of making payment transactions and which is accepted by persons other than the issuer.4 Although some of these criteria are also met by virtual currencies, there are many significant differences. In electronic money schemes, the link between the electronic money and the traditional money format is preserved, as the stored funds are expressed in the same unit of account (for example Naira or US dollars). In virtual currency schemes, the unit of account is changed into a virtual one (for example, Linden Dollars or Bitcoins).5 This relationship between virtual currencies and legal tenders is largely unregulated by law.

There are typically three ways to obtain virtual currency. One of such is to generate it in a distributed fashion at a predictable rate. Computers called “Cryptocurrency miners” solve complicated algorithms to generate these virtual currency. The mathematics of the system was set up such that it becomes progressively more difficult to “mine”. For instance, the upper limit of Bitcoins cannot exceed 21 million. Secondly, one may purchase it using real money. And lastly, users of virtual communities increase their stock by performing specific activities; for instance, taking part in quests or engaging in in-world trade with other users. 6 In simple terms, cryptocurrency may be transferred from computer to computer via a system of cryptographic hashes and kept secure through public-private key cryptography. Users can store their currency in a “digital wallet”, which takes the form of either software installed on their computer or a web-based account.7

The use of virtual currencies confers a handful of benefits to consumers. One of the main benefits of using cryptocurrency is that of privacy and anonymity in transactions. Unlike other electronic payments, cryptocurrency transactions are not

1. International Research Journal of Engineering and TechnologyVolume: 05 Issue: 01 | Jan-2018 2. Gertrude Chavez-Dreyfuss and Michael Connor, “All the rage a year ago, bitcoin sputters as adoption stalls” Reuters News (December 11, 2014) 3. “Money is no object: Understanding the evolving cryptocurrency market,” PwC, August 2015, www.pwc.com/fsi accessed on 18th Oct 2019 4. EU Electronic Money Directive (2009): Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the Taking Up, Pursuit and Prudential Supervision of the Business of Electronic Money Institutions Amending Directives 2005/60/EC And 2006/48/EC and Repealing Directive 2000/46/EC. 5. European Central Bank (ECB), Virtual Currency Schemes, October 2012 6. Ibid n.4 at sec 2.1. 7. https://medium.com/luno-money/keeping-your-private-keys-safe-d38cda13ecac accessed on 18th Oct 2019 APPRAISING THE LEGAL ISSUES IN CRYPTOCURRENCY TAXATION 01

tied to identities (some think of Bitcoin as a “personal offshore bank”).8 Another potential advantage is the absence of transaction fees associated with a fund transfer, as the transactions take place over a peer-to-peer network.

Notwithstanding these advantages of cryptocurrency, this greatly decentralized currency carries a plethora of fiscal implications. At the forefront of affairs in this regard is the issue of taxation. The taxation of cryptocurrency has been a cause of concern for different governments of the world. While some countries have been proactive in enacting specific laws recognizing and regulating the cryptocurrency market, others are yet to issue industry-specific laws.

The idea of taxing cryptocurrency is not a strange phenomenon, many developed countries of the world have attempted to impose taxes on this decentralized industry. However, the tax treatment of income generated from a cryptocurrency transaction may vary depending on how it is categorized. For example, in Argentina, cryptocurrency transactions are taxed in a manner similar to revenue generated from the sale of securities and bonds, whereas in Switzerland, cryptocurrency is generally categorized as a foreign currency for tax purpose.9

THE LEGAL STATUS OF CRYPTOCURRENCY IN NIGERIA

The Central Bank of Nigeria Act 2007 empowers the Central Bank of Nigeria (CBN) to issue legal tenders in Nigeria. 10 The CBN is empowered with the sole right of issuing currency notes and coins throughout Nigeria and neither the Federal Government nor any State Government or Local Government, other person or authority shall issue currency notes, bank notes or coins or any documents or tokens payable to bearer on demand being document or token which are likely to pass as legal tender.11 The CBN shall also determine the exchange rate of the naira to other fiat currencies in the world12 and arrange for the printing of currency notes and the minting of coins.13 The currency notes and coins issued by the CBN shall be legal tender in Nigeria at their face value for the payment of any amount.14

The CBN Act, the Decimal Currency Act, and other currency laws in Nigeria15 are applicable to all forms of legal tenders in Nigeria. These provisions often contain clauses which on the surface may be construed to apply to digital currencies,

8. Aleksandra Bal“Stateless Virtual Money In The Tax System” 2013 European Taxation p.353 9. Regulation of Cryptocurrency in Selected Jurisdiction June 2018 PDF accessed on 19 Sept 2019 10. The CBN Act, s. 2(b) 11. Ibids. 17; See also the Decimal Currency Act Cap D2 LFN 2004, s. 1(1) 12. Ibid s. 16 13. Ibid s. 18(a) 14. Ibid s. 20; the Decimal Currency Act, s. 4(1) 15. Counterfeit Currency (Special Provisions) Act Cap C35 LFN 2004, Currency Conversion (Freezing Orders) Act Cap C41 LFN 2004, Currency Offences Act Cap C44 LFN 2004, and Coins Act Cap C16 LFN 2004 APPRAISING THE LEGAL ISSUES IN CRYPTOCURRENCY TAXATION 145 however a critical consideration of those provisions would reveal that what is being envisaged are foreign fiat currencies and not “alternative currencies”stricto sensu. An instance is the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act (the Forex Act).16 It has been argued that this Act may apply to cryptocurrency because it defines foreign currency as “any currency, other than Nigerian currency”. This argument is easily rebutted by the fact that at the time the instant law or any other Nigerian currency law were enacted, cryptocurrencies were practically non-existent.

From the foregoing, the reality remains that Nigeria as a country lacks a definitive legislation regulating this knotty medium of exchange.It is logical to state that the current absence of a legal framework regulating cryptocurrency transactions would not only lead to a deficit in the total revenue generated from taxation, allowing this cryptocurrency industry to function without any form of regulation also poses a threat towards public interest as it is now much easier to launder money and evade taxation by simply transacting business using cryptocurrency.

As a corollary of the above discussion, cryptocurrencies are not regarded as a legitimate “currency”in Nigeria. It is a decentralized medium of exchange ie it is not issued by any Central Bank and is strictly in use as a result of the consumer's trust in the global cryptocurrency system.

AN OVERVIEW OF TAXATION

Generally, tax may be defined as a fee charged by a government on a product, income or activity.17 A judicial definition of the term was given in the Australian case of Mathews v Chicory Marketing Board18 as 'a compulsory exaction of money by a public authority for public purpose or raising money for the purpose of government by means of contributions from individual persons'.

GENERAL PRINCIPLES OF AN IDEAL TAX

One framework that is frequently used to define good tax policy was established in 1776 by the economist, Adam Smith who explained in his book19, four maxims of tax policy thus: i. Equality—Taxpayers should contribute towards the support of the government in proportion to the revenue they respectively enjoy under the protection of the government.

16. Cap F34 LFN 2004 17. https://www.investowords.com/4897/tax.html 18. (1938) 60 CLR 263 19. Adam Smith, The Wealth of Nations, (Edwin Cannan, ed.) The Modern Library, 1994, pp 887-890 APPRAISING THE LEGAL ISSUES IN CRYPTOCURRENCY TAXATION 146 ii. Certainty—A person's tax liability should be certain rather than arbitrary. The rules should specify when the tax is to be paid, how it is to be paid, and the amount to be paid. iii. Convenience of payment—A tax should be due at a time or in a manner that is most likely to be convenient for the taxpayer. iv. Economy in collection—The costs to collect a tax should be kept to a minimum. These costs include the administrative cost to the government that is influenced by the number of revenue officers necessary to administer the tax. There are also compliance costs incurred by taxpayers to consider. Mr. Smith also identified opportunity costs of a tax system.

Additional perspectives of good tax policy—an expansion of the tax policy maxims of Adam Smith include the following factors that state and federal legislatures often include as reasons that justify changes to the tax laws.20

lAppropriate government revenues—The tax system should enable the government to determine how much tax revenue will likely be collected and when. In order to determine how much revenue will be collected, the tax system(s) should have some level of predictability. In addition, the system should be capable of raising the necessary government revenue. Finally, the system should allow options for each level of government so as not to confine them to a system that might not make sense based on their mix of industries, resources, and level of competition.

lGlobal harmonization (scalability)—Given the global nature of business today, prior to making changes to a tax system, federal and state governments should consider what the rest of the world is doing. In many instances, it will be important that our tax system be compatible with that of our major trading partners as this will make it easier to enter into mutually beneficial provisions in tax treaties as to collection of tax and reporting of information.

BASIS OF TAXATION IN NIGERIA

It is axiomatic that you cannot build something upon nothing. This statement is a truism of the status of tax. Tax is not imposed in vacuum. It must be targeted at an entity that is capable of being taxed. The Nigerian tax regime is a matter of

20. AICPA Tax Policy Concept ‘Guiding Principles of Good Tax Policy: A Framework for Evaluating Tax Proposals’, Statement No. 1 – March 2001 http://ftp.aicpa.org/public/download/members/div/tax/3-01.pdf accessed on the 19 Sept 2019 APPRAISING THE LEGAL ISSUES IN CRYPTOCURRENCY TAXATION 147 constitutional obligation,21 hence it must be noted that Nigerian tax law is purely statutory, featuring a range of enactments by which the various tiers of government seek to levy and collect revenue within their taxing powers

Under the Nigerian tax regime, Income and Residence are the most fundamental basis of determining tax liabilities. In order to delineate how persons are taxed in Nigeria, recourse must be made to some of the relevant legislations on taxation. The Personal Income Tax Act (PITA)22 provides that income tax shall be payable for each year of assessment upon the aggregate amount of income of every taxable person from a source inside or outside Nigeria.23 Thus, liability to personal income tax in Nigeria is not dependent on domicile or nationality, it is founded on residence. Rules for the determination of residence are enunciated in Schedule to the Act. Corporate bodies are charged to tax under the Company Income Tax Act (CITA).25 While Nigerian companies are taxed on their worldwide income, foreign companies are liable as regards the portion of their profits which is attributable to business operations carried on in Nigeria.25

Furthermore, due to the special position of petroleum resources in our national revenue scheme, companies engaged in petroleum operations are charged to tax under a special legislation, the Petroleum Profit Tax Act (PPTA).26 The effect of this statute could be varied by a Memorandum of Understanding(MoU) between the oil companies and the Federal Government through the Nigerian National Petroleum Corporation (NNPC).27 Any profit charged to petroleum tax is exempted from any other tax.28 Similarly, by virtue of the Value Added Tax (VAT) Act 29 all purchases of chargeable goods and services are expected to pay 5% of the purchase price.30 Finally, pursuant to the provisions of the Capital Gains Tax (CGT) Act31 a 10 percent tax shall be charged on gains accruing to any person from the disposal of assets.

ATTITUDES TOWARDS CRYPTO CURRENCY TAXATION IN OTHER JURISDICTIONS

One of the many questions that arise from allowing investments in and the use of cryptocurrencies is the issue of taxation. In this regard the challenge appears to be

21. Section 24(f), 1999 Constitution imposes a duty on every citizen to declare his income honestly to appropriate and lawful agencies and pay his tax promptly 22. Cap. P8 L.F.N. 2004 23. Ibid, section 3(1). 24. Cap. C21 L.F.N. 2004, Section 8. 25. Offshore Int. S.A. v FBIR, 1 NTC 384 26. Cap. P13 L.F.N. 2004, Section 8. 27. G. Etikerentse, Nigerian Petroleum Law (2nd Ed) 2004, Dredew Publishers,p. 251. 28. Ibid, Section 60. 29. Decree 102 1993, as amended by Value Added Tax (Amendment) Act No. 12 2007. 30. Section 4, as amended by section 3 of the Amendment Act. 31. Cap C1, LFN 2004. APPRAISING THE LEGAL ISSUES IN CRYPTOCURRENCY TAXATION 148

how to categorize cryptocurrencies and the specific activities involving them for purposes of taxation. This matters primarily because whether gains made from mining or selling cryptocurrencies are categorized as income or capital gains invariably determines the applicable tax bracket. 32According to Price water house Coopers(PwC), “Government attitudes around the world toward cryptocurrency are inconsistent when it comes to the classification, treatment, and legality of this technology. Regulations are also evolving at different paces in different regions.” For instance,33 in Israel and Bulgaria, cryptocurrency is taxed as an asset, hence, capital gains tax apply. In Switzerland, it is taxed as a foreign currency. In Argentina and Spain it is subject to income tax. In Denmark it is subject to income tax and losses are deductible. In the United Kingdom, cryptocurrency corporations pay corporate tax while unincorporated cryptocurrency businesses pay income tax, and individual cryptocurrency dealers pay capital gains tax.34

Going further, Canada has undoubtedly been one of the most efficient countries in the area of cryptocurrency taxation. Canada's tax laws and rules also apply to digital currency transactions, including those made with cryptocurrencies, and digital currencies are subject to the Income Tax Act. 35 On the issue of taxation, the Canada Revenue Agency (CRA) stated that: “where digital currency is used to pay for goods or services, the rules for barter transactions apply. A barter transaction occurs when any two persons agree to exchange goods or services and carry out that exchange without using legal currency. For example, paying for movies with digital currency is a barter transaction. The value of the movies purchased using digital currency must be included in the seller's income for tax purposes. The amount to be included would be the value of the movies in Canadian dollars”. 36

On June 19, 2014, the Governor General of Canada gave his assent to Bill C-31 (An Act to Implement Certain Provisions of the Budget Tabled in Parliament on February 11, 2014, and Other Measures), 37 which includes amendments to Canada's Proceeds of Crime (Money Laundering) and Terrorist Financing Act. The new law treats virtual currencies, including Bitcoin, as “money service businesses” for the purposes

32. Regulation of Cryptocurrency Around the WorldJune 2018 PDF Accessed 19 sep 2019 33. PwC, “Money is no object: Understanding the evolving cryptocurrency market”, (PwC, August 2015),https://www.pwc.com/us/en/financial-services/publications/assets/pwc-cryptocurrency-evolution.pdf 34. Regulationof Cryptocurrency Around the Worldhttps://www.loc.gov/law/help/cryptocurrency/world- survey.pdf 35. Digital Currency, FINANCIAL CONSUMER AGENCY OF CANADA, https://www.canada.ca/en/financial- consumeragency/services/payment/digital-currency.html accessed 19 Sep 2019 36. ‘What You Should Know About Digital Currency’ CANADA REVENUE AGENCY, https://www.canada.ca /en/revenueagency/news/newsroom/fact-sheets/fact-sheets-2015/what-you-should-know-about-digital-currency.html accessed 19 Sep 2019 37. Bill C-31, An Act to Implement Certain Provisions of the Budget Tabled in Parliament on February 11, 2014 and Other Measures, Second Session, Forty-first Parliament, 62-63 Elizabeth II, 2013-2014, Statutes of Canada 2014 Ch. 20, http://www.parl.ca/DocumentViewer/en/41-2/bill/C-31/royal-assent acessed 19 Sep 2019 APPRAISING THE LEGAL ISSUES IN CRYPTOCURRENCY TAXATION 149

of the anti-money laundering law. 38 The Act is regarded as the “world's first national law on digital currencies, and certainly the world's first treatment in law of digital currency financial transactions under national anti-money laundering law.39

Finally, taxation of cryptocurrency in the United States is heavily reliant on the provisions of the Internal Revenue Code (IRC) 40, particularly Section 61states that “except as otherwise provided in this subtitle, gross income means all income from whatever source derived”.This provision emphasizes that taxpayers would have a gross income when they receive anything of economic value, whether in the form of cash, property, services or other benefits in kind. In the landmark case Commissioner v. Glenshaw Glass Co. 41 the Supreme Court laid down what has become the modern understanding of taxable income. It declared that income taxes could be levied on “accessions to wealth, clearly realized, and over which the taxpayers have complete dominion”. If these requirements are met, any increase in wealth falls within the taxable income definition pursuant to Section 6142, unless Congress makes a specific exemption.

An accession to wealth means that taxpayers gain access to valuable resources. Cryptocurrency inherently possesses value, and as such they can be exchanged for real money on various internet platforms. Thus, they represent an accession to wealth.

To What Extent Can Cryptocurrency Taxation Be Accommodated Under The Nigerian Tax Regime?

In Egbue v Araka,43 Pats-Acholonu JCA (as he then was)whileexplaining a major challenge with one of the most important legislations in legal practice in Nigeria - the evidence Act, stated thus:

“...It must be clearly understood that our Evidence Act is now more than 50 years old and is completely out of tune with the realities of the present scientific and technological achievements. Most of its sections are archaic and, anachronistic and needs thorough overhaul to meet the needs of our time. But alas it is with us now like an albatross on our neck…”.

38. Tariq Ahmad, Canada: Canada Passes Law Regulating Virtual Currencies as “Money Service Businesses” GLOBAL LEGAL MONITOR (July 9, 2014), http://www.loc.gov/law/foreign-news/article/canada-canada-passes-lawregulating- virtual-currencies-as-money-service-businesses/ accessed 19 Sep 2019 39. Christine Duhaime, Canada Implements World’s First National Bitcoin Law, DUHAIME LAW (June 22, 2014), https://www.duhaimelaw.com/2014/06/22/canada-implements-worlds-first-national-bitcoin-law/ 40. US Internal Revenue Code 41. Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955). 42. US Internal Revenue Code 43. (1996) 2 NWLR (pt 433) 710 APPRAISING THE LEGAL ISSUES IN CRYPTOCURRENCY TAXATION 150

Admittedly, this instant case was in respect of the law regulating the admissibility of evidence in Nigeria, nevertheless, the observation of the learned judge is the reality with most legislations in Nigeria. As a principal feature of Law, flexibility must be reflected within existing legislations by constantly evolving to accommodate new legal and societal developments which are in the interest of public safety and order. This is given judicial support in the case of Esso West Africa Inc. v T. Oyegbola44, where the Supreme Court stated qualitatively that “The law cannot be and is not ignorant of modern business method and must not shut its eyes to the mysteries of the computer...”.

In the light of this, Nigeria must adopt one of the various systems other jurisdictions have employed in the taxation of cryptocurrency. To wit, Nigeria must recognize that cryptocurrency taxation may be the key to expanding the gross revenue generated from taxation in the country. Secondly, Nigeria must also give an express definition on the status of cryptocurrency as either a “currency” or asset.

Notwithstanding the above, given the present tax legislations in Nigeria, regardless of their failure to make specific provisions for cryptocurrency taxation, an attempt can be made to bring within its ambit the taxation of this slippery medium of exchange. This is undertaken on the account of the Capital Gains Tax Act (CGTA45.

Drawing from the prevailing global classification of cryptocurrency as an asset for taxation purposes, the invocation of the Capital Gains Tax Act becomes rather unquestionable. Capital Gains Tax (CGT)connotes the imposition of tax on the gains resulting from the sale or disposal of a capital asset. In consonance with the provisions of Section 2 CGTA,46 capital gains tax is imposed at the rate of ten percent within a year of assessment after making such deductions as may be allowed under this Act in the computation of such gains.47 It should also be noted that given the literal interpretation of the CGTA, cryptocurrency qualifies as a chargeable asset under the provisions of Section 348 CGTA. Section 449 of the CGTA goes further to accommodate assets situated outside Nigeria.

Again, an overt attitude or express definition by the Nigerian government as to the legal status of cryptocurrency as either a currency or an asset would go a long way in laying the grounds for the proper administration of cryptocurrency taxation. For instance, cryptocurrency may be also be brought under the provisions of Section 4 50for the sake of taxation.

44. [1969] INMLR 194 at 198; Yesufu v A.C.B (1976) 4 SC 1 45. Cap C1, LFN 2004. 46. Ibid at S.2(1) 47. Ibid at S. 2(2) 48. Ibid at S.3 49. Ibid at S.4 50. Ibid APPRAISING THE LEGAL ISSUES IN CRYPTOCURRENCY TAXATION 151

Conclusively, an interesting consequence of taxing cryptocurrency is with respect to tax exemptions and reliefs as contained in Sections 26 to 40. It is apposite to state for the purpose of further research on the subject of cryptocurrency taxation in Nigeria that pursuant to Section 33 53 a classification is made of cryptocurrency as an asset. This is such that under the letters of Section 33 CGTA, proceeds resulting from the disposal of cryptocurrency asset which is set to be re-invested would be exempted from capital gains tax, while the gains resulting from a similar disposal of cryptocurrency asset which is not intended for reinvestment would not be exempted from capital gains tax.

CONCLUDING REMARKS

One of the main fears of policy-makers and tax administrators regarding cryptocurrency is the risk of losing tax revenue when trade is redirected from taxable commodities to presumably untaxable activities. These fears are reinforced by the evident increase in level of participation in cryptocurrency trade. Recently in the cryptocurrency market,a transfer of bitcoin worth $ 1,018,147,900 was made between digital wallets (the highest valuation of cryptocurrency transfer ever made in a single transaction). 52 As fascinating as this is, it is relatively impossible to identify the individual or corporation behind this transfer. This should not come as a surprise because the notion of “anonymity in transaction” is one of the major purposes for which cryptocurrency was created. This however poses a threat to the traditional idea of taxation because tax cannot be imposed on a void.These technicalities and peculiarities of cryptocurrency has made the regulation of this uncharted terrain more topical than ever before. On this premise, the Nigerian government must firstly work towards sensitizing the public about the importance of paying taxes. The effect of this would be an increase in the tax compliance level of the citizens; without which other measures would prove ineffectual. Secondly, a legal framework which expressly envisages the intricacies of cryptocurrency for the purpose of taxation must be created. Essentially, this proposed legal framework must clearly define the legal status of cryptocurrency as either a currency or an asset for the purpose of taxation. An implication of this is the removal of any form of vagueness as to what tax laws is applicable to cryptocurrency for the sake of taxation. Thirdly, there is often a direct relationship between cryptocurrencies and fiat currencies i.e fiat currencies are often exchanged for cryptocurrency and vice versa, therefore the government must collaborate with financial institutions in order to create measures for taxing the gains or income accruing from cryptocurrency exchange or transactions. Fourthly, the government may create a government-endorsed or sponsored cryptocurrency exchange facility in conjunction with local financial

51. Ibid at S.33 52. https;//boingboing.net/2019/09/10/someone-made-a-single-bitcoin.html/amp APPRAISING THE LEGAL ISSUES IN CRYPTOCURRENCY TAXATION 152 institutions. In essence, a standardized and incentivized cryptocurrency exchange facility would give the Nigerian tax authorities the advantage of tracking cryptocurrency transactions for tax purposes. This may be efficiently executed through the collaborative efforts of the Federal Inland Revenue Service (FIRS), the National Information Technology Development Agency (NITDA) , the National Electronic Commerce Council and financial institutions in Nigeria. Finally, the Nigerian government may pursue a cryptocurrency tax policy which creates tax incentives for investors to register and report cryptocurrency transactions. To this end, the Nigerian tax laws must be amended to ensure that cryptocurrency transactions receive certain incentives e.g a preferential capital gains tax.

Due to the decentralized and anonymous nature of cryptocurrency transactions, the success rate of addressing the revenue leakages with respect to cryptocurrency is largely dependent on the tax compliance of investors and consumers of cryptocurrency. This is in tandem with the principle which states that tax cannot be imposed on a void. The increasing acceptance and usage of cryptocurrencies is largely a result of its decentralized nature, anonymity in transactions and easy facilitation of transactions. This peculiar nature of cryptocurrency is the reason why the taxability of cryptocurrency is greatly reliant on the willingness of cryptocurrency users to subject themselves to taxation by either registering as cryptocurrency investors or reporting cryptocurrency transactions for the purpose of taxation. Ultimately, as a precursor to the above recommendations, the Nigerian government must channel its resources towards boosting the tax compliance level of its citizens through tax sensitization programmes and incentive-driven tax policies. ARTICLE 11536 ADEDAYO ALIY ADEGBOLA, (AIMBL) ASSOCIATE, INSTITUTE OF MORTGAGE BROKERS AND LENDERS OBAFEMI AWOLOWO UNIVERSITY LL.B 5

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THE SCOPE OF PROSECUTORY POWERS OF THE ATTORNEY- GENERAL AND THE PARAMETER OF PUBLIC INTEREST

ABSTRACT

The Attorney General wields uncurtailed powers in the exercise of his duties, this is especially so in criminal matters. Obviously, the reason for this is to put him completely and effectively in the control of criminal prosecutions in Nigeria, and to accentuate this, the draft men of the constitution carefully employed the use of such words as: institute, undertake, take over, continue and discontinue. Thus, the wide and elasticity of his powers is further stretched beyond imagination with his unfettered sole discretionary powers to determine, subject to no standards, what constitute public interest and interest of justice. Though, the limits to certain powers of the Attorney General is not provided by law, however in the regimes of judicial developments in Nigeria, the courts have laid down some rules, in some cases, to fortify the powers of the Attorney General based on public policy, and in some cases, limited his powers such that he cannot delegate same. This paper seeks to analyse the scope of the prosecutory powers of the Attorney General (in his official capacity and the exercise of his powers in absentia) through exposition of case laws and contemporary practice. Ultimately, an appraisal and analysis of the discretionary powers of the Attorney General on the determination of public interest, interest of justice and abuse of court process. And of course, culminates the paper with recommendations and opinions on what ought to be contemporary practice and the court as a catalyst.

INTRODUCTION

In most common law jurisdictions, the Attorney General is the main legal adviser to the government. In most jurisdictions, Attorney General also have executive responsibility for law enforcement, prosecutions or even responsibility for legal THE SCOPE OF PROSECUTORY POWERS 154

affairs generally. The term was originally used to refer to any person who holds a general power of attorney to represent a principal in all matters.1 In the common law tradition, anyone who represents the state, especially in criminal prosecutions, is such an attorney.2 The Attorney General is a legal adviser to each government department and certain public bodies. The Attorney General is the representative of the public in all legal proceedings for the enforcement of law and the assertion of public rights. This research work is an appraisal and analysis of the prosecutorial powers of the Attorney General in the Nigerian criminal justice system. Since every offence committed by a person is an affront on the state, the Attorney General as the protector of public interest, saddled with the responsibility of setting proceedings in motion against such defaulter of public policy. There are copious provisions that have been made with regards to the powers of the Attorney General under the Nigerian constitution. The Attorney General has immense powers in the legal realm. To be appointed as Attorney General within the Nigerian legal framework, such person must be a qualified legal practitioner with no less than ten years of experience at the bar before.3

Even though the seat of the Attorney General is provided under the constitution of Nigeria, it actually predates the constitution in the sense that the seat of the Attorney General is a creation of the common law of England and not something that is exclusive to the constitution.4 The office of the Attorney General is the only ministerial office specifically established by name, by the constitution. The power of the Attorney General is majorly with regards to the prosecution of public offences in the country. He has the power to institute any proceeding, take over or discontinue proceedings that have been instituted by him or any body duly recognized by law.

STATUTORY POWERS OF THE ATTORNEY GENERAL

Sections 150 and 195 of the constitution of Nigeria, 1999 provide for the appointment of the Attorney General who is the chief law officer of the federation and state respectively. The position of the Attorney General (at both the Federal and state level) is a dual position because he is both the Attorney General and the Minister/Commissioner for justice. Section 174 of the Nigerian constitution provides for the powers of the Attorney General of the Federation and it provides thus: S.174(1) The Attorney General of the Federation shall have power- (a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of

1. Authority! (Electronic Law report) 2. Wikipedia- https://en.wikipedia.org/wiki/Attorney_general#cite_note-1 (accessed on 20th September, 2019) 3. Sections 150 and 195 CFRN, 1999 as amended 4. The powers of the Attorney General in Nigeria- Kingley Adrian, available on anikingsleyugochukwu.wordpress.com (accessed on 18th September, 2019) THE SCOPE OF PROSECUTORY POWERS 155

any offence created by or under any Act of the National Assembly; (b) To take over or continue any such criminal proceedings that may have been instituted by any other authority or person; and (c) To discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person…

The provision of section 211 of the Nigerian constitution provides for the powers of the Attorney General of States, and it is in pari materia with the provision of section 174 of the constitution which provides for the powers of the Attorney General of the Federation. The above provisions of the constitution have been interpreted by the Supreme Court in Comptroller N.P.S. V. Adekanye5 where the court whilst reiterating its earlier position in State V. Ilori 6, held as follows:

``The preeminent and incontestable position of the Attorney General under the common law as the Chief Law Officer of the State, either generally as a legal adviser or specifically in all courts proceedingsto which the state is a party has long been recognized by courts. In regards to those powers and subject only to the ultimate control of public opinion and that of parliament, the Attorney General has at common law been a master unto himself, and under no control whatever, judicial or otherwise vis-a-vis his powers of instituting or discontinuance of criminal proceedings``

To enable the meaning of the provision to be better understood, attention should be drawn to the title of Section 174 CFRN, 1999 appearing at the margin. It is captioned ``public prosecution``. The powers given to the Attorney General relate solely, and are limited to public prosecution, i.e. prosecutions by and in the name of the state, the Federal Republic of Nigeria, as incarnating or personifying the public.7 By sections 174 and 211 of the 1999 constitution, they have the powers to commence and undertake, take over and continue or discontinue any criminal proceedings against or in respect of any offender in their respective jurisdiction. The powers of the Attorney General of the Federation to commence criminal proceedings as well as the other powers stated above are exercisable only in respect of federal offences while the powers of the Attorney General of a state are exercisable, as a general rule, only in respect of state offences. While the Attorney General of a State cannot exercise his power over federal offences8, the Attorney General of the Federation cannot also

5. (2002) 15 NWLR (pt. 790) 318 6. (1932) 2 SC 155 7. www.nigerianlawguru.com, Professor Ben Nwabueze SAN-Matters Arising From The Supreme Court Judgement In The Saraki Case- (accessed 20th September, 2019) 8. A federal offence is an act or omission contrary to the provisions of an Act of the National Assembly THE SCOPE OF PROSECUTORY POWERS 156

exercise his powers over state offences. These positions were rightly established and affirmed in the celebrated case of Anyebe V. State 9. However, where, by the tenure of an Act of the National Assembly it is meant to operate as covering the field, then the State Attorney General shall have powers to commence criminal proceedings in respect thereof. In such a case, the law will be deemed to be state law and the offence, a state offence. This procedural issue was recently restated and affirmed by the Supreme Court in Sadiku V. State 10. The Supreme Court concluded that by the virtue of Section 315 of the 1999 constitution, the Robbery and Firearms Act became an existing law of the state and it is deemed to be an existing law. To that extent, it has the effect, with such necessary modification as may be necessary to bring it into conformity with provisions of the 1999 constitution.

It is indispensably germane and pertinent to elucidate the rationale for vesting the control of public prosecutions in the Attorney General by the constitution. Public prosecution often have sensitive political dimensions and results affecting the relations between the government and its opponents within the country and its international relations, necessitating that the decisions to prosecute or not to prosecute certain cases or persons should be taken at the level of the government, as advised and guided by the Attorney General as the Chief Law Officer of the government and Minister of justice. It would be a fair practice of administration of justice by the Attorney General who is the protector of public interest to, in deciding whether or not to authorize a prosecution, have regard to the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations of public policy. These views according to Shawcross continue to represent the proper theory of criminal prosecution.11 It merits attention to state that the powers of the Attorney General cannot be exercised in the court-martial.

INSTITUTION OF CRIMINAL PROCEEDING

It is instructive to note that to institute a criminal proceeding is to initiate or start it; while to commence a criminal proceeding is to perform the first act or take the first step in the proceeding12. The power of the Attorney General, whether of the Federation or of the state, to institute criminal proceedings against any person, is an absolute but not exclusive one. The court in the determination of the question whether or not the power of the Attorney General to institute criminal proceeding in court is exclusive to him- the court in Lucy Onwudinjo V. The state13 upon the

9. (1986) 1 S.C. 87. 10. (2013) 11 NWLR (pt. 1364) 191 11. J.LI.J Edwards-The Attorney General, Politics and the Public Interest, (London: Carswell Legal Pubns, 1984), P.404 12. Ndi Okereke Onyuike V. The People Of Lagos State (2013) AELR (CA) 13. (2014) AELR 5240 (CA) 14. (1999) 11 NWLR (Pt. 575) 547 @ 558 THE SCOPE OF PROSECUTORY POWERS 157 rendition of Section 174 and 211 of the 1999 constitution held that the power to institute and undertake criminal proceedings in a court of law, is not exclusive to the Attorney General. The court, in reminiscing on the case of Olusemo V. commissioner of Police14 which was decided under Section 160 of the 1979 constitution, which is impari material withe Section 174 of the 1999 constitution, held that the Nigeria Police has the power as ``any other authority`` to undertake criminal prosecution. This was followed by the case of Comptroller, Nigerian Prisons Services, Ikoyi, Lagos & ors V. Dr. Adekanye & ors15 to the effect that the powers donated to the Attorney General to institute and undertake criminal proceedings in a court of law, is not exclusive to him, and that any other authority or person permitted by law can institute and undertake criminal proceedings in a court of law, just like the Attorney General.

On the other hand, the powers of the Attorney General is absolute in the sense that the Attorney General has the discretion as to who to prosecute in respect of what offence. This discretion is not fettered in any way. The discretion to prosecute, who to prosecute and where to commence criminal proceedings against any person is the Attorney General's and his alone. He has no obligation to give reasons for exercising his discretion in a particular way. This position was well enunciated in the Supreme Court decision in Akpa V. State16. The power of the Attorney General to institute criminal proceedings is constitutional and is as provided for in Sections 174(1) CFRN, 1999 (for Federal Attorney General) and Section 211 CFRN, 1999 (for state Attorney General). The powers conferred upon the Attorney General of the Federation under this subsection may be exercised by him or through officers of his department. This position in regard to the Attorney General of the Federation is further fortified by the provision of Section 104 of the Administration of Criminal Justice Act, which provides as follow:

S.104(1) The Attorney General of the Federation may prefer information in any court in respect of an offence created by an Act of the National Assembly.

(2) The Attorney General of the Federation may authorize any other Person to exercise any or all the powers conferred on him under this section.

Ipso facto, it is a non debatable fact that the powers of the Attorney General may be exercised by him in person or by any officer under him.

15. (2002) 15 NWLR 16. (2008) ALL FWLR (Pt. 420) 644 THE SCOPE OF PROSECUTORY POWERS 158

POWER TO TAKE OVER PROCEEDINGS

The power to take over and continue extends to proceedings that had been initiated by any other authority or person is also absolute and subject only to the unquestionable discretion of the Attorney General himself; and to the exclusion of a proceeding before a court martial. The Attorney General's power is exercisable only when the proceeding is yet to terminate17. This power is however, subject to the provisions of Sections 174(3) and 211(3) of the 1999 constitution which provides: that in exercising his power under this section, the Attorney General shall have regard to the public interest, the interest of justice and need not to abuse legal process. The court gave recognition to this proviso In Edet V. State18. Uwais JSC who read the lead judgement held as follows:

``No citizen should be subject of persecution by the state. the courts frown at such action and will not hesitate to deprecate it even if no remedy is provided by law``

Although, in this case the Supreme Court failed to overrule the persecution of the Attorney General. In this regard, the appellant was charged along with three others for the offence of manslaughter. Ten months later, an information was filed at the high court charging the accused persons for murder, without withdrawing the charge before the magistrate court. He was convicted of the offence. His appeal to the Court of Appeal was dismissed. He further appealed to the Supreme Court, contending that the trial which resulted in his conviction was an abuse of process. The Supreme Court nonetheless held that the trial and conviction were in order and the sentence of death was upheld.

One would wonder what more constitutes abuse of process if the Supreme Court could not declare the action of the Attorney General amounted to abuse of court process. It would appear that by the decision of the court in Edet's case, the court has left control of criminal proceedings in the hands of the Attorney General to do as he pleases. By so doing, the Supreme Court further restated the absolute nature of the powers of the Attorney General. it is apt to adopt the opinion that the duties and the powers of the Attorney General are for purpose of public prosecutions and not for persecution. If, as rightly observed by the Supreme Court in the Edet's case, any person, whether he is the Attorney General or any other person involved in criminal proceedings who engages in persecution, it behooves the court to halt him.19

17. Amaefule V. The State (1988) 2 NWLR (Pt. 75) 156 18. (1988) 12 S.C. (Pt. 1) 103 19. J.A. Agaba-Practical Approach To Criminal Litigation in Nigeria-, 3rd ed,(Nigeria: Bloom Legal Temple, 2011), P. 375 THE SCOPE OF PROSECUTORY POWERS 159

POWER TO DISCONTINUE

This is otherwise known as nolle prosequi and the power of the Attorney General in this regard is also absolute. Nolle Prosequi is a Latin expression meaning: ``we shall no longer prosecute`` and it is not subject to judicial review.20 Of all the powers conferred on the Attorney General with respect to public prosecution, the power to discontinue is the most controversial not so much by the words used in the constitution by the draft men as by the interpretations given to the power by the court. Pre-eminent amongst the prerogative powers exercisable by the Attorney General, as the chief legal representative of the government in the area of criminal prosecution, is the entry of nolle prosequi whereby the proceedings are effectively brought to a halt. The exact origin of the plea is unclear, its underlying basis would seem to be fairly evident in that it was natural for the government, in whose name indictments embodying criminal charges were brought, to reserve the right to terminate the criminal proceedings at will. The first recorded instance of resort to this seemingly arbitrary procedure dates back to 1555, and for a considerable period thereafter there was judicial uncertainty as to the as to the precise consequences of a nolle prosequi being entered21. On the basis of the decision of the court in Ilori V. State, it can now be stated incontrovertibly that the effect of a nolle prosequi is neither a bar to a fresh indictment nor a discharge of the original offence. What it does is to postpone sine die22 the prosecution. Should the Attorney General decide at a later date to reopen the original charges, he can reactivate the earlier indictment that was placed on suspension when the nolle prosequi was filed in court's record. Alternatively, fresh proceedings leading to a new indictment can be commenced to which the accused will be precluded from raising a plea of autrefois acquit on the basis of the nolle prosequi. In practical terms, the entry of a nolle prosequi can be confined to two categories of cases: first, to dispose of technically imperfect proceedings instituted by the Attorney General, and secondly, to put a stop to oppressive but technically impeccable proceedings instituted by private prosecutors 23.

The court in State V. Ilori 24 cautioned that: ``It is also pertinent to mention that in the exercise of his power to enter a nolle prosequi the Attorney General has always taken into account the public interest which is wide enough to subsume interest of justice and the need to prevent abuse of judicial process``25.

Aniagolu JSC held:

20. State V. Ilori (1983) 2 S.C. 155 21. Ibid 11- J.LI.J Edward, P.406 22. The act of suspending a trial or a hearing without fixing another date for the next session 23. Ibid' 21 24. Ilori (n 20) 10 25. Nnamani JSC THE SCOPE OF PROSECUTORY POWERS 160

``My learned brother Kayode Eso, JSC, while asserting the Attorney general's absolute discretion in entering a nolle prosequi, has recognized the indivious position of a citizen who falls victim to an unscrupulous Attorney General, and agreed that such a victim is not without remedy although his remedy is not to question or review the exercise of the powers of the Attorney general``

Presently, in Nigerian legal system, the Attorney General remains a law unto himself, and to date, remains the only public officer whose actions, though likely to injure a lot of citizens, is not subject to review as far as his prosecutorial powers are concerned. He is not answerable to any person, nor to the court, unfortunately, not because the constitution places him above the court but because the Supreme Court has held that he is not subject to the court's jurisdiction as far as the exercise of his power of public prosecutions is concerned, but only his appointor and adverse public opinion 26.

The constitution is silent on the mode of exercising the power of nolle prosequi. However, statutes provide for how the power of nolle prosequi is to be exercised.27

THE LIMIT AND EXTENT OF DELEGATION

To start with, it is important to give a copious rendition of Section 174(3) and 211(3) CFRN,1999. It states thus:

``The powers conferred upon the Attorney General under subsection (1) of this section may be exercised by him in person or through officers of his Department``

Sections 104(2) and 106 Administration of Criminal Justice Act (ACJA) have similar provisions. It must be noted however, that the powers under the ACJA permits the Attorney General(AG) to authorize ``any other person`` unlike the constitution which restricts this to``officers of his department``. This delegation may be expressed or implied. In Ibrahim V. State 28 the Supreme Court held that there is no limit to the powers which the Attorney General can delegate to his subordinates. It was further held that where there is a blanket (express) delegation as in this case, a donee of the Attorney General's power stepped into the shoes of the Attorney General and thus, could prefer an information in his own name without express reference to the Attorney General as the ultimate authority.

26. Ibid- 20 27. Section 73(1) CPA & Section 107(1) ACJA, 2015 28. (1986) 1 NWLR (Pt. 18) 650 THE SCOPE OF PROSECUTORY POWERS 161

A very controversial question of law is whether the powers of the Attorney General can be exercised or deemed delegated in the absence of an Attorney General? This controversial question of law has been decided erratically by the Supreme Court in the cases of A.G. Kaduna State V. Mallam Umaru Hassan 29, FRN V. Adewunmi 30 and Saraki V. FRN 31. The Saraki's case which is most relevant will be used as case study because it is most contemporary and one in which the controversy was meticulously dealt with by the Supreme Court.

In Saraki V. FRN 32, the Supreme Court in dismissing the defendant's argument that the non-existence of an Attorney General of the Federation serves as a bar to the competence of the prosecution; and that the prosecution is precluded from instituting a criminal proceeding against the accused, distinguished the concept and value of initiating criminal proceedings and nolle prosequi. The court while alluding to the provisions of Section 11(2) of the Interpretation Act 33 and sections 2 and 4 of the Law Officers Act 2004. Section 11 of the Interpretation Act provides that:

“A reference in any enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as in respect to the functions of the office generally, or the functions in regard to which he is appointed as the case may.”

Sections 2 and 4 of the Law Officers Act, 2004 also provide thus: S.2- The office of the AG, solicitor general and state counsel are hereby created. S.4- The Solicitor General of the Federation in the absence of the Attorney General of the Federation may perform any of the duties and shall have same powers as are imposed by law on the AGF

The court while towing it previous decision in FRN V. Adewunmi 34 opined and held that the decision in A.G. Kaduna V. Hassan which the defendant relied on is not on all-fours with the instant case, because the institution of proceeding cannot be viewed on the same pedestal with nolle prosequi.

It appears however, that the Supreme Court while arriving at this decision failed to allude to the fact that the provision of Section 2 of the Law Officers Act had been declared null and void and of no legal effect, on the authority of A.G. of Abia State V.

29. (1985) 2 NWLR (Pt. 8) 30. (2007) 10 NWLR Pt 1042 31. (2016) 3 NWLR (Pt. 1500) 32. supra 33. CAP. 17 LFN, 2004 34. (2007) 10 NWLR Pt 1042 THE SCOPE OF PROSECUTORY POWERS 162

A.G.F 35. The court declared it null and void on the basis that it is inconsistent with the Section 150 CFRN, 1999. Also, the power given to the Solicitor General by Section 4 of the Act is also null and void, being dependent on the existence of the office of the AGF as an office created by the Act.36 Despite the controversy surrounding the Supreme Court's position however, the position appears fortified by preponderance of decisions tilting towards that direction, especially the reasoning of the court in A.G.F. V. ANPP & 2 ors 37, the Supreme Court reiterated the all important office of the AG. In that case, the court stated that

``An office created by the constitution though occupied at any given time by a natural person, as a constitutional office, is a corporation sole…it can safely be said to be a public authority…this office of the AGF is distinct and different from the person occupying it. And so, while the office is in perpetuity, unless abrogated by the constitution, the holder of the office could leave the office at the expiration of his tenure or upon removal as the case may be… It must be borne in mind that the office of the Attorney General remains functional, whether or not it is occupied by anyone…``

Thus, the powers conferred on the AGF and of states are exercisable by their subordinate counsel and this is possible even where there is no incumbent AG. The only limitation in respect of criminal proceedings is that relating to the exercise of the power of nolle prosequi which, for all intents and purposes, is a good check on the excesses of many a state counsel.

The point has been conclusively made that the powers conferred on the Attorney General may be delegated either expressly or impliedly. It must be remembered however, that the power of nolle prosequi cannot be exercised by implication, this is because the power of nolle prosequi has statutory provisions for the manner of its exercise38. Thus, the power of nolle prosequi is not delegable by implication 39.

Stemming from the foregoing, it is my humble opinion that a literal interpretation of subsection of Sections 174 and 211 would literally mean that all the powers of the Attorney General cannot be delegated where the office is vacant, the interpretation of the court on the issue of instituting proceeding is merely hinged on filling the lacuna in the constitution. I take succour in the words of Doherty-

“…the decision of the court is an incorrect interpretation of the

35. (2001) 11 NWLR (Pt. 725) 36. Ibid- 7 37. (2003) 18 NWLR (Pt. 851) 182 38. Section 73(1) Criminal Procedure Act 39. Ibid THE SCOPE OF PROSECUTORY POWERS 163

Constitution. It can only be justified on policy ground, that is, To avoid abating prosecutions when then there is no Attorney General in office.” 40

THE PARAMETER OF PUBLIC INTEREST IN THE EXERCISE OF THE ATTORNEY GENERAL'S POWER

“In Sections 174(3) and 211(3), the constitution provides that: ``In exercising his powers under this section, the Attorney General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process”.

In subsequent paragraphs, this provision shall be critically analyzed. First, it is important to appraise the effect of “…shall have regard”. The words “shall have regards to” are certainly not equivocal, they are plain and unambiguous. They are words which are merely declaratory of what the Attorney General takes into consideration in the exercise of his powers. This was the dictum of Earl Caims L.C. in Julius V. Lord Bishop of Oxford 41 where the Lord Chancellor interpreted similar expression as “directory, permissory and enabling”. such words are merely potential and never in themselves significant of any obligation. Professor Ben Nwabuaze SAN opined that 'the command to the Attorney General to have regard to these factors is merely directory, not mandatory 42, yields the startling proposition that it is perfectly constitutional for the Attorney General to disregard “the public interest, the interest of justice and the need to prevent abuse of legal process” in the exercise of his prosecutory powers. It is indisputably pertinent to define the key terms in the above provision of law.

Public interest: It includes any object of human desire which members of the public are concerned and which deserves protection by public functionaries43.

Interest of justice: Interest of Justice in the context of this work means fair and proper administration of law. This interest, requires that in the discharge of his duties, Attorney General shall not do anything based on his whimsical desire but the interest of getting justice 44.

Abuse of court process: The term is used to refer to the improper use of the judicial

40 Doherty Oluwatoyin- Criminal Procedure: A Study Guide, (Nigeria: Blackstone publisher,2001) 41. (1880) 5 AC 214,; at p.222 42. http://www.academia.edu, Professor Ben Nwabueze SAN-Nigeria's Presidential Constitution 1979-83- The International Journal of Humanities & Social Studies (accessed September 18, 2019) 43. Blacks law Dictionar, Ninth Edition p. 1350 44. Computroller General of Prison v. Adekanky(1999) 5 F.W.L.R. Part 602 p. 167 THE SCOPE OF PROSECUTORY POWERS 164 process by a party in litigation to interfere with the due administration of justice. It is an improper use of judicial process for whimsical purpose and for the purpose of preventing efficient and effective administration of justice to the annoyance, irritation and detriment of an opponent. This may arise for example, where an Attorney General files a frivolous charge against a particular person or where he files multiple actions based on the same subject matter against the same accused person. 45

Upon shedding stage light and demystifying the key terms in the provision of public interest in the exercise of the powers of Attorney General, this paper will be lacking in substance without a peep into the justiciability of the caveat of public interest in the powers of the Attorney General. Succinctly, in Ilori V. State, the Supreme Court held that the considerations of public interest, interest of justice and abuse of legal process are subjective and are taken into account by the Attorney General in accordance with his own judgement and that the court of law could not reject a plea of nolle prosequi on the ground that these interests were not taken into account. The court further held that these interests were not taken into account and that the requirements were non- justiciable. The court concluded that the powers vested in the Attorney General in this regard are absolute and unfettered and so, cannot be challenged in court. Also, in Halilu Akilu V. Fawehinmi 46 the court held that:

“...As the abuse of power by the minister of state, if any, is the responsibility of the political power that appointed him, it is to that extent, not justiciable as the court does not question the exercise of the powers of the Attorney General.”

The power of the AG to start and stop prosecution dates from the days when it was thought to be quite right for the king to react to his political critics by prosecuting them, and in such matters, the AG was the right arm of the government 47. The Supreme Court, per Kayode Eso reiterated that:

“The only sanction against an Attorney General who misuses his powers is the reaction of his appointor who may remove him from office or resign him”

From the above position of the Supreme Court, one can see that even where it is crystal clear that the AG has taken a detour from the caveat of 'interests', the court will be blind toward such treachery. The AG might well consider it his duty to manipulate the law so as to further the philosophy in which he believed or at least decline to

45. Attorney General of Anambra State v. Uba (2005) ALL. F.W.LR. Part 277 p. 909at 913 46. (1989) 1 SCNLR 94 47. http://www.kubanni.abu.edu.ng , Gambo Abdulsalam-A critique of The Powers of The Attorney General In The Administration of Criminal Justice in Nigeria-- THE SCOPE OF PROSECUTORY POWERS 165 enforce it in a way that would be thought inappropriate by his political colleagues. The political manipulation appears to be well founded in the Nigerian governance and administration of criminal justice. Reference can be made to a number of arbitrary and disgraceful use of powers of Attorney General witnessed in the history of Nigeria's democratic development. Burkar Bawala wrote that during the turbulent days of the civilian Administration of the 2nd Republic in Nigeria, several disgraceful uses of the powers of the Attorney General were recorded. He cited the example of a case in where the governor himself, a lawyer, then appointed himself Attorney General and entered nolle Prosequi in respect of a case pending before a magistrate Court against his political supporters 48. Another incident happened in Imo State, which borders on alleged embezzlement of substantial public funds. The Attorney General had appeared for the accused while still at the private bar before his appointment as Attorney General. When he was so appointed as Attorney General, he used the opportunity to give his erstwhile client freedom. The story of disgraceful abuse of powers of Attorney General in Nigeria is not restricted to the misuse of the powers recorded in the 2nd republic. In the current fourth republic, one case which demonstrated the extent to which the powers of the Attorney General may be employed for the satisfaction of whimsical purpose is the case of Senator Goje's case with the EFCC. A senator who was standing trial of alleged embezzlement of a whooping sum of twenty five billion Naira 49. Upon a compromise to step down from the race of the the office of the Senate President, he was recompensed with a nolle prosequi.

In Nigeria, the powers of the Attorney General have been employed as a leverage to sacrifice public interest and interest of justice on the altar of politics. This is surely owing to the fact that the office of the Attorney is in the arena of political interplay. The appointment of the Attorney General is much more on the basis of political affiliation, than merit. This is not to say that the occupiers of the office of the Attorney General have not proved to be persons of merit, but it appears that their powers are wielded for the political satisfaction of their appointors.

It is an objective truth that the caveats of public interest and interest of justice has been complied with more, in its breach. It is my humble opinion that for an adequate parameter of public interest and compliance, the office of the AG should be separated from the office of the Minister for Justice, so as to make the powers of the Attorney General independent and free from influence and exploits of political influence. Also, there is a need for judicial review on the non -justiciability of the powers of the Attorney General. The provision of section 6 CFRN, 1999 provides for the powers and functions of the court. Most pertinent Section 6(6)(c) preclude the judicial

48. The Legal Topic, Midland Press Limited, Jos, 2nd ed 49. http://www.Saharareporter.com July 18, 2019. (accessed September 20, 2019) 50. Ibid- 11 THE SCOPE OF PROSECUTORY POWERS 166

powers as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objective and Directive Principles of State Policy set out in Chapter II of the constitution. This is the only clog provided by law, on the exercise of judicial powers. The exercise of the powers of the Attorney General is not in anyway mentioned or implied. Thus, the court needs to break from the shackle of long inherited western jurisprudence, so as to play a role in the protection of public interest and interest of justice in public prosecution. As a matter of fact, what constitutes public interest and interest of justice is a concept of objectivity, thus the parameter of public interest should not be hinged on the sole perception of a person. The power of the Attorney General's relationship with the public can be said to be a fiduciary one which should be subjected to judicial review to address excesses. In fact, it can be argued further that the power of the court to check the exercise of powers of the Attorney General will be consistent with the trite principle of separation of powers between the Executive and the Judiciary and the principle of checks and balances.

CONCLUSION

It merits attention that the use of the criminal process by the government of the day to attack its political opponents and to protect its political friends is not restricted to Nigeria. The power of the Attorney General to start and stop prosecutions dates from the days when it was thought to be quite right for the king to react to his political critics by prosecuting them for “political offences”, such as seditions, blasphemous libel, among others. Stemming from the above, it has been explicitly espoused that the powers of the AG are very wide and expansive. It is hoped that in spite of the elasticity of these provisions, Attorney Generals will act fairly in all matters in which they exercise their absolute powers. As J.LI.J Edwards has rightly said:

“I am convinced that, no matter how entrenched constitutional safeguards may be, in the final analysis, it is the strength of character, personal integrity and representation of the public interest, on the part of the holders of the office of Attorney General which is of supreme importance.” 50 167

OBAFEMI AWOLOWO UNIVERSITY, ILE-IFE (2016/2017); Nigerian Law School, Abuja Campus (2018/2019). LEVI A. CHIEFUNA LL.B [email protected] +247036257434

DATA PROTECTION IN NIGERIA UNDER THE NITDA DATA PROTECTION* REGULATION 2019

ABSTRACT

This article seeks to highlight the key features of the NITDA DATA PROTECTION REGULATION(NDPR) 2019 as the flagship law for data protection in Nigeria. As a background, it will discuss the regulatory powers of NITDA and the global issues of data violation and efforts so far to preserve the right to privacy through data protection. It will conclude by stating that the efforts of NITDA in this regard is commendable but that aggressive enforcement is required if the desired objectives of the law will be achieved.

DATA AND THE GLOBAL PHENOMENON OF DATA VIOLATION AND PROTECTION

Data in lay man terms can be referred to as a unit or units of information in whatever form. The NDPR 2019 1 defines “Data” as characters, symbols and binary on which operations are performed by a computer which may be stored or transmitted in the form of electronic signals stored in any format or any device. Data science and machine learning is revolutionising the way we live, think and innovate. Data analytics is at the core of the Internet of Things, Artificial Intelligence and Machine Learning, all of which constitute the dominant direction in digital technology. According to a research from Data61 in 2016, the world creates an additional 2.5 quintillion bytes of data each year, and 90 per cent of all data in existence at the time was created in the two years prior to the study.2

Thus, data has become a useful or dangerous tool depending on whose hands it falls into. Also, the thirst for data mining has become a major drive of the top corporations in the world considering the competitive advantage that data analysis ensures.3 The global sense of privacy was assaulted in a very massive proportion in the wake of

*Levi A. Chiefuna, LL.B (HONS) Ife; An applicant to the Nigerian Bar Association; studied at the Nigerian Law School, Abuja Campus; [email protected]; +234 7036257434. 1. NDPR 2019, s1.3 2. James Cook University Blog, ‘The Rise of Data Science (and the Trends to Watch)’ accessed on 15 February 2019 3. Ibid. DATA PROTECTION IN NIGERIA 168

the 2016 American presidential election and the combined role of Facebook and Cambridge Analytica. It was alleged that by the lax data security, and by inadvertent collusion of Facebook, Cambridge Analytica was able to harvest the data of up to 87 million Facebook users and using predictive analytics was able to categorise, target, and influence such voters and thus swinging the U.S presidential election.4

According to a Risked Based Security Report, a security analytics firm, the highest breaches and violations of data occurred in 2017 with the number of exposed records pegged at 7.9 billion with a total number of 13 breaches exposing over 100 million records.5

This has necessitated a renewed concern about the right to privacy and a heightened consciousness about data protection. Also, this has led countries of the world to enact rules governing the collection, storage, use and processing of data. A very prominent effort is the European Union's (EU) General Data Protection Regulation (GDPR) applicable throughout the EU community without the need for further national legislation. This regulation which came into effect in 25 May 2018 harmonised the 28 different sets of data protection laws across the EU. According to Alan Calder, the EU GDPR heralds the most significant change to data protection law in recent years both in the EU and globally.6

The National Information Technology Development Agency Act (NITDA) 2007 and the Nigerian Data Protection Regulation (NDPR) 2019 are Nigeria's response to the need to regulate data use in Nigeria in lockstep with global best practices.

The Regulatory Powers of the National Information Technology Development Agency (NITDA)

NITDA was established by the NATIONAL INFORMATION TECHNOLOGY DEVELOPMENT AGENCY ACT 20077 as the dedicated agency to midwife Nigeria's transition into a digitally conscious and literate country; it is both the supervisor of the use of Information and Communication Technology (ICT) in Nigeria, policy formulator in that field and the enabler and promoter of the adoption of ICT in Nigeria.8

4. James Sanders & Dan Patterson, ‘Facebook data privacy scandal: A cheat sheet’ TechRepublic (California, 2018) accessed 15 February 2019. 5. Brandon Vigliarolo, ‘The Year 2018 was the Second Most Active Year on Record for Data Breaches, Report Says’ TechRepublic (California, 2019) < https://www.techrepublic.com/article/the-year-2018-waas-the-second-most-active- year-on-record-for-data-breaches-report-says/> accessed on 16 February 2019 6. Alan Calder, ‘EU General Data Protection Regulation: A Compliance Guide’ (IT Governance Ltd, 2016) 2 7. NITDA ACT 2007, s1(1) 8. See Explanatory Memorandum of NITDA Act 2007 which states NITDA’s role as follows: This Act established the National Information Technology Development Agency to plan, develop and promote the use of DATA PROTECTION IN NIGERIA 169

Specifically, NITDA Act 2007, s6(c) provides that the Agency's functions shall include to:

Develop guidelines for electronic governance and monitor the use of electronic data interchange and other forms of electronic communication transactions as an alternative to paper-based methods in government, commerce, education, the private and public sectors, labour, and other fields, where the use of electronic communication may improve the exchange of data and information.9

Thus, in the exercise of this mandate NITDA issued the Nigerian Data Protection Regulation (NDPR) 2019 on the 25 January, 2019 with the following stated objectives: a) to safeguard the rights of natural persons to data privacy; b) to foster safe conduct of transactions involving the exchange of personal data; c) to prevent manipulation of personal data and d) to ensure that Nigerian businesses remain competitive in international trade; through the safeguards afforded by a just and equitable legal regulatory framework on data protection and which regulatory framework is in tune with global best practices.10

HIGHLIGHTS OF THE 2019 NDPR

The attitude of the NDPR 2019 to data protection is underlined by the fact that it considers information systems as Critical Infrastructure which must be safeguarded, regulated and protected against atrocious violation. This is in line with global trends to treat all ICT infrastructure as critical and sensitive infrastructure a breach of which will amount to an erosion of sovereignty and a threat of a national proportion. 11 Also, the focus of the regulation is on the handling of personal data and the obligations of the various actors in the data handling value chain.

The definition section defines 'Personal data' in reference to an 'Identifiable Natural Person'. According to section 1.3(q) “personal data” means:

Any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to

Information technology in Nigeria. 9. See also NITDA ACT 2007, s6(a) that also empowers the Agency to make regulations for Information Technology practices and other incidental matters thereto. 10. NDPR 2019, s1.0 DATA PROTECTION IN NIGERIA 170

an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; It can be anything from a name, address, a photo, an email address, bank details, posts on social networking websites, medical information, and other unique identifier such as but not limited to MAC address, IP address, IMEI number, IMSI number, SIM and others.

Some of the key provisions are discussed below:

1. GOVERNING PRINCIPLES OF DATA PROCESSING

S.2.1 of the regulation provides for the core rules governing data processing by a Data Administrator 12 or a Data Controller. 13 First, it allows the collection and processing of data only if it is consented14 to by a data subject and it is for a specific, legitimate and lawful purpose. This means that one should not be hoodwinked into giving out their personal data, in other words, the giving out of data should be an informed decision.

Second, it stipulates that it should be stored only for a period within which it is reasonably needed and should be secured15 against all kinds of foreseeable data breaches and cyber attacks.

Third, a duty of care is presumed against the data administrators and data controllers in respect of any personal data in their possession making them accountable for any acts or omission in respect of such personal data. The purport of this is that an action in Negligence can be brought against a data administrator or a data controller for any damage resulting to a data subject from a data breach. Also, if any such wrongful use is criminal, the data administrator or data controller will be culpable.16

2. DISPLAY OF PRIVACY POLICY

A privacy policy, as used in digital platforms and media, is a document that tells readers how a technology or other product or service will use their personal

11. UNCTAD, ’World Investment Report 2017: Investment and the Digital Economy’ (United Nations Publication, 2017) 104 12. According to NDPR 2019, s1.3(f) ‘Data Administrator’ means a persons or organization that processes data. 13. According to NDPR 2019, s1.3(g) ‘Data Controller’ means a person who either alone, jointly with other persons or in common with other persons or as a statutory body determines the purposes for and the manner in which personal data is processed or is to be processed. 14. According to NDPR 2019, s1.3(c) ‘Consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her. NDPR 2019 S2.3 outlines how such consent can be procured. 15. NDPR 2019, s2.6 makes a more specific provision for the obligation for data security. DATA PROTECTION IN NIGERIA 171 information. It is now a steady fixture in most internet platforms like websites, APPs, Social Media platforms, etc. It is of utmost necessity since almost all these platforms gather and use personal data from users in various ways. NDPR 2019 s.2.5 makes it mandatory for any data collecting medium to display conspicuously the data collection policy. Also, the contents of such privacy policy is now a matter of law and must all be reflected as specified in s.2.5.

3. PUBLICATION OF DATA PROTECTION POLICIES

As part of the implementation mechanism, and in addition to the privacy policy above, a data protection policy is required too. Whilst privacy policy guarantees that the right to privacy will not be violated by the data handler, the data protection policy informs a user of how such personal data will be protected while it remains in the custody of the data controller or data administrator.

NDPR s.3.1 provides that all public and private organizations in Nigeria that control data of natural persons shall within 3 months after the date of the issuance of the Regulation make available to the general public their respective data protection Policies; which Policies shall be in conformity with the NDPR 2019.

4. DESIGNATION OF A DATA PROTECTION OFFICER (DPO)

NDPR 2019 s.3.1.2 provides that every Data Controller shall designate a DPO for the purpose of ensuring adherence to this Regulation, relevant data privacy instruments and data protection directives of the data controller; provided that A data controller may outsource data protection to a verifiably competent firm or person.

This provision is akin to the use of compliance officers in corporate governance and will greatly enhance the compliance with the positive obligations replete in the regulation. Also, to ensure that it is competent hands that handle this, the regulation provides for the capacity building of such DPOs.17

5. LICENSING AND REGISTRATION OF DATA PROTECTION COMPLIANCE ORGANISATIONS

NDPR 2019 s.3.1.4 empowers NITDA to register and license Data Protection Compliance Organisations (DPCOs) which shall on behalf of the Agency monitor, audit, conduct training and data protection compliance consulting to all Data Controllers under this Regulation. The DPCOs shall be subject to Regulations and Directives of NITDA issued from time to time. This provision in addition to the

16. Such prosecutions may be brought under the Cybercrimes (prohibition, prevention, etc.) Act, 2015. DATA PROTECTION IN NIGERIA 172

DPOs create another professional group to aid the drive in data governance by the agency. Also, the fact that registration and licensing is required for this ensures that charlatans do not parade themselves as DPCOs. As at 2ND August, 2019, 11 entities have been licensed as DPCOs, amongst them are prominent firms like Ernst & Young, Andersen Tax LLP, KPMG and Taxaide Technologies LimiteD.18 The availability of a number of firms in this nouveau area gives a lot of impetus to the implementation drive of the NDPR.

According to Olufemi Daniel, the Desk Officer for the NDPR at NITDA, the DPCOs were required to develop and document a data protection strategy and policy, which shows the overarching direction for data protection for clients. He also said that the DPCOs are to review existing contracts in line with the NDPR, design data request forms and take inventory of data processing activities, among others.19

6. AUDITING OF PRIVACY AND DATA PROTECTION PRACTICES

NDPR 2019 s.3.1.5, s3.1.6 and s.3.1.6 provides for the auditing of the privacy and data protection practices of an organisation. The first auditing is demanded 6 months after the commencement of the regulation and periodic auditing is demanded every 6 months or 1 year depending on the quantum of data subjects the organisation handles. NITDA had however conceded to the unanimous appeals by stakeholders and added a grace period for the compliance with the initial submission of audit report by shifting the date to 25th October, 2019.20

Also, the particulars of such audit is as listed under NDPR 2019 s.3.1.5 to include: a) the personally identifiable information the organization collects on employees of the organization and members of the public; b) any purpose for which the personally identifiable information is collected; c) any notice given to individuals regarding the collection and use of personal information relating to that individual; d) any access given to individuals to review, amend, correct, supplement, or delete personal information relating to that individual; e) whether or not consent is obtained from an individual before personally identifiable information is collected, used, transferred, or disclosed and any method used to obtain consent; f) the policies and practices of the organization for the security of personally identifiable information; g) the policies and practices of the organization for the proper use of personally

17. See NDPR 2019, s3.1.3. 18. Published by NITDA at Accessed on 18th October 2019. 19. See Taxaide’sTBook, Accessed on 18th October 2019. DATA PROTECTION IN NIGERIA 173

identifiable information; h) organization policies and procedures for privacy and data protection; i) the policies and procedures of the organization for monitoring and reporting violations of privacy and data protection policies; and j) the policies and procedures of the organization for assessing the impact of technologies on the stated privacy and security policies.

7. TRANSFER OF DATA TO A FOREIGN COUNTRY

An integral part of data privacy and protection is the need to domicile the data of citizens within the country. Personal data is so important that allowing this data to be kept outside the geographical jurisdiction of any state is mostly considered a major security concern and even as a compromise in developed nations. This is especially so if such Personal Data constitutes Sensitive Personal Data.21 Thus, the domiciliation of a data within data centres within a country is the practice which is always enforced as a matter of law.22

The NDPR 2019 does not provide for data residency within the country. However, given that the ICT infrastructure of the country is still at its developmental stage, it will appear that is an expedient position. Moreover, firms like Main One have shown a strong desire to ensure that standard, reliable and secure data centres are built in the country, this means that in due time such demand may be made by our laws simpliciter.23

The irony however is that most of the firms offering such premium ICT services like a data centre in the country are foreign firms subservient to foreign control which may defeat any insistence of personal data being resident in the country.

Thus, the NDPR s.2.11 & s.2.12 only makes provisions recognising and permitting the transfer of data and regulating the conditions under which such transfer is permissible and giving the Attorney-General the mandate of supervising such transfer and of ascertaining that the country of destination has adequate laws that safeguards data and that they are international data protection regime compliant. The second section makes provision for those necessary circumstances where with or without the consent of the data owner, transfer of data to a foreign country is permissible.

20. See https://www.von.gov.ng/agency-extends-filing-of-initial-audit/ Accessed on 18th October 2019. 21. “Sensitive Personal Data” means Data relating to religious or other beliefs, sexual tendencies, health, race, ethnicity, political views, trades union membership, criminal records or any other sensitive personal information. See NDPR 2019, s 1.3 22. See for instance Art.37 of China’s Cybersecurity Law, 2018. 23. NITDA in the Implementation Mechanism has directed that Data should be domiciled locally. Although stakeholders have argued that the cost of domiciling data in the country is very high compared to the patronage of established players like DATA PROTECTION IN NIGERIA 174

8. OFFENCES AND CRIMINAL SANCTIONS

A. Breach of the Right to Privacy of a Data Subject NDPR 2019 s.2.10 provides, in this regard, as follows: Any person subject to this Regulation who is found to be in breach of the data privacy rights of any Data Subject shall be liable, in addition to any other criminal liability, to the following: a) in the case of a Data Controller dealing with more than 10,000 Data Subjects, payment of the fine of 2% of Annual Gross Revenue of the preceding year or payment of the sum of 10 million naira whichever is greater;

b) in the case of a Data Controller dealing with less than 10,000 Data Subjects, payment of the fine of 1% of the Annual Gross Revenue of the preceding year or payment of the sum of 2 million naira whichever is greater.

This is no doubt a welcome deterrent in respect of the scavenging activities of data mining companies. The tiered nature of this sanction is also commendable. However, whilst this sanction may be commensurate with companies who may be guilty of incidental data breaches, it may not be deterring enough to companies whose only or major operation is data harvesting and marketing.

Another point to note is that the penalty here is in addition to any other criminal liability. Thus, if there is a liability imposed by any other sector specific statute, the penalty will be imposed without prejudice to the criminal liability imposed by that other statute. A case in point is the criminal liability imposed by the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.

Granted that the NDPR stipulates punishment for a breach of data privacy rights whih is its core mandate, the failure to create specific sanctions or a general punishment section for failure by any stakeholder to comply with any provisions of the regulation leaves a little leeway to escape the consequences of non-compliance. One of such provisions are the provisions relating to the appointment of DPOs and the submission of audit reports by Data Controllers discussed above. What happens when there is non-compliance? Can NITDA insist on any kind of administrative sanctions given the absence of one in the NDPR?

Apart from the above highlighted provisions, the NDPR 2019 makes other relevant provisions like the transfer of data to a foreign country,24 the right of a data subject to

Microsoft. See Taxaide’sTBook, accessed on 18th October 2019 DATA PROTECTION IN NIGERIA 175 data portability,25 the right of a data subject to redress under NITDA's administrative framework,26 etcetera.

CONCLUSION

NITDA has shown from the myriad of regulations27 it has enacted and from her other activities,28 that she is alive to her regulatory mandate. This is more than can be said of other regulatory authorities in Nigeria. Given how strategic her mandate is, this is really a plus for Nigeria because the fast-pace digital technology system will easily overwhelm an indolent Agency and Nigeria will be the loser. Thus, it is hereby charged that NITDA should ensure that enough publicity is given to this commendable regulation. Also, the enforcement should be made very aggressive as Nigeria has the unenviable fortune of always having laws that merely gathers dust. In this regard, there should be a profiling of companies and organisation who fall into the category of data controllers and data administrators to ensure a targeted enforcement drive. Collaboration with other agencies is important. For instance, the appointment of a DPO should be made a precondition for the incorporation of any data handling company and the support of the Corporate Affairs Commission (CAC) should be enlisted to enforce this. Also, any company to be incorporated as a DPCO, a proficiency threshold should be set by NITDA and CAC directed to insist on this before registration. This will ensure that international players trust our system and that we will, as other countries, reap the full benefit of the digital economy and the fourth industrial revolution.

24. NDPR 2019, s2.11 25. NDPR 2019, s2.13.14 26. NDPR 2019, s3.2 27. Examples include Framework and Guidelines for Public Internet Access (PIA) 2019; Framework and Guidelines for the Use of Social Media Platforms in Public Institutions; Guidelines for Clearance of IT Projects by Ministries, Departments and Agencies; etc. 28. Facilitates the participation and the sampling of the ICT products of Nigerians in international fora like International 176

EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE TO THE RULE OF LAW IN NIGERIA

INTRODUCTION

Any court of law or tribunal in Nigeria will not hesitate to take judicial notice of the notorious fact that the rule of law has for a long time been under persistent siege in the country. Successive governments in Nigeria have, through the power of incumbency, continued to show utter disregard for the rule of law. This wanton disregard has, inter alia, manifested itself in the outright disobedience of court orders, unprecedented corruption in the polity, reckless abuse of the impeachment procedure and massive and shameless rigging of elections at the federal, state and local government levels. In addition, there have been other assaults by the government against the rule of law. All these and more are examined seriatim hereunder:

1. DISOBEDIENCE TO COURT ORDERS

Disobedience to court orders by the government both at the national and state levels is fast becoming a common feature in Nigeria. This was particularly so during the military regimes. In this connection, a commentator has observed:

“The height of executive lawlessness is the disobedience to court orders which has become such a common feature that the very essence of law in society has been put in doubt.” 1

No doubt, the sanctity of the law depends on the respect for the judicial process through which orders according to the law are made. Disobedience to court orders is definitely an act of rebellion against law and a society which continues to tolerate or condone such a conduct negates the very essence of the rule of law. 2

Furthermore, a learned writer has rightly commented as follows:

"The litmus test for the existence for the rule of law and a functioning democracy is to ask how readily do members of the society, high or low, comply with orders of courts of law. One reason why African governments are generally unstable is that the government themselves have not

1. M I. Jegede, What is Wrong with the Law? Nigerian Institute of Advanced Legal Studies, Annual Lecture Series 12 1993, P. 56. 2. Jegede, p.57. See also Ijalaye, "The Role of the Law Officer Under Nigerian Law", Essays in HonourofAG. KaribiWhyte, Edited by Niki Tobi, 2006 pp.S7 and 62. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 177

demonstrated respect for law; the logical extension of this is that people in reaction begin to undermine the integrity of the government until finally, such a government is indecently pushed away, so at the end of the day, it is in the overall interest of every government to be law abiding.3

In Governor of Lagos State v. Ojukwu 4 the Supreme Court of Nigeria did not hesitate to rebuke or castigate the Military Governor of Lagos State who refused to obey the lawful orders of a court of law. In this connection, Uwais JSC (as he then was) said, inter alia:

“I think I should stress that it is a matter of grave concern that the Military Government of Lagos State should be seen to disregard a lawful order issued by a court of law. If governments treat court orders with levity and contempt, the confidence of the citizens in the courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the rule of law. If anyone should be wary of orders of court, it is the authorities; for they, more than anyone else, need the application of the rule of law in order to govern properly and effectively “ 5

The case of A.G. of Lagos State v. A.G. of The Federation is also germane in this regard. Consequent upon the creation of additional local governments by Lagos State and the conduct of elections into the said local governments in the State, President Obasanjo, by a letter, directed the Minister of Finance not to release statutory allocation of funds due to the Local Government Councils of the State until the State reverted to its constituent Local Government areas specified in Part I of the Schedule to the Constitution. Dissatisfied with the directive, the Attorney-General of Lagos State took out an originating summons against the Federal Government contending against the afore-stated directive of the President. The crucial question was whether the President of the Federal Republic of Nigeria had the legal right to stop the said release of statutory allocation. After due consideration, the Supreme Court decided that Section 162(5) of the Constitution 1999 or any other section for that matter did not provide for the stoppage of allocation from the Federation Account to the Local Government Councils of Lagos State or any other State for that matter. In this connection, Niki Tobi, JSC, clarified the legal position as follows:

3. Mike Ikhariale, The Judiciary in Democracy, Vanguard (Il August, 1992); Quoted with approval by MI. Jegede, op. cit., p. 58. 4. (1986) INWLR (Pt 18) 621. 5. Pp 298 - 299. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 178

“If the Federal Government felt aggrieved by Lagos Slate creating more local Governments, the best solution is to seek redress in a court of law, without resorting to self-help. In a society where the rule of law prevails, self-help is not available to the Executive or any other arm of government. In view of the fact that such a conduct could breed anarchy and totalitarianism, and since anarchy and totalitarianism are antitheses to democracy, courts operating the rule of law the life-blood of democracy, are under a constitutional duty to stand against such action. The courts are available to accommodate all sorts of grievances that are justifiable in law and section 6 of the 1999 Constitution gives the courts power to adjudicate on matters between two or more competing parties. In our democracy, all the Governments of this country as well as organizations and individuals must be made to tow the due process of the law and this they can vindicate by resorting to the courts for redress in the event of any grievance . 7

It is pertinent to observe that President Olusegun Obasanjo refused to obey this order of the Supreme Court throughout the relevant part of his tenure of office. However, in July 2007, President Yar'Adua decided to obey the Supreme Court judgment after due consultation with the relevant ministries and agencies for their opinion on the legality of continuing to withhold the money. He thereby released the State's N10 billion withheld by President Olusegun Obasanjo. Commenting on this noble and courageous gesture, former Lagos State Governor Ahmed Tinubu said, inter alia;

"The decision demonstrated shows solid respect for the rule of law, constitutional democracy and the judiciary” 8

The views expressed against disobedience to court orders in the foregoing paragraphs is buttressed by the judicial pronouncement in Olmstead v. USA wherein it was stated that:

"If the government becomes a law breaker, it breeds contempt for the law; it invites every man to become a law unto himself it invites anarchy”. 9

In the face of this executive lawlessness, what then should be the role of the law officer, i.e. The Attorney-General? It is submitted that the Attorney-General owes a

6. [2004] 12 SCNJ, p. 1. 7. p. 73. 8. The Nation Newspaper, Wednesday July 25, 2007, pp.I - 2. 9. (1928) USA Report, Quoted with approval by Ijalaye, Justice as Administered by the Nigerian Courts, 1992, p. 50. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 179 duty to himself and the legal profession to which he belongs to clearly advise his chief executive (the President or the Governor) to desist from disobeying court orders. If after such clear advice, the President or the Governor persists in disobeying court orders, then the Attorney-General should have the strength of character to protect his own integrity and that of the legal profession by resigning his appointment. He should endeavor to see that such resignation is given wide publicity so as to serve as a deterrent to other chief executives. 10

2. CORRUPTION IN THE POLITY

One of the very glaring examples of executive lawlessness which has greatly dented the image of Nigeria in the international community is the issue of corruption in the public service encouraged and condoned by the executive and legislative arms of government both in the Federal and State levels. Hence an eminent Nigerian novelist has correctly observed that corruption in Nigeria has passed the alarming and entered the fatal stage.11

In support of this view, the Nigerian Tribune of Tuesday 4th June, 1996 carried a banner headline entitled: "Nigeria Tops in Corruption". In this publication, Nigeria was described as the most corrupt country in the world. This pronouncement was based on a publication in a survey carried out by the executives of Transparency International, a multinational organization based in Germany.

In an interview with the BBC on Monday, 3rd June, 1996, a spokesman for the organization, Jeremy Pope, indicated that corruption was worst in Nigeria due to the complete absence of leadership on the corruption issue. He lamented the lack of accountability and transparency in business transactions in Nigeria pointing out that in Tanzania, its former leader, President Benjamin Mkapa, publicly declared his assets and those of his wife with the promise that he would repeat the exercise the following years. Jeremy Pope then expressed the hope that the Nigerian leadership would soon emulate' the Tanzanian example since example is always better than precept. 12

Jeremy Pope's stand is in congruency with those expressed by Allison A. Ayida who stated, inter alia:

“The incidence of corruption in Nigeria has increased and is still increasing; this must be critically curtailed. This dream can only become a

10. See ijalaye, op. cit., p. 63. 11. Chinua Achebe, The Trouble With Nigeria. 1985, p. 38. 12. The Nigerian Tribune, Tuesday, 4 June, 1996, at p. l. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 180

reality if there is a change of heart under a new leadership by glaring examples at all levels”. 13

Realizing the great danger that corruption has continued to pose to the integrity of our great country, former President Olusegun Obasanjo intensified his fight against this cankerworm which has eaten deep into every sector of the nation. A few examples will suffice:

(i) On Monday 4th April, 2005, the former Inspector-General of Police, Mr. Tafa Balogun, was manacled like a common criminal to a Federal High Court in Abuja to face trial over his alleged stealing of over N13 billion police funds while leading the force. In a 70 count charge, the Federal Government accused Mr. Balogun of the theft and diversion of police funds punishable under Section 14 (1) of the Money Laundering Act, 2004.14 In November 2005, he was sentenced to six months imprisonment by an Abuja High Court for corrupt enrichment.

(ii) As a result of the suspicious and shady handling of the sale of the Federal Government properties in Ikoyi, Lagos State, the then Minister of Housing and Urban Development, Chief (Mrs.) Mobolaji Osomo, was sacked by President Olusegun Obasanjo. 379

(iii) The Nigerian Economic and Financial Crimes Commission (EFCC) indicted the then Senate President, Chief , for allegedly accepting N55 million bribe from Professor Fabian Osuji, former Education Minister, to increase his Ministry's budget. 15 Professor Fabian Osuji later confessed that he offered the bribe which was accepted by Chief Wabara and others. This unfortunate incident later led to the removal of these two top public functionaries from office. 17

(iv) On Thursday, 12th May, 2005, President Olusegun Obasanjo approved the dismissal of two Justices of the Court of Appeal over bribery allegation made against them. These were Justices Okechukwu Opene and David A. Adeniji. The dismissal of the two Justices of the Court of Appeal was seen as a novelty because it was the first time in the history of Nigeria that justices of the appellate court would be sacked on the basis of corruption.

13. Allison A. Ayida, 'Power without Corruption: A non-Utopian Approach' being Chapter in his Book entitled Rise and Fall of Nigeria, 1990, pp. 25, 37. 14. The Nigerian Tribune, Tuesday, 4th April, 2004, p. l .379 Loc.cit. 15. This Day (Sunday) April 3, 2005, p. I. 16. The Guardian, April 12, 2005, P. I. 17. The Guardian, May 9, 2005, pp. 1 & 2. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 181

The foregoing four examples must have prompted former President Obasanjo to observe as follows:

“There had been no other instance in the history of Nigeria where top Government officials were arrested over corruption while they were still in office as it is being done now.” 18

It is noteworthy that President Umaru Musa Yar'Adua has decided to carry on the fight against corruption started by his predecessor, Chief Olusegun Obasanjo. Hence in his inaugural address to the nation on May 29, 2007, he said, inter alia; that his government would adopt zero tolerance for corruption in all its forms. 19

Less than two weeks after his assumption of office as the President of Nigeria, he had the opportunity to demonstrate his determination to fight corruption. On Monday, 11th June, 2007, he ordered the Acting Inspector-General of Police, Mr. Mike Okiro to investigate his predecessor, Mr. Sunday Ehindero, in connection with the alleged theft of 2.1 million naira traced to Ehindero through the statement of one of his junior police officers. 20

The fight against corruption got another great boost on Thursday, 28th June, 2007 when President Umaru Musa Yar'Adua surprisingly and publicly declared his personal assets after about four weeks in office. He was the first public officer and President of Nigeria to make the declaration of his assets public. 21

It is also gratifying to note that President Yar'Adua's war against corruption has a human face. Hence, he recently gave the following clear directive to Mallam Nuhu Ribadu, the former EFCC chief:

“You must follow due process in the war against corruption. Don't give the impression that you are witch-hunting anybody” 22

This directive did not however prevent Mallam Ribadu from arresting and subsequently prosecuting for corruption former governors of Abia State, Chief Orji Kalu, Plateau, Chief , Jigawa, Alhaji Saminu Turaki and that of Taraba, Rev: Jolly Nyame.23

18. Sunday Punch, September 18, 2005, p. 13. 19. The Punch, Wednesday, 30 May 2007, p. 7. 20. See The Nation, Sunday, June 17, 2007, p. 5. 21. The Punch, Friday, 29 June, 2007, pp. 1 and 4. 22. The Nation Newspaper, Saturday, June 9, 2007, p. 1. 23. The Punch Newspaper, Monday, July 16, 2007, p. 69. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 182

Chief Gani Fawehinmi rightly commended the arrests and prosecution of these former governors who had looted their government treasuries to the detriment of the citizens of such States which rendered them unable to adequately carry out their constitutional obligations as enshrined in Section 14(2) (b) of the 1999 Constitution which provides that:

“The security and welfare of the people shall be the primary purpose of government”.

It is noteworthy that the rigorous fight against corruption in Nigeria was given an international boost by the coming into force of the United Nations Convention against

Corruption on Thursday, December 15, 2005. The General Assembly adopted the Convention in October 2003, and it was open for signatures less than two months later. The Convention received its 30th ratification on September 1 5, 2005, the minimum needed to trigger its entry into force 90 days later, i.e., on December 14, 2005. The Convention indeed entered into force on Thursday, 15 December, 2005 with 38 ratifications and 140 signatories, including Nigeria.

The Convention commits ratifying governments to require politicians and political parties to declare openly how they finance their election campaigns. It focuses on bribery by corporate bodies, embezzlement, fraud, theft and extortion and provides broader powers to fight money laundering. Its biggest breakthrough is a provision requiring parties to the Convention to return assets obtained through corruption to the country from which they were stolen.24

This United Nations Convention will surely assist the Yar'Adua's administration in its avowed policy of "zero tolerance for conniption". The policy of zero tolerance for corruption must continue unabated if not for other reasons but for the attractive reasons given by Adams Aliyu Oshiomole in his lecture given in honour of Professor G. A. Olawoyin (SAN) under the auspices of the Justice Chambers at Obafemi Awolowo University on Thursday, 2nd February, 2006 entitled "Corruption and the Crisis of Governance In Nigeria". In this lecture, he stated, inter alia:

“Corruption deprives a nation the resources to cope with challenges of development because funds meant for development are criminally siphoned into private and corporate pockets. Corruption certainly plays a central

24. The Japanese Times, Friday, December 16, 2005, p 7 EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 183

role in sustaining the Nigerian condition of poverty, infrastructural inadequacy and underdevelopment. Corruption also denies Nigeria and Nigerians international respectability". 25

President Yar'Adua's policy of zero tolerance for corruption was carried a step åxrther when he recently decided to appoint corruption monitors to check public officials and expose fraud, He said those appointed would study the United States' anti-corruption operations and the Chinese model where officials monitor the flow of suspicious assets and corruption activities by establishing information sharing systems amongst the law enforcing agencies and the banks as well as other financial institutions. He emphasized that corruption must be fought at multiple levels "because it is a manifestation of disrespect for the rule of law and due process, especially among those who have leadership responsibilities. 26

It is therefore gratifying to note that on Wednesday, January 23, 2008, Senator Sola Akinyede (Ekiti State PDP) and 16 others brought a motion in the Senate urging the Federal Government to remain steadfast in its commitment to the war against corruption. Contributing to the debate on this motion, Senator NuhuAliyu ( PDP) and former Deputy Inspector General of Police (DIG) caused a stir in the Senate when he alleged that the National Assembly was full of fraudsters - "i.e. 419ners". Senate considered this allegation as very serious because if proven, Senate might not have the moral standing to fight corruption. It therefore referred the matter to its Standing Committee on Ethics and Privileges for a thorough investigation.27

Another step that should be taken in the eradicating of corruption from Nigeria is the complete removal of the immunity clause contained in Section 308 of the Constitution of the Federal Republic of Nigeria, 1999. This section confers immunity from prosecution on the President, the Vice-President, the Governors and Deputy Governors of the 36 States of the Federation. Once this clause is removed, the officials concerned will no longer have legal cover for plundering government treasuries for their own benefits. In other words, all the corrupt Chief Executives of the country both at the Federal and State levels would be treated as other Nigerians on matters of corruption. After all, what is sauce for the goose is sauce for the gander.27

It is therefore gratifying to note that President Yar'Adua has recently backed the removal of this clause from the Nigerian Constitution. In this connection, Mr. OlusegunAdeniyi, Special Adviser to the President on Communication, said that the President is confident that the next constitutional amendment exercise at the

25. pp. 9 and 10 of The Lecture. 26. The Punch, Wednesday, 16 January, 2008, p. 9. 27. See The Nation Thursday, January 24, 2008, pp. I & 2. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 184

National Assembly would expunge the immunity clause from the country's Constitution.29

Also, the Senate President, Senator David Mark, has said that the provision of the immunity clause will be removed when amending the 1999 Constitution. According to him: “I simply don't believe in the immunity clause. People should be made to answer questions.” 30

On Friday, February 8, 2008, the former Chief Justice of Nigeria (CJN), Salihu Modibbo Alfa Belgore, threw his legal weight behind those calling for the removal of the Immunity clause from the Nigerian Constitution. He made this call in his pre- convocation lecture entitled "Rule of Law and Democratic Governance in Nigeria: Challenges and Prospects", delivered at the University of Abuja, Abuja, Nigeria. He noted that if the immunity clause is removed, the officials concerned would be careful, since they would no longer be shielded from prosecution. 31

3. RAMPANT ABUSE OF THE IMPEACHMENT PROCESSES

The judgment of the Nigerian Supreme Court on the removal of the then Governor Ladoja of delivered on 12th January, 200732 by the Apex Court is definitely the locus classicus in this sensitive area of Nigerian constitutional law.

My assertion is buttressed by the pronouncement of Niki Tobi, JSC while delivering the lead judgment in this landmark case. After delivering the lead judgment, the learned judge proceeded to observe, per curiam, as follows:

“In my restricted knowledge, this is the first pronouncement (by the Supreme Court) on this fairly troublesome area of our law on the removal of Governors.”

It is submitted that the Supreme Court judgment has put to rest all the controversies concerning the interpretation of section 188 of the Constitution of the Federal Republic of Nigeria, 1999, dealing with the removal of Governor or Deputy Governor from office.

28. See Ijalaye D.A., 'Sovereign Immunity in International Law: DSP. Alamieyeseigha Saga' Ikeja Bar Review, Vol. l, Parts I & 2, September 2006 - March 2007, pp I & 6, 29. The Punch, Friday, January 25, 2008, p. 7. 30. David Mark, 'Immunity Clause Must Go', The Punch, Wednesday, January 30, 2008, p. 7. 31. The Nation on Sunday, February 10, 2008, p. 8 32. Inakoju v. Adeleke [20001 All FWLR, Part 353, p. 1. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 185

In considering whether the provisions of section 188 of the Constitution was correctly interpreted by the lower court (i.e. the Court of Appeal), the Supreme Court considered it helpful to first set out the entire Section visissimaverba. This particular section reads as follows:

188-(1) The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this section.

(2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly - (a) Is presented to the Speaker of the House of Assembly of the State; (b) Stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified,

The Speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.

(3) Within fourteen days of the presentation of the notice to the Speaker of the House of Assembly (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice), the House of Assembly shall resolve by motion, without any debate whether or not the allegation shall be investigated.

(4) A motion of the House of Assembly that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two-thirds majority of all the members of the House of Assembly.

(5) Within seven days of the passing of a motion under the foregoing provisions of this section, the Chief Judge of the State shall at the request of the Speaker of the House of Assembly, appoint a panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provided in this section. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 186

(6) The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person or be represented before the Panel by a legal practitioner of his own choice.

(7) A panel appointed under this section shall (a) have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly; and (b) Within three months of its appointment, report its findings to the House of Assembly.

(8) Where the panel reports to the House of Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.

(9) Where the report of the panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report, the House of Assembly shall consider the report, and if by a resolution of the House of Assembly supported by not less than two- thirds majority of all its members, the report of the Panel is adopted, then the holder of the office shall stand removed from office as from the date of the adoption of the report.

(10) No proceedings or determination of the Panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.

(11) In this section -"gross misconduct" means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion in the House of Assembly to gross misconduct.

The salient issues in the above provisions were clarified by Niki Tobi JSC and Akintan, JSC seriatim as follows: (I) The Word "Impeachment" Niki Tobi JSC observed that the word "impeachment" is not to be found in the detailed provisions of section 188. He therefore wondered why the word was used freely and indiscriminately by the parties to the suit. Jn his considered opinion, the word used in section 188 is "removal" and not "impeachment". As a matter of fact, the marginal not eto section 188 provides as follows: "Removal of Governor or Deputy Governor from office". EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 187

Mr. Ayanlaja, SAN, counsel to the Appellant referred Niki Tobi JSC to Section 191(1) where the word "impeachment" is used. This did not convince his Lordship since that section mentions "impeachment" in contradistinction from removal" Hence that section provides:

“The Deputy Governor of a State shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the Governor from office for any other reason in accordance with Section 188 or 189 of this Constitution”.

Consequently, Niki Tobi, JSC clearly ruled:

“It is my view that the word should not be used as a substitute to the removal provisions of section 188. We should call a spade its correct name of spade and not as a machete because it is not one. The analogy here is that we should call the Section 188 procedure, the procedure for the removal of Governor, or Deputy Governor, not for impeachment.” 33

(ii) Enumeration of Acts Constituting Violation, Contravention or Breach of Section188 Niki Tobi, JSC enumerated the relevant acts in the instant case as follows: (a) The holding of the meeting by the appellants at D'Rovans Hotel, Ring Road instead of on the floor of the House of Assembly. (b) The absence of a constitutional notice of allegation against the Ydrespondent. (c) The non-service of a constitutional notice of allegation against the Y respondent. (d) The failure to obtain the constitutional two-thirds majority of all the members of the House for the removal of the 3rd respondent. (e) The non-involvement of the Speaker in the so-called proceedings leading to the removal of the 3rd respondent. (f) The unconstitutional procedure adopted in the suspension of the Order of the House of Assembly. In other words, the unconstitutional application of Rule 23 of the Draft Rules of the Oyo State House of Assembly.

33. p. 80. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 188

Niki Tobi, JSC, then correctly made the point that all the foregoing provisions need not be breached before a court of law can hold that the procedure is unconstitutional. According to him, the breach of one condition is enough to invalidate the process.

(iii) The Court's Construction of the Ouster Clause in Section 188(10) of the Constitution

It is certainly not in doubt that Section 188(10) creates an ouster clause in that rights of an aggrieved person to challenge in court actions carried out under the other provisions are expressly taken away by this sub-section.

Akintan, JSC has however pointed out that where a person's right of access to court is taken away or restricted by either the Constitution or any Statute, the language of any such provision is usually construed very cautiously and strictly. In the course of interpreting such provisions, the language of any such Statute or provision will not be extended beyond its least onerous meaning unless clear words are used to justify such extension. This is mainly because it is the practice of the court to guard its jurisdiction jealously. 34

Akintan, JSC further clarified as follows: "Thus when interpreting the provisions of an ouster clause in a statute including that ofthe constitution, the courts usually scrutinize every aspect of such provision with a view to ensuring that everything done under such statute is done strictly in compliancewith the provision of the statute This is because where the court finds that there is a failure to strictly comply with what the statute provides for, such act purported to be done under Statute (or the Constitution) would be ultra vires and would be declared null and void".

What the Supreme Court is therefore saying is that before a court can declare that its jurisdiction is ousted, it must convince itself that all the provisions contained in sub- sections (2) (9) of section 188 of the Constitution have been scrupulously complied with. A breach of the provisions of one or more of the said sub-sections will certainly entitle the court to declare the whole procedure unconstitutional and therefore null and void.

34. p. 192. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 189

4. ELECTION RIGGING

Election rigging through the combined power of incumbency by the government and the political party in power has always been a regular feature in the election process in Nigeria. However, the massive rigging during the 2007 elections reached dizzy and unprecedented heights. This unfortunate and shocking development evoked the disapproval of international observers as well as the condemnation of concerned citizens of Nigeria, both at home and abroad.

Comparing the 2003 elections with those of 2007, the former Vice-President AtikuAbubakar recently stated that the 2003 elections which brought him and former President Olusegun Obasanjo to power were massively rigged but not on the same scale as those of last year (i.e. 2007). 35 He then concluded:

“The fraud in this election (i.e. 2007 election) was so monumental in its completeness that the word rigging is inadequate to describe it”. 36

Also, international observers have expressed their dismay and disapproval. For example, the European Union Election Observation Mission said that the April 2007 general election in Nigeria fell short of both international and regional standards. Members of the Mission said, inter alia, in their Report:

“We feel extremely disappointed that things were worse in 2007 than they were in 2003 ... The elections were marred by very poor organization; lack of essential transparency; widespread and procedural irregularities; substantial evidence of fraud; widespread voter disenfranchisement; lack of equal conditions for political parties and candidates; and numerous incidents of violence”. 37

Members of the Mission further stated:

"Our report contains two clear messages. First that the 2007 election process was not credible and, in view of the lack of transparency and evidence of fraud, there can be no confidence in the results. Second that an urgent and comprehensive reform is required to improve the framework and conduct of future elections".

35. See Atiku's final address at the Election Tribunal, The Nation, Tuesday, 22nd January, 2008, pp. I & 4. 36. Ibid, i.e. p. 4 37. EU Writes Off April Poll', The Punch, Friday, August 24. 2007, p. 8. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 190

In what seems to be an apparent acceptance of the second message of the European Union Election Observation Mission, namely, that "an urgent comprehensive reform is required to improve the framework and conduct of future elections", President Yar'Adua set up a 22member Electoral Reform Panel which he challenged to come up with a foolproof electoral system. The Electoral Reform Panel under the chairmanship of Justice Uwais, former ChiefJustice ofNigeria, has 12 months to carry out its assignment. 38

President Yar'Adua reminded the Panel as follows:

"One sad recurrent feature of our political development has been the consistency with which every general election result has been disputed and contested. Beginning with the 1959 general elections, almost every poll has suffered controversy resultingfrom real and perceived flaws, structural and institutional inadequacies, and sometimes deficiencies in the electoral laws and even the constitution” 39

He then spoke of the kind of electoral system the Panel was expected to propose. In this connection, he expects an Electoral Commission that is financially and administratively independent. This, according to the President, would help to eliminate the current feature of political development where every general election result has been disputed. 40

For his own part, Justice Uwais, the Chairman of the Electoral Reform Panel, assured the country of a meaningful reform that would bring sanity to the electoral system in Nigeria. In this connection, he optimistically stated as follows:

"Experience in this country has shown that our elections are not free and fair. We cannot continue that way. It is imperative for us to achieve success in meeting the international standards for what constitutes a democratic election. The world is said to be a global village. It is our ardent desire to fashion an electoral system that would produce free and fair elections acceptable to both the electorate and the candidates” 41

38. The Nation Newspaper, Wednesday, August 29, 2007, p. 2. 39. Ibid. 40. Ibid. 41. Ibid. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 191

Since it has been somehow agreed that the 2007 elections were massively rigged, the judiciary should be praised for nullifying elections that were subsequently found to be rigged. In this connection, those who felt aggrieved that their mandate had been stolen have opted for the legal option by taking their complaints to the various Election Tribunals and this legal option is already yielding fruitful results. On 10th October, 2007, a tribunal nullified the election of Governor Abubakar Idris of Kogi State. This nullification was confirmed by the Court of Appeal on Wednesday, February 6, 2008. 42 Barely 10 days after the initial nullification, another tribunal nullified the election of the son-in-law of President Yar'Adua and Governor of Kebbi State, Alhaji Saidi Usman Dakingari. On November 15, 2007, it was the turn of Governor, Rear Admiral , whose election was also annulled. In the Rivers State, the Supreme Court on October 25, 2007, overturned the election of Governor Celestine Omehia and ruled that Mr. Rotimi Amaechi be immediately sworn in as Governor. On Friday, January 18, 2008, the election of Governor Chime of Enugu State was nullified by the Election Tribunal sitting in Enugu State. 43

In view of the foregoing, it is hoped that in no distant future, sanity will return to the electoral system in Nigeria. Indeed, Nigeria has something to learn from Sierra Leone which succeeded in recently conducting a credible election in that country. In this connection, the ECOWAS Observer Mission, the international and local observers of Sierra Leonean politics, were unanimous in their verdict that the 2007 elections were conducted in an atmosphere of unprecedented peace, transparency and credibility. The political parties and candidates engaged in a keen, tolerant and healthy contest, and the people turned out in their numbers to freely exercise their franchise with determination, tolerance and patience. Crucial to this success story had been the acute sense of duty and professionalism of the National Electoral Commission, the security forces in maintaining the peace and the civility, determination and courage demonstrated by the people of Sierra-Leone. 44

5. OTHER ASSAULTS BY THE GOVERNMENT AGAINST THE RULE OF LAW

Apart from the foregoing, I have selected three examples of deliberate assaults by Nigerian governments against the rule of law as illustrated by the following decided cases:

(a) The Trial of Ken Saro-Wiwa and Eight Others — i.e. The Ogoni 9 Trial 1995

42. See The Punch, Thursday, February 7, 2008, p. 7. 43. See The Nation, Saturday, January 19, 2007, pp. I and 2 44. The Tribune Newspaper, Tuesday, August 21. 2007, p. 6. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 192

On November 10, 1995, Kenule Beeson Saro-Wiwa and eight of his Ogoni compatriots were executed in Port Harcourt prison, Rivers State, South-Eastem Nigeria, sequel to the death sentences imposed upon them on October 30 and 31, 1995 respectively by a military constituted Tribunal headed by Honourable Justice Ibrahim NaliAuta. The executed men, now known as the Ogoni9, had been arraigned before the Tribunal in February, 1995 and charged with the May 21 1994 murder of four Ogoni men. Whilst the trial lasted, many local and international non- governmental organizations (NGOs), governments, inter-governmental bodies and individuals called for the stoppage of the trial insisting that the accused persons be tried before a properly constituted court of law whose constitution, composition and proceedings conformed substantially to the universal standard of fair trial. However, the Nigerian Military Government refused to heed the call. The avalanche of global condemnation of the imposition of the death penalty on the Ogoni 9 and the deluge of pleas for commutal of the death sentences from the international community did not dissuade the Military Government from carrying out the execution. On November 10, 1995, the world had to accept the incredible reality' that the executions had been carried out.

An angry world reacted swiftly. Western countries recalled their envoys. A regime of sanctions was put in place against Nigeria for its horrendous human rights violations. The Commonwealth of Nations at its Head? of Government meeting which was being held in New Zealand also suspended Nigeria from the body for a two-year period. 45

It is pertinent to observe that the Tribunal that tried the Ogoni 9 was constituted by the Provisional Ruling Council headed by the Head of State, SaniAbacha. Appeals against the verdict of the Tribunal were to go back to the same body whose members were therefore both accusers and judges. This was a contravention of the principle of natural justice that one cannot be a judge in his own cause (nemojudex in causasua). This stipulation contravenes international standards for the protection of human rights. Even though the tribunal had given the Ogoni nine 30 days within which to appeal for clemency, they were hurriedly executed on November 10, 1995, two days after the confirmation of the death sentences imposed on them. Thus, the accused were denied their right of appeal for clemency which was conferred upon them by the Civil Disturbances (Special Tribunal) Decree 1995. 46

45. Murder, Plain Murder' by Femi Falana and JitiOgunye being Chapter 12 of Ken Saro-Wiwa and The Crises of The Nigerian State published by the Committee for the Defence of Human Rights (CDFIR) and Edited by OmotoyeOlorode ci a!, 1988, pp. 251 and 252. 46. See Idowu, A.A., 'Military Decrees, Civil Disturbances Tribunals and Defence of Human Rights in Nigeria: Ken Saro- Wiwa and ZamaniLekwot Cases Revisited'. Unpublished Paper.p. 17. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 193

(b) AliuNasiru Bello v. The Attorney-General of Oyo State 47

The question that arose in this case was whether or not the execution of one Nasiru Bello before the hearing of his appeal by the Court of Appeal was illegal or wrongful. Nasiru Bello was sentenced to death for armed robbery. Strangely, he was executed in 1981 before his appeal was heard by the Court of Appeal. In 1986, the Supreme Court of Nigeria held that as a result of this hasty execution, Bello's constitutional right to an appeal had been infringed. In this connection, Aniagolu, JSC, expressed his dismay at the circumstances surrounding his hasty execution in the following words:

"This is the first case in this country of which I am aware, in which a legitimate government of this country - past or present; colonial or indigenous hastily and illegally snuffed off (out) the life of an appellant whose appeal had vested' 48

(c) MinereAmakiri v. Iwowari 49

Chief Justice Ambrose Alagoa awarded substantial damages against the defendants who had, on the order of Alfred Diete Spiff, the then Military Governor of Rivers State, brutally assaulted and detained the plaintiff on the ground that a story concerning the State's educational policy published by the plaintiff in the course of his normal duties as a journalist coincided with the Governor's birthday and thus embarrassed him. In the course of his judgment, the learned and bold Chief Judge said inter alia:

"We are not in a Police State, so the rule of law in this country should not be trampled on. Any monster who uses his power arbitrarily would not be spared".50

CONCLUDING REMARKS:

In view of the foregoing scenario, it is obvious that the democratic institutions or structures, particularly the political parties, the executive and legislative arms of government in Nigeria are still at the rudimentary and experimental stages of development and, unless there is a radical change of attitude of the Nigerian people,

47. (1986) 17 sci. (pt 11)1257. 48. .860 49. Unreported Port Harcourt High Court No. PHC/222/73 of 4th April. 1984. See Ijalaye D.A. 'Justice as Administered by the Nigerian Courts', Justice Idigbe Memorial Lecture Series Five, 1992, p. 52. 50. See Akin Olujimi, 'The Experience of Military Rule in Nigeria: The Rule of Law Dimension', The Advocate 1977-8,p. 56. See Ijalaye, loc, cit. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 194

these structures or institutions may never survive the teething period. For example, Most Revd. Adetiloye of the Anglican Communion had once expressed the pessimistic view that:

"Since we do not respect the sanctity ofthe ballot box, I cannot see us as a nation holding an acceptable ... election any day ".51

Chief Anthony Enahoro, a seasoned Nigerian statesman has recently put the pessimistic opinion in a way that is unanswerable when he was commenting on the massively rigged elections of 2007 in Nigeria:

"For over 35 years, our country was run like a vehicle with a drunken driver loaded with reckless passengers urging the driver on. The end, needless to say, has been the disastrous elections in which wefind ourselves today”, 52

What then is the way out? Nigeria has experimented with military rule for many years and the experiment has turned out to be a woeful failure hence it has been rightly stated:

After 24 years ofmilitary rule, we know fully well that (politically) our help cometh notfrom the military. 53

It will therefore appear that there is no alternative to democratic rule. Consequently, the rigging of elections is the most dangerous of all the assaults on the rule of law in Nigeria, since it ruthlessly attacks the tap root of democratic governance.

Fortunately, the judiciary has been giving steady indications that it is up to the task of sanitizing the electoral processes by cancelling the results of elections that were found to be massively rigged in 2007. This on-going process is rather slow but this is not due to the fault of the Nigerian judiciary which has turned out to be the last hope of the common man. From the performances of our judges thus far, it can be said that Nigeria has one of the best judiciaries in the world because, despite the great handicap imposed on the Nigerian judiciary by a rigid constitution and stringent military decrees, .the judges have nevertheless managed to do substantial justice in cases brought before them.

51. Tell [Magazine]. No. 18 of29 April, 1996, p. 13. 52. Pa Anthony Enahoro, 'April Polls 2007 A Disaster', Daily Sun, Monday, May l, 2007, p. I 53. 'The Military and Our Future', FunmiOtubanjo, The Guardian, Wednesday, August 19, 1992, p. 29. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 195

Lord Denning in eulogizing the English judges for doing justice at all times has rightly observed:

“If justice has a voice, she would speak like an English judge”54

Similarly, in view of the readiness and steadfastness which our judges have continued to show in doing justice at all times in the various superior courts of record in the country i.e. the High Court, the Court of Appeal and the Supreme Court) it can confidently be asserted that if justice were to be a human being, she would be a replica of a Nigerian judge.55 Furthermore, the judgments of our Supreme Court are always analytical, inspiring, lucid, scholarly and brilliant.

However, our judiciary should not rest on its oars because the legislative and executive arms of government are rattled by and dissatisfied with the judgment being constantly given against them by the courts. They will therefore likely fight back by devising new techniques that will enable them to continue the perpetration of their nefarious acts. Consequently, the judiciary must brace up and continue to soldier on in their determination to do justice until true democratic governance is firmly entrenched in Nigeria.

In addition, it is strongly suggested that the Nigerian Constitution and the Electoral Laws should be amended in such a way as to ensure that election petitions are instituted and completed within one calendar year and that all these should take place before new governments are sworn in at the federal, state and local government levels so that what may later on turn out to be an illegal government will never again be given any chance to commence functioning in the first place.

This suggestion is in consonance with one of the terms of reference handed down by President Yar'Adua to the 22- member Electoral Reform Panel headed by Honourable Justice Uwais. This particular term of reference expects the panel to recommend:

“A Legal process that would ensure that election disputes are concluded before inauguration of newly- elected officials so as to eliminate post-election tension” 56

54. 'Road To Justice', 1955, p. 10 55. D.A. Ijalaye Justice as Administered by the Nigerian Courts, 1992, p. 62. 56. The Nation, Wednesday, 29 August, 2007, pp. 1 and 2. EXECUTIVE AND LEGISLATIVE LAWLESSNESS: A CHALLENGE... 196

Mr. Femi Falana, Chairman of The West African Bar Association, would appear to have provided the rationale for this term of reference when he recently observed as follows:

"It is wrong for election riggers to be in office while their stolen victory is being challenged at the election tribunals” 57

With this inspiring quotation, I humbly rest my case.

57. See "Femi Falana Flays Poll Rigging", The Punch, Monday, January 14, 2008, p10. 197

CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA

ABSTRACT

Steadily, concerns for gender diversity in the governance of business corporations, an idea which only crept into the whole corporate governance debate in recent years, have intensified and managed to remain in the front burner of the unending corporate governance debate. As a result, there has been a sustained heated global debate challenging the traditional boardroom homogeneity in corporate governance and leadership. But why does it really matter to have gender diversity in corporate boards composition? This paper in seeking to answer that question examines the issues as well as challenges in the corporate boardroom homogeneity debate and offers insights into the role clear-cut regulation can play in Nigeria to enhance the gender diversity debate in the country. The paper is however limited by the difficulty in assessing the current status of gender-diversity's effects in Nigeria.

I. INTRODUCTION.

Since “a corporation is an artificial being, invisible, intangible and existing only in contemplation of law” 1 and therefore “…has neither a mind nor a body of its own”2, it follows naturally – legally too – that it must act through natural persons. The primary natural person through which a corporation acts, at least in the contemplation of corporate law, is known as a company director or company directors in their multiple numbers. It is usually the corporate law of a particular legal system that set the condition for the appointment of a company director as well as the required minimum number for a company. In Nigeria, for example, section 246 of the Companies and Allied Matters Act, 2004 (CAMA)3 provides that every company registered on or after the commencement of the Act must have not less than two directors.4 It is the multiple numbers of company directors which therefore makes the

* M.A. Lateef, Ph.D. Full-time faculty member in the Department of Jurisprudence and Private Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Osun State, Nigeria; Visiting Scholar and Participant at the Summer 2018 U.S Business Law Academy, Columbia Law School, New York City, United States of America.Tel.: +2348033955817. E-mail: [email protected] 1. Dartmouth College v. Woodward, 4 L Ed 629: 17 US 518 (1819), (636) (Marshal J) cited in Laski Harold ‘The Personality of Associations’ (1916) 29 Harv L Rev 404 2. Lennard’s Carrying Co Ltd v. Asiatic Petroleum Co Ltd (1914-1915) All ER Rep (280) (Haldane LC) 3. CAP C20, Laws of the Federation of Nigeria (L.F.N), 2004 4. In some other jurisdictions however, the enabling statutes make distinction between the minimum numbers of directors depending on the type of the company. In India, for example, section 149 of the Companies Act 2013 requires that “every public company shall have at least three directors and every private company shall have at least two directors.” Similarly, CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 198 body known as the board of directors of a company. Aside the members of the company in the general meeting, also a principal organ of the company, the board of directors of a corporation is regarded as the most prominent organ of governance. It is the composition of the board one way or the other therefore that makes the leadership of the company. It is therefore said that at the apex of the corporate hierarchy stands not a single individual but a collective – the board of directors.5 Thus, the issue of performance of a company and the question of responsibility for corporate success or failure is generally placed on the board. While the managers and not the board of directors are usually the ones responsible for day to day functioning of a company, the board of directors is nonetheless regarded in law as the brain of the company for appointing and supervising the managers.

The recognition of the board of directors as the brain of a company is a long-settled6 principle that is also well founded in modern corporate statutes and case law. For example, section 63 (3) of the Nigerian CAMA provides that except as otherwise provided in the company's articles, the business of the company shall be managed by the board of directors who may exercise all powers of the company as are not by the Act or the articles required to be exercised by the members in general meeting. As Neville J. aptly put it in Bath v. Standard Land Co Ltd, 7“The Board of Directors are the brain and the only brain of the company, which is the body and the company can and does act only through them.” In short, it is the board of a company that is responsible for overall performance of the company; defines her corporate objectives; articulates the strategy for delivering on such objectives; provides and allocate resources to achieve them and continually set strategic plans and direction for the company.

Now the idea of gender diversity in the composition of board of directors and hence the integration of women into corporate leadership at senior executives' positions and boards levels is a relatively developing subject. The idea at the bottom seeks equal opportunities for women in the workplace. In other words, it is essentially a

section 154 of the U.K Companies Act 2006 provides that a private company must have at least one director while a public company must have at least two. In the United States where there is no any national corporate statute as is the case in most other jurisdictions, section 141 (b) the influential Delaware General Corporation Law only prescribes that the board of directors of a corporation shall consists of one or more members and that such numbers shall be fixed by the byelaws of the company unless the certificate of incorporation fixes the numbers, in which case a change in such numbers may only be made by amendment of the certificate. 5. Stephen M. Bainbridge, ‘The Board of Directors’ in Jefferey N. Gordon and Wolf-Georg Ringe (eds), The Oxford Handbook of Corporate Law and Governance (Oxford University Press 2018) 296 6. The idea of having body of persons, in whatever named they are called, to be responsible for management or conduct of trading companies had been long established at least since charters were granted for establishment of trading companies by the English Crown as far back as the Muscovy Company of 1554. See Franklin A. Gevurtz, ‘The Historical and Political Origins of the Corporate Boards of Directors’ (2004) 33 Hofstra L. Rev. 89, 116. Similarly, United Kingdom’s Joint Stock Companies Act of 1844 broadly empowered board of directors to, amongst others, “conduct and manage the affairs of the Company.” See the Joint Stock Companies Registration, Incorporation and Regulation Act, 1844, 7 & 8 Vict., c. 110 (England). 7. (1910) 2 Ch 408,416 CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 199 social cause anchored on equality and fair distribution of access to opportunities, and interspersed with social identity politics. To be sure, the idea of gender diversity is a much narrower sub-set of a broader idea of board demographic diversity which generally entails the composition of board members using different variables such as gender, age, nationality, ethnicity, educational background and experience.8 However, the global heated debate around the issue is a direct challenge or opposition to the entrenched homogeneity in corporate leadership where men are naturally seen to dominate. As a result, there have been reactions from policy-makers in different regions both from the hard and soft laws angles. These reactions have come essentially in two approaches, from a mandatory quota regime in Norway9, the first of five European countries 10 to mandate diversity, to a disclosure obligation started in the United States since 2009, requiring disclosure of diversity efforts.11

Many advocacy groups and institutions have since emerged around the world to canvass for and advance the debate on gender diversity in corporate leadership. Since 2011, the 2020 Gender Diversity Index (GDI), a United States based national campaign group with an agenda to increase the percentage of women on U.S. company boards to 20% or greater by the year 2020, has tracked the number of women on the boards of the 2010 Fortune 1000 (F1000) list of companies as a baseline of comparison. The GDI reports her findings and compare progress on this same group of companies from one year to the next looking at company size, 12 state and sector.A key finding in the 2017 GDI shows that “In the 801 active GDI companies, women now hold 20.8% of the board seats, an increase from 19.7% in 2016 and 14.6% in 2011, when we first started tracking the data.” 13 Furthermore, the key findings show that just about 2 years away from the target year 2020, “women held 19.8% of board seats of companies in the 2017 F1000, a list of the largest U.S. companies ranked by total revenue. The current list contains 980 active companies. In 2016, women held 18.8% of the board seats of 967 active F1000 companies.” 14

In this paper, we explore the relatively new objective of encouraging more women

8. Coffey, B. and Wang, J., ‘Board Diversity and Managerial Control as Predictors of Corporate Social Performance’ (1998) Journal of Business Ethics, 17(14): 1595–1603. See also Erhardt, N., Werbel, J. and Shrader, C., ‘Board of Director Diversity and Firm Financial Performance’ (2003) Corporate Governance, 11(2): 102–111. 9. Jean Jacques du Plessis, Anil Hargovan, Mirko Bagaric and Jason Harris, Principles of Contemporary Corporate Governance (3rd edn, Cambridge University Press 2015) 176 10. Following the pioneer example of Norway, countries such as France, Italy, Belgium and Iceland have all enacted quotas regime, mandating particular levels of gender balance in the corporate boardrooms. In March 2015, Germany also followed suit and the trend has been on the increase across and beyond Europe ever since. 11. The United States Securities and Exchange Commission in 2009 introduced a disclosure rule that, inter alia, asks corporations to report on whether they consider diversity in identifying director nominees and, if so, how? 12. ‘2017 Gender Diversity Index Key Findings’ (Gender Diversity Directory, 2011) accessed 27 July, 2018. The 2020 Gender Diversity Directory is an extensive database of public and private companies that includes information about board composition. It follows therefore that access to information will depends on the disclosures made by the companies. 13. ibid 14. ibid CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 200 into corporate leadership – senior executive positions and the boards. Our approach is to take a global perspective of the issues around the subject and then narrow it down to Nigeria. In doing this, we first overview the trends in gender diversity attitude in Nigeria. Then, we explore the issues around the gender diversity debate in its global perspectives, the benefits in gender diversity as well as the common reasons adduced for lack of gender diversity in corporate governance. Also, we explore the core of the dual mechanisms (quotas legislation and voluntary codes) for correcting the problems arising from lack of gender diversity in corporate governance. We also make attempt to cast a crystal ball into the future of the debate and surmise that, whereas the exacts impacts of gender diversity on firms' value and performance may not be so clear, the imperative of inclusion of more and more women in corporate leadership cannot be overemphasized. At the end, we also recommend the processes by which mechanisms through which workable, definite and accessible gender diversity regulation may be entrenched in the Nigerian corporate governance milieu. We note in particular that while there is no coherent legal framework, both at the hard and soft laws levels, for practicing gender diversity in boards composition in Nigeria, there have been uncoordinated voluntary efforts by listed companies to encourage the practice. However, we are also convinced that the recent introduction of gender diversity requirement in the Draft Nigerian Code of Corporate Governance 2018 issued by the Financial Reporting Council of Nigeria raises hope for a better future of corporate leadership and gender diversity in the country.

II TRENDS IN GENDER DIVERSITY IN NIGERIA

In Nigeria, since return to democracy in 1999 at least, there have been sustained efforts, through public advocacy especially, to enhance the place and participation of women both in politics and socio-economic activities in the economy. These efforts were coming on the heels of entrenched socio—cultural prejudices that have continued to hinder equal opportunities for women in the society till date. Many of these prejudices are well steeped in the cultural, social and religious practices that view women only as inferior to men or 'second class citizens' of sort.

In 2006, efforts of the multiple stakeholders received a boost from the government with the approval by the Federal Executive Council of a National Gender Policy.15 Then in 2008, a further Strategic Development Results Framework was launched calling for, amongst other affirmative action plans of having at least 35% of female representation in politics in both appointment and election positions.16 There are statistics to underscore the appalling state of women condition in Nigeria. In 2011,

15. Fakeye Y., George O. J. and Owoyemi O., ‘Women in Purgatory: The Case of Nigerian Women in the Boardrooms’ (2012) Asian Journal of Business and Management Science 1 (10): 134 –150. 16. ibid CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 201

Nigeria is ranked 120 out of 135 countries in the Global Gender Gap Index 17 for that year, and 79 out of 86 in the 2012 Social Institutions and Gender Index. Given the pervasive patriarchal cultures in Nigeria, almost all spheres of the private and public activities are dominated by males. In organisations and even government parastatals, few females progress to high positions which is very difficult for them and when they successfully reached the positions of directors and senior managers in their organisations, they are discriminated against and marginalized.18 In all, they are regarded as female representative for the sake of gender regulations and not necessarily for their skills, knowledge and ability to significantly contribute to the prosperity of such organizations.19

At the Nigerian corporate governance level, the aforementioned prejudices against women also play a crucial role in limiting the representation of women in boards and top management positions. In recent years, however, the significance of board gender diversity in Nigeria is gradually becoming visible and obvious. The pioneer initiative in this regard can be traced to the Central Bank of Nigeria (CBN) efforts around the year 2010, through the Banker's Committee, recommending target goals to increase female representation in the boards of companies to 30% by the year 2014 and increase in female representation to 40% in top management positions. This singular initiative of the CBN, no doubt, created a catalyst for a surge in female board representation in Nigeria. By the year 2012, it was reported from the Statistics of the CBN that female representation in board was 15% and in top management it was 27%. 20 But beyond the CBN's pioneer efforts, there seems not to be any other definite policy commitment from other regulators of the financial sector in the country. For example, there is nothing in the 2011 Code of Corporate Governance issued by the Securities and Exchange Commission (SEC Code 2011) concerning gender diversity requirement. The code merely provides generally that, directors of a company in Nigeria are allowed to determine the actual size of the boards of their companies with minimum of five members, on the ground that they should ensure an effective balance of skill, knowledge and experience to enable successful and systematic discharge of their responsibilities without compromising independence, integrity, compatibility and meeting attendance of members.

However, in the Principle 2 of the Draft Nigerian Code of Corporate Governance 2018 issued by the Financial Reporting Council of Nigeria, the need for gender diversity in board composition was provided thus: “The effective discharge of the responsibilities of the Board and its committees is assured by an appropriate balance

17. ibid 18. ibid 19. ibid 20. Lincoln A and Adedoyin O, ‘Corporate Governance and Gender Diversity in Nigerian Boardrooms’ (2012) World Academy of Science, Engineering and Technology 71: 1853–1859. CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 202

of skills and diversity (including experience and gender) without compromising competence, independence and integrity.” 21

While the above development in the 2018 Draft Code raises hope for a better future in the gender diversity debate and boards composition in Nigeria, it is yet to be seen how far the regulators are prepared to go in achieving results. We are of the view that there is no coherent legal framework setting gender diversity requirements in Nigeria, at present.

III GENDER-DIVERSITY DEBATE AND THE UNANSWERED QUESTION.

Although there are arguments both for and against22 advocacy to increase board- gender diversity,23 there is now a political and regulatory trend worldwide promoting women in corporate leadership. Thus, many governments around the world have begun to develop policies to promote and/or mandate increased female representations on corporate boards.24 As earlier pointed out in our introduction above, many countries in Europe have implemented mandatory quotas system through hard law while others around the world have employed the use of soft law by setting voluntary targets via corporate governance codes. In most countries, especially Western countries, where there are no mandatory quotas, there are serious attempts through voluntary codes of good governance to improve female representation on company boards.25 It has been shown in Australia, in several European companies and in South Africa that the process of appointing more women as employees, executives and directors is taken seriously.26 Gender diversity in boards composition has therefore moved from being an issue of mere equality and

21. Ibraheem Alawode, ‘Financial Reporting Council unveils Nigerian Code of Corporate Governance 2018 draft’ Premium Times (14 June 2018)1 accessed 28 July 2018. Also available online at accessed 28 July 2018 22. For example, some studies actually found negative correlation between gender diversity and firm performance. See Smith N, Smith V and Verner M, ‘Do women in top management affect firm performance? A panel study of 2,500 Danish firms’ (2006) International Journal of Productivity and Performance Management, 55(5): 569–593; Eklund J E, Palmberg J and Wiberg D ‘Ownership Structure, Board Composition and Investment Performance’ (2009) CESIS Electronic Working Paper Series, Paper no. 172; Darmadi S, ‘Board Diversity and Firm Performance: The Indonesian Evidence’ (2011) Corporate Ownership and Control, 9(1): 524–539. Nevertheless, there is evidence that more research suggests that gender diversity increase in performance because of several reasons including, culture of questioning, pleasure of investors, positive market reactions and etcetera. See Burke R J, ‘Company Size, Board Size and the Number of Women Directors’ in Burke R J and Mattis M C (eds) Women on Corporate Boards of Directors: International Challenges and Opportunities (Burke 2000) 157-167 23. du Plessis J., O’ Sullivan J. & Rentschler R, ‘The Multiple Layer of Gender Diversity on Corporate Boards: To Force or Not to Force Diversity?’ (2014) Deakin Law Review, Vol 19, no. 1, 1-50 24. Alice Klettner, Corporate Governance Regulation: The Changing Roles and Responsibilities of Board of Directors (Routledge 2017) 114 25. Jean Jacques du Plessis (n 10) 177 26. du Plessis, Ingo Saenger and Richard Foster, ‘Board Diversity or Gender Diversity?’ (2012) Deakin Law Review (Australia) vol 17, no 2, 240-242 CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 203 social identity politics into the realm of corporate governance.27 However, the most important question has been whether or not a diversified board will return a better return for corporate investors: in other words, whether there is a business case to be made out for gender diversity on corporate boards. To that extent, many studies have been done, but there isn't a definite answer as yet. 28 There have been conflicting signals. The reason why the answer to this important question is not yet clear and may never be definitely answered has been attributed to the differences in the studies as well as the circumstances and complexities of business practices around the world.29 Nevertheless, there is no denying the fact that, women are totally under represented on boards, especially in many developing economies. Indeed, it is even said that “there is no single country in the world where women form more than 50 per cent of the boards of listed companies.” 30

IV BENEFITS OF GENDER DIVERSITY

Many reasons are being adduced for the desire for more women on boards of corporations. The most oft-cited of such reasons is the economic benefits that stem from gender equality. Then, there is the claim of positive impact on governance and performance. Some studies31 have found that companies with women on their boards perform better, although a direct link is hard to prove.32 In their study of Norwegian boards, Nielsen and Huse found that “the presence of women on corporate boards seems to increase board effectiveness through reducing the level of conflict and ensuring high quality of board development activities.” 33 It has also been suggested that the 2006-2009 global financial crisis may have been less severe if there had been more women on the boards of affected corporations, the large banks especially.34 To be sure, board effectiveness can be improved by including a diverse range of views in decision-making, including views based on gender criteria.35 Also, there is a considerable investor pressure on companies to appoint more women to their boards, especially boards of listed companies. 36

Furthermore, there is also evidence that women directors are more prepared than

27. ibid 28. Jean Jacques du Plessis (n 10) 176 29. ibid 30. Ibid 31. Adams R and Ferreira D, ‘Women in the Boardroom and their Impacts on Governance and Performance’ (2009) Journal of Financial Economics, vol 94, no 2, 291-309 32. Klettner (n 25) 118. 33. Nielsen S and Huse M, ‘The Contribution of Women on Board of Directors: Going Beyond the Surface’ (2010) Corporate Governance: An International Review, vol 18, no 2, 136-148 34. Adams R and Funk P, ‘Beyond the Glass Ceiling: Does Gender Matter?’ (2012) Management Science, vol 58, no 2, 219- 235. See also Rost K and Osterloh M, ‘Opening the Blackbox of Upper Echelons: Drivers of Poor information processing during the financial crisis’ (2010) Corporate Governance: An International Review, vol 18, no 3, 212-233 35. Carter DA, Simkins BJ and Simpson WG, ‘Corporate Governance, Board Diversity and Firm Value’ (2003) Financial Review, vol 38, no 1, 33-53 36 Yi Wang and Bob Clift, ‘Is there a “business case” for Board Diversity’ (2009) 21 Pacific Accounting Review 88 at 89. See CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 204 men to tackle 'tough issues' and thereby help boards avoid the problems of group think and conflict avoidance.37 It is also said that women tend to more easily ask challenging questions,38 a trait that has been identified as one of the keys to board effectiveness.39 Several other studies have linked aspect of 'good governance' to presence of women on a board.40 For examples, better monitoring of strategy implementation and conflict of interest policies; improving succession planning; and supporting board performance evaluation have all been found to include parts of the benefits of gender sensitive corporate boards.41 In sum, the weight of abundant evidence clearly suggests that the presence of women on boards is desirable; is a matter of good corporate governance; and enhances board performance.42

V REASONS FOR LACK OF GENDER DIVERSITY

As a corollary to the points made above on the benefits of gender-diversity in boards composition, there are also suggestions on why there is lack of gender diversity in corporate leadership. The reasons for lack of gender diversity in corporate leadership are as wide and many as there are corporations around the world. Some of the reasons are also perplexing. For example, there are suggestions that senior executive and board positions were and are still being filled today by men who are the natural gatekeepers, and who then make it almost impossible for women to compete for or be appointed into such positions.43 In simple terms, the reasons behind the lack of women in top corporate leadership positions are complex but very important to understand when considering regulatory actions.44 In Nigeria, nay Africa, as we have earlier noted, reasons for general subjugation of women stem from socio-cultural and religious practices that are well steeped in patriarchal notion of men as being superior to women. At the corporate level, however, the most common reasons for under representation of women at the board level cited by the UK Davis report were issues with work-life balance and work-place culture.45 Similarly, Branson has described the issue of lack of opportunity or bias in recruitment as subtler de facto or second-generation discrimination against women. He has aptly captured it this way:

also Nicole Sandford, ‘Board Diversity: Are We on the Eve of Real Change?’ (2011) Directors & Board Annuals 2011 accessed 27 July 2018 37. McInerney-Lacombe N, Bilimoria D and Salipante PF, ‘Championing the Discussion of Tough Issues: How Women Corporate Directors Contribute to Board Delibrations’ in Vinnicombe S and others (eds) Women on Corporate Boards of Directors: International Research and Practice (Cheltenham, Edward Elgar 2008) 38. Huse M and Solberg A, ‘Gender Related Boardroom Dynamics: How Scandinavian Women Make and Can Make Contributions on Corporate Boards’ (2006) Women in Management Review, vol 21, no 2, 113-130 39. Walker D, ‘A Review of Corporate Governance in UK Banks and Other Financial Industry Entities: Final Recommendations’ (2009). 40 Klettner (n 25) 119. 41. Sealy R and Vinnicombe S, ‘Women and the Governance of Corporate Boards’ in Clarke T and Branson D (eds) The SAGE Handbook of Corporate Governance (Thousand Oaks, SAGE 2012) 325-344 42. du Plessis (n 24) 47 43. Jean Jacques du Plessis (n 10) 177 44. Klettner (n 25) 119. 45. Davies M, Women on Boards (London, Department for Business, Innovation and Skills 2011) CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 205

…such as late day and Saturday managers meeting, emphasis on office 'face time' and insistence on frequent travel which have a disproportionate effect on women as they move up into the ranks of middle and senior management. The thought is that persistent enrichment of such practices cause women, especially those with children, to opt out of workforce, leading to a depletion of the pool from which women director candidates could be chosen 10 years hence.246

A survey specifically relating to France has also corroborated the issue of lack of opportunity or bias in recruitment thus:

…the French experience seems to be validating the theory of many diversity advocates: there are many women who are well qualified to serve as public company directors, but who are not routinely recruited.47

Other issues causing lack of gender diversity in corporate leadership could include biological causes such as childbearing and nursing, deliberate rejection of corporate career leadership positions by women and lack of mentors. Peter et al actually found that in a male-dominated work environment, the lack of successful female role models or mentors directly affect women's level of ambition.48 This is said to also occasion a major loss of female talents from corporations at mid-management level. In another study relating to Nigeria, Fakeye et al found that male employees at Cadbury Nigeria Plc often reject female managers while workers at Cadbury (UK) Plc. see female managers as normal managers as their male counterparts.49 Above all, it must noted that, despite female achievement in education, research clearly suggests that there has not been proportionate increase in women attaining senior career success when compared to their male counterparts.50 Meanwhile, we are also of the view that all of the issues identified above are as much applicable to Nigeria.

VI MECHANISMS FOR GENDER DIVERSITY

46. Branson DM, ‘An Australian Perspective on a Global Phenomenon: Initiatives to place Women on Corporate Boards of Directors’ (2012) Australian Journal of Corporate Law, vol 27, 2-21 47. Gladman K and Lamb M, Women on Boards Survey (GMI Ratings, April 2013) 48. Peter K, Ryan M and Haslam A, ‘Achieving the Possible: Ambition and the under-representation of women surgeons’, University of Exeter, unpublished presentation, cited in Sealy R and Vinnicombe S, Women and the Governance of Corporate Boards in Clarke T and Branson D (eds) The SAGE Handbook of Corporate Governance (Thousand Oaks, SAGE 2012) 325-344 49. Fakeye Y, George O. J and Owoyemi, ‘Women in Purgatory: The Case of Nigerian Women in the Boardrooms’ (2012) Asian Journal of Business and Management Sciences, 1(10): 134–150. 50. Sealy (n 35) CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 206

As noted above, lack of gender diversity in the highest echelon of corporate position – the boards – has a complex mix of causes. It is therefore in response to these myriads of causes that two dominant approaches have emerged from the efforts of multiple stakeholders over the past two decades or so to address the challenges. The two approaches, though not necessarily mutually exclusive, have been anchored on hard and soft laws mechanisms. Peta Spender has aptly captured the mechanisms thus:

Debates about women on boards have focused on measures designed to achieve equality of access and across countries governmental approaches may be categorized as 'hard' and 'soft'. Hard strategies involve more coercive means of achieving equality of outcomes such as legislation for affirmative action and quotas. The soft strategies involve persuasion of market actors to achieve equality of access.51

The hard law or legislative mechanism, otherwise known as quotas system, is aimed directly at outcomes while the soft law or voluntary mechanism uses the development of codes of corporate governance to encourage corporations to voluntarily comply-or-explain their strategy for compliance. The voluntary comply- or-explain mechanism is essentially directed at the underlying workplace policies and culture.52 Now while many countries in Europe are implementing legislative quotas to force companies to appoint more women onto their boards, UK, Australia and a few others have chosen a softer approach whereby companies are asked to voluntarily set their own targets for gender diversity and implement policies to achieve those quotas.53 We will now discuss each of the two mechanisms in some details.

a) Quota Legislation (Hard Law)

The first corporate board gender quota law legislation in the world was introduced by Norway, a non-EU member European country, through the 2003amendments to the Norwegian Public Limited Liability Companies Act of 1976.54 The Norwegian quotas model which requires 40%55 female board membership has been hailed for her success due to strictness of the sanctions accompanying defaults. Although the 40% quotas were initially voluntary, by the year 2006, the targets became mandatory so

51. Spender Peter, ‘Gender Diversity on Boards in Australia- Waiting for the Great Leap Forward’ (2012) Australian Journal of Corporate Law, vol 27, 22-38 52. Guidelines Development Committee (GDC), Guidelines for Gender Balance Performance and Reporting Australia (Chartered Secretaries Australia and Women on Boards, 2013). 53. Klettner (n 25) 120. 54. Jean Jacques du Plessis (n 10) 177. Cited Aagoth Storvik and Mari Teigen, Women on Board: The Norwegian Experience (June 2010) n 219 CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 207 that publicly listed companies had to implement 40% female board membership by 2008.56 By the year 2009, female board membership had reached the required 40% threshold.57 The ultimate sanction for a company not achieving the mandatory gender quotas in Norway is the dissolution or deregistering of the company.58 Following the pioneer example of Norway, countries such as France, Italy, Belgium and Iceland have all enacted quotas regime, mandating specific levels of gender balance in the corporate boardrooms. In March 2015, Germany also followed suit and the trend has been on the increase across and beyond Europe ever since. The German's inclusion in the long list of countries with quotas legislation regime has actually raised hope that more women will continue to be appointed to company boards in future and that more countries will either adopt gender quota legislation or simply follow the voluntary codes path. Prior to the 2015 development in Germany, the German Parliament in April 2013 had actually rejected the introduction of legislation that would have required 40 per cent of the boards of all listed companies to be women. The legislation was rejected by 230 votes to 277.59

b) Comply-or-Explain (Soft Law)

The UK and Australian codes recommendations on gender diversity present interesting examples of soft law in action. In the UK, the Corporate Governance Code (Financial Reporting Council 2014) makes general statement for gender inclusiveness in board recruitment under Principle B.2 and then makes disclosure mandatory in the annual report under Principle B2.4.60 In Australia, the Equal Gender Equality Act 2012 requires reporting on the numbers of male and female employees and board members without necessarily mandating specific quotas for the board of listed companies. The codes in the UK and Australia, as have been reported in studies, do not only suggest that companies draft their peculiar diversity policies and disclose gender metrics, they also ask companies to set their own voluntary targets for increasing gender diversity and report annually on their progresses towards such

55. Public Limited Liability Companies Act, ss. 6-11a (Norway). The Norway’s Companies Act, amended in 2003, reads: ss 6–11a. ‘Requirement regarding the representation of both sexes on the board of directors (1) On the board of directors of public . . . companies, both sexes shall be represented in the following manner: 1. If the board of directors has two or three members, both sexes shall be represented. 2. If the board of directors has four or five members, each sex shall be represented by at least two. 3. If the board of directors has six to eight members, each sex shall be represented by at least three. 4. If the board of directors has nine members, each sex shall be represented by at least four, and if the board of directors has more members, each sex shall be represented by at least 40 percent. 5. The rules in no. 1 to 4 apply correspondingly for elections of deputy directors. 56. Siobhán Dowling, ‘Norway’s Experience Shows Compulsory Quotas Work’ (2010) Spiegel Int’l (July 8), accessed 26 August 2018. 57. Aagoth Storvik and Mari Teigen, ‘Women on Board: The Norwegian Experience’ (2010) Friedrich Ebert Stiftung 4accessed 10 September 2018 58. Public Limited Liability Companies Act (n 56) 59. Spiegel Online International, ‘Gender Gap: Germany Rejects Requiring Board Quotas’ accessed 30 July, 2018. 60. It should be noted that reference to gender diversity was first included in the UK in 2010 as a general statement under Principle B2. It was only in 2012 that disclosure requirement was added under Principle B2.4. CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 208 ends. Thus, the codes demonstrate how well-designed comply-or-explain soft law mechanism can do more than simply suggest a one-off implementation of specific governance structures and procedures.

It is therefore the above two patterns or mechanisms that have shaped the intervention of multiple stakeholders to the gender diversity debate in corporate governance. Both ways, there have been considerable achievements. In the year 2003, for example, the 500 largest Norwegian company boards only averaged an embarrassing 7 61per cent female representation. 62Almost a decade after in 2011, the percentage of female representations on Norwegian boards had averaged 36.3 per cent compared to Australia's 13.8 per cent at the same period. 63 Many have simply argued that the cycle of the real or perceived dominance of men in corporate governance can be broken either more strongly through mandatory gender quota legislations or through voluntary codes of corporate governance. In all, we are of the view that no 'one-approach-fits-all' may be desirable to achieve gender diversity on boards. There has to be allowance for flexible approach to achieve results in the manner most suitably peculiar to each legal system and corporate governance cultures. Indeed, it has been observed that as there are variations in the type of regulatory mechanism by different nations, the choice of whether to regulate via a corporate governance code or hard law can be related to the desired strength of the regulation and the targeted population.64 For example, while legislation may be preferred in order to enable the implementation of legal sanctions for non- compliance, soft law approach of comply-or-explain may be employed to allow voluntary development of policy and culture of compliance overtime.

VII FUTURE OF GENDER DIVERSITY IN CORPORATE LEADERSHIP

Even though the actual effect of more women occupying top corporate positions at the board levels remains foggy, that the debate for more gender inclusiveness in corporate governance will not abate anytime soon is very certain. Thus, that women will continue to have bigger say in the corporate world in the coming years is a forgone conclusion. This will remain so regardless of whether the problem of under- representation or non-representation of women on boards is addressed through gender quota legislation, targets or simply through voluntary codes of corporate governance. However, what exact impacts gender diversity will have on firms' value and performance, and the real business case for appointing more women in senior

61 Ami Hole, Diversity Deployed, the Norwegian Experiences (Speech delivered to the 2nd Diversity on Boards Forum, Sydney, 2-3 September 2009). 62. Jean Jacques du Plessis (n 10) 178 63. 2 ibid. 178. The Norwegian statistics were contained in the figures released in March 2012. 64. Klettner (n 25) 118. CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 209 executive positions and on boards, is something that only time will tell.65

VIII CONCLUSION

In this paper, we have presented the issues around the debate for gender diversity in corporate governance. In doing this, we have considered the unanswered questions around the debate as well as the benefits of gender diversity and the reasons for lack of gender diversity. We have also discussed the two-pronged mechanisms of quotas legislation as well as the voluntary codes of good governance aimed at achieving positive results for gender diversity in corporate boards. As for the future of the gender diversity debate, we also pointed out clearly that, although the exact impact of gender diversity on firms' value and performance may not be exactly clear as yet, the benefits of having the debate at all and the merits of having more women in senior executives and board positions cannot be overemphasized.

Although our discussions took a global perspective of the subject, we have also managed to relate some of the issues to the prevailing corporate governance practices in Nigeria. It is not within the purview of our objective for this paper to specifically investigate the current status and effects of gender diversity in Nigeria. To do that, we would have required access to records of companies listed on the Nigerian Stock Exchange and that would have been a very herculean, if not impossible, task, given that there is no any clear-cut regulation for such disclosures in Nigeria at the present. In other words, although there is a noticeable growing level of gender sensitivity in boards composition in Nigeria, companies on the Exchange markets in the country are not by any coordinated hard or soft law regulation mandated to have a gender diversity quota system or ensure disclosures by way of comply-or-explain voluntary code mechanism. However, the good news which raises hope about the emerging trend in Nigeria is contained in the Principle 2 of the Draft Nigerian Code of Corporate Governance 2018 recently issued by the Financial Reporting Council of Nigeria.66 The Draft Codes stresses the need for an effective board and the need to include gender factor in recruiting board members “…without compromising competence, independence and integrity.67

Going forward in Nigeria, we would also recommend, in line with the comply-or- explain mechanism already proposed in the Draft Nigerian Code of Corporate Governance 2018 issued by the Financial Reporting Council of Nigeria, that: (1) companies should be required to establish clear-cut gender diversity and disclosure

65. Jean Jacques du Plessis (n 10) 183 66. Ibraheem Alawode (n 22) 67. Ibid. CORPORATE LEADERSHIP AND GENDER DIVERSITY: A CASE FOR NIGERIA 210

policies, (2) companies should disclose in each annual report the measurable objectives for achieving gender diversity set by the board in accordance with the diversity policy and progress towards achieving them, (3) companies should disclose in each annual report the proportions of women employees in the whole organisation, women in senior executive positions and women on the boards. These recommendations are, in our view, quite modest and are in line with global best practices in virtually all countries where steps have been taken and are still being taken to address issues around under-representation and non-representation of women in senior executive positions and corporate boards.

Finally, the preeminence of modern corporation in the socio-economic development of state economies cannot be overstated. It is imperative therefore that the composition of persons in senior executives' positions and corporate boards positions in corporate governance is taken seriously such that all factors of diversity for robust, value-added and productive governance are considered. Gender diversity has proven to be a potent component of the whole general diversity requirements. Thus, there must be sustained efforts to improve women representation in corporate leadership.