e Nigerian Lawyers’ Journal LAW

Summer 2013 Chief Bayo Ojo SAN Arbitrator, Digest Law Reformer, Philanthropist

Is the English 10 Most Regulator In uential biased against Nigerian Black Lawyers solicitors?

Disability rights in Nigeria Li ing the corporate veil in litigation UK: £3.50 US: $5.50 Regulation of rural Nigeria: ₦1,000 electricity in Nigeria www.nglawdigest.com www.nglawdigest.com Law Digest Summer 2013

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DEPUTY EDITOR LEGAL LIABILITIES LET OUR Lulu Sianga All rights reserved. [email protected] The contents of this publication may not CORRESPONDENTS be reproduced by any EXPERIENCE North America Ifeoma Uche means, in whole or in [email protected] part, without the prior 10 MOST INFLUENCIAL NIGERIAN GUIDE YOU Middle East written consent of the John Adetiba publisher. LAWYERS: UK [email protected] Nigeria Any submissions or Yinka Olojede-James We review the infl uence and contributions of 10 [email protected] contribution from readers shall be subject Nigerian lawyers in the UK, as part of our series to Ranti Thomas [email protected] to and governed by XL Nominees Limited’s recognise infl uences and contributions of Nigerian Adijat Ayobami [email protected] Terms and Conditions, lawyers in Diaspora. which are available SUBSCRIPTIONS, upon request. ADVERTISING AND EVENTS The publishers regret LEAD ARTICLE PROJECT FINANCE UK that they cannot accept . Is the English Regulator biased . Public Private Partnership in Ruby Sehra liability for errors or against Black Solicitors? the Railway sector. Tel: +44 203 223 0805 [email protected] omissions contained in this publication, COVER STORY FROM THE BENCH MIDDLE EAST however caused. The . An exclusive Interview: . Disability Rights in Nigeria John Adetiba opinions and views Chief Bayo Ojo SAN [email protected] LITIGATION contained in this From the Editor . Piercing the corporate veil in NIGERIA publication are not corporate actions. Yinka Olojede-James necessarily those of [email protected] Letters to the Editor the publishers. Readers ENERGY LAW Ranti Thomas are advised to seek Case Review and legal . Regulation of share transfer [email protected] specialist advice before development in the Petroleum sector – Adijat Ayobami acting on information Moni Pulo vs. Brass revised. [email protected] contained in this Diaries of a “Baby Lawyer” publication which is BUSINESS DEVELOPMENT LEGAL ADVISORS provided for general ARBITRATION . Developing an effective team Augustine Clement use and may not be . Bifurcation and substantive 1st Floor, 3 Market Place, DA6 appropriate for the jurisdiction in arbitration CORPORATE GOVERNANCE 7DU, UK Beyond “Independent reader’s particular CORPORATE FINANCE Directors” to Board Bisi Iyaniwura & Co circumstances. 3rd Floor, Arinkandi House . An insight into Islamic Independence 1 Raimi Adedokun Drive finance (Part 2) Lagos

3 FROM THE EDITOR

Dear Colleagues,

Welcome to the summer 2013 issue of the Law Digest. Lastly, we would like to remind you of our fi rst The Law Digest made a successful debut at the SBL – NBA Internati onal Liti gati on and Asset Recovery Forum to Conference in Lagos in June, where it was well received take place outside the UK will be hosted on the 5th by delegates. We are honoured to have Chief Bayo Ojo November 2013 in Lagos at the MUSON Centre. We SAN as our “Lawyer in the News”. His contributi ons to have been working with Eversheds LLP, London, Kemi the development of Nigerian jurisprudence and the legal Pinheiro & Co, Nigeria and Hughes Hubbard & Reed system are undeniable. However it is in the fi eld the LLP, NY amongst others to design the programme. arbitrati on that Chief Bayo Ojo SAN straddles the African Giving the key note speech will be the CEO of AMCON. legal scene like a colossus. We are also highlighti ng Speakers have been drawn from major law fi rms and positi ve infl uence of Nigerian lawyers across the globe, fi nancial insti tuti ons in Nigeria, UK and the US. We have in our series “10 Most infl uenti al Nigerian lawyers” launched a dedicated website for our events, which is starti ng with the UK. This is to mark the anniversary www.nglawdigestevents.com. You may visit the site to of the call of the fi rst Nigerian lawyer to be called to book you place at the Forum. the English Bar, Christopher Alexander Sapara Williams To contribute arti cles or commentaries to the (1855 – 1915) who was called to the English Bar 145 Law Digest, please write to us at years today. We also refl ect on the allegati ons of racial [email protected]. discriminati on against the English and Wales solicitors’ We hope that you will enjoy regulator, the Solicitors Regulati on Authority (SRA) by this issue and we conti nue to many black solicitors including Nigerian solicitors. welcome your contributi ons, We are introducing two new additi ons to the comments, criticism and magazine, looking at the practi ce from two ends of the support. professional spectrum. The “Diaries of a Baby Lawyer” records the experiences of a newly qualifi ed lawyer. The “From the Bench” is a column for members of the judiciary to share with the profession issues which are close to their heart. First off the block is Hon Justi ce Peter Akhimie Akhihiero of the Customary Court of Appeal – Edo State, who writes on the issue of Disability Seyi Clement Rights in Nigeria. Publisher/Editor

Law Digest - For those serious about the Law

4 www.nglawdigest.com Law Digest Summer 2013

the other Nigerian ‘phenomenon’ known as NYSC, we would also need to arrange jobs for the service year, unless we were content with going from Barrister of the Supreme Court of Nigeria to primary school English teacher before the month was over. I have heard horror stories of psychometric and aptitude tests and I was gripped with fear and excitement all at once. Most daunting and diffi cult Diaries of a to assimilate was the advice I was given to prepare for interrogations about my future marital plans and any desire to be pregnant in the near future. Note to all employment Baby Lawyer law activists across the Diaspora, Nigeria needs you! Urgently! By Yinka Oloyede James I had a lot to prepare and fi rst fter 15 months at the Nigeria they had all been contemplating thing in the morning, I would need Law School, Bar 1 and Bar whilst they waited in the lobby. to ‘nigerianise’ my UK CV. Unlike A2, the compulsory penguin To clear up any lingering worries, in the UK, there didn’t seem to be uniform, the highs and lows, the it was merely cold pepper soup, a 2 page limit rule. CVs the size of tantrums and the tears of the some jollof rice washed down with the Encyclopaedia Britannic were returning Diaspora, the cramming, some non alcoholic wine and lots the norm. regurgitation, crippling exam of heartening speeches about the I was once told that great pressures and the tensions of enormous milestones we had just lawyers have great networks and in surviving the Nigerian examination crossed. no other place would that be more process, the day had fi nally come; We were waving goodbye evident than in Nigeria. Getting we were being called to the Bar of to student life and once again a job would be 20% competence the Supreme Court of Nigeria. For joining the real world. During the and 80% ‘long leg’, (“connection”), those of us that made it, we could Chairman’s speech he asked the I am told. I had to begin mentally not be more grateful and relieved. question “what next”? And there it recollecting every ‘uncle’, and Clearly, nothing could be worse was, it hit me, what next? We had ‘aunty’, law school friends, old than the prospect of prolonging the been so focused on getting through colleagues and acquaintances: any Nigerian Law School experience. Law School that most of us hadn’t possible link to a job. At last, after The ceremony was brief, the given much thought or planning as a few weeks of phone calls and CV dinner clouded in secrecy but far to what would happen next. Now it forwarding, I have an interview duller than the impression our was time to earn the Barrister title booked. Now I’m off to discuss friends and family had when they I had so proudly updated on my with my other half how he thinks were asked to exit the hall for the blackberry messenger status. I should respond to any questions ‘Lawyers only’ Call to Bar Dinner. After getting a feeling of what about what exactly our marital and Of course immediately after the everyone else was doing, I realised baby plans are for the next year or dinner I was compelled to quickly some students already had jobs and so. Hopefully I won’t go from a baby assure my parents that there was were due to start work the following lawyer to a single baby lawyer after no drinking of blood out of any week! I was behind the pack and I the discussion. ancient golden goblet or such other had to get a move on. For those like initiation performed, as I’m sure me who have yet to pass through Wish me luck.

5 ARBITRATION Shaun Lee, Associate, Olswang LLP (Singapore) Law Digest Summer 2013

persons and companies, including Burley, subscribed to parts of the SHA. Unitech, Burley and Cruz City also Bifurcation and entered into a Keepwell Agreement, also dated 6 June 2008, under which Unitech agreed to put Burley in funds Substantive so that it could make the necessary payments under the SHA. On 14 July 2010, Arsanovia served Jurisdiction in a Management Approval Termination Notice and a Buy-Out Notice on Cruz City on the grounds that a “Bankruptcy/ Arbitration Dissolution Event” (as defi ned in the SHA) had occurred in respect of the “Affi liate which controls Cruz City” i.e. he English High Court in Lehman Brother Holdings Inc, which Arsanovia Ltd & Ors v Cruz had fi led for Chapter 11 Bankruptcy TCity 1 Mauritius Holdings, in the USA. If these notices were valid, [2012] EWHC 3702 (Comm) delivered they would have given Arsanovia a decision dealing with the issues management control over Kerrush of governing laws and (substantive) and would require Cruz City to sell its jurisdiction with regard to three interest in Kerrush to Arsanovia under LCIA (London Court of International a formula in the SHA. However, on 13 Arbitration) arbitrations between 4 September 2010, Cruz City purported parties under various agreements. to exercise a “Put Option” under the SHA These issues arose primarily from on the basis that certain preconditions the fact that one of the parties in the in the project had not been met, and arbitration proceedings was signatory thereby required Arsanovia to purchase to specifi ed parts of the substantive City Cruz’s interest in Kerrush. agreement, which did not include The key to understanding the the arbitration clause. It was further dispute was that the terms of the “Put complicated by the fact that there Option” were much more favourable to was no express choice of governing Cruz City than the buy-out formula. Shaun Lee law to which arbitration proceedings The main issue in dispute between the Associate, Olswany LLP [Singapore] between the parties would be subject parties then was whether Arsanovia’s to, although the parties had expressly notices were valid because that would chosen Indian law to govern the disentitle Cruz City to exercise the substantive contracts and designated “Put Option”. The dispute gave rise to “The court is London as the seat for arbitration three arbitrations whose awards were proceedings. challenged in this case; not bound by The claimants in this case were • In the 1st arbitration, Cruz City the tribunal’s Arsanovia Limited (“Arsanovia”), a claimed damages and specifi c Cypriot company, and Burley Holdings performance under the SHA determination of Limited (“Burley”), a Mauritian against Arsanovia and Burley; company and their parent company, • In the 2nd arbitration, Cruz City its jurisdiction in Unitech Limited (“Unitech”), an Indian claimed damages against Unitech the arbitrations. company. The defendant was Cruz City and Burley under the Keepwell 1 Mauritius Holdings (“Cruz City”). Agreement. Instead the court The disputes between the parties arose must determine out of two agreements entered into in In the 1st and 2nd arbitration, the respect of a joint venture to redevelop Tribunals determined that they had the matter of certain areas in Mumbai, India. A jurisdiction and held that Arsanovia jurisdiction afresh” special purpose vehicle company was not entitled to give the notices and called Kerrush Investments Limited that Cruz had validly exercised the (“Kerrush”) was formed with Arsanovia “Put Option”, and ordered Burley and and Cruz City as shareholders. Unitech to pay what was due under the Arsanovia, Cruz City and Kerrush “Put Option” (“Award 1” and “Award 2”) entered into a Shareholders’ Agreement • In the 3rd arbitration, Arsanovia (“SHA”) dated 6 June 2008, and other sought a declaration that their

6 www.nglawdigest.com Law Digest Summer 2013

notices had been validly issued 21 shall be the exclusive procedure for done so, the natural inference is that and specifi c performance of Cruz the resolution of all disputes referred to they intended the proper law chosen to City’s obligations under the SHA herein.” govern the substantive contract also to or damages for their breach or As aforementioned, the SHA and govern the agreement to arbitrate”. both, and Cruz City brought a the Keepwell Agreement were both For the same reasons as identifi ed counterclaim seeking relief against expressly governed by Indian law. by Moore-Bick LJ in the Sulamérica Arsanovia and Burley similar to The SHA defi ned as its “parties” Cruz case, the court held that “parties to the that sought in the 1st arbitration. City, Arsanovia and Kerrush. However, SHA are to be taken to have evinced an Burley had signed a signature page intention that the arbitration agreement The Tribunal in the 3rd arbitration to the SHA and thereby agreed to be in it be governed by Indian law”. The dismissed the claim and counterclaim, bound by certain identifi ed clauses in High Court also identifi ed the reference without any determination as to its the SHA; but the arbitration agreement to the Indian Arbitration Act as jurisdiction (“Award 3”). was not one of those identifi ed clauses. another relevant factor which pointed Arsanovia, Burley and Unitech, On the preliminary issue of the to Indian law as the governing law of under section 67 of the Arbitration Act applicable governing law of the the arbitration clause. The learned 1996, challenged the awards, disputing arbitration agreement in the SHA the judge agreed with the claimants that the jurisdiction of the Tribunal(s) to High Court held at paragraph [8] that: “where parties have expressly excluded determine the 1st and 2nd arbitrations “…They [the applicable governing specifi c statutory provisions of a law, and the counterclaim in the 3rd law] are determined by reference the natural inference is that they arbitration. The key issue therefore to the English common law confl ict understood and intended that otherwise before the court in this case involved of law rules, and so the court fi rst that law would apply”. Therefore, in all, the question of whether the tribunal decides whether the parties expressly the governing clause was found to be a had jurisdiction over the parties. This or impliedly chose a law applicable to strong pointer to the parties’ intention necessitated (i) an examination of the arbitration agreement; if they did, about the law governing the arbitration which law governed the arbitration the court gives effect to the parties’ agreement, reinforced by the wording agreement and, (ii) whether parties had choice; and if they did not, the court of the arbitration agreement itself. validly submitted to arbitration. identifi es the system of law with which Against this, the choice of London the arbitration agreement has its closest as the seat for arbitration did not in (i) The law governing the arbitration and most real connection.…” itself suffi ciently provide or support a agreement The High Court closely reviewed the contrary intention. The SHA and the Keepwell Agreement Court of Appeal cases of C v D, [2007] Finally, the court said if it had not both contained arbitration agreements EWCA Civ 1282 and Sulamérica Cia determined that the parties had made in materially the same terms. Clause Nacional de Seguros SA and ors an implied choice as to the governing 21.1 of the SHA provided for the v Enesa Engenharia SA and ors, law of the arbitration agreement, following: [2012] EWCA Civ 638 (the “Sulamérica then the court would have held that “LCIA Arbitration. Any dispute case”). These two cases similarly dealt English law had “the closest and most arising out of or in connection with the with a situation in which parties had real connection with the arbitration provisions of this Agreement, including chosen a law that was different from agreement” being the law of the seat of any question regarding its validity, the curial law (i.e. the law of the forum the arbitration in line with Longmore existence or termination, shall be referred with supervisory jurisdiction over the LJ’s reasoning in C v D and Moore-Bick to and fi nally settled by arbitration arbitration) to govern the underlying LJ in the Sulamérica case. under the London Court of International contract. Moore-Bick LJ in the (ii) Jurisdiction of the Arbitration Arbitration Rules (“Rules”), which rules Sulamérica case stated as follows: Tribunal are deemed to be incorporated by “It has long been recognized that in The court pointed out that the reference into this Clause. The number principle the proper law of an arbitration essential dispute (with respect to the of arbitrators shall be three. The seat agreement which itself forms part of a 1st arbitration) was about whether or legal place of the arbitration shall be substantive contract may differ from Burley was party to an arbitration London, England. The language to be that of the contract as a whole, but agreement with Cruz City. This would used in the arbitral proceedings shall be it is probably fair to start from the in turn determine if the Tribunal in English. ... Notwithstanding the above, assumption that, in the absence of any the 1st arbitration had substantive the Parties hereto specifi cally agree indication to the contrary, the parties jurisdiction. The High Court held that they will not seek any interim relief intended the whole of their relationship that the Tribunal lacked substantive in India under the Rules or under the to be governed by the same system of jurisdiction over Burley in 1st Arbitration and Conciliation Act, 1996 law. It is common for parties to make arbitration as Burley was not a party to (the “Indian Arbitration Act”), including an express choice of law to govern their the arbitration agreement in the SHA. Section 9 thereof. The provisions of contract, but unusual for them to make Notably, the High Court determined Part 1 of the Indian Arbitration Act are an express choice of the law to govern that this was the case regardless of expressly excluded. For the avoidance any arbitration agreement contained whether the arbitration was governed of doubt, the procedure in this Clause within it; and where they have not by Indian or English law (see paragraph

7 ARBITRATION Shaun Lee, Associate, Olswang LLP (Singapore) Law Digest Summer 2013

[34] and [36]). The court further held as English) law, the Tribunal lacked the substantive contract(s) and/or that it was not bound by the Tribunal’s substantive jurisdiction over Burley, derivative or auxiliary agreements determination of its jurisdiction in the the next question for the court was, if such as the governing law, applicable arbitrations. Instead the English courts Award 1 could not be sustained against rules on procedure and the type and must determine the matter afresh, Burley, could Award 1 nonetheless still seat/location of the dispute resolution following the UK Supreme Court be enforceable as against Arsanovia proceedings. It is also important decision in Dallah Real Estate and (the other respondent) under Indian to understand the limitations and Tourism Holding Co v The Ministry law? The High Court held that it could consequences under the applicable of Religious Affairs, Government of not and that the award had to be set laws; such as in this case where Pakistan, [2010] UKSC 46. aside in its entirety. under Indian law, an award cannot be In relation to Burley, the court The court considered that the bifurcated. held that the natural conclusion was decision of the Supreme Court of India The doctrine of severability with that Burley only agreed to be bound in Sukanya Holdings (P) Ltd v Jayesh regard to arbitration clauses/ by the identifi ed clauses and no Pandya and anor (2003) 5 SCC 531; agreements is well established and other. Furthermore, the High Court [2003] INSC 223 was applicable and requires arbitration clauses to be considered that: that under Indian law, an award could treated as “distinct agreements” from “The signature page referred to not be bifurcated (see paragraph [46]) the main or substantive agreement Burley being “bound” by obligations and thus stated: and as such, the two agreements imposed on it. It was not suggested, and “I therefore accept [the claimant’s can be governed by different laws. In I cannot conceive, that the Parties and Indian law expert’s] evidence that determining the governing law of an Burley intended to make a one-sided the Sukanya principle (i) is based on arbitration agreement regard shall be arbitration agreement: that the Parties a concept of arbitrability and is not made to: should have a right to bring a reference confi ned to applications for the court • the express choice of law governing against Burley, but Burley has no right to to refer the parties to arbitration, and the arbitration agreement; but in bring arbitration proceedings. If Burley (ii) applies to international as well as the absence of such, were party to the arbitration agreement, domestic arbitrations. Because the • the implied choice of law; and in they would have had that right and the Tribunal in [the 1st arbitration] did not the absence/uncertainty thereof, Parties (or at least Cruz City) would have have jurisdiction over Burley, the whole • the system of law which has the undertaken corresponding obligations matter before them, viz the claims closest and most real connection to Burley, but on its face the signature against Arsanovia and Burley, was not with the arbitration agreement. page does not refl ect an agreement of arbitrable. It follows, to my mind, that this kind”. they therefore did not have substantive Factors relevant, but not in In concluding on this issue, the jurisdiction over the claim against themselves decisive, in determining the court stated (at paragraph [35]) that: Arsanovia within the meaning of section implied intention as to the governing “English law requires that an intention 67: it was not a matter “submitted law of an arbitration agreement include to enter into an arbitration clause must to arbitration in accordance with the the governing law of the substantive be clearly shown and is not readily arbitration agreement”. agreement and the law of the seat of inferred, and [there is] nothing in the the arbitration. evidence that shows any different rule CONCLUSION of construction under Indian law.” Like with any aspect/part of a contract, Arsanovia reinforces the THE VALIDITY OF THE ARBITRATION importance for parties to clearly express AWARDS their intentions and preferences in Given that under Indian (as well the event of a dispute arising from

INTERNATIONAL LITIGATION AND ASSET RECOVERY 2013 Venue: LAGOS, NIGERIA - Date: 5th NOVEMBER 2013 Hosted by: & 8 PROJECT FINANCE Damisola Akolade – Details Solicitors, Nigeria Law Digest Summer 2013

have thus so far been exclusively provided, owned and managed by the NRC. The development of the rail transport system has however been faced with numerous challenges including outdated equipment, neglect, poor maintenance, government interference in management and a volatile labour union. In a bid to resuscitate the Nigerian railway system, the Federal Government has sought the participation of the private sector in the form of Public- Private Partnerships (PPPs). This is in addition to the initiative of some state governments to provide rail transportation by applying for licenses to the NRC to construct, operate and maintain railways in their respective states, whether or not in conjunction with the private sector. To encourage state and private participation, a Bill seeking to amend the NRCA is underway. The Bill seeks to amend section 29 of the NRCA by stating: 1. construction and operation of railway transportation for the public carriage of passengers and goods within Nigeria may be carried out by the Nigerian Railway Corporation or any state of the Federation or any Private Sector Operator who is licensed under subsection (2) of this section; 2. the Minister may license any other operator other than the Nigerian Railway Corporation to construct and carry on the business of Public Private railway transportation in any part of Nigeria

CONSIDERATION OF PPPs IN THE Partnerships in NIGERIAN RAILWAY SECTOR What is the regulatory framework for PPPs in Nigeria? the Railway Sector In Nigeria, the Federal Government Damisola Akolade and some state governments have passed relevant PPP legislation and ne of the indices for determining Railways Corporation Act 1956 regulations. At the Federal Level, the the socio-economic development (“NRCA”) was passed and established PPP legislative framework includes of any country is a well- the Nigerian Railways Corporation the Infrastructure Concession O 1 developed transport system. With a (“NRC”) granting it exclusive rights of Regulatory Commission Act 2005 rapidly increasing population and a ownership of the nation’s railways and (“ICRC Act”), the Public Procurement simultaneous increase in the volume making it unlawful for any other person Act 2007 (“PPA”), the Constitution of goods consumed, the need for a to construct railway lines or provide of the Federal Republic of Nigeria, seamless and effi cient transport system services without the express permission 1999 and the various Acts establishing cannot be over-emphasized. of the NRC2. These provisions make it the agencies and departments for impossible for the private sector and the Federation e.g. the NRCA. This NIGERIA’S RAILWAY SECTOR the state governments to play any role framework is replicated at state levels The Nigerian Constitution declares in the railway industry without the with some states establishing a PPP railways a matter on the exclusive direct approval/license and support of Offi ce and passing state concession legislative list, to be solely legislated the NRC which is not easily obtained. and procurement laws. For example, upon by the National Assembly. As a result of the above, railway Lagos State has established its PPP Pursuant to this, the Nigerian services and infrastructure in Nigeria Offi ce and has passed both the Lagos

10 www.nglawdigest.com Law Digest Summer 2013

State PPP Law 2011 No. C23 and the and maintenance services as well as effi ciency gains can be substantial. Lagos State Public Procurement Law arrange for fi nancing of the project; or Certain risks are associated with 2011 No. C151. Also, Delta and Edo Build-Operate-Transfer (“BOT”) Model PPPs such as: political risks, complexity states have passed PPP Laws and - which is more commonly used for related risks (design, construction, established PPP Offi ces. the development of new systems; or, and technical capacity), fi nancial risks The ICRC Act provides that any the Operate and Maintain Concession (fi nancing, foreign exchange, tax) and federal ministry, department or agency - which may be used where the demand risks (traffi c and availability may enter into a concession agreement government has written off its based concessions). with a duly pre-qualifi ed project investment in the rail lines and proponent i.e. the private entity which the assets are already available must possess the fi nancial capacity, or where the government “In a bid to resuscitate the relevant expertise and experience intends to improve its services Nigerian railway system, the in undertaking infrastructure and create competition. development or maintenance3. This In determining the Federal Government has proves relatively simple in the case of contractual framework, public sought the participation Federal concession to a private entity. authorities need to consider However, as the law stands at present, whether to use an integrated of private parties in the where a state government is involved approach with a single form of public-private the matter becomes complicated. This is concession or BOT contract or, a because a state government would have layered approach with separate partnerships (PPPs).” to go through the bureaucratic process contractual arrangements for of requesting a license from the NRC. the different aspects of the railway 1. Political risks: infrastructure This permit must then be approved by development and operation. Thus, investments are not portable the President before a license can be the asset provider and the service and face risks which may result granted4. This lengthy process is sought (operations and maintenance) provider from planning changes, legal to be cured by the proposed Nigerian may be distinct/different entities. and regulatory changes and Railways Commission Amendment Bill; In some cases, different assets e.g. unsupportive government policies as the proposed amendments intend railway beds/tracks, locomotives, which inhibit the progress of to permit the participation of state signages, etc. may also be provided the project. Risks faced include governments and the private sector by different concessionaires. For expropriation (at the worst) or without requesting for a license from simplicity, governments may want appropriation of the investor’s the NRC. to deal with a single entity and it profi ts. However, Section 11 The PPA applies to all procurement of may be that the contract structure of the ICRC Act prohibits the goods, works and services carried out by will require the different providers to arbitrary variation, cancellation the Federal Government of Nigeria and operate singularly as a special purpose or suspension of any agreements all its procurement agencies5 and as company or joint venture. Lawyers will reached by the parties involved in PPPs involve some form of procurement need to ensure that the shareholder or the contract. This provides a level of (of services), the provisions of the PPA joint venture agreement, as the case guarantee for project proponents. applies to the PPP framework. The may be, specifi es unambiguously their 2. Complexity related risks: this PPA establishes the Bureau of Public respective rights and obligations over refers to the technical capacity Procurement (BPP) which issues the contract life. of the project proponent(s) to ‘Certifi cates of No Objection’ to contract effectively design, construct awards. The PPA also mandates that all RAILWAY PPP PROJECT RISKS and maintain the rail project. In public procurements be undertaken by The use of PPPs for railway projects determining how to divide PPP open, competitive, transparent, timely raises a number of complex issues projects, the procuring entity and equitable bidding process. and choices, the solutions to which may be faced with the diffi cult are often project or country specifi c. decisions, of either dividing the PPP OPTIONS SUITABLE FOR PPPs require complex detailed project into too few (and therefore, RAILWAY CONCESSIONS fi nancial modelling, risk assessment too large) pieces, thereby reducing In the context of a rail project, the and structuring, contract and tender the number of companies capable project may be broken down into four document preparation to ensure that of competing for the business and principal tasks. These are: (i) defi ne and the project will be acceptable to the stifl ing competition, or dividing design; (ii) fi nance; (iii) build, as well as market and that public interest will be the project into too many pieces, (iv) operation and maintenance. Over protected. Advisors must ensure that increases the number of interfaces the years, contractual models have all possible risks over the whole of the among different sections of the rail been developed with a view to not only project life cycle are identifi ed, fairly, line leading to potential problems allocate responsibility for these tasks, and to the greatest extent, accurately with co-ordination. For example, but also allocate risks and maximise quantifi ed and justly allocated. the layered approach to PPPs access to skill, technology and other Contracts should have mechanisms for was used in the construction of key resources. the mitigation and review of risks with The Netherlands HSL-Zuid high- PPP rail projects are usually clear terms for the transfer of risks as speed rail line. The construction undertaken either through the Design- well as their management, especially in of the railway line was split into Build-Finance-Operate (“DBFO”) the case of unintended/unanticipated three parts and concessioned to Model, where the private sector provides events/outcomes. If risk resides with three different companies. The technical skills, on-going operation the entity best able to manage it, Dutch Government relied heavily

11 www.nglawdigest.com Law Digest Summer 2013

on the ability of the companies to proposals are likely to impose projected outputs calculated are communicate effectively. However, public costs. at best modest fi gures which truly failure in communication resulted • Foreign Exchange: Adverse represent the level of demand. in cost overruns and heavy delays movements in foreign due to changes in work scope, poor exchange rates may impact the Designing long term PPP contracts planning and coordination between concessionaire’s revenues and in an uncertain environment remains the parties. these fl uctuations may impact a challenging task for lawyers. Where envisaged costs of imported items there is a lopsided allocation of risks, “Designing long term PPP required for construction or there is the fear of a government lock- operations of the project. Usually, in or an ultimate failure of the project. contracts in an uncertain the project proponent includes the While parties may try to anticipate foreign exchange projections in the every risk and ensure that each risk environment remains a Agreed Financial Model, however, is properly allocated or shared, it may challenging task for both in certain cases, it is advisable prove impossible to plan for every for the government to provide potential contingency. It is therefore the government and support (for example through imperative that contracts should guarantees) should adverse be designed to allow for review, re- private sector parties” foreign exchange movements negotiations and contract extensions. exceed the estimates projected by This should however be worded 3. Financial risks: these include the project proponent. carefully as it may incur additional fi nancing and foreign exchange 4. Demand risks: a major concern legal/contractual risks such as with risks. for passenger-based PPP services regard to the legal interpretation of • Financing: Rail projects are is determining the demand for such clauses/wording. A railway PPP typically multibillion-dollar the service provided. For railway transaction does not lend itself to a projects that require the PPPs, the demand risks could ‘one-size fi ts all’ model, but requires assembly of capital from a either be borne by the government accurate and detailed analysis and variety of sources, including (availability-based concessions) structuring and bespoke drafting most various government entities, or borne by the concessionaire especially on the part of the lawyers to publicly owned fi rms and private (traffi c-based concessions). the transaction. investors. The responsibility for Under an availability-based fi nancing a rail project is however concession, the fi rm that builds one of the risks which is usually the line is also responsible for 1 Section 4 of the NRCA not effectively allocated. It is its maintenance and operations 2 Section 29 of the NRCA 3 falsely assumed that the project over the length of the concession Section 2(3) of the ICRC Act 4 An example of this is the Eko Rail Concession proponent would fund the entire period. Rather than the private (promoted by the Lagos State Government) which project. The capital-intensive entity recouping its investment is underway and is proving to be successful as it nature of rail development, in the line through fares or other is at the construction phase. 5 Section 15 of the Public Procurement Act in addition to the diffi culty of revenues (traffi c based), it receives 6 See Palmer, Keith, ‘Contract Issues and Financing projecting future passenger regular availability payments from in PPP/PFI (Do we need the ‘F’ in ‘DBFO’ traffi c, means that private the government, contingent on Projects?)’ 2000; Cambridge Economic Policy investors are unlikely to take on meeting specifi ed benchmarks for Associates Ltd (CEPA). 7 This can be achieved through the use of a Risk the full fi nancial responsibility the availability of the line. Matrix which will defi ne the possible risk, the of building a rail line and many The risk of project failure severity and frequency of occurrence, entity the railway projects have had to be appears to be higher for traffi c- risk is assigned to and mitigation. 8 Akerele,D and Gidado, K ‘The Risks and rescued through government based concessions. This is usually Constraints in the Implementation of PFI;PPP in bailouts. It is important for the due to an overestimation of traffi c Nigeria’ in Greenwood, D, J (ed), 19th Annnual government to acknowledge that count by the parties involved. ARCOM Conference, September 2003, University public investment is necessary Thus care must be taken by the of Brighton; Association of Researchers in Construction Management, Vol. 1, 379–91. for the completion of a rail project fi nancial analysts, traffi c planners, and understand that even private transport economists etc that the

INTERNATIONAL LITIGATION AND ASSET RECOVERY 2013 Venue: LAGOS, NIGERIA - Date: 5th NOVEMBER 2013 Hosted by: & 12 www.nglawdigest.com Law Digest Summer 2013 SPECIAL FEATURE

claims that ethnic minority solicitors have been struck off for much lesser charges and she sued the SRA for discrimination. The allegations against Ms. Agim on behalf of the SRA were that she failed to disclose material information to her mortgagee clients; she acted in a position of confl ict and permitted the interests of her purchaser clients to prevail over her duties to her mortgage clients, thereby failed to act in the best interest of these clients. It was also alleged that she acted in transactions that were suspicious, bearing the Is the English hallmarks of money laundering and potential mortgage fraud. She also created attendance notes with the intention of misleading the Investigation Offi cer of the SRA. Ms. Regulator Agim admitted the charges; however, in relation to allegation that she created attendance notes with the intention of misleading the Investigation Offi cer of Biased Against the SRA, she denied that she had acted dishonestly. The campaign of Ms. Agim not only drew the support of the SBL but also Black Solicitors? non-black solicitors such as Nigel Adams (Rtd) who accused the SRA of By Seyi Clement acting arbitrarily and disproportionally targeting black and ethnic minority (“BME”) solicitors. The SRA successfully argued that ith another Nigerian Solicitor the Qualifi ed Lawyers Transfer Scheme Ms Agim’s claim be struck out. It also intervened by the Solicitors (QLTS), which enables internationally successfully prevented Ms Agim from WRegulation Authority (SRA) qualifi ed lawyers to become English using the SRA’s forensic investigation (the body created by the Law Society solicitors, through a set of assessments report into the conduct of the white to regulate solicitors in England and administered by the SRA in England solicitor as evidence in her case against Wales) and another struck off, eyebrows and Wales, the number of Nigerians re- the SRA. are being raised by many including the qualifying to practice in the UK is set to This is not the fi rst time charges Society of Black Lawyers (SBL) on the rise further. of institutional racism have been laid even-handedness of the SRA in dealing Joyce Agim, (alumna of Nasarawa at the doors of the SRA. Since 2004, with Black solicitors (a signifi cant State University, Nigeria) is the latest monitoring data by the Law Society has proportion of whom are Africans). black solicitor who believes that shown that BME solicitors are over- The SBL has expressed concerns institutional racism at the SRA has represented in regulatory decisions and that a growing number of ethnic led to a white solicitor receiving only a outcomes. Before the establishment of minority solicitors are bringing race reprimand from the SRA, whilst she had the SRA, the Law Society’s regulatory discrimination claims against the SRA, conditions, which limited her ability to arm commissioned an initial equality pointing to the inconsistencies in the practice as a solicitor placed on her impact assessment (EIA) of its decision making process within the SRA practicing certifi cate. She contends regulatory activities which suggested in relation to ethnic minority solicitors, that even though the Authority found that there may be a number of factors when compared with decisions made that the white solicitor in question that could be having an impact on the against white solicitors. This matter had committed clear breaches of the statistical disparity. These included is of interest to us as a signifi cant Solicitors Accountancy Rules and anti- size of practice and qualifi cation route proportion of black solicitors in the UK money laundering rules, the solicitor as possible factors resulting in the over- are Nigerians and with the expansion of received only a reprimand. Ms Agim representation of BME solicitors in

15 www.nglawdigest.com Law Digest Summer 2013

regulatory decisions. The suggestion put BME solicitors at a disadvantage. the commissioning of the study and was that the SRA disproportionately Lord Ouseley’s recommendations found that in some areas of decision- target small fi rms, the majority of included a signifi cant overhaul of the making the original disproportionality which employs BME solicitors, and way in which the SRA operates with had increased. The review identifi ed a consequently BME solicitors are an action plan to address a whole number of factors which might explain range of issues raised. the disproportionality. For example, The SRA responded to the the review suggested that solicitors This is not the fi rst recommendations of the Ouseley in small fi rms, solicitors working for Report through the publication of its BME owned fi rms, and solicitors with time charges of fi rst equality and diversity strategy fewer years on the roll were all more institutional racism and action plan in early 2009 and in likely to have a case brought against February 2011, and the commissioning them and in each of these groups, have been laid at the of a more detailed investigation into BME solicitors were over-represented. the causes of the disparity by Pearn The Kandola Report did not give a doors of the SRA. Kandola, (a consultancy specialising reason for this over-representation, in diversity issues). Pearn Kandola but the SBL suggests that this is disproportionately represented in the was tasked with identifying why the because the SRA lacks the resources SRA regulatory sanctions. In October 2007, the SRA commissioned Lord Ouseley, (the former head of the UK Race watchdog, Commission for Racial Equality from 1993 to 2000), to undertake an independent review into the issue of disproportionality. His report in July 2008 made grim reading for the SRA. The report found that there was extensive evidence of what can be dubbed “institutional racism” within the SRA. He was surprised that despite numerous internal reviews and studies undertaken by the SRA and its predecessor on the issue of equality, many of the actions needed to give effect to equality outcomes had not been implemented. Other work was found to be incomplete, or still “work in progress” or had been implemented by some staff half- heartedly, tokenistically and with no real passion for taking responsibility Prof. John’s Report is eagerly awaited by all in the profession to make fairness, equality and disproportionality was occurring in and/or the expertise to investigate the diversity a priority in their work. He the SRA decisions and outomes and to large fi rms and so concentrates its found that one of the core reasons investigate whether other regulators regulatory resources on the smaller why the Law Society and the SRA have experienced similar disproportionality. fi rms. fail to effectively address the issue of The review concluded that, although Of particular interest to us is disproportionality was inadequate disproportionality existed in many one of Pearn Kandola’s fi ndings to management commitment, oversight regulatory systems, very few the effect that a disproportionate and effective monitoring of equality regulators had done detailed work in number of cases are raised against and diversity implementation activity. the area. solicitors who fi rst qualifi ed in specifi c The report also criticised the SRA Pearn Kandola also found that jurisdictions. The review stated that for failing to give suffi cient priority there were a disproportionate number those who qualifi ed in Nigeria, India, to issues of equality and diversity. of cases involving BME solicitors Pakistan, amongst others, are all He concluded that in assessing the reported to the SRA, which means disproportionately represented in ethnic data available, the simple that it is almost inevitable that those who have cases raised against fact which emerges year on year is there will be some disproportionality them. Whilst solicitors who fi rst that BME solicitors appear to be in the outcomes of these cases. qualifi ed in North America and Europe disproportionately regulated by the Pearn Kandola compared the data are less likely to have cases raised SRA. Although he cautioned that this considered by Lord Ouseley with the against them than would normally be in itself is neither an indicator nor data gathered by the SRA from the expected. evidence of unfairness, it does however time of Lord Ouseley’s report until A question which Pearn Kandola’s

16 www.nglawdigest.com Law Digest Summer 2013

analysis failed to answer is, if those establishment. Nwabueze Nwokolo, then strike him off the roll of solicitors. who fi rst qualifi ed in Europe or Law Society council member for Mireskandari and Baxendale-Walker America are less likely to have cases black and minority ethnic concerns, are members of a growing number of raised against them than would said that she agreed with the SBL’s ethnic minority solicitors who are now normally be expected, why is this so? concerns. “There is no transparency taking the fi ght to the SRA, alleging Is it because of institutional racism, or equality of arms in the way the familiarity with robust regulatory SRA spends inordinate sums of money The report found that processes, or because they are more pursuing small fi rms”, she added. likely to work in the large fi rms? We The SBL’s criticism was also there was extensive put this question to the SRA, which echoed by Lord Ouseley’s Report admitted that no research has been which opined that the Law Society evidence of what is done in this area. There was also no and the SRA have spent relatively suggestion that any was planned in little time with fi rms of 26 or more fee dubbed today as the future. earners, although they make up only “institutional racism” Pearn Kandola made a number of 5% of law fi rms, they employ half of recommendations, including: (a) a the practising solicitors. within the SRA review of the decision making process In a related development, Sean at the fi rst stage of matter handling; Mireskandari (a BME Solicitor) fi led (b) a review of decision-making claims in the Superior Court of processes in relation to conduct California against the SRA alleging cases; (c) a review of referrals to the racial discrimination amongst other SDT; (d) a review of decision-making claims. The claims are said to be processes in relation to the imposition worth at least $50 million in punitive of practising certifi cate renewals; (e) a damages. The background to the review of decision-making processes claim is that in December 2008, the in relation to solicitors’ accounts and SRA intervened in Mr. Mireskandari’s practising restrictions; and (f) a review successful London-based law fi rm, of the guidelines concerning referrals Dean & Dean – closing down the of cases to the Committee/Panel. fi rm. In his California lawsuit, Mr. According to Peter Herbert, Mireskandari, claims he “enjoyed a President of the SBL, “It is hard not to growing reputation” as a representative conclude that the SRA is institutionally for minority clients before the SRA racist and is not being held accountable began to investigate him after he for its actions. It has far worse rates of turned the spotlight on it. He claims disparity of treatment than those found that in the summer of 2007, he in police stop-and-search statistics began to question why solicitors of across the country. As a regulator, it black and minority ethnicities were appears to be acting with impunity “disproportionately investigated, against solicitors in small practices censured and suspended by” the SRA. and this is having a disproportionate He claims that his intent was to bring impact on BME solicitors. At the same about positive change to the growing time, the SRA steers clear of tackling community of BME solicitors. Instead, the larger law fi rms, even when major his actions prompted the SRA to Peter Herbert as being a fierce critic of SRA Reglation of BME Firms breaches of the Solicitor’s Practice or suspend his license and destroy his Accounting Rules are brought to light.” reputation. Mr. Mireskandari claimed racial discrimination, wrongdoing The SRA responded angrily to the that Asian solicitors comprised 5.5% of and disproportionality in the way that allegations made by the SBL. The SRA the professional population, yet were ethnic minority solicitors are treated chief executive Antony Townsend said the targets of 18% of interventions. by the regulator. the regulator has been addressing He further alleged that black solicitors The SRA declined to comment disproportionality since the Ouseley faced even starker disproportionality; on the details of these cases, but in review and had cooperated with the while only 1.6% of the solicitor a statement issued to Law Digest SBL by providing it with information population, but accounted for 15% of through its spokesperson, it said, and offering to discuss any concerns the interventions. “Proceedings in the US brought with it. He expressed disappointment Mr. Mireskandari’s US claims join by Mr Baxendale-Walker and Mr that the SBL “are unwilling to discuss that of another civil action, brought Mireskandari have been in existence their concerns with us, but feel the by Paul Baxendale-Walker, a former for a considerable period. While we need to air them through the media tax solicitor of Asian origin, whose refute all the allegations made in the using misleading and inaccurate successful law practice was closed court proceedings in the US, we will statements”. down by the SRA in 2005. Mr. not be making any detailed comment The SBL’s campaign has Baxendale-Walker alleges that the SRA until they have been brought to an end. found support even within the used similar tactics to intervene and It is suffi cient to say that the purported

17 www.nglawdigest.com Law Digest Summer 2013

facts on which the allegations are When one looks at how the SRA dealt within its powers to ensure that there based are not reliable and the with these complaints, black Solicitors is no disproportionality in the way it allegations largely consist of a re-hash are less likely to have their matters deals with these complaints. However, of old claims that have already been “Summary Closed” (i.e. no action if as the Pearn Kandola Report dealt with in this country”. taken). There is also evidence which found, a disproportionate number Both Mr Baxendale-Walker appears to show that when compared of complaints are brought against against white solicitors, there BME solicitors it is surprising that continues to be disproportionality no research has been undertaken by The report also in the number of black solicitors the SRA to understand why this is the being intervened. Black solicitor also case. It has been suggested by some criticised the SRA for continue to be disproportionately BME solicitors that clients and fellow having failed to give represented in the number of solicitors are more likely to complain solicitors referred to the SDT. Black against BME solicitor than their suffi cient priority to solicitors are also disproportionately white counterparts because of their cited for Late Accountants’ Report personal prejudices. issues of equality and seem comparatively more likely To its credit, this issue of to have conditions imposed on their disproportionality has not gone and diversity. practice certifi cate. Although black unnoticed by the SRA. In addition to

and Mr. Mireskandari had earlier unsuccessfully brought claims against SRA in the UK. In the case of Mr. Mireskandari, he discontinued his case against the SRA and in the case of Mr. Baxendale-Walker, his claims against the SRA were struck out on the basis that (a) they have no real prospect of success, (b) the SRA are immune from suit, and (c) they involved mounting a “collateral attack” on an earlier fi nal decision by another court of competent jurisdiction and as such amounted to an abuse of process. Ms Agim and others believe that despite the external reviews and efforts within the SRA to implement Lord Ouseley’s and Pearn Kandola’s recommendations, the Authority continues to engage in practices and decision making which amount to ‘racial profi ling’. Andrew Townsend believes the SRA has made signifi cant progress addressing the dipropotionalt issuue We have reveiwed the activities of the SRA since the publication of the solicitors account for just 2% of the commissioning the reports by Lord Pearn Kandola Report to date, covering entire solicitors’ population, they Ousely and Pearn Kandola, it set up the fi ve main regulatory areas of the account for 8% of complaints, 17% the External Implementation Group SRA, including conduct investigation, of interventions, 13% of referrals (EIG) under the chairmanship of interventions and referrals to the SDT, to the SDT, 8% of citations for Late Lord Ouseley to work with the SRA to citation for Late Accountants’ Reports Accountants’ Report and 14% of address issues of disproportionality and practicing certifi cate conditions, solicitors with conditions imposed among BME members of the which had consistently showed on their practicing certifi cate. These profession. disproportionality in outcomes. fi ndings have been consistent over the The SRA believes that it has taken Unfortunately, it seems that last 3 years (see Table A*). According a proactive approach in promoting this trend of disproportionality of to the SRA’s own latest fi gures, 38% of equality in the profession and looking black solicitors in conduct matters solicitors subject to intervention and at how it can address some of the reported to the SRA and the outcomes 31% of those referred to the SDT are key areas of its regulatory activities identifi ed by both Lord Ouseley and from minority backgrounds, although where there is consistent evidence of Pearn Kandola is still evident. The these groups of solicitors make up disproportionality. Ms. Mehrunnisa SRA’s Diversity Monitor Statistics only 12% of the profession. Lalani, SRA Director of Inclusion, said published in 2011 show that the SRA In fairness to the SRA, it has no it regularly audits its processes for received a disproportionate number control over the nature or volume of robustness and publishes its fi ndings. of complaints against black solicitors. complaints it receives, but it is entirely In early 2012, the SRA decided

18 www.nglawdigest.com Law Digest Summer 2013

to carry out a second review into been specifi cally alleged. Professor as compliance with any regulatory allegations of racial discrimination by John is expected to complete the framework draws on the capacity BME solicitors; a move which came review in mid-2013. and resources of fi rms and the in the wake of the publication of the SRA chief, Antony Townsend, professionals and can be particularly SBL’s ‘Breaking the Silence’ report into defended the SRA track record burdensome on the smaller fi rms. allegations of racism and wrongdoing in dealing with the issue of As well as making changes to the by the SRA in April 2012. The SBL disproportionality. He said that the regulatory framework to make better report raised concerns about the SRA has made a lot of progress in use of its limited recourses, the SRA way in which the SRA undertakes its the last four years in addressing is also trying to address the capacity regulatory, investigative, prosecution disproportionality and promoting issue within small practices. The and adjudication functions. equality, but hopes that Professor SRA has an on-going programme On 28 November 2012, the SRA John’s review will help to identify to educate BME solicitors, amongst reached an agreement with the EIG whether there is still work to be done others, on its approach to regulation. on the terms of reference for the and how the SRA should take this The workshop covers two key areas: review, which is designed to be a forward. 1. how the SRA supervises comparative case review, designed In 2012, in a candid discussion on practices—including the to further improve transparency in the exercise of its regulatory functions, importance of constructive the way in which the SRA makes Mr. Townsend in introducing the new engagement, the reporting regulatory decisions. The review, SRA’s regulatory framework, the duties of compliance offi cers to be conducted by Professor Gus Outcome-Focussed Regulations (OFR) for legal practice (COLPs) and John, is tasked to consider whether to the profession, admitted that the compliance offi cers for fi nance there is any disproportionality in the SRA recognised that the rule book and administration (COFAs), decisions made in the cases of BME was detailed and prescriptive and and how to avoid enforcement solicitors, when compared with their tended to lead to the use of resources action; and white colleagues. The cases reviewed which could better be deployed on 2. financial management initially the terms of reference limited higher-risk areas. He also concurred of fi rms— including how to 20 randomly selected cases. that the regulatory approach needed practitioners can manage However, following discussions with to be more effective, proportionate fi nancial diffi culties and avoid the SBL, the Society of Asian Lawyers and targeted so that the SRA could making common mistakes that and the Muslim Lawyers Association, consistently regulate a greater range can ultimately lead to serious the SRA decided to increase the of legal service providers with a regulatory issues. number of cases that Professor John targeted, risk-based approach. The The SRA believes that delegates at would investigate to 160 fi les. These OFR aims to provide greater fl exibility these workshops will learn practical will comprise 80 fi les prepared for for fi rms in how they achieve outcomes tips for avoiding regulatory action. SDT prosecutions in which the SDT (standards of service) for clients, As we await the outcome of published its fi ndings or judgement; and frees up the SRA to concentrate Professor John’s review and the and 80 fi les which were dealt with on supervising “at risk” fi rms. It is bedding-in of the OFR, many BME by internal adjudication. More believed that this should address any solicitors continue to view the SRA importantly, Professor John’s review capacity issues within the SRA with great suspicion. will include a proportion of the 14 The issue of capacity and resource cases where racial discrimination has is however not limited to the SRA,

SRA’s Diversity Monitor Statistics published in 2011 Table A*

Ethnicity Solicitor Conduct Interventions Referrals to the Late Practising Population Investigation SDT Accountants’ Certifi cate Reports Conditions Black 2% 8% 17% 13% 8% 14% White 86% 73% 70% 65% 77% 66% Asian 8% 15% 14% 19% 13% 18%

19 CORPORATE GOVERNANCE Nechi Ezeako, FCIS Law Digest Summer 2013

have stakes therein in ensuring the proper/effective governance of the Beyond “Independent fi rm and monitoring of the executives - goes beyond their “cosmetic Directors” to Board independence” to their character (see Sharpe, 2011, supra and Ronald Chibuike Iwu-Egwuonwu, “Some Independence (Part 2) empirical literature evidence on the effects of independent directors on fi rm performance” (2010)). The foregoing assertions are The Focus on “Independent further strengthened by the absence Directors” of empirical data supporting effective In the spring 2013 issue of the corporate governance or higher fi rm Law Digest, we looked at the concept performance by companies with a of “Independent Directors” vis-à- majority of “independent directors” vis statutes and as the panacea for over fi rms without. Rather, empirical corporate governance failures. In this studies of US companies seem to article, we examine the limitations of demonstrate a negative correlation this concept as the panacca for all between the presence of “independent corporate goverenance failures directors” and performance, thus The requirement to appoint an raising the question whether increasing majority of independent independent directors are mere directors as a solution for corporate intruders to be tolerated for the governance failures has been sake of compliance with corporate criticised. Sharpe (Nicola Faith governance (Iwu-Egwuonwu, supra). Sharpe, “The Cosmetic Independence Institutions such as Enron, of Corporate Boards (2011))” describes Lehman Brothers and many others Nechi Ezeako, FCIS it as “cosmetic” and thus inadequate are the subject of scandals in to cure corporate failures. According past global fi nancial crises. Each to her, this form of independence reportedly boasted a signifi cant ..empirical merely takes into account majority of “independent directors”, studies of US “directors’ relationships” without while Warren Buffet’s Berkshire considering the “tools” they require Hathaway, makes no such claims companies seem for the attainment of “substantive with at least three family members independence”. The critical factors and a fourth member of the Board to demonstrate omitted, in her view, “include time, who was a long-term vice-chairman a negative information, and knowledge, all (Jeffrey A. Sonnenfeld, ‘What makes of which have been recognised as great boards great’ (2002)). correlation between critical to effective decision-making According to Warren Buffet, to the presence of processes in organisational behaviour be appointed, a new director must literature.” While noting that time/ be “owner-oriented, business savvy, “independent availability of directors could prove interested and truly independent”. to be a challenge, the King Code on Buffet emphasised “truly” – (Monks directors” and Governance for South Africa (2009) & Minow, Corporate Governance performance.. (“King III”), Article 68 still urges the (2008)). constitution of boards with a majority Iwu-Egwuonwu, highlights a of independent directors. cultural dimension to the issue. However, in our view, the focus According to him, fi rms with similar should be to appoint people who have cultural backgrounds appeared to independence of mind, character and respond similarly. For example, judgement; with proven reputation while much of the research evidence and integrity, not merely those with emanating from Asia suggests little or no interest in the companies that oriental companies aligned they are to direct. Although US with the conventional wisdom that legislators appear to favour an independent directors actually add increasing ratio of independent value to the fi rms they sit on, those directors on boards of US from the United States suggest corporations, the issue is neither one otherwise. of numbers nor ratios of “independent directors”, but of quality. The answer Factors Delimiting Independance to the question - why directors who Board chairmen often aspire have no stake in a company would to attain consensus in decision- be so much more committed to that making. The idea of ‘consensus- company than those directors who building’ can in practice, sometimes

20 www.nglawdigest.com Law Digest Summer 2013

discourage dissent. Also, a respected boardrooms. Directors are, almost not to be the ‘odd one out’ would be CEO can have such signifi cant without exception, intelligent, positively aligned towards directors’ infl uence in the company as to elicit accomplished and comfortable independence. Needless to say, that loyalty from board members. Any with power. But if you put them given the complex nature of human director not towing the line may into a group that discourages institutions such as boards, this is become the ‘outsider’. Several writers dissent, they nearly always start an unlikely automatic outcome. agree on the effects of ‘groupthink’ to conform.” However, it may be the case in on the decision-making ability of By placing the focus on some boards, that the perception boards (Sharpe, 2011, supra). While “independent directors” – rather than of “independent directors” as defi ned in various ways, we consider the ‘independence’ of directors, - having responsibility to monitor ‘groupthink’ to be the unwillingness other directors may fi nd it convenient management, could take the pressure on the part of a director(s) to be the to leave this responsibility to the off such directors, unlike other NEDs,

The contrast in the fortunes of Lay’s Enron and Buffet’s Bershire Heathaway demonstrates the limitations in the conventional view of independent board

‘odd one out’. According to Sharpe, “independent director(s)” on their as everyone, including the CEO, may “The downside of groupthink is that boards, thereby thwarting the very see them as merely playing the roles boards are less likely to individually reason for the intensive regulatory for which they were appointed and analyse the decisions they are focus on the role of the independent not as being intentionally ‘disloyal’ or asked to make. In other words, director which is, to ensure more uncooperative. groups engaged in groupthink make effective oversight/monitoring and In reality, the nature of governance poor judgments because they allow challenge of management ideas by of companies inherently creates room their desire for unanimity to reduce boards and directors. According to for confl icts notwithstanding the the quality of their decision-making. Sonnenfeld, “the highest-performing presence (which is not even always Although there are signifi cant companies have extremely contentious the case) of separate committees/ negatives to groupthink, a few boards that regard dissent as an teams of NEDs responsible for authors have concluded that strong obligation and treat no subject as monitoring, performance appraisals group cohesion can be positive undiscussable”. or determining remuneration of or negative depending on other On the other hand, if groupthink executives. Nigerian veteran director circumstances. Nevertheless, there is as prevalent as writers such and respected corporate governance is some consensus that groupthink as Sharpe and Sonnenfeld have icon, Dr. Christopher Kolade, CON, limits the board’s independence for expressed, then the regulatory while speaking at the Odade-Deloitte purposes of monitoring.” solution of requiring a majority or Seminar on Corporate Governance Sonnenfeld in his article, “What supermajority (Iwu-Egwuonwu, noted that the moment a person Makes Great Boards Great” (2002); supra) of ‘independent directors’ on or group is involved in fi xing his/ which followed from about twenty- boards of public companies could its own remuneration, a confl ict fi ve years of research into Board and have a positive effect. This is because of interest arises. In the case of CEO behaviour, states: as more board members would be boards of directors, not only do “I’m always amazed at how asking relevant questions, then (all they determine their remuneration common groupthink is in corporate things being equal), the pressure (with subsequent approval of the

21 www.nglawdigest.com Law Digest Summer 2013

shareholders), they set corporate titled “Focus on independent directors a check on the Chairman as well objectives, time-frames and also alone cant(sic) fi x governance, as the executives. Thus a board evaluate achievement levels. What chairman’s role matters”; in with NEDs who are independent, greater confl ict than when a person discussing the issues stated, responsible, accountable and sets his own deliverables, assesses “Chairmen who truly believe in transparent, whether they are his performance and determines good CG will know that ‘correct tagged as “independent directors” or what reward he receives for success? board composition’ is about having not, will be effi ciently and effectively Yet this is what boards do. This uncomfortable, annoying diversity run. therefore underlies the importance and strong individualism on the Sharpe, 2011 notes that the of such critical attributes as board: diversity of backgrounds, dramatic increases in ratios of views and experiences, “unaffi liated outside directors” to The common arrangement in and strong individual insiders is an “incomplete” measure successful track records and towards enhanced governance. some jurisdictions, whereby consciences.” Consequently, “despite the fact the CEO also assumes the that independent boards are The article concluded ubiquitous, there are still recurring role of chairman of the board that the institution of the instances of widespread corporate chairman should be given failure” because as outsiders, needs to be revised in order “as much, if not more “independent directors” lack the to separate the two roles prominence in the ongoing requisite time, information and corporate governance knowledge to effectively carry out integrity, high ethical standards, discussion” as given to independent their duties. Regulatory support in accountability, transparency, directors. compelling timely information-fl ow independence, responsibility and CEOs: to all directors (especially NEDs fairness in individual directors. It is diffi cult for CEOs to be and independent directors) may be This writer advocates for emphasis independent. There are many signifi cantly value-adding. on a principle-based approach to instances which could give rise to governance. confl icts of interest and given their Legal Responsibilities powerful and often highly reputable The move towards appointing Redefi nition of Roles and public status, they are likely independent directors, even where In addition to the issues to constantly face the pressure of they are the majority, does not mentioned above, consideration self-preservation. However, CEOs absolve other directors of their should also be given to separating should be people of very high ethics duties and responsibilities towards and/or redefi ning some of the roles and integrity upon whom the board/ their companies under the law. of members of the Board. company entrusts management Thus all directors still retain their of the business. Greater attention duties of skill and care, loyalty, The Chairman of the Board: should be paid to hiring only fi duciary duties (which forbids The common arrangement in CEOs who meet the required confl icts of interest), etc. The law, some jurisdictions, whereby the standards of accountability, in several jurisdictions, including CEO also assumes the role of transparency, responsibility Nigeria (Companies and Allied chairman of the board needs to be and integrity and are guided by Matters Act 2004 (CAMA)), revised in order to separate the two personal spiritual conviction/ Australia (Australian Corporation roles. The Chairman has a key role principles than to ticking off on Act 2001), etc. provides for to play in governance. In his 1990 the “independent director” check- directors to be severally and jointly statement, John Harvey-Jones puts box. Codes already recommend liable for their actions. They can be it succinctly. a rigorous CEO-appointment prosecuted/sued as individuals or “If a company is successful, it is process which can be streamlined as a group where they fail in their due to the effort of everyone, but if to meet the above. Additionally, the duties, (Australian Securities and it fails, it is because of the failure Board Governance/Nomination/ Investments Commission (ASIC) of the Board. If the Board fails, it is Remuneration Committee, (made v Healey [2011] FCA 717). The the responsibility of the Chairman, up of only independent directors or presence of independent directors notwithstanding the collective and NEDs) should include these key does not vitiate this or reduce their responsibility of everyone”. values/principles as parameters to obligations. Thus every director Not surprisingly, codes provide be checked in annual appraisals of (including executives) is well advised signifi cant roles for the chair, the CEO and executives. to take his/her responsibilities not least of which is ensuring a NEDs: seriously. conducive environment at meetings Although most codes recommend for members to contribute. The a majority of non-executive directors Conclusion & Recommendations separation of Chair/CEO roles (NEDs) over executives, it is not This article should not be recommended by many codes aims enough to focus on the numbers of construed as making a case for at enhancing independence of the NEDs. NEDs are expected to bring an putting aside the role of “independent board. outside independent judgment and directors”. “Independent directors” The Economic Times Comments experience to the boardroom. Theirs have important roles in governance. and Analysis of October 29, 2012 is the responsibility to maintain However, board independence is

22 www.nglawdigest.com Law Digest Summer 2013

not synonymous with the presence box’ evaluations to a value-based of material/pecuniary transactions of “independent directors” alone approach (by upholding the OECD or fi lial relationships with the but imports a broader concept of principles) which speak to the company or management), but also independence of mind by all board ‘spirit’ of true governance. All members. Thus while the presence of directors, executives and NEDs “independent directors” is welcome, alike should take ownership ...board independence is true independence which impacts of and responsibility for board not synonymous with the on long-term profi tability will be independence and play their achieved when all components of respective roles to attain it. presence of “independent the board; the chairman, NEDs, In the end, one must conclude directors” alone... company secretary, executives, that to be effective, independence etc. not only actively demonstrate must not be limited to the few by the prevailing conditions bearing independent/objective judgment, “independent directors” but must on the subjective state of mind of but more importantly uphold permeate the board of directors, the individual director and only integrity/high ethical standards, such that at any given time, the known to others through disclosure. and are accountable, transparent, board enjoys signifi cant presence Therefore, at every meeting, it lies fair and responsible. of independent elements. This is with each director (whether labeled To be effective, independence especially so because independence “independent director” or not), to should be more tangible than merely is not necessarily a continuing confi rm his/her independence and a ‘ticking the box’ exercise relating state of being as to justify such disclose any confl ict(s) of interest. to material interests and familial designation to a person or group, Being accountable, transparent and relationships. Renowned fi nancial rather independence is dynamic and responsible in this, speaks to the market scandals clearly point to the determinable not only by factual, director’s character. need for more to be done. It is time objectively assessable events/ to move the focus from the ‘tick- circumstances (such as the absence

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23 REGULATION Sohail Ali - Solicitor, DLA Piper UK LLP Law Digest Summer 2013

n the spring 2013 issue, we related taxes. An Insight introduced you to the basic • Wakala - a contract whereby Iconcept of Islamic fi nance. In somebody (a principal or this issue, we will explore some of muwakkil) hires someone else into Islamic the products and the most common to act on his behalf (as his agent structures under Islamic (or Shari’a) or wakil). The agent is entitled Finance - principles, together with an analysis to receive a predetermined fee as to why this - once niche - industry irrespective of whether he is able is well-placed to take advantage of to accomplish the assigned task (Part 2) the current global economic climate. to the satisfaction of the principal or not (as long as the agent acts Products and structures in a trustworthy manner). Any A number of fi nancing techniques investments made by the agent have been developed to comply with to themselves have to be Shari’a Islamic (or Shari’a) principles. They compliant. tend to have a common reliance • Sukuk - a sukuk is a type upon a trade or transaction involving of certifi cate or note which underlying assets as a fundamental represents a proportionate part of an Islamic contract. This is a interest (sometimes also described way of addressing speculation and as a participatory interest) in an riba concerns (see further below). It underlying asset or investment. also demonstrates that a fi nancier It is generally considered to be has assumed some responsibility for a negotiable instrument which, the commercial risk inherent in an depending on the underlying underlying asset or business venture. asset or transaction, can be The most commonly used products sold and purchased in the and structures are described briefl y secondary market. It is often below. In short, these are some of used in conjunction with other the key contemporary structuring underlying Islamic fi nancing Sohail Ali - techniques that have helped shape techniques (e.g. ijara). However, the Islamic fi nance industry. for modern day purposes, a sukuk Solicitor, DLA Piper UK LLP • Murabaha - this method of ‘cost certifi cate is best described as an plus’ fi nancing is frequently used ‘asset-based’ security where the in trade fi nancing arrangements primary credit risk is that of the (including import and export issuer / obligor who is obliged to fi nancing). The fi nancier will pay the sukuk holder irrespective “The core principles buy the asset in question from of the performance of the upon which Islamic a supplier (either directly or underlying asset or investment. through an agent (who is often • Takaful - a co-operative form of fi nance is based its customer acting in a different insurance arrangement, whereby capacity)) and will then on-sell a group of persons agree to share mean that it should the asset to the customer on certain risk (for example, damage be better suited deferred payment terms at an by fi re) by collecting a specifi ed agreed sale price which includes sum from each and pooling these (than conventional the original cost price and profi t. funds. In the case of loss to • Ijara (leasing) - an ijara contract anyone of the group, the loss is fi nancing) to is Islamic fi nancing’s equivalent met from the collected funds. withstanding of leasing and is often described as a hybrid between an operating Opportunities for Islamic fi nance economic lease and a fi nance lease. Rental The core principles upon which downturns” payments will typically refl ect Islamic fi nance is based mean an agreed profi t element. If that it should be better suited the intention is to provide the (than conventional fi nancing) to customer (i.e. the lessee) with withstanding economic downturns title to the goods at the end of and should not be exposed to the the lease this can be achieved obvious pitfalls of some complex through a variant of ijara called derivative or other similar fi nancial ijara wa iqtina. The obligation products. to insure and undertake any As outlined in the fi rst article, major maintenance and repairs Islamic fi nance is based on the in respect of the leased asset following core principles: remains with the lessor (as • No interest - Under Islamic law, owner) as does the responsibility money is regarded as having for settling any ownership- no intrinsic value and also no

24 www.nglawdigest.com Law Digest Summer 2013

time value. It is seen simply as not permissible (haram) and are global ratings agency, reported that a means of exchange to facilitate considered to be void. This does Islamic Finance had “continued its trade. As such, Shari’a principles not, however, prohibit or prevent a healthy trajectory in 2011 despite the require that any return on funds degree of commercial speculation uncertainty elsewhere in the world’s provided by a fi nancier should be which is evident in a lot of earned by way of profi t derived commercial transactions. from a commercial risk taken The prohibition applies Islamic banks will by that fi nancier. The payment to forms of speculation often agree to provide and receipt of interest (riba) is which are regarded as prohibited under Islamic law and akin to gambling. The test their customers with a any obligation to pay interest is whether something has is considered void. In addition, been gained by chance. certain grace period to there are rules in place in relation • Unjust enrichment / to a lender being able to charge exploitation - a contract remedy any defaults penalties and/or default interest. where one party is regarded and/or late payments The Holy Quran, which is the as having unjustly gained primary source of Islamic fi nance (at the expense of another) principle, states that: is also void. The principle also “And if the debtor is in diffi culty, extends to the enrichment of grant a delay until a time of ease. one party who exercises undue But if ye remit it (the debt) by way infl uence or duress over another of charity, that is best for you if ye party. only knew.” (2:280) • Investments - the proceeds in Accordingly, Islamic banks will Islamic fi nance should not be used often agree to provide their for the purposes of purchasing or customers with a certain grace investing in products or activities period to remedy any defaults that are prohibited. These and/or late payments. From a prohibited items and activities practical perspective, in order include the manufacture and/or to encourage a customer to the sale or distribution of alcohol, pay on time, an Islamic fi nance tobacco, pork products, music or contract will often stipulate that pornographic productions, the (if the customer does not make operation of gambling casinos payment on time) a late payment or manufacturers of gambling amount will be charged and that machines - but also extend The Holy Quran is the primarty source of Islamice Finance late payment amount will be to conventional banking and applied only to cover actual costs insurance activities, as well as fi nancial markets”. Furthermore, the (not funding or opportunity costs) defense and weaponry. report stated that “Standard & Poor’s with any balance being given to a believes that worldwide, Sharia- charitable organisation. As such, The net effect all of the above is that compliant assets - about $1.4 trillion there is a compelling argument the parties in an Islamic fi nance at year-end 2011 are likely to continue that Islamic banks are often transaction are more likely to enter their impressive streak of double-digit geared more towards working into it with their eyes wide-open and growth in the coming two to three alongside their customers with a greater degree of certainty years…[t]he coming to the market of to fi nding solutions for their than perhaps might otherwise be the new entrants, as well as the growing fi nancial diffi culties - rather case in some conventional fi nancing sophistication of existing players, is than looking necessarily to call transactions. One could argue that likely to pave the way for the coming a default and take enforcement this approach means that defaults of age of a truly global Islamic fi nance steps at the fi rst sign of any are less likely and that the underlying industry…newcomers such as… fi nancial distress. purpose for the debt is more likely Nigeria…may be in good positions to • No uncertainty - uncertainty to succeed. Generally speaking, become regional centres of attractions (or gharrar), particularly any Islamic banks are - by virtue of the within this fi eld.” Indeed, Standard & uncertainty as to one of the principles to which they are required Poor’s view was that “[o]f the potential fundamental terms of a contract to adhere - less likely to have newcomers to the market, Africa could (such as subject matter, price or leveraged positions (or ‘geared-up’) be the region to watch”. time for delivery), is prohibited when compared to their counterparts The Islamic fi nance industry and such a contract is considered in the conventional banking sphere. has enormous potential for further to be void under Shari’a. This This perhaps explains why the Islamic growth as investors - Islamic and principle is quite wide as it fi nance industry has continued to conventional - look to tap into the requires suffi cient certainty show growth despite challenging additional liquidity offered by Shari’a on all fundamental terms of a global economic conditions. compliant fi nancing structures and contractual arrangement. The Annual Islamic Finance products, particularly against the • No speculation - contracts Outlook published in September backdrop of a stagnant Eurozone and which involve speculation are 2012 by Standard & Poor’s, the otherwise gloomy global economy.

25 BUSINESS DEVELOPMENT Morton Patterson – Morton Patterson Consulting Law Digest Summer 2013

leader who establishes the principles and values that are conducive to Developing an high performance. The foundation of an effective team therefore is effective leadership. In this article, Effective Team we assume you are the leader in your organisation or you are looking to indentify or develop leaders within your organisation for succession planning. For the remainder of this “My model for business is The Beatles. article, we are going to talk about the They were four guys who kept each 7 characteristics that a leader needs other’s kind of negative tendencies in to develop an effective team. check. They balanced each other and the total was greater than the sum of 1. Clear vision the parts. That’s how I see business: Clarity inspires confi dence in a great things in business are never leader, and this clarity starts with done by one person, they’re done by having a clear vision, being able to a team of people” - Steve Jobs share that vision with others. Henry Ford had a vision of a simple, reliable “Talent wins games, but teamwork and affordable car that the average and intelligence wins championships” American worker could afford – - Michael Jordan. the Model T. Steve Jobs’ vision was making great computers for hese quotes from business and people to use which sparked the PC sporting successes highlight revolution. He was quoted as saying, Morton Patterson – Tthe relationship between the “we started out to get a computer in Morton Patterson Consulting individual and the team in any the hands of everyday people, and human endeavour. A law fi rm is no we succeeded beyond our wildest different. Law fi rms rightfully spend a dreams.” A compelling vision with colossal amount of money recruiting passion has power. It inspires and talents, but equally important to motivates people. “Law fi rms rightfully the success of the organisation is spend a colossal the development of a team. However, 2. Learn the values of each and the objective is not simply to build a every member of your team amount of money team, but an effective team, as an A clear value system is a fundamental recruiting talents, ineffective team is worse than no aspect of leadership. It shapes the team at all. An ineffective team uses type of leader you are, directs the but equally up valuable resources, is ineffi cient, decisions you make and explains unproductive, and worse of all, an why you do what you do. Each of us important to the ineffective team kills individual has a unique set of values, which success of the talent. are with us at birth and stay with us throughout our lives. A study by organisation is the What is an effective team? the “Harvard Business Review” on development of a According to Richard Branson, how to retain key employees, found “I have to be good at helping people that throwing fi nancial incentives team” run the individual businesses, and at people was not the solution, but I have to be willing to step back. that offering a mix of fi nancial and The company must be set up so it non-fi nancial incentives tailored to can continue without me”. If your their aspirations and concerns - in team can’t function at optimum effect their values – was much more level without you, then your team is effective. James Cathcart the author ineffective. of the “Acorn Principle”, talks about In this article, we look at how to the seven natural values: sensuality, develop an effective team. However, empathy, wealth, power, aesthetics, before explaining how to develop commitment and knowledge, which an effective team, we want to share help to explain how to intrinsically with you perhaps the most essential and extrinsically motivate you and characteristics of an effective others. Understanding these values team. The Europe Base centre for can be translated into who has a organisational research identifi ed high need for praise and attention, that teams that ‘click’ always have a frequent promotions or access to

26 www.nglawdigest.com Law Digest Summer 2013

If your team can’t function at optimum level without you, then your team is ineffective team relationships. Select the people that can contribute, challenge and add value. Most importantly pick individuals that compliment you and each other in the team. The team dynamics must be robust enough to accommodate individual talents but not self-interests.

7. Commit to helping the team develop their personal and business skills greater power. When you understand Working to people’s strengths is a Soft interpersonal skills are very an individual’s values profi le, great way of saving time, reducing important in business and in life then you are in a strong position frustration and creating a sense in general. Create an environment to motivate and develop a high of empowerment. This would allow of learning and development where performing team. members of the team to perform in a staff have the opportunity to learn role or position where they are likely and grow. If team members express 3. Communicate, communicate … to perform at their best. Focusing a weakness or fear regarding a communicate on strengths is the surest way to task, then mentor, coach or provide Lead by example and create an greater team performance and appropriate training and support to environment of open communication organisational excellence. help them succeed in the role. As a where there is clear respect for starting point, it is essential to carry everyone’s views. Leading effectively 5. Gratitude and appreciation out a health check on your team. We is about being able to listen and Be committed to recognising when have three suggestions that you may develop your skills at reading a person someone does something right. A want to consider in this process: or group by sensing the moods, recent study by Bersin & Associates • Complete a values profi le of dynamics, attitudes and concerns revealed that companies that “excel your team to understand their of those being communicated with. at employee recognition” are 12 values and learn how to motivate Encourage feedback and openness times more likely to enjoy strong them by understanding what is without reprimand. If you as the business results. Develop a culture important to them. leader see any negative comments for saying “thank you”. Little things • Develop your communication as an attack on your sense of self- mean a lot and people are motivated skills particularly your listening worth then don’t expect to receive by a sense of appreciation and value. and feedback skills. Practice honest feedback. Tell people what Quite often this does not need to be listening. Resist the urge to you expect of them clearly with a big gesture, just heartfelt ones. A interrupt the speaker and focus honesty and integrity and they will simple genuine thank-you or small, on what is being said no matter do their best to meet and exceed handwritten notes of appreciation how uncomfortable this may feel. those expectations. can make the world of difference. If See this as an opportunity for you do not recognise its importance growth. Sometimes your greatest 4. Play to your strength and the or are not prepared to say “thank opportunities for learning are strengths of the team you”, you could miss out on the when you hear tough criticism In his book, “First Break All The deep trusting relationships that can as opposed to sycophantic Rules”, published 20th June 2005, engender full commitment. Showing platitudes. Marcus Buckingham talks about gratitude makes a big difference. • Learn to balance the confl icting a Gallup survey of workers in interests of all members and organisations around the world, 6. Pick your team carefully stakeholders while fostering a to fi nd out what makes teams and Team dynamics is much more commitment to client satisfaction organisations great. When they important than aptitude. The and results. asked employees if they have the behaviours, mannerisms and chance to do what they do best every overall interpersonal skills that a * Morton Patterson Consulting is a day, only 2 out of 10 said yes. As you team member displays with fellow management consultancy company based develop your team, look for people colleagues or your clients will play in the UK, but advises clients across whose strengths compliment yours. an important part in customer and Europe, America and the West Indies.

27 ENERGY LAW Jama Onwubuariri - Legal Advisor, Oando Plc Law Digest Summer 2013

nominated subsidiaries. Regulation of Share Baker Hughes subsequently nominated Brass, a shelf company owned by its wholly-controlled Transfer in the offshore companies, Brassco (Cayman) Ltd and Brass Holding Limited (together, “Brass Holdcos”), Petroleum Sector to hold 40% of the participating interest in OPL 230. Moni Pulo’s Moni Pulo vs. Brass assignment of the 40% interest was duly consented to by the Minister of Petroleum Resources upon the Revisited application made by Moni Pulo. Following the conversion of OPL 230 to Oil Mining Lease (“OML 114”), Baker Hughes, in 2003, n May 7, 2012, the Federal informed Moni Pulo of its decision High Court, Lagos, presided to divest from OML 114, and agreed Oover by Justice Okechukwu to transfer the shareholding in the Okeke handed down a judgment Brass Holdcos to Rachael Holdings in the case of Moni Pulo Limited Limited, a company wholly owned v Brass Exploration Unlimited by Chief Olu Lulu-Briggs, the major & 7 ors. FHC/L/CS/835/2011. shareholder of Moni Pulo. This This case provides certainty into transfer was equally consented the interpretation of perhaps, the to by the Minister. Chief Lulu- most contentious provision of the Briggs invited Petroleum Oil & Gas Petroleum Act 2004 (the “2004 Company of South Africa (Nigeria) Act”). The court had fi nally made Ltd (“PetroSA”), and PetroSA a pronouncement on the meaning agreed, to acquire the entire shares and purport of Paragraph 14 of of the Brass Holdcos, and thereby, the First Schedule of the 2004 Act; the 40% Participating Interest in and Regulation 4 of the Petroleum OML 114. Moni Pulo applied for the Jama Onwubuariri (Drilling and Production) Minister’s consent to the transfer Regulations (the “Regulations”). on 3rd October 2003. The consent Legal Advisor, Oando Plc The judgment came on tide of the was granted on 27th January 2004. scuffl e between Moni Pulo Limited Just before the dispute between the (“Moni Pulo”) Brass Exploration parties, the shares of Brass were Unlimited (“Brass”) and 7 others. held by the PetroSA. “Rights to buy and Both the government and oil PetroSA subsequently sought to companies involved in corporate relinquish its interest (held through sell shares under restructurings have been ambivalent Brass) in OML 114 by a sale of the the Companies about taking the matter to the entirety of its shareholding in Brass. courts for interpretation due to the In line with the pre-emption rights and Allied Matters enormous ramifi cations for both the of the parties to the Joint Operating winner and the loser, until Moni Pulo Agreement between Moni Pulo and Act 2004; is challenged Brass on the issue. Brass for OML 114, PetroSA offered subject to the the shares in Brass back to Moni Background Pulo, but the parties’ negotiations specifi c legislation On May 8, 1992, Moni Pulo broke down over valuation of the regulating the was awarded 100% participating sales. PetroSA now offered the Brass interest in Oil Prospecting License shares to Camac Energy Services petroleum industry” Number 230 (“OPL 230”). In order Limited and Camac Energy Resources to secure the technical expertise and Limited (together, “Camac”). Moni fi nancial capacity for prospecting, Pulo however remained opposed and exploitation of oil in commercial to the proposed purchase of the quantity, Moni Pulo, in March 1996 Brass Shares by Camac. Despite commenced a working relationship Moni Pulo’s refusal to accept or with Baker Hughes Incorporated, an acknowledge Camac as a bona fi de American oil services company, on purchaser of the Brass shares, the consideration that Moni Pulo will PetroSA proceeded to complete assign 40% interest in and rights the sale of the shares, effectively to OPL 230 to Baker Hughes or its transferring control of Brass, and its

28 www.nglawdigest.com Law Digest Summer 2013

40% participating interest in OML from PetroSA to Camac could not be This is re-enforced by Regulation 114, to Camac. PetroSA did not apply challenged, as PetroSA was within 4(a) of the Regulation which provides: to the Minister for consent to the its rights to dispose of its shares “An application for the assignment transfer, though it requested Moni to whom ever it wishes. However, if of an oil prospecting licence or oil Pulo to make this application. This Moni Pulo could convince the court mining lease (or of an interest in the that the share transfer (and same) shall be made to the Minister Corporate restructures consequential ceding of control of in writing and accompanied by the by an OPL or OML holder Brass’ 40% of OML 114) to Camac prescribed fee; and the applicant shall required the prior consent of the furnish in respect of the assignment, which will have the effect Minister of Petroleum Resources, or takeover, all such information as is of transfer or takeover then Brass (as now controlled required to be furnished in the case by Camac) may be restrained of an applicant for a new licence or of the relevant asset will from exercising any rights and/ lease.” require the consent of the or taking any benefi ts from and Interestingly, Regulation 4(b) under the Lease. The success repeats the provision of Regulation Petroleum Minister or otherwise of this strategy 4(a), with the insertion of ‘takeover’ request was ignored by Moni Pulo. is dependent on the court’s so that it reads: “Application for the With Brass now controlled by Camac interpretation of Paragraph 14 of the assignment or takeover of an oil as its partner prospecting…” so in the lease, that the takeover Moni Pulo faced of a licence, lease the unpleasant or interest therein situation of is a process for having to deal which the consent with a partner of the Minister unacceptable to also ought to it. be obtained As far as in the manner Nigeria’s company p r e s c r i b e d . law is concerned, Worthy of note however, the is the fact that transfer of the Paragraph 14 of shares of Brass the First Schedule to Camac was to the 2004 Act completely valid does not mention and unassailable. takeover. Further, going by the legal The Issues personality of 1. Whether corporate entities by virtue of e s t a b l i s h e d Paragraph 14 by the case of the First of Salomon v Oil exploration licenses continues to generate signifi cant litigation in Nigeria Schedule to the Salomon and Co. Ltd (1897) A.C. First Schedule to the 2004 Act and Petroleum Act, and Paragraph 22) and entrenched by section 37 of Regulation 4 of the Regulations. The 4(a) and 4(b) of the Regulations, the Companies and Allied Matters snag to this approach though, was a transfer, assignment, sale and/ Act, 2004, the corporate identity twofold: fi rstly the relevant provisions or takeover of an oil mining lease of Brass remained unchanged, and do not expressly contemplate share or any right, power, or interest the validity of its claim to the 40% transfers as being subject to the therein or thereunder could interest in OML 114 was undeniable. Minister’s prior consent; and, be validly effected without the Moni Polu’s based its case on the secondly the Ministry of Petroleum prior consent of the Minister of lack of ministerial approval under Resources appeared unsure where Petroleum Resources fi rst sought Paragraph 14 of the First Schedule lay the bounds of the Minister’s and obtained. to the 2004 Act and Regulation 4 of rights. 2. Whether the acquisition of the the Regulations. Paragraph 14 of the First Schedule entire (100%) share capital of to the 2004 Act states as follows: Brass from PetroSA by Camac Analysis “Without the prior consent of amounts to an assignment The law recognises shares as the Minister, the holder of an oil and/or a takeover of any right, chose in action (things, or personal prospecting licence or an oil mining power or interest in Brass’ 40% property) which may be sold or lease shall not assign his licence or participating interest in OML 114 transferred by the owner anytime he lease, or any right, power or interest as contemplated by Paragraph wishes. Therefore, the share transfer therein or thereunder.” 14 of the First Schedule

29 www.nglawdigest.com Law Digest Summer 2013

Share transfers will Tyre & Rubber Co (Great Britain) an ‘asset transfer option’ for Ltd (1916) 2 AC 307. such holders to effect a takeover no longer provide an The court further stated that, of concessions (as attempted by ‘asset transfer option’ “the requirement that the Minister of PetroSA) without the Minister’s Petroleum Resources’ approval for the approval. for such holders to transfer or sale and/or acquisition of • Until the decision is overturned effect a takeover the entire (100%) share capital of the on appeal or legislative 1st Defendant [Brass] from the 2nd, amendment, the Minister of of concessions (as 3rd, and 4th Defendants [PetroSA] Petroleum Resources no longer attempted by PetroSA) by the 5th, 6th, and 7th Defendants requires a legal opinion from [Camac] is not in doubt.” Department of Petroleum without the Minister’s In view of its fi ndings, the court Resources (as is sometimes the approval ordered as follows: Department’s internal process) 1. that whoever buys, acquires as to whether or not a particular to the Petroleum Act and and takes over the controlling corporate restructuring involving Paragraph 4(b) of the Petroleum shares of Brass ultimately buys, the acquisition or takeover of Regulations. acquires and takes over the an oil concession requires the 3. Following from (2) above, right, power and interest in the Minister’s consent. whether the takeover of the Brass’ 40% participating interest • It also goes without saying that right, power and/or interest in OML 114 and must obtain the payment of consent fees in Brass’ 40% participating the approval of the Minister of by share transferors will be interest in OML 114 by Camac Petroleum Resources before a veritable fee earner for the without the prior consent of such an assignee can exercise Federal Government. the Minister of Petroleum such right, power and interest; • Another bureaucratic hurdle Resources, is a violation of the 2. that PetroSA can sell, transfer has been erected for companies intendment of Paragraph 14 of and/or convey the entire (100%) seeking to divest themselves of the First Schedule to the 2004 share capital of Brass or any their assets via share transfer Act and Paragraph 4(b) of the controlling interest in Brass which will have the effect of Regulations. to Camac or any third party/ transfer or takeover of the parties subject to the approval target asset, as another level The Decision of the Minister of Petroleum of due diligence checklist – the The court acknowledged that Resources, to give such assignee possibility of obtaining the while PetroSA may ordinarily take the right, power and all interest consent of the Minister. benefi t of their rights to buy and in and/takeover of Brass; • It remains to be seen, though, sell shares under the Companies 3. that PetroSA’s sale, transfer if the wide net of the Minister’ and Allied Matters Act 2004, such and/or conveyance of the entire consent reinforced by this rights must be subject to the specifi c (100%) share capital of Brass decision, will be spread to legislation regulating the petroleum to Camac remains fl uid until capture the daily trading of industry. It is for this purpose concretized by the approval shares of publicly quoted that the corporate veil of the 1st of the Minister of Petroleum concession holders. defendant will need to be lifted to Resources. • Finally, given that the appeal ascertain who the new owners of the against the judgment has been 1st defendant are in order to enable Ramifi cations of the Decision withdrawn by Brass following the Minister to satisfy himself or • Henceforth, corporate restructures parties’ settlement out of herself that they, i.e. Camac, are by an OPL or OML holder which court, the precedent has now qualifi ed to participate in OML will have the effect of transfer been set on this important 114. On this point, the court made or takeover of the relevant issue in Nigeria’s oil and gas reference to the cases of Jones & asset will require the consent of jurisprudence until set aside Anor v. Lipman (1962), All ER 442 the Petroleum Minister. Share by the judgment of a superior and Daimler C. Ltd v. Continental transfers will no longer provide court.

30 www.nglawdigest.com Law Digest Summer 2013 Law Digest Summer 2013 Case Review and Legal Development

From the Research Desk

either case, the old bottle is removed, that an activity involves replacing a Intellectual Property any damage to the cage is repaired, constituent part of an article does not and a new bottle is fi tted within the mean that the activity involves the Interpretation of “make, cage. Re-bottling involves replacing making of a new article, rather than making” the bottle with a fresh bottle from the constituting a repair of the original original manufacturer, whereas cross- article. The court however cautioned Infi ringment bottling involves replacing the bottle against general adoption of this Damages with a bottle from a different source. simplistic across in every case, as the After re-bottling or cross-bottling acts of “making” and “repairing” may an IBC, the reconditioner sells the overlap in certain cases. That said, reconditioned product, in competition the court noted that it may sometimes Schütz (UK) Limited – v- Werit (UK) with the products of the original be useful to consider whether the Limited) [2013] UKSC 16 manufacturers. Schütz is the exclusive alleged infringer is repairing rather licensee of Protechna, and the leading than making the article. The court Background facts manufacturer of rigid composite IBCs also advised that it is both legitimate in the UK. Werit sells bottles (“Werit and helpful to consider the question This was an appeal in which Werit (UK) bottles”) for IBCs to a reconditioner, whether the bottle is such a subsidiary Limited (“Werit”) was the Appellant Delta Containers Limited (“Delta”). part of the patented article that its and Schütz (UK) Limited (“Schütz”) Delta acquires discarded IBCs replacement, when required, does not the Respondent. The principal issue on originally put on the market by Schütz involve making a new article. The this appeal concerns the meaning of (“Schütz IBCs”), replaces the original court held that while undoubtedly an the word “makes” in section 60(1)(a) of bottles (“Schütz bottles”) with Werit essential and physically large part the UK’s Patents Act, 1977 (“the 1977 bottles, and then offers these cross- of the patented article, four factors Act”), which provides that a person bottled IBCs on the market. indicate that the bottle can fairly be infringes a patent for a particular Schütz objected to Delta’s cross- said to be a relatively subsidiary part product if he “makes” the product bottling activities, and issued of the IBC, when that article is viewed without the consent of the patentee. proceedings against Werit, seeking as a whole. The court considered The issue arose in respect of a Patent relief on the ground that Werit infringed the following factors in reaching (“the Patent”), of which Protechna S.A. the Patent. It is common ground that, this conclusion: (i) the bottle has a (“Protechna”) is the proprietor. Claim if Delta thereby infringes the Patent, signifi cantly lower life expectancy 1 of the Patent (“the Claim”) extends so does Werit. Two issues arising from than the cage; (ii) the bottle does not to certain aspects of a complete those proceedings were relevant to the include any aspect of the inventive intermediate bulk container (“IBC”). appeal. The fi rst issue is whether Delta concept of the Patent; (iii) the bottle is An IBC is a large container used by infringed the Patent by “mak[ing]” the a free-standing item of property; and suppliers of liquids, for the transport article claimed by the Claim, contrary (iv) the damaged free-standing bottle of a wide range of liquids to a so-called to section 60(1)(a) of the 1977 Act. is simply replaced within the metal “end-user”. IBCs are of a two-part The second issue, which arises only cage, which contains the inventive construction and consist of a metal if it is found that Delta infringes the concept, and the metal cage is repaired cage into which a large plastic container Patent, concerns costs sanctions in if necessary. The court concluded (or “bottle”) is fi tted. Often, the bottle such proceedings under section 68 of that given that (a) the bottle (i) is a cannot be reused because it contains the 1977 Act (“the section 68 issue”). freestanding, replaceable component residues of a toxic liquid or because In its judgement, the Supreme Court of the patented article, (ii) has no it has been physically damaged. The unanimously held that Delta did not connection with the claimed inventive inventiveness of the Patent lies in the “make” the patented article contrary concept, (iii) has a much shorter life idea of fl exible weld joints to the cage, to section 60(1)(a) of the 1977 Act. Lord expectancy than the other, inventive, to increase its strength and durability, Neuberger gave the judgment of the component, (iv) cannot be described and in the idea of introducing a dimple Court. as the main component of the article, on either side of the weld and a central and (b) apart from replacing it, Delta raised portion. The description of the The Judgment does no additional work to the article Patent acknowledges that the bottle beyond routine repairs, Delta does not is exchangeable (i.e. replaceable). According to the court, the central “make” the patented article [para78]. The cage has a life expectancy on issue was whether Delta “makes” a average fi ve or six times longer than patented article when it removes a Comments a bottle, which is why so-called damaged Schütz bottle from a Schütz “reconditioners” engage in re-bottling cage, and replaces it with a Werit The importance of the case cannot be or cross-bottling of used IBCs. In bottle. It observed that the mere fact lost on Nigerian Intellectual Property

32 www.nglawdigest.com Law Digest Summer 2013 www.nglawdigest.com Law Digest Summer 2013 lawyers as the wording of section marketed by PricewaterhouseCoopers 1 AC 610 (“Three Rivers”) para 38, 60(1)(a) of the 1977 Act, is similar to (“PwC”). The scheme gave rise to a per Lord Scott). LPP attaches to a the wording of section 6 (1)(a) of the substantial tax deduction in Prudential communication between a legal adviser Nigeria Patent and Design Act 1990 (Gibraltar) Ltd, a subsidiary company and a client. The client is entitled (the “1990” Act) which provides thus: of Prudential plc, which could then to object to any third party seeing “A patent confers upon the patentee the be set off against the profi ts of that the communication for any purpose, right to preclude any other person from company, which profi ts were ordinarily unless (i) the client has agreed or doing any of the following acts- chargeable to corporation tax in the waived its right, (ii) a statute provides (a) where the patent has been granted UK. that the privilege can be overridden, in respect of a product, the act of Prudential disclosed many of the (iii) the document concerned was making, importing, selling or using the documents initially requested pursuant prepared for, or in connection with, a product, or stocking it for the purpose of to notices under section 20B(1) of nefarious purpose, or (iv) one of a few sale or use”, and this decision could be TMA, but refused to disclose certain miscellaneous exceptions applies (eg of persuasive precedent in the Nigerian documents (“the disputed documents”) in a probate case where the validity of courts when the meaning of “making” on the ground that Prudential was a will is contested).[para 17] in section 6(1)(a) of the 1990 Act is entitled to claim legal advice privilege LAP is a common law principle which under consideration. in respect of them. Further notices exists: under section 20(1) and (3) were issued, 1. to ensure “full and frank in respect of the disputed documents communication between to Prudential and in turn, Prudential attorneys and their clients”, applied for judicial review challenging which “promote[s] broader public the validity of those notices on the interests in the observance of law ground that they sought disclosure and administration of justice” – of documents which related to the Upjohn Co v United States (1981) seeking (by Prudential) and the giving 449 US 383, 389, quoted by Lord (by PwC) of legal advice in connection Scott in Three Rivers (No 6) at para with the Transactions, which were 31; therefore said to be excluded from the 2. solely for the benefi t of the client. disclosure requirements of section 20 Lord Neuberger [paras 29 - 36] cites by virtue of LAP, in accordance with various authorities showing that Common Law the decision of the House of Lords in R the generally accepted view on the (Morgan Grenfell & Co Ltd) v Special ambit of LAP is that it is confi ned to Professional Conduct Commissioner of Income Tax [2002] communications between a client and UKHL 21, [2003] 1 AC 563 (“Morgan qualifi ed lawyer. He further states that Practice & Procedures Grenfell”) which established that if he were to allow the appeal, the court Privilege the provisions of section 20 of TMA would therefore be extending LAP could not be invoked to force anyone beyond what are currently, and have to produce documents to which LAP for a long time been understood to be, R (on the application of Prudential attached. Section 20(1)(a) provided its limits. Lord Neuberger concludes by PLC and Prudential (Gibraltar) that an inspector of taxes saying, Ltd) v Special Commissioner of “may by notice in writing require “I consider that we should not extend Income Tax and Philip Pandolfo (HM a person…to deliver to him such LAP to communications in connection Inspector of Taxes) [2013] UKSC 1 documents…as (in the inspector’s with advice given by professional reasonable opinion) contain, or may people other than lawyers, even where Background facts contain, information relevant to … (i) that advice is legal advice which that any tax liability to which that person is professional person is qualifi ed to The particular issue on this appeal is or may be subject, or (ii) the amount of give”. whether legal advice privilege (or legal any such liability”. It was felt that the extension of professional privilege, as it is also Section 20(3) extended this power LAP to other professions was a policy sometimes called) (“LAP” or “LPP”) to require “any other person” to “deliver issue best left to Parliament. In the UK should attach to communications …or…make available” such documents there are statutory extensions of LAP passing between chartered to an inspector. By virtue of section to patent attorneys, to trade mark accountants and their client in 20(7), an inspector needed the consent agents and to licensed conveyancers connection with expert tax law advice of the special or general commissioners – see respectively section 280 of the given by the accountants to their client, before serving a notice under either Copyright, Designs and Patents Act in circumstances where there is no subsection. 1988, section 87 of the Trade Mark doubt that LAP would attach to those Act 1994 (as amended by the Legal communications if the same advice The Judgement Services Act 2007), and section 33 was being given to the same client by a of the Administration of Justice member of the legal profession. LAP/LPP applies to all communications Act 1985. Of most interest was Lord The case arose following the passing between a client and its Sumption who, in dissenting, stated service of notices under the Taxes lawyers, acting in their professional that: Management Act 1970 (“TMA”) by the capacity, in connection with the “In my opinion the law is that legal Inspector of taxes on Prudential PLC provision of legal advice, i.e. advice professional privilege attaches to any and Prudential (Gibraltar) Ltd (together which “relates to the rights, liabilities, communication between a client and “Prudential”) requiring the disclosure obligations or remedies of the client his legal adviser which is made (i) for of certain documents relating to a series either under private law or under the purpose of enabling the adviser to of transactions (“the Transactions”) public law” (Three Rivers District give or the client to receive legal advice, which implemented a tax avoidance Council v Governor and Company (ii) in the course of a professional scheme (“the scheme”) devised and of the Bank of England (No 6) [2005] relationship, and (iii) in the exercise by

33 www.nglawdigest.com Law Digest Summer 2013

the adviser of a profession which has Alternative Dispute Resolution > South Africa as an ordinary part of its function the Regulatory Commission And For Other A comprehensive data protection law, giving of skilled legal advice on the Matters Thereto 2013.” This proposed the Protection of Personal Information subject in question. The privilege is a legislation provides for the process Bill was approved by South Africa’s substantive right of the client, whose of registration and accreditation Parliament in September 2012 and is availability depends on the character of all ADR bodies and institutions expected to be signed into law later of the advice which he is seeking and engaged in the practice, training, this year. the circumstances in which it is given. education or skills acquisition in ADR The Mineral and Petroleum Resources It does not depend on the adviser’s mechanisms; setting and regulation of Development Amendment Bill, 2013 status, provided that the advice is given standards; and will give the regulator has since been tabled and its main in a professional context. It follows, on powers and duties which will include objective is to amend the Mineral and the uncontested evidence before us, developing ADR policy and educating Petroleum Resources Development that advice on tax law from a chartered stakeholders (eg practitioners and Act, 2002 (as amended by the Mineral accountant will attract the privilege in public) through such avenues as the and Petroleum Resources Development circumstances where it would have hosting of conferences, seminars and Amendment Act of 2008) (“the Act”) done so had it been given by a barrister workshops. It would seem that the Bill and in so doing: or a solicitor. They are performing the has met much opposition from those • strengthen the existing provisions same function, to which the same legal in the fi eld who view the Bill as being relating to the implementation incidents attach.” [para 114] (emphasis at the very least, unnecessary for an of Social and Labour Plans added). already well-functioning and self- to augment and substantially regulating industry which in seeking to increase the socio-economic Comments be internationally competitive, already development impact; ascribe to international standards and • streamline and integrate The call for the extension of LAP practices. administrative processes relating to other professions is an old but to the licencing of rights and on-going battle. However today, it Financial Ombudsman environmental management may deserve a bit more attention In the same vain, a fi nancial (which previously were dispersed and debate by legislatures. This is ombudsman service dealing with among various government particularly because of the existence complaints and disputes in the departments) to provide regulatory of multi-disciplinary practices that fi nancial sector is being proposed under certainty; offer a range of services, including A Bill for an Act to Establish the Offi ce • aligning the Act with current legal services. Indeed today several of the Nigerian Financial Ombudsman, provisions, practices and objectives renown accounting fi rms like by an Independent Body, Charged with under other legislation such as the Pricewaterhouse Coopers, KPMG, Responsibility for resolving Financial Promotion of Justice Act, 2000 Deloittes, Ernst & Young- to mention but and Related Disputes in the Nigerian and the Geoscience Act 1993 (as a few, have long since entered the legal Financial Services Sector and for amended); services market. Under the UK laws, Related Matters 2013 (HB.14). • increasing government oversight law fi rms can practice and be licenced to ensure protection and as “Alternative Business Structures” Economic and Financial Crimes enhancement of national/public (“ABS”) which provide greater fl exibility Court (EFCC) interest by requiring ministerial in that lawyers and non-lawyers can A Bill calling for a specialised court to consent for the export of minerals share the management and control expedite matters relating to economic and petroleum resources; of businesses. The ABS can have and fi nancial crimes has also been • placing an obligation on producers external investment and ownership, introduced, sponsored by Senator to offer a percentage of minerals and an ABS can offer multiple services A.M. Hassan. It is referred to as the or petroleum resources to local to clients (including legal services) Economic and Financial Crimes Court ‘benefi ciators’; from within the same entity (known as (EFCC) Bill, 2013 (SB. 275). • empowering the Minister to a multidisciplinary practice). Against determine that percentage and these modern trends, it may be logical Updating Commercial Law the developmental price at which and practical to extend the application Nigeria is fi nally seeking to amend it should be offered, taking the of the LAP – but to do so, will require the English law – Sale of Goods Act national interest into account; and clear set boundaries. 1893 (that has since been repealed • making the declaration of in England by the Sale of Goods Act associated minerals discovered Legal Developments 1979 (as amended)) that applies to the during the mining process sale of goods. The proposed legislation mandatory (section 102). Nigeria is entitled “A Bill for an Act to Repeal Sales of Goods Act of 1893 and Enact Other key provisions referred to in National ADR Regulation Sales of Goods Bill 2013 to Provide for the summary include: allowing the Commission Regulation of Sales of Goods in Nigeria partitioning and transfer of mineral In a bid to lessen the burden on law and for Related Matters.” rights (section 11 of the Act, as courts and promote inexpensive amended); allowing the state a free alternatives to litigation, the National Around Africa carried interest in all new exploration Assembly is looking into a new bill and production rights (sections 80 aimed at regulating the Alternative and 84), particularly with a view Dispute Resolution (ADR) process in to optimising state participation in Nigeria through a new regulatory body petroleum exploitation in line with to be known as the National Alternative national developmental priorities; and Dispute Resolution Regulatory linking penalties for non-compliance Commission (NADRRC) – “A Bill For with the Act to a percentage of the An Act To Establish The National right holder’s annual turnover and

34 www.nglawdigest.com Law Digest Summer 2013

exports during the preceding fi nancial O f fi c e [2012] EWHC 2678 (QB) the claimants, as well as a gross costs year (section 99). High Court gave three of the claimants sum, to the total value of £19.9 million (see www.legalbrief.co.za). permission to claim damages against and further, that the Government the British government for the grave would support the construction of a abuses they suffered when imprisoned memorial in Nairobi to the victims of during the Mau Mau rebellion? Well, torture and ill-treatment during the although the Court of Appeal was due colonial era. to hear an appeal by the government, in a remarkable turn of events, UK’s This decision potentially calls for Foreign Secretary William Hague the re-examination of the acts of the announced on 6th June 2013, that British Government in the former the British government recognised/ colonies including Nigeria. The actions admitted its role in the torture of of the British colonies authorities in Kenyans fi ghting against British incidents such as the Aba Women’s colonial rule during the Emergency Riot of 1929, which resulted in the > Kenya: Period and the Mau Mau insurgency fatal shooting of 32 and wounding of Remember the victory in October 2012 from October 1952 to December 1963. 31 women, and the Accra Riot of 1948, when in the case of Ndiki Mutua, Paulo In expressing regret for these acts, he which led to the killing of 3 unamed Nzili, Wambugu Wa Nyingi, Jane stated that the British government had protesters by the colonial authority. Muthoni Mara and Susan Ngondi agreed to compensation in the form of v the Foreign and Commonwealth a settlement sum in respect of 5,228

35 www.nglawdigest.com Law Digest Summer 2013

Topical and incisive

It has been a pleasure to read the spring 2013 edition of the LETTERS TO THE EDITOR Law Digest. I have found it to be a rich and enjoyable read presented in an appealing and easily approachable layout. The well-researched articles are topical and incisive and explore diverse and often unexplored areas of law. I would Particularly refreshing publication recommend it to those lawyers who seek deep and current knowledge at the leading edge of our profession and to those dedicated to the on-going task of taking the Nigerian legal This is a welcome publication with incisive questions and informed answers to issues hitherto avoided or unattended profession into the middle of the 21st century. to by many publications. The Law Digest is particularly refreshing to Nigerian lawyers still interested in best C.A. Candide-Johnson SAN practices. I wish you a fulfi lling mission to keep law dynamic Strachan Partners in its practice and procedure. 5th Floor, Akuro House 24 Campbell Street Yomi Okunnu Lagos Nigeria Yomi Okunnu & Associates Nidocco House A remarkable publication 7 Onike Road Yaba, Lagos At last a journal we can be proud of. I am particularly fascinated by the article on the power struggle between the CBN, the Presidency and the Senator for control of the CBN. I however disagree that the proposed Bills would compromise A remarkable woman – Beatrice Hamza the independence of the CBN. The writer accepts that the proposal to separate the role of the Governor of the CBN and Ms Beatrice Hamza made me proud to be a Nigerian practicing the Chair of the Board of Directors is a sensible one. I will go in the US. Her insightful interview confi rms many of the further to say that the need for legislative scrutiny of CBN’s dilemmas faced by Nigerians practicing in Diasporas, could budget is both sensible and necessary, especially where we ever return home? Could we work within the Nigerian the CBN is using public funds to bail out failing fi nancial system again? This is a debate that should be had. I am institutions. Keep up the good work. impressed by what Ms Hamza has achieved within a short period of time. K. Obierozie Victory Solicitors 2nd Floor, 136 Streatham High Road Martin Akingbade London, SW16 1BW American Immigration Services Centre 3001, 39th Street Orlando, FL 32839 A promising initiative The magazine is undoubtedly a promising initiative if it can Inspirational Interview be sustained, quality and brand protection maintained and The fi rst edition was a revelation; a novel approach to essence not compromised. Surely there is a need and a place reporting topical legal issues. I eagerly awaited the second for a top quality Law magazine in Africa edition and was not disappointed as this built up on the solid foundation of the fi rst. I was particularly impressed Kehinde Aina by the inspirational interview with Beatrice Hamza Bassey Aina Blankson – what an insight! 5/7 Ademola Street, SW Ikoyi Lagos, Nigeria As a UK qualifi ed lawyer with a keen interest in the legal issues affecting businesses and individuals both here and in Keep up the good work Nigeria, I have found the Law Digest a useful tool to gaining an insight into the many issues facing the legal professional I read the magazine with keen interest. I was particularly in Nigeria and look forward to learning more so I can give my pleased with the range of articles which I believe achieve UK clients a steer in to the growing interest in our country your objective to assist in sharing of knowledge and best as a place to do business. I wish the editor and his team practice within the community of Nigerian lawyers at home longevity and sustainability in the growth of what should be and abroad. You also tackled the controversial and much a phenomenally successful venture. debated issue of SAN conferment on which we all have an opinion in an excellent and fairly balanced article. I found Femi O. Ogunshakin the section on legal practitioners who have recently made an Loftus Stowe – Legal & Tax Advisers outstanding contribution to the community most interesting. The Turbine Business Centre, Coach Close Please keep up the good work! Worksop, Nottinghamshire S81 8AP Esther Ogun Inspiration. Akin Palmer LLP 3 Angel Gate The articles addressed issues of importance that should be 326 City Road, debated. I found the cover story to be inspirational and the London, article on social media helpful. The magazine provides a EC1V 2PT forum to highlight topical legal issues of interest to lawyers in and outside Nigeria and that is where I see it providing a valuable resource. Well done in putting this together and I wish you success in the future. You deserve it! Letters for this column should be sent online to: [email protected]. To be considered for publication, Elizabeth Uwaifo letters must bear the name and address of the sender and Sidley Austin LLP because of limited space, letters may be edited to meet space, Woolgate Exchange, clarity and style requirements. 25 Basinghall Street, London, EC2V 5HA

36 www.nglawdigest.com Law Digest Summer 2013

HUMOUR

37 www.nglawdigest.com Law Digest Summer 2013 FROM THE BENCH

human rights of PWD like other individuals are enshrined in the 1999 Constitution.

SOCIAL AND ECONOMIC RIGHTS In view of the common and constant overlap between social and economic rights, we will examine the two together in our consideration of the rights of PWD. In Nigeria, a common perception of the populace is that PWD are victims of divine displeasure or divine judgment and this may explain why disability rights have lagged behind in Nigeria. However, one of the stated objectives of Nigeria’s Vision 20:20 project is the empowering of PWD.1 One of the fundamental objectives and directive principles of state policy as enshrined in the 1999 Nigerian Constitution, enjoins the state to carry out its social objectives towards ensuring that: 1. “all citizens without discrimination on any group whatsoever have opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment.”2

There is another provision on Disability Rights economic objectives which seeks to ensure:

2. “that suitable and adequate shelter and food, reasonable in Nigeria national minimum living wage, Hon. Justice Peter Akhimie Akhihiero old age care and pensions, LL.B (HONS); LLM; B.L. unemployment, sickness benefi ts and welfare of the disabled are provided for all citizens”3 INTRODUCTION by the rest of the population. Over the years, there have been In advocating their rights, PWD These are laudable social and concerted efforts by people with have strived to establish some economic objectives which ostensibly disabilities (PWD) to establish and salient principles. Firstly, they posit seek to protect the rights of all citizens enforce their rights as bona fi de that they should be considered on including PWD. Unfortunately, by members of the society. In this paper, the basis of individual merit, not on virtue of the provisions of section we shall examine the rights of PWD some stereotyped assumption about 6(6) (c) of the said Constitution, the in Nigeria. disabilities. Secondly, they maintain entire provisions of Chapter II on the All over the world there have been that society must make certain Fundamental Objectives and Directive spirited legislative efforts to guarantee changes to enable them to participate Principles of State Policy are non- the rights of PWD. Before the 1970s, more easily in everyday activities. justiciable. The provisions cannot most legislation dealing with the The rights of all persons are rooted be enforced in a court of law. They challenges faced by PWD were more in the human rights framework are merely declarations of intentions. concerned with the provision of some based on the provisions of the United In the case of Archbishop Anthony form of social security or public Nations Charter, the Universal Olubunmi Okogie & Others v assistance benefi ts. The changes in Declaration of Human Rights, the Attorney-General of Lagos State,4 it the 1970s and 1980s centered on the International Covenants of Human was held that the directive principles rights of disabled people to the same Rights and other local legislation of state policy as enshrined in the protection under the law as enjoyed of different nations. In Nigeria, the Constitution have to conform to and

38 www.nglawdigest.com Law Digest Summer 2013

FROM THE BENCH run subsidiary to the fundamental non-discrimination; reasonable Buildings sponsored by Dr. Jerry rights provisions in Chapter IV of accommodation; full and effective Sonny Ugokwe; the Constitution and that the said participation and inclusion in (ii) A Bill to Prohibit Discrimination directive principles are subject to society; respect for differences and Against Persons with Disabilities, the legislative powers of the State. acceptance of PWD as part of human 2008, sponsored by Senator Consequently, it is left to the states diversity and humanity; equality Bode Olajumoke; to give it legislative force if they so of opportunity; accessibility; and (iii) Nigerians with Disabilities Bill, desire. respect for the evolving capacities 2008, sponsored by Hon. Abike of children with disabilities and Dabiri Erewa and 17 others; and The articulation of respect for the right of children (iv) A Bill for an Act to Prohibit all with disabilities to preserve their Forms of Discrimination Against the rights of persons identities. Persons with Disabilities and with disabilities at Give them Equal Opportunities LOCAL RESPONSES TO THE in all Aspects of Life in Society, the national and state RIGHTS OF PEOPLE WITH 2009, sponsored by Hon. Tunde levels has not been DISABILITIES Akogun. The articulation of the rights of quite encouraging in PWD at the national and state levels All these bills were pending Nigeria. has not been quite encouraging before the National Assembly before in Nigeria. There appears to be the dissolution of the 6th National GLOBAL RESPONSES TO THE a palpable apathy on the path of Assembly. Since they were not RIGHTS OF PWD successive administrations towards passed by the former legislature, From the 1980s, there was the plight of this vulnerable group. the Bills are deemed to have a movement towards the re- At the level of legislative reform, expired upon the conclusion of that conceptualisation of human rights some attempts have been made to legislative session. However, the at the international level. Social and enact laws to protect the rights of Bills can be re-introduced to the economic rights were being accorded PWD. Such legislations include the legislature for passage by the current the same status as civil and political Child Rights Act 2003 which has legislature. A modifi ed version of the rights. There was an increasing been domesticated by some States Bill sponsored by Hon. Erewa alone clamour to project and propagate the of the federation, the Universal has been presented to the present rights of vulnerable persons in the Basic Education Act 2004 and House under the title: Nigerians society. In December 2001, the UN set the Employees Compensation Act With Disability Bill, 2011. Section up an ad hoc committee to consider 2010. 1 of the Bill commences with a proposals for a comprehensive and In recent times, some legal categorical prohibition of any form integral international convention scholars have made references to of discrimination against PWD. to protect the rights and dignity of provisions of the Nigerians with Section 2 stipulates a penalty in the PWD. The process culminated in Disability Decree 1993 purportedly event of contravention as follows: the adoption of the Convention and promulgated under the military (a) if a corporate body, a minimum Protocol on the Rights of People regime. The current status of of N250,000 damages payable to the with Disabilities in the year 2006. this Decree is uncertain. For one person with disability; and (b) if an Nigeria ratifi ed the Convention and thing, the Decree is not contained individual, a minimum of N100,000 the protocol sometime in 2010. With in the 2004 Edition of the Laws payable to the person with disability, this development, we can adopt the of the Federation of Nigeria. We or 6 months imprisonment or provisions of the said instruments as do not know whether the Decree both. The Bill has several laudable the benchmark on the rights of PWD was repealed by the military before provisions such as prohibition in Nigeria. transition to civilian rule in 1999. of harmful treatment of PWD, Where once PWD were considered Since the present status of the Decree promoting awareness programmes as objects of charity, social protection is not clear, we will reserve our on their plight, rights of access and medical treatment to subjects of comments on this piece of legislation to public and private buildings, human rights, able to make decisions till the concluding part of this article. public transportation by road, air, about their life, their future and to In the current civilian rail and sea. Furthermore, there claim rights on their own behalf, dispensation, some attempts were are provisions to guarantee access today they are no longer objects made to sponsor some bills, before to walkways, airports, sea ports, of social welfare – a burden on the the National Assembly to protect the and railway stations etc., the right society but active members of the rights of PWD. Unfortunately, so far, to drive, right to education, equal society with something to contribute none of these bills has crystallized treatment etc. to the society. into a full fl edged legislation. The Currently in the 7th Senate of the The general principles bills include: National Assembly, “a Bill for an Act enshrined in the UN Convention (i) A Bill for an Act to Provide to Ensure Full Integration of Persons are inter alia: respect for inherent Special Facilities for the use of with Disabilities and to establish a dignity and individual autonomy; Handicapped Persons in Public National Commission for Persons

39 www.nglawdigest.com Law Digest Summer 2013 FROM THE BENCH

with Disabilities and vest it with the the Disabled Persons Welfare years. However, notwithstanding the responsibilities for their education, (Enhancement) Law, 2003 of Lagos rights guaranteed by the law, it is an healthcare and the protection of their State, which seeks to enhance the obvious fact that the modalities are social economic and civil rights”, is welfare of disabled persons within yet to be put in place to guarantee before the Senate. the State. However available reports This bill is an improved version seem to indicate that this law is There appears to be of a similar bill sent to the 6th not being implemented presently. a palpable apathy on Senate. It brings together attainable Also recently, the same Lagos State standards from other countries Government enacted the Lagos the path of successive addressing issues such as poverty; State Special People’s Law 2011 administrations unemployment; education of children to ensure inter - alia that people and young people with disabilities; living with disabilities in the State towards the plight of access to security and assistive are given equal rights to all social this vulnerable group devices; access to housing, public services, employment, political health services and transport. and educational facilities. The the easy exercise of voting rights by At the level of the states however, law also safeguards them against people with disabilities. For example, the situation is not so gloomy. A discrimination and guarantees their our present manual system of the few states have demonstrated right to access information, conducive use of ballot papers and ballot boxes pragmatic commitment to the plight socio-economic environment, and limits the ability of visually impaired of the PWD by enacting specifi c access to special education and voters to vote without the assistance public transportation and intervention of a third party. facilities. We sincerely As the law stands, such assistance hope that this law will not and/or intervention by a 3rd party is suffer the same fate as a direct infringement on the right to the 2003 legislation. secret ballot. Some advanced political societies have surmounted such POLITICAL RIGHTS limitations by legislative interventions On the political scene to structure their electoral system to it would be observed that accommodate the rights of PWD. In generally speaking there the United States for example, they are no political rights have the Help America Vote Act which are peculiar to of 2002 which provides for voting PWD. PWD enjoy the same systems to be accessible for all those political rights as other with disabilities, including special members of the society. assistance for the blind or otherwise Nigerian law recognises visually impaired voters. the right of every citizen We sincerely commend the of Nigeria (including PWD) American approach and implore the to hold any political offi ce electoral agencies and the legislative and there are some in the organs of government to restructure executive and legislative our electoral system to accommodate arms of government these modern and pragmatic presently. initiatives. The issue of disability may only come to play if CONCLUSION the disability is preventing The capabilities of talented PWD the person from carrying are inexhaustible. The bottom line

Improved access facilities is a basic requirement to improving disability rights out the functions of the is that PWD have their roles to play offi ce. In that case it is in society and they must be given legislations to protect their rights and not a question of right but that of the the opportunities to contribute their interests. In 1981, the Plateau State ability or competence of the person to quota towards the advancement of Government enacted the Plateau hold that particular offi ce. the country. State Handicapped Law, 1981, Another aspect is that of franchise, It is seriously recommended that which stipulates inter alia, that the the right to vote. Here again, Nigerian the prohibition against discrimination education of children with handicaps, law recognises the practice of should be reinforced by giving it some is compulsory and provides for the universal adult suffrage. Section 12 constitutional backing. As we earlier rehabilitation needs of adults with of the Electoral Act 2010 stipulates observed, the provision of section handicaps. We are however not inter alia that a person shall be 17(3) (a) of the 1999 Constitution aware of the level of implementation qualifi ed for registration as a voter if which talks of discrimination is not of this piece of legislation. such a person is a citizen of Nigeria justiciable. The justiciable provision In 2003, Lagos State enacted and has attained the age of eighteen of the Constitution relating to

40 www.nglawdigest.com Law Digest Summer 2013

FROM THE BENCH discrimination is section 42 which from their titles it is apparent that as full participants in every phase of enshrines the right to freedom they are geared towards advancing national economy and development from discrimination. This provision the plight of PWD in Nigeria. Whether with equal rights and corresponding though justiciable, does not include the Nigerians with Disability obligations. Decree 1993 is in force, remains a It is a matter of great regret that It is seriously mystery. Upon a careful study of the despite the laudable provisions of the recommended that the provisions of this Decree, we observed 1993 Decree, there was no attempt several provisions guaranteeing the whatsoever by the government prohibition against rights of PWD. The disputed Decree to implement the provisions. The discrimination should commences with a statement of legislation was dormant from its purpose as follows: conception. It has remained dormant be reinforced by giving “The purpose of this Decree is to ever since, so dormant that it has it some constitutional provide a clear and comprehensive virtually disappeared from the 2004 legal protection and security for Edition of the Laws of the Federation backing Nigerians with Disability as well as of Nigeria. establish standards for enforcement It is our hope that the Bill before the disability as one of the prohibited of the rights and privileges guaranteed National Assembly bearing the same grounds of discrimination. In other under this decree and other laws caption, sponsored by Hon.Abike words, if a PWD suffers any form applicable to the disabled in the Dabiri Erewa, with similar positive of discrimination as a result of his Federal Republic of Nigeria” provisions, should be expeditiously disability, he cannot invoke the right Thereafter, the decree inter alia considered by the House, to give under section 42 of the Constitution. makes provisions for the protection legislative backing to the laudable A simple solution is to effect a of the human rights of PWD. The objectives therein. Furthermore, constitutional amendment to include rights guaranteed under the decree in view of the similarities between disability as one of the prohibited include: the right to free medical and the two pieces of legislation, it is grounds of discrimination. health services (section 4); the right recommended that the Bill should be Furthermore, we advocate the to free education at all levels (section 5); harmonised with the 1993 Decree. domestication of the provisions of the right to free transportation by The National Assembly should The UN Convention on the Rights bus, rail or any other conveyance incorporate some of the benefi cial of Persons with Disabilities by all (other than air travel) that serves provisions of the Decree into the the States of the Federation including the general public needs (section 9); pending Bill. This way, they will the Federal Capital Territory. This will the right to public and private sports come out with an all encompassing greatly enhance the implementation facilities (section 11); the right to legislation to comprehensively of all the laudable provisions of the access telephone and other media safeguard the rights of PWD. After Convention. and telecommunication facilities integrating these salient aspects to From the Lagos experience, we (section 12); and voting access the new law, the House can formally have learnt that the passage of the rights(section 13). repeal the 1993 Decree to put an end legislations per se does not guarantee To give effect to the laudable to the controversy. This should be the rights of the PWD. There must provisions of the decree, section the proper approach to adopt in the be a body set up to implement the 14 thereof established a National circumstances. legislation guaranteeing the aforesaid Commission for People with Disability. rights. The Commission was charged with We have observed that some bills the objectives of promoting the 1 See Nigerian Vision 20: 2020 Abridged relating to the rights of disabled welfare of the disabled and to enhance Version, 12 December, 2010 page 10 2 Section 17(3)(a) 1999 Constitution persons were forwarded to the the full utilization of the disabled in 3 Section 16(2)(d) 1999 Constitution National Assembly. We are not aware the developing of human resources 4 (1981) N.C.L.R. 218 of the contents of all the bills but and to bring about their acceptance

41 41 REGULATION Dr. Yemi Oke Senior Lecturer, University of Lagos, Nigeria Law Digest Summer 2013

partly within and partly outside the Federation; Regulation of the (f) the regulation of the right of any person or authority to use, work Captive Power or operate any plant, apparatus, equipment or work designed for the Generation and supply or use of electrical energy.” By virtue of paragraph 14, of the same Rural Electrifi cation Schedule II, State Governments are empowered to engage in licensing and regulation of electricity generation Introduction and transmission: While some countries have stepped-up their electricity regulatory “14. A House of Assembly may make frameworks through various energy laws for the State with respect to – options and incentives amongst (a) electricity and the establishment in others things, Nigeria appears to be that State of electric power stations; receding rather than accelerating in (b) the generation, transmission and the quest for the much desired stable distribution of electricity to areas not electricity in the country. covered by a national grid system In a number of ways, the within that State; and provisions of the Electric Power (c) the establishment within that State Sector Reform Act 2005 (the of any authority for the promotion “EPSR Act”) would appear to and management of electric power contradict the Constitution of the stations established by the State.” Federal Republic of Nigeria 1999 (as Amended) (the “Constitution”). Overview of Electricity Regulation This paper argues that under the in Nigeria Dr. Yemi Oke - Constitution, State Governments The EPSR Act signalled the are empowered to regulate off- beginning of a new regime of Senior Lecturer, University of Lagos, grid generation, transmission and electricity governance in Nigeria. But Nigeria distribution of electricity. It argues the pace of the reforms has been slow further that captive electricity and seemingly unattractive to the generation and rural electrifi cation private investors who still perceive should likewise be controlled and the Nigerian electricity sector as “The EPSR Act regulated by the State Governments. signifi cantly risky. Also contributory signalled the to the apparent inactive private sector Constitutional Basis of Electricity involvement in the new electricity beginning of a new Governance regime in Nigeria are several The Constitution would seem to issues ranging from regulatory regime of electricity envisage decentralised electricity and operational overlaps, funding governance in governance, as evidenced by constraints, over-centralization of Paragraph 13 of Schedule Part II, the electricity sector among others. Nigeria” Concurrent Legislative List, which Under the current regime, the provides as follows: Nigerian Electricity Regulatory Commission (“NERC”) serves “13. The National Assembly may as the main regulatory body of make laws for the Federation or any the electric power sector. The part thereof with respect to- responsibilities of the NERC include (a) electricity and the establishment of licensing and regulation of captive electric power stations; generation of electricity while rural (b) the generation and transmission electrifi cation and related initiatives of electricity in or to any part of the are also centralized under Federal Federation and from one State to institutions. another State; (c) the regulation of the right of any Rural Electrifi cation as State person or authority to dam up or Electricity Subject otherwise interfere with the fl ow of While the Constitution provides water from sources in any part of the for a decentralized regulatory Federation; framework, the ESPR Act provides for (d) the participation of the Federation in a centralized regime, which we would any arrangement with another country argue is outside the contemplation for the generation, transmission and of the Constitution and would distribution of electricity for any area severally limit the expansion of the

42 www.nglawdigest.com Law Digest Summer 2013

electrifi cation process. The ESPR Act also establishes an agency, to be known as the Rural Electrifi cation Agency (“REA”), which administers the Rural Electrifi cation Fund (“REF”), a designated fund to provide, promote and support rural electrifi cation programmes. Rural electricity is mainly off-grid, and comes squarely within the ambit of regulatory purviews of the State Governments. It is the considered view of the writer that vesting the REA, REF, and Rural Electrifi cation Project (“REP”) in the hands of the Federal Government whilst not unconstitutional is not only counter-productive but would delay the privatisation and decentralisation of electrifi cation Rural electrifi cation in Delta State has improved quality of life in the area process in Nigeria. among others. Like the REA, REF and model that will eventually lead to Power to Regulate Captive REP, captive generation of electricity the establishment of state electricity Electricity Generation is also off-grid, and comes within the regulatory institutions. Like REA, REF, and REP ambit of legislative competence and State electricity regulatory frameworks; the NERC Regulations regulatory purviews of the for the Granting of Permits for State Governments, in line The Consitution leaves no Captive Power Generation 20081, is with the intendment of the the regulatory framework for granting Constitution. doubtful impression of a captive electricity permits to an decentralised electricity regime individual, a company, partnership Bridging the Gaps in Nigeria. The Nigerian or any association of individuals The Constitution, whether incorporated or not. The envisages a decentralised Constitution places electricity word “Captive Power Generation” electricity regime in Nigeria. generation, transmission and means “generation of electricity in The Nigerian Constitution distribution on the Concurrent excess of one (1) MW for the purpose places electricity of consumption by the generator, and generation, transmission Legislative List- to enable the which is consumed by the generator and distribution on the Federal and State Governments itself, and not sold to a third-party”. Concurrent Legislative partner in sustainable electricity The underlining objective of the List- to enable the Federal regulation is to streamline the and State Governments procedure for power generation partner in sustainable electricity. commissions should be able to by interested person(s), groups or What obtains in practice clearly license private companies to engage corporate organization in excess of depicts the opposite of a decentralized in off-grid electricity generation, 1 megawatt (MW), but without the regime envisaged by the Constitution transmission and distribution intention of trading or engaging in owing to needless federal dominance (including renewable electricity), sale of electricity to a third party. in electricity governance, which captive electricity generation, rural There is no direct or specifi c permeates off-grid power generation electrifi cation and others as provided provision under the EPSR Act systems such as rural electrifi cation by the Constitution. If the ultimate authorising the NERC to regulate and captive electricity generation. objective is to ensure regular supply captive generation of electricity. of power for economic development, Section 62 of the EPSR Act expressly Conclusion: the Federal and State Governments excludes captive generation. It The role of the State in the must act as collaborators, not as only provides that no person recognition, generation and competitors, in terms of electricity shall construct, own or operate transmission of electricity needs to governance in Nigeria. an undertaking for the purpose of be clearly difi ned. State Governments electricity generation, transmission, should undertake off-grid electricity distribution, systems operation or regulation like rural electrifi cation, 1The Nigerian Electricity Regulatory captive generation and other forms Commission (NERC) Regulations of the electricity trading in excess of 1 MW Granting of Permits for Captive Power without a licence by the Commission. directly, or in collaboration with the Generation, 2008 is made pursuant to 96 Thus, even under section 32 (1)(a), Federal Government as envisaged (1) of the Electric Power sector Reform Act, 32(1)(e), and 32 (2)(d) of the EPSR by the Constitution. Nigerians await 2005, which gives the Commission power to Act, the NERC has a general but not effective implementation of the make regulations for the granting of permits for captive power generation specifi c statutory duty to regulate the Constitution through a genuinely operation of captive generating plant, decentralised electricity governance

43 www.nglawdigest.comwww.nglawdigest.com LawLaw DigestDigest SummerSpring 2013 2013

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45 LITIGATION Emmanuel Chukwudum, LLB, LLM Law Digest Summer 2013

was alleged that Mr Salomon had acted fraudulently, that his family members were ‘dummy’ shareholders of a company incorporated to operate Piercing the as his agent while enabling him to limit his liability. The House of Lords held that there was no evidence of Corporate Veil in fraud and that the company, having duly been incorporated, could not in general have its veil lifted. In his Corporate Actions remark, Lord Macnaghten stated that: “The company is at law a different person altogether from the subscribers....; the company is not nce incorporated, a company in law the agent of the subscribers becomes in the eyes of the law or trustee for them. Nor are the Oa distinct legal entity separate subscribers liable, in any shape or from its shareholders and those who form, except to the extent and in the manage and carry out its affairs manner provided by law” (also see (directors and offi cers); it assumes a Lee v Lee’s Air Farming [1960] legal personality so that it has rights UKPC 33 and Macaura v Northern and duties – including the right to Assurance Co LTD [1925] AC 619). own property, and can sue and be The essence of the principle sued in its own right. This has been established in Salomon is that the UK’s legal standpoint with regards company shareholders (and likewise, to companies that are incorporated; company directors) will not be and as the Nigerian corporate law personally liable for corporate actions, principles mainly emanate from the unless where the law provides that UK’s common law and corporate they are to be held personally and law, this is also the legal position of therefore directly liable for their incorporated companies in Nigeria. actions. The same principle prevails under Nigerian corporate laws (see Background Habib Nig. Bank Ltd v Ochete The origin of the principle (2001) FWLR (PT 54) 384; see also Emmanuel Chukwudum, LLB, LLM of separate legal personality of A.C.B v Emostrade Ltd (2002) FWLR companies can be traced back to (PT 104) 540). Under the section 279 the provisions in the UK’s Limited of the Nigerian Companies and Liability Act 1855 which fi rst allowed Allied Matters Act 2004 (“CAMA”) limited liability for corporations directors of a company can be held but still held shareholders directly personally liable to the company in “There are several liable to creditors, for the unpaid respect of their director’s duties set cases both in the portion of their shares. It was not out in the section. Notably therefore, until the enactment of the Joint the director’s duties are enforceable UK and in Nigeria Stock Companies Act 1844 that directly against the directors by the where the courts the “corporate veil” principle as we company, not a third party. now understand it was established have lifted the so that creditors could not go Judicial considerations in corporate veil past the ‘corporate veil’ to hold its ‘piercing the veil’ shareholders directly liable for the Given recognition as a legal where, for instance, acts or debts of the company. The person, an incorporated company the company is principle of corporate personality, may also itself limit its liability by still in its developmental stage, faced incorporating subsidiaries – under considered to be a its fi rst major test in the celebrated the principle of separate legal sham or a device to case of Salomon v Salomon Co. personality, the holding company Ltd [1897] AC 22. In this case, Mr cannot be liable for the debts of its conduct and mask Salomon incorporated his business subsidiaries; just as each subsidiary under the companies legislation is not liable for the debts of other sinister acts” and added six other members of subsidiaries. However, cases like the his own family to meet the legal Salomon case have highlighted the minimum requirement of seven potential injustices caused to third shareholders. When the company parties where a company is being faced fi nancial diffi culties, he lent used as a front or agent by those it money which was secured by a seeking to avoid risks of liability; or debenture taken out by the company. for purposes of avoiding direct and Upon liquidation, the liquidator personal liability by shareholders sought to make Mr Salomon directly and/or directors who engage in liable to the company’s creditors. It fraudulent or other illegal activities; or,

46 www.nglawdigest.com Law Digest Summer 2013

where company’s shareholders and/ on some relevant aspect of health corporate personality include for or directors have acted recklessly or and safety in the particular industry; many countries, in matters of taxation negligently in conducting the affairs (3) the subsidiary’s system of work (especially with regard to a group of the company. These risks present is unsafe and the parent company of companies) and improprietous uncertainties not only for creditors, knew, or ought to have known; and conduct. The UK Insolvency Act, but employees and other third (4) the parent knew or ought to have 1986 (“IA 1986”), addresses both parties engaged in or affected by the foreseen that the subsidiary or its fraudulent and wrongful trading. action(s) of the company; who may employees would rely on its using Under section 213, if upon winding- be left with no recourse, especially that superior knowledge for the up a liquidator is of the view that where the company concerned is employees’ protection. For insolvent or dissolved; and, it is in the purposes of (4) it is not Without doubt, the ruling addressing such injustices that in necessary to show that the certain circumstances the law allows parent is in the practice of in Prest should be viewed for the ‘piercing of the corporate veil’. intervening in the health carefully, because the There are several cases both in and safety policies of the the UK and in Nigeria where the subsidiary… The court court made it clear that courts have lifted the corporate veil may fi nd that element where, for instance, the company is (4) is established where the ruling came as a considered to be a sham or a device to the evidence shows that conduct and mask sinister acts such the parent has a practice result of what it deem as as in the UK cases of Jones v Lipman of intervening in the “uniqueness of the case” [1962] 1 All ER 442 and Trustor v trading operations of the Smallbone [2002] BCC 795; and subsidiary, for example production the/any business of the company Nigerian cases of Akinwunmi O. and funding issues.” has been conducted with the intent Alade v ALIC (Nigeria) Limited & Also, recently, the UK Supreme to defraud creditors or other persons anor (2010) LPELR-SC.169/2001; Court in Prest v Petrodel Resources dealing with the company, he may Mezu v Co-operative and Commerce Ltd & Ors [2013] UKSC 34 appears on application of the court have the Bank (Nigera) PLC & anor [2012] to have set a new precedent by lifting persons involved in such fraudulent ALL FWLR 262 in Nigeria. In the corporate veil in a divorce proceeding, activity made liable to contribute to present age of globalisation, lifting using the provisions of Section 24 the assets of the company. Notably, the veil between holding and Matrimonial Causes Act 1973 and no class of persons are identifi ed and subsidiary companies has become equitable principle of resulting so such persons that may be held an important and growing struggle trust. The court took the view that liable may include shareholders, in some cases, to prevent human Mr Prest, the sole shareholder of directors, offi cers of the company rights abuses and enhance corporate Petrodel Resources LTD and spouse and other third persons, provided it social responsibility among powerful to the applicant, who vested all his is proved that they acted “with intent multinational corporations. property in the company’s name, to defraud”. In Adams v Cape Industries plc had consciously done so in order to Fraudulent trading under [1990] Ch 433, in refusing to pierce conceal them under the company’s section 993 of the UK’s Companies the veil, the court emphasised the name. But surprisingly, the court Act 2006 (“CA 2006”) is clearly right of companies to adopt corporate did not rule that any wrongdoing had made a criminal offence thereby structures limiting liabilities between taken place within the company. In requiring proof beyond reasonable the various corporate entities Prest, Lord Sumption stated that: doubt; and applies whether or not in a group. The court however “I would accordingly declare that the the company has been, or is in the acknowledged that it is bound to disputed properties vested in PRL course of being, wound up. So while investigate the relationship between and Vermont are held on trust for the scope of section 213 is limitless a parent and its subsidiary where the husband, and I would restore in application, it is at the same very it is alleged that the subsidiary acts paragraph 6 of the order of Moylan J restrictive, given the higher burden as the parent’s agent or that the so far as it required those companies of proof for fraud. Section 214 of the corporate structure constitutes a to transfer them to the wife” IA 1986, which deals with wrongful façade. Subsequent cases such as Without doubt, the ruling in trading and specifi cally applies to Lubbe v Cape plc [2000] 1 WLR Prest should be viewed carefully, company directors, provides that on 1545 and more recently, Chandler v because the court made it clear that application to the court, a person Cape plc [2012] EWCA Civ 525 show the ruling came as a result of what who is or was at the relevant time that in principle, a parent company it deem as “uniqueness of the case”. a director may be declared “liable can be found to owe a direct duty of For instance, the matrimonial home to make contribution (if any) to the care in tort to anybody injured by a in that case was equally vested to the company’s assets as the court thinks subsidiary company in a group. In company, prompting the conclusion proper...if the company has gone Chandler, Arden LJ stated that: by the court that the company into insolvent liquidation, [and] at “..in appropriate circumstances the was holding it and, indeed, other some time before the commencement law may impose on a parent company properties involved on resulting trust of the winding up of the company, responsibility for the health and for Mr Prest. [the director at that time] knew or safety of its subsidiary’s employees… ought to have concluded that there where,…(1) the businesses of the Statute setting aside the was no reasonable prospect that parent and subsidiary are in a relevant ‘corporate veil’ the company would avoid going into respect the same; (2) the parent has, Examples where the legislature insolvent liquidation.” Section 214 or ought to have, superior knowledge has set aside the principle of separate is very important, not only because

47 REGULATION Emmanuel Chukwudum, LLB, LLM Law Digest Summer 2013

it deals directly with company trading, the latter of which covers consolidation phase of the banking directors and prevents the reckless any type of impropriety (judged both sector reforms in Nigeria; this or negligent conduct of business by subjectively and objectively) whether included the pursuance of debtors – directors at a time when the company reckless, negligent or other behaviour individuals or companies to whom the is in a serious fi nancial diffi culties on the part of directors which banks had provided credit facilities. thereby worsening the position of the prejudices the ailing company and As a means of realising debts owed company vis-a-vis its creditors, but its creditors, section 506 also because it provides for a lower of CAMA has a narrower burden of proof; hence, increasing application because it AMCON provides an the chances of successful litigation. does not cover negligence arbitrary approach that A good example of where this section and other conduct other was applied is in Re Produce than that which is either falls short of providing a Marketing Consortium Ltd (No.2) reckless or fraudulent. [1989] BCLC 520 where the company Further exceptions to normal legal or equitable had slowly drifted into insolvency the principle of separate over a period of seven years and the corporate personality basis upon which to directors were held to have been are also provided under pierce the corporate veil negligent in failing to liquidate the sections 290 of CAMA company in time; and therefore 2004 which provides as discussed above. personally liable to contribute that: “Where a company towards the company’s debt. receives money by way of loan for a to the failing banks, section 49(1) Similar legislation in Nigeria can specifi c purpose or receives money of AMCON, quite controversially, be found section 506(1) of Nigerian or other property by way of advance provides that where the Corporation Companies and Allied Matters Act payment for execution of a contract has reasonable cause to believe that 2004 (“CAMA”), which provides or project, and with intent to defraud, a debtor or debtor company is the that: “If, in the course of the winding fails to apply the money for the purpose bona fi de owner of any movable or up of a company, it appears that any for it was received, every director or immovable property, it may apply business of the company has been other offi cers of the company who is to the court for an ex-parte order carried on in a reckless manner or in default shall be personally liable granting possession of the property with intent to defraud creditors of to the party from whom the money or to the Corporation. Section 50(1) the company or creditors of any other property was received...”. As with the further allows the Corporation to person for any fraudulent purpose, offence of fraudulent trading under seek an ex-parte order to attach the court, on the application of the section 506, the ‘intent to defraud’ funds or freeze the bank account of offi cial receiver may, if it thinks must have been present and proved a debtor or debtor company. Section proper so to do, declare that any in addition to providing proof that 61 of AMCON defi nes “debtor” or a persons who were knowingly parties there was a deliberate failure to apply “debtor company” as any borrower/ to the carrying on of the business in the money or other property for the benefi ciary of an eligible bank asset, manner aforesaid shall be personally purpose for which it was received, including a guarantor or director responsible, without any limitation of in order to hold such directors or of a company. AMCON invariably liability for all or any of the debts or offi cers of the company personally holds companies and their directors other liabilities of the company...... ”. liable. severally and jointly liable, without Section 506(3) goes on to state limitation, for outstanding loans or that every person who was knowingly “AMCON” A bridge too far other credit facilities given to the a party to the carrying on of the Thus, as demonstrated from company by those institutions under business in manner aforesaid (other the sections discussed above, the management of the Corporation. than recklessly), shall be guilty of an the legislature may prescribe the AMCON provides an arbitrary offence, and liable on conviction to a circumstances in which principle of approach that falls short of providing fi ne of N2, 500 or to imprisonment separate corporate personality may a normal legal or equitable basis for a term of two years, or to both. be set aside for purposes of liability, upon which to pierce the corporate Further, section 506(4)(a) provides and being a strongly guarded veil as discussed above. It makes that “a declaration may be made commercial principle, it will seek to do no reference to CAMA; without any notwithstanding that the person so often with clarity and reservation, requirements (including reasonable concerned may be criminally liable in requiring in some regards, the highest belief) regarding some sort of respect of matters which are grounds standard of proof. Unfortunately, wrongdoing on the part of directors, for the declaration and a declaration, this may not always be the case as and without providing a fair and if made, shall be deemed to be a fi nal can be seen with the example of the transparent procedure in the seizure judgment of the court.” Asset Management Corporation of of directors’ property, these sections As in the UK under section 993(2) Nigeria Act, 2010 (“AMCON”); an in AMCON are inconsistent with of CA 2006, the offence of fraudulent act enacted to set up an institution, existing law – having regard to trading in Nigeria may be pursued in the Asset Management Corporation, both CAMA and the common law circumstances other than on winding responsible for the acquisition, enshrined legal principle of separate up a company (section 561 of CAMA). management and disposal of corporate personality, which still, However, while the UK provides for assets belonging to ailing fi nancial today, maintains its sanctity. both fraudulent trading and wrongful institutions (banks) following the

48 egarded as one of the leading Lawyer in the News lights of Arbitration and ADR in RAfrica, Chief Bayo Ojo, SAN is Africa’s representative at the Board of Chief Bayo Ojo SAN, CON Trustees of the Chartered Institute of ARBITRATOR EXTRAORDINAIRE Arbitrators, London. He graduated from University of Lagos in 1977, called to the Nigerian Bar in 1978 and obtained LLM from the London School of Economics in 1982. He later obtained a Diploma in international Commercial Arbitration from the Chartered Insitute of Abitrators. Elevated to the prestigious rank of Senior Advocate of Nigeria (SAN) in 1999, elected President of the Nigeria Bar Association (NBA) in 2004, and appointed Attorney General and Minister of Justice in 2005, his contribution to the profession and public service is undeniable. As Attorney General and Minister of Justice, he undertook numerous reforms in the Justice sector including the development of eight critical bills. In addition, he reformed all the investment laws in Nigeria and embarked on the fi rst ever massive prison decongestion exercise in Nigeria. He also advised on the exit of Nigeria from foreign debts owed to the London and Paris Clubs. Currently a Council Member of the Section on Energy, Environment, Natural Resources and Infrastructures Law of the International Bar Association, member of the Permanent Court of Arbitration in The Hague, Netherlands; member of the panel of arbitrators of the International Centre for the Settlement of Investment Disputes (ICSID), Washington, member of the London Court of International Arbitration, the Swiss Arbitration Association, and the British Institute of International and Comparative Law amongst others. He is a former Chairman of the Legal Aid Board of Nigeria and former member of the Council of Legal Education of Nigeria. He is a patron of the Nigerian Society of International Law and West Africa’s representative of The Netherland based Foundation For International Commercial Arbitration (SICA/FICA). He is a recipient on the National Honor of Commander of the Niger (CON) His quiet philanthropic activities are carried out through CKO Foundation, a foundation involved in the fi ght against breast cancer and blindness. Against this exceptional service to the profession and the public, Chief Christopher Adebayo Ojo, SAN is our “Lawyer in the News”.

50 INTERVIEW

with Chief Bayo Ojo SAN By Seyi Clement

Have you always wanted to be a But when I got inside the court cases for those who could not afford lawyer and what actually made and saw the Chief Magistrate in legal representation. My very fi rst you go into law? a nice suit sitting and conducting case was a case in which I defended proceedings, and the lawyers neatly a secondary school student who I initially wanted to be a pharmacist dressed in very nice suits appearing was alleged to have raped another and I took physics, chemistry and for their clients, I knew within me student. The judge who presided biology up till school certifi cate level. immediately that this was what I over the case was retired Justice However, an incident that occurred would want to be in future. To be a of the Supreme Court, Honourable when I was in Form four changed lawyer. Justice Anthony Iguh. He was then the course of my life and made me a High Court judge. At the end of the want to be a lawyer. I was on holiday day, he found my client guilty and from school and would get up early What do you remember about your convicted him. One thing I do recall in the morning to wash my dad’s fi rst day in court? is that in my allocutus on behalf of car before he went to work. So one my client before he was sentenced, early morning, as I was washing the My fi rst appearance in court was I passionately pleaded with the car, a man walked into the gate of during my NYSC programme (National judge not to impose the maximum our house and attempted to abduct Youth Service Corp, Nigerian national sentence as it was my fi rst case in me. Fortunately my father came to services programme) in Enugu, in life. Moreover I said my client was my rescue and the man was arrested 1978. Although I was posted to the a young person who could still be and charged. Ministry of Justice for my primary reformed in life. I guess this made I was required to appear in court assignment, the Legal Aid Board had an impression on the judge who to give evidence. It was the fi rst time just been established then and we sentenced my client to fi ve years in my life that I would ever enter a were required to spend six months imprisonment. I did not appeal as I court room. I was scared to death. with the Legal Aid Board handling was happy with the outcome.

51 www.nglawdigest.com Law Digest Summer 2013

Who or what has had the most was a cordial one even though I had ruling and asked us to come back profound infl uence on your life occasions to upbraid the Government in one hour. I then switched on my and/or your career and why? a few times on certain actions taken phone to make a call. Instead, I got by the Government which the NBA a call from a strange number. The I regard this question as unfair was not pleased about. caller asked me where I was and because so many people have had I refused to tell him. He then said and are still having a profound I was wanted in Abuja. I told him infl uence on my life and career. My You were a fi erce critic of the that he must be joking - to call the wife, parents and some friends also Government of President Obasanjo, President of the NBA out of the blues have had a profound infl uence in but yet you accepted the offer of and say he is wanted in Abuja? I shaping my life. As for my career, the the post of the AG, why? promptly hung up. The person called people who infl uenced my life are too again. He then said that seriously, numerous to mention. God Almighty Yes, I did so because I felt here was I needed to come to Abuja over an uses people as instruments to help the President of a country who felt issue with the SSS (State Security Service). My mind then immediately raced to the criticism I made against the Government the previous week and thought perhaps they wanted to arrest me for that. I then put a call through to my wife (a judge of the High Court sitting in Kwara State then) who was also sitting in court at that time. I eventually got her secretary to inform her to briefl y adjourn proceedings and speak to me as it was an emergency. When my wife fi nally came on the line, I told her that the SSS had invited me to Abuja over my criticism of the government and that if she did not hear from me again, she should raise an alarm that I had been detained. She was very disturbed but I told her this was not unexpected and it came with the job. She then prayed that God will go with me. When I arrived at Abuja the next Chief and Hon. Justice Ojo at his investiture as a Fellow of the Nigerian Institute of Advanced Legal Studies [FNIALS] day, I summoned a meeting of all my offi cers of the Executive Committee us in our lives. God has used a lot of that since I was criticising some of of the NBA who luckily were all in people to help me in my career and I his policies, I should come and join Abuja for a function. We met at the therefore acknowledge the profound his cabinet to correct the things I Sheraton Hotel where I had checked infl uence of God in my life as well. criticized him for. If I had refused, in. it would have meant that I was just I informed them of the strange criticising for the sake of it and call I had received and asked for You made silk in 1999, what advice nothing more. So, that was why I their advice on what to do. My then would you give to young lawyers accepted the appointment. General Secretary then said “Mr coming through the ranks who President, I have a feeling this call is also aspire to make silk? in connection with an appointment How was the subject of appointment by President Olusegun Obasanjo. If Hard work, dedication to the to the position broached with you? it is for the post of Attorney General profession and above all, prayers. of the Federation, you must take it. Hmmm! That is a very interesting But if it is for any other portfolio, you question indeed. I had just criticised must reject it”. All the other offi cers You became the President of the the Government over a topical present echoed the same view. I NBA in 2004, during a turbulent national issue the previous week. I then decided that I would go to see time in Nigerian politics, how would was then arguing a case before the the SSS the following day. Before we you describe your relationship Federal High Court in Uyo in Akwa concluded our meeting, the General with the Government of the day. Ibom State. After hearing arguments Secretary advised that I should resign from both sides on the preliminary my Presidency of the Bar before My relationship with the Government objection I raised, the judge then going to the SSS so that if indeed of the day as President of the Bar retired to Chamber to consider her it was an appointment, I would not

52 www.nglawdigest.com Law Digest Summer 2013

have breached the Constitution of in his cabinet. The rest as they say is germinated when I was appointed the NBA which bars the President of history. as the Chairman Of the Legal Aid the Bar from soliciting or accepting Council from 1999 to 2004. public appointments. So, since I had So I thought this was the not solicited, I should not go to the Your appointment to the offi ce of opportunity that I had been waiting meeting with the SSS as President of the AG drew fi erce criticism from for to actualise my dream about the Bar but as an ordinary Nigerian. the NBA, were you surprised by this doing something about decongesting I then wrote a letter of resignation as and were the criticisms justifi ed? the prisons. After I presented President of the NBA and gave the my memo on this to the Federal letter to the Administrative Secretary I was not in the least surprised by Executive Council in January 2006 of the NBA who acknowledged my the criticism from the NBA because with all the startling statistics, there resignation. Having resigned from those making the criticism were not was pin-drop silence for about fi ve the Presidency of the Bar, I went for aware of the fact that I had resigned minutes. When a colleague of mine the meeting with the SSS the next as President of the Bar. However in Cabinet raised his hand to speak day. even when most of the critics became on the subject matter, Mr. President As it turned out, it was for an aware, the criticism did not abate. said: “Don’t you want my colleagues appointment as I was later requested They were entitled to their criticism in prison to be released? Don’t forget to meet with President Olusegun but I believed then as I do now that it I was once a prisoner myself.” The Obasanjo later that evening. Now, I was completely unjustifi ed. colleague who raised his hand then had never seen President Obasanjo, but as I was ushered before him that evening, the fi rst thing he said jovially was: “Mr President with a small ‘P’, are you averse to working with me?” I said I was and had no interest working with him. He then said he thought my response was too hasty and that I should go and think about it and give him my response the next day. I went back to my hotel and I called my wife. I told her that contrary to what I thought, I was not detained but instead was offered an appointment. She immediately said she was not going to be part of it, as the NBA would “eat me raw”. I then told her I was no longer the NBA President as I had resigned. She was shocked and then said she was taking the fi rst fl ight to Abuja the next day, which she did. Next I Chief Ojo SAN with colleagues that training for judges on arbitration called each of my colleagues in the NBA Executive and they all as before What would you say were your said all he wanted to do was to advised that if the appointment was greatest achievements as the AG? congratulate me for the outstanding that of the offi ce of the Attorney memo and nothing more. The memo General of the Federation and I would say that my greatest was unanimously approved. It was Minister of Justice, I should accept achievement in offi ce was the fi rst one of the greatest days of my life.. it. I then put calls through to some ever prison decongestion exercise elders in the profession who all said I embarked upon. The seed for this I should accept the appointment if was sowed in me when I handled Your tenure as AG was packed indeed I had resigned as President some cases for the Legal Aid Council with laudable initiatives such of the Bar. My wife and I prayed for as a Youth Corper. I entered a prison as decongestion of the prison, God’s guidance. After praying about for the fi rst time as I had to visit my which you had already mentioned, it, we got an answer in an unusual clients to take their instructions and judicial reforms, and the draft manner which made us know that it the state of the prisons were appalling, Federal Arbitration Act, however was the right thing to do to take the with massive overcrowding. Worst of it may also be remembered more job. That evening, I gave President all, the catalyst for the overcrowding for the political challenges arising Obasanjo my response that if the was the failure to process detainees from the controversies relating job was that of the Attorney General promptly. Some detainees have been to Peter Obi, Rashidi Ladoja, of the Federation and Minister of in custody for years without trial Atiku, and the extension of the Justice, I would be honoured to serve or even being charged. This seed Presidential tenure; how do

53 www.nglawdigest.com Law Digest Summer 2013

The dimension that such disputes may assume cannot be completely envisaged, but whatever the nature, foreign investors are always keen to have a measure of certainty and predictability on dispute settlement mechanisms. A system of arbitration is an essential component of a country’s dispute settlement mechanism. Consequently, there is an emerging consensus even in developed countries that a vibrant system of arbitration is sine qua non if a country is to attract a reasonable infl ow of foreign investors. To return to the the National Arbitration Commission Bill, the point must be made that it will hardly inspire confi dence in foreign investors. On the contrary, it will deter foreign investment. The essence of arbitration is freedom to choose to Chief Ojo SAN at the training of Lagos State High Court judges in arbitration resolve matters other than within the court context. Legislation and direct government involvement carry you perceive the effect of these away some of their jurisdiction with them a measure of compulsion controversies on your tenure and but complimenting it by reducing inconsistent with this philosophy. current professional standing? the number of cases that come to Besides, the institution of arbitration court. The main challenges facing is blossoming in Nigeria thanks to I am addressing all these issues in the practice is that of unqualifi ed the private sector and professional my memoir. quacks getting into arbitration. Also bodies. The statutory creation of a lawyers are beginning to complicate commission for that purpose will the process with their litigation caps result in turf wars and this will Your name is virtually synonymous which defeats the whole essence of become counter-productive. The with arbitration both locally and the timeous resolution of disputes. National Arbitration Commission will on the international stage, how did There was once an arbitration in the not only introduce bureaucracy, it you get involved with arbitration? United Kingdom where it took four will erect obstacles to the continued years to appoint the arbitrators, this development of arbitration in I don’t know about that (smiling militates against development of this Nigeria. The freedom at the heart modestly). The only thing I know is practice area . of arbitration and other alternative that I got involved in the training dispute mechanisms will be negated to be an arbitrator early in my by what would certainly be an attempt career through the inspiration and What is your view on the proposed to introduce standards. For the most mentorship of people like Prince “Bill For An Act To Establish part, arbitrators are chosen by parties Bola Ajibola, Chief Mrs Tinuade The National Alternative Dispute who also choose those to assist or Oyekunle, Mrs Hairat Balogun and Resolution Regulatory Commission represent them in the proceedings. Alhaji Abdullahi Ibrahim, SAN to And For Other Matters Thereto There is a measure of free market name a few. They all continue to 2013”? involved. Competent arbitrators and mentor me to date and I owe them a representatives are known. Market debt of gratitude. That Bill is ill conceived and I pray forces tend to regulate those who and hope it does not see the light of parties appoint to be their arbitrators day because if it does, the damage it or representatives. Shorn of all the What would you say is the state will occasion will be incalculable. procedural trappings, arbitral bodies of arbitration in Nigeria and what International investors consider a still resolve matters based on the are the main challenges facing this lot of factors in making their decisions law. Is the proposed Commission practice area? whether to invest in a country and the now going to be responsible for the kind of investments to make. Some of training of lawyers to represent Arbitration has come of age in Nigeria these factors are market size, cost of parties or as arbitrators? The over the years as there is more production, country conditions and process of recourse to the courts for awareness and it is being employed other social circumstances. However, arbitrators’ misconduct and other to resolve commercial disputes in all I believe that the most important fundamental derogations from law their ramifi cations. Most importantly consideration is the legal system provides a measure of supervision if our judges in various jurisdictions of the prospective host country. one is desired. There is no need for are also now better informed about Disputes are a common feature of additional red tape in what should be it and no longer see it as taking most investment arrangements. a voluntary process.

54 www.nglawdigest.com Law Digest Summer 2013

Currently you operate a fi rm with core competence which is Science and Minister of Justice, elected to 4 partners and over 20 associates and Technology. I recall that when the International Law Commission in your fi rm; what qualities do we were students at the University of the United Nations in Geneva, you look for in the recruitment of of Lagos thirty nine years ago, only Switzerland, elected as a member of partners and associates? senior lecturers and professors were the Board of Trustees of the Chartered allowed to take core law courses. Institute of Arbitrators London and The qualities we look for are, good Other lecturers could take only recently the President of the Africa legal education and the ability to tutorials. But now, you fi nd Youth Users’ Council of the London Court work hard, be dedication and above Corpers teaching core law courses of International Arbitration. These all, a team player. in some universities. This practice are worldwide formidable arbitration must stop. Part of the solution to bodies. The only low in my career solving this problem is to make law was when a colleague I trusted used The quality of our young and a graduate programme; the same for my name to perpetrate fraud abroad. upcoming lawyers has been a medicine as well. You must fi rst have Luckily he came clean and made it source of concern; do you share a fi rst degree in anything before being clear that I knew nothing about it and in this concern and, where do you allowed to read law or medicine. this enabled me to clear my name. think the problems stem from and how can we improve the quality of our young lawyers? You are involved in various How would you describe Bayo Ojo philanthropic activities, both SAN? Let me say straight away that I nationally and in your native deeply share this concern. As far state of Kogi, which of those I would describe myself as a happy back as 1991, I had seen it coming philanthropic activities are you go-lucky person who has been and I presented a paper on this to most passionate about and why? blessed by God. the Council of Legal Education which I was privileged to be a member then The one my wife and I are passionate as Vice President of the NBA. The about is the CKO Foundation For What do you do to relax and Chairman of the Council then was Breast Cancer and the Blind. My wife unwind? the late Chief Rotimi Williams, SAN. has one exclusively for widows and At the last meeting of the Body of old women in Kogi. I do not want to I spend time with my lovely wife who Benchers which I am also privileged say more than that as philanthropy has been a blessing to me and with to be a member of, it was seriously is between you and your God. my children as well, when I get to see debated. The problem stems from the them. They are adults now. My wife admission process to read law in the and I also watch movies particularly fi rst instance. What is the quality of What are your career highs and those on Africa Magic and I read those who are admitted to read law? lows so far? novels and biographies. I manage to What is their educational foundation? fi nd time to play golf as well. Then you come to the actual course My career highs were when I was itself in the Universities. Almost all made a Senior Advocate of Nigeria Universities in Nigeria now offer and became the second Chartered What’s next for Bayo Ojo SAN? degree programmes in law without Arbitrator in Nigeria. The fi rst corresponding facilities in terms of person to achieve this fi t is Chief Only God Almighty can determine qualifi ed teachers and a good law Mrs Tinuade Oyekunle. When I that. For now, I am just grateful to library. Why should a University of was elected President of the Nigeria God for making me what I am. Science and Technology offer law? Bar Association, appointed as the It should restrict itself to its area of Attorney General of the Federation

55 55 Law Digest Summer 2013 10

By Stacey N Russell, BSocSc, LLM Communication Specialist

For more than 100 years, Nigerian have been infl uencing societies across the globe. We would like to honour Nigerian lawyers in the Diaspora who have impacted their local communities, starting with the UK. Nigerian lawyers have been positively impacting the UK since the call of Christopher Alexander Sapara Williams (1855 – 1915) to the English bar in November 1879. Today the list of infl uential Nigerian lawyers in the UK runs into thousands; selecting the 10 most infl uential has been more di cult than we had thought. How do you distinguish the contributions of Nigerians such as Banjamin Aina QC, joint Head of Chambers, Old Bailey, Joy Okoye of 23 Berkeley Square, Frances Bolton of Argent Chambers from that of Yinka Owa, Assistant Director of Legal Services at the London Borough of Hackney?

We also have solicitors who have greatly infl uenced machination of the profession, from Nwabueze Nwokolo, Chair of the Black Solicitors Network and a Law Society Council member, Babatunde Akinyanju, Chair of British Nigerian Law Forum, to Lawuni Biriyok, former chair of the Sole Practitioners Group. In terms of politics, we also have Chuka Ummuna MP – Shadow Business Secretary. Worthy of note are also distinguished practitioners like Nike Balogun – Employment Judge.

Nigerians are also infl uencing the development of young lawyers in the UK through academicians such as Dr. Tunde Ogowewo of Kings College and Dr. Edwin Egede of Cardi University. We must also mention Debo Nwauzu publisher of the Black Lawyers Directory, which is perhaps the most authoritative directory of black lawyers in the UK.

An area where Nigerian have had most infl uence is in the area of private solicitor practice with solicitors such as Dele and Esther Ogun, both Partners at Akin Palmer; Frances Okosi, Partner at Baker & Mckenzie, Yetunde Dania, Partner at Trowers & Hamlins. From the illustrious list, we have selected 10, who in our humble opinion have been most infl uential taking into account their impact not only within the profession but in the larger society as well. In all the cases, the infl uence of their Nigerian heritage is undeniable.

56 10www.nglawdigest.com Most Influencial Nigerian Lawyers Law Digest Summer 2013

of the future of public-funded law, which is being “squeezed so tightly”. This man keeps close to his Nigerian heritage, visiting his birthplace about four times each year and concluded that of his two professional worlds, he’s much more at home on legal grounds. “The fi eld I’m in now is absolutely ideal for every aspect of my personality and intellect. The mix that I have now is just near perfection. I’m very lucky,” he stated.

Chinyere’s Factsheet Most notable achievement: Becoming a Coroner.

Education prior to law: Bachelor

Chinyere Inyama Her Majesty’s Coroner for East London at Walthamstow Coroners Court of Science in Biochemistry and Pharmacology at the University For instance, Chinyere is the fi rst experimental pathology, toxicology very stimulating but not exactly the of Leeds and Master of Science and only Black Coroner in the UK to and medical research, Chinyere right thing for someone as people- in Experimental Pathology and date. His father’s diplomatic posting orchestrated his way into law. He minded as me, I said let me try being Toxicology at the Royal Postgraduate in London brought him from Lagos, had observed qualifi ed lawyers at the a lawyer and I’ll specialise in medical Medical School. Nigeria to North West London in Tottenham Law Centre with whom law. I knew what coroners were and 1965, where he grew up from four he liaised when he taught literacy I thought maybe one day I can be a Advice to aspiring lawyers: If it is years old. and numeracy on a part time basis to coroner,” he said. what you want to do, make sure you “I’m absolutely delighted. Most of adults at Tottenham Green Reading Nonetheless, Chinyere, who do it! Do not let anyone deter you. my life, I plan very carefully. I think Centre. They personifi ed the people- triumphantly rode the wave of Remember as a black person in this about what I want to do and why I focused vocation that he believes his “specialisation” that thrilled legal country you have to be twice as good want to do it,” he told us about his personality was particularly suited to. seas at the time he converted to to get half the praise and only half as legal career in a recent interview. “I found the work that the lawyers law, would not recommend early bad to get twice the criticism. Therefore, after a successful career did there fascinating. And when I specialisation to aspiring lawyers in medical science that featured decided in a change in career from in the current climate. He believes Future plans: To become one of the biochemistry, pharmacology, medical research, which I found they risk drowning in the uncertainty top Coroners in England and Wales.

Elizabeth Euwaifo Partner, Sidley Austin LLP

Unlike Chinyere, Elizabeth there, later at UBS and then at Sidley Education: decided on becoming a lawyer when Austin LLP, where she was made LLB at University College London she was a teenager, in keeping with partner in 2000, just three years after and BCL at Merton College, her father’s insistence that she and joining the reputable international University of Oxford. her siblings pursue professional fi rm. careers. Elizabeth is the third child in a Advice to aspiring lawyers: One variation along the way was family of 10 from the small ethnic Be prepared for stiff competition, be that on qualifying as a Barrister in group, Ishan, grew up in Nigeria. prepared to take knocks, be resilient, 1989, she opted for the fi nancial She came to the UK to read for a give value and retain a sense of security of a solicitor’s fi rm and Bachelor of Laws (LLB), did so with humour. joined Cameron Markby Hewitt (now fl air and continued to a postgraduate Cameron McKenna) as a banking law degree (BCL) focusing on Future Plans: lawyer. She re-qualifi ed as a Solicitor international commerce. To contribute in boosting in 1992 and continues to enjoy her She is an accomplished fi nance development of the legal and practice “tremendously”. lawyer ranked as a leading individual fi nancial sectors in African countries Her move to Clifford Chance LLP in derivatives and structured fi nance and encourage other African and in 1994 as a structured fi nance lawyer by Chambers UK, IFLR 1000 and Caribbean lawyers in the UK. was “a baptism of fi re”. She found the Legal 500. early days challenging. “I struggled a while and then gradually started to Elizabeth’s Factsheet swim with the tide,” she confessed Most notable achievement: in her April 2013 interview with us. Balancing the demands of my She proved herself a strong swimmer profession and the needs of my family.

57 10 Most Influencial Nigerian Lawyers LawLaw DigestDigest SummerSummer 20132013

University of Nottingham. She took although Nigerians perceived her as (She keeps her trophy in her offi ce up her training contract and spent 10 British and the British as Nigerian. at Eversheds). Establishing three years at Herbert Smith LLP before Nonetheless, she acknowledged, school reading schemes in areas of joining Eversheds LLP as a partner “the infl uence of all my Nigerian London where schools needed more in 2008. family was the greater infl uence than average support and investment, This star employment and labour on my decision to read law and to targeting children whose fi rst native lawyer waltzed into employment become a lawyer”. She added, “It was language was not English and practice “by chance” during the last a great, great tradition to look at law children excluded from mainstream six months of her training contract, as a possibility. There are a number of school over behavioural issues. which she had started by envisioning very successful and dedicated lawyers herself as a general commercial in the family.” Proposals for diversifying the law: litigator or tax lawyer. She said the Being museful throughout her Internal strategies, including freshness of understanding that “real conversation with us, she expressed coaching and mentoring. External people” were impacted by legal advice concern over the conservative number programmes such as introducing not just inanimate corporations, made of ethnic minority lawyers qualifying people to law, who might never have employment and labour practice in the UK and a commitment to considered it, and mentorship. appealing. Thus, “it felt very much playing a role in the retention of Fiona Bolton Partner, LLP Eversheds more human,” she concluded. lawyers in fi rms and chambers. Future plans: Fiona struck us as a gatekeeper Fiona, who was born to a British Remain in the Law. Continue in of the law. Her profi le manifests father and Igbo mother in Nigeria, Fiona’s Factsheet employment law practice. Seeing particular commitment to and came to the UK as a baby and grew Most notable achievement: the profession open up a little more, stability in her chosen profession. up in the South East. She said it was Winning Outstanding Solicitor of the especially in the City of London, She completed both the LLB and “impossible” not to be impacted by Year 2012 in the UK as conferred as there is no secret that it is not a Legal Practice Course (LPC) at the both African and Caribbean cultures, by the Black Solicitors Network. particularly diverse profession.

Grace Ononiwu OBE Chief Crown Prosecutor, East of England

In 1966, Grace’s story started in Prosecution Service there were Feeling about career Achievements: Tottenham, North London, where she very, very, very few black lawyers…I It makes me incredibly proud that I was born. Alternatively, it could have believed there would’ve been have been able to achieve what I have been in the 1960s when her working challenges wherever I went… I was so far. It is still a journey. Being able class Nigerian parents immigrated to conscious that I did not fi t the mould to achieve by being who I am and not the UK - father from Imo State and when I started this journey… I do not being afraid to show my difference, mother from Delta. allow people’s perception of me to having the confi dence to show the Wherever or whenever her humble affect who I am,” she said. richness in my upbringing, in my beginnings should be perceived to Grace’s tenure at the Crown culture and injecting that into what have begun is certainly superfi cial, Prosecution Service was meant to I do. In addition, ensuring that it at least to Grace and her success. Of be a short-term, training stint to becomes acceptable to do just that - utter consequence was a conviction sharpen her wits in criminal law difference is good. that her parents instilled in her - she for private practice. By fate, she could become whatever she wanted is now responsible for criminal to be. prosecutions investigated by the That, she determined at eight Police in Essex, Norfolk, Suffolk and years-old, after her “larger-than-life” Cambridgeshire. In 2012 alone, she father was stopped by police offi cers oversaw approximately 66,000 cases, driving his car in London without fair featuring a multitude of offences that reason. “Daddy, don’t worry. When included shoplifting, murder, human I am older, I will represent you,” she and drugs traffi cking, and rape. recalled saying at the time. “When I was growing up, there Grace’s Factsheet were not many black role models. Most notable achievement: I did not know any lawyers. I knew Becoming the fi rst Chief Crown of the term, but didn’t know what it Prosecutor of African heritage in meant in practice,” she said. Thanks England and Wales. Becoming to Grenada Television and the ITV Chair of the National Black Crown Network that produced the television Prosecution Association with a courtroom drama, Crown Court membership of 650. Being conferred between 1972 and 1984, Grace’s with the Order of the British Empire. legal education started long before she entered university. By then, she Advice to aspiring lawyers: was seasoned to the idea of practicing Learn your craft. Know your criminal law, which she pursued business. Be good at what you do. without naivety. Success comes to those who are brave “When I started at the Crown enough to try.

58 www.nglawdigest.com

Oba Nsugbe QC, SAN Barrister, Pump Court Chambers

Pump Court Chambers’ website describes Oba as “fabulously personable, easy-going, and adored by judges and juries” following about him: Oba Nsugbe QC, SAN is widely Helen Joint Parliamentary Under-Secretary of State for Justice Grant MP and for Women and Equalities issues acknowledged as one of the UK’s and Nigeria’s leading barristers. He has a broad international practice A lawyer by trade, an advocate ethic of hard work together with (Same Sex Couples) Bill through the with a particular interest in Africa. for social justice at heart. Helen a strong aspiration to achieve and House of Commons in 2013. He provides high-level advice and made her mark as a family lawyer, succeed”. representation for individuals, establishing her own practice, At the 2010 General Election, Feeling about career achievements: corporate clients and other Grants Solicitors, in 1996. During she became the Conservative It is not something that I choose to organisations, (including NGOs), in her childhood, she witnessed her Member of Parliament for Maidstone think about really. However, if what matters ranging from business and mother’s work with victims of and The Weald and in the Prime I have done is broken down another general crime to corrupt practices, domestic abuse at a refuge centre, Minister’s fi rst reshuffl e in 2012 of those glass ceilings, allowing commercial litigation, contractual which stimulated her interest in she was promoted to become Joint others to get through and to climb disputes and health and safety. family law and gave her a thirst for Parliamentary Under-Secretary of their way up, then that has to be a Called to the Bar in 1985, when social justice. State for Justice and for Women and good thing. Oba took silk in 2002 aged only Helen told us: “My political career Equalities issues. 39, he was described in a leading is very much a natural extension Future plans: law commentary as “a rising star of from my work as a solicitor over Helen’s Fact Sheet I take each day as it comes. In the Bar of England and Wales”. He 23 years and that experience has Most notable political achievements: politics things can change overnight. commands considerable respect from certainly informed my politics.” Becoming the fi rst Victims’ I take nothing for granted and I am both clients and peers. Numerous Helen is “very proud” of her Minister, fi ghting for the rights of grateful for all the experience that I entries in Chambers and Partners over Nigerian heritage - being born to a victims and their families through am gaining from my role as an MP the years have described him as “a Nigerian father and British mother. policies such as: bringing about and my joint role as a Minister for fi rst-class advocate” as well as “a true She joined the Conservative Party in a stronger victims’ code and Justice and the Minister for Women gentleman who deserves his fabulous 2006 after being inspired by David increasing criminals’ personal and Equalities. I hope that my work reputation”, adding that he has a “fi ne Cameron’s speech in his bid for the payments to their victims; helps to make a positive difference forensic mind” and is admired for his leadership and her parliamentary Launching a signifi cant increase in to the lives of the people that I “technical excellence”. Contributors journey began. the number of rape support centres serve in my constituency and in our to the directory have also remarked She says both her African and around the country; Helen was also country generally. If I can do that I that he “works extremely well in a her British backgrounds have one of the two ministers responsible will be very happy. team” and “impresses interviewees infl uenced her in forming an early for taking the historic Marriage with his calm and genial manner”.

59 10 Most Influencial Nigerian Lawyers Law Digest Summer 2013

Sandie’s dual heritage is Nigerian and Caribbean. Her Igbo father came from Nigeria to the UK in the 1950’s to study on scholarship at the London School of Economics. While in the UK he met her mother from Trinidad and Tobago, who came to study nursing. Like Grace, she enjoyed watching the ITV courtroom drama Crown Court and decided at age nine that she wanted to be a judge. Besides her father often encouraged her to pursue a career that would offer her superb Sandie Okoro independence. Her parents taught General Counsel, her never to subscribe to failure. Barings Asset Management Therefore, law was a challenge that she was willing to take on. This “real Londoner” trained as a Barrister, turned down two pupillage of those things have hindered me offers for lack of fi nancial support and and that they have not given me any trained as an Accountant, prior to particular advantage either. becoming a Solicitor. In hindsight she believes that she has enjoyed much Advice to aspiring lawyers: more success than she was likely to Besides having core legal skills, have had at the Bar in criminal and you must have key characteristics: civil rights work. resilience, confi dence and In fact, she was headhunted to determination in face of adversity. take up the role of General Counsel Having the skills such as paying at Barings Asset Management attention to detail, drafting and and started in 2007. She is now digesting complex information is Kem Ihanacho Partner, Clifford Chance LLP responsible for a team of lawyers essential in the law. In order to succeed between London, Boston and Hong you need these key characteristics. Kong, and also for the management Kem is a transactional ‘junkie’, Education: of Barings international legal risk. Future plans: who specialises in mergers and LLB at Cardiff University. LPC at Great things! I am only getting started. acquisitions as well as private equity. Cardiff Law School. Sandie’s Factsheet I do not see myself as a success, so He credits his success at Cliffi ord it is always a surprise to me when Chance LLP to “fantastic mentors Feeling about achievements: Response to prejudice: somebody says, ‘you’re a success’. I within the fi rm”, in addition to I feel fortunate to be in a fantastic fi rm I have not faced any overt prejudice started out wanting to be High Court his hard work and good fortune that has given me a lot of opportunity either against my race or my gender. judge and I am no way near it. So, I I would like to think that neither have many things to do. regarding his chosen specialisation and is a very entrepreneurial place that is a growing area of practice. that has allowed me to work with Moreover, his gregarious nature, others to develop our Africa business. which he not only confi rmed, but I take a huge amount of pride in exuded during the interview by his delivering our fi rm to my Nigerian repeated reference to achievements clients. The ability to have a fi rm through team work, inevitably which supports me and my partners in predisposed him to choosing the delivering the best of legal advice to Solicitor’s route. In addition, he our Nigerian and other African clients perceived the breath of opportunities is just hugely rewarding. within and outside of private practice to be far greater than entering Advice to aspiring lawyers: chambers. It is not easy for anyone to enter the Kem, who was born in Birmingham, legal fi eld in this country. I think UK is similar to Fiona and Helen it is getting better. Not only do in having both Nigerian and British fi rms appreciate that it is the right parentage. Unlike them, though, thing to do, but from a self-interest through his Nigerian father from the perspective fi rms are realising that Igbo tribe, he grew up in Nigeria, their client base is more diverse and until age 11. Hence, he has a strong it helps if their workforce refl ects that sense of the pulse of the Nigerian diversity. market, which is supported by his wide network of African contacts, Future plans: who he grew up and went to school More of the same, hopefully. We have with. a great, growing business and it is great to see increasing opportunities Kem’s Factsheet for other lawyers of African origin within our business and across the Most notable achievement: City of London. I hope that I can help Becoming Partner at Clifford Chance. them on their journey.. Segun Osuntokun Partner, Banking Disputes, Berwin Leighton Paisner

60 www.nglawdigest.com Law Digest Summer 2013

Paul trained initially in Purchasing & contributed two chapters to a book Supply Management in Nigeria and titled Environmental Law Guide Paul Onifade worked briefl y with Lever Brothers, for Practitioners. He acted as the Partner, Crowther Solicitors among others, in that capacity before solicitor in two Court of Appeal cases migrating to the UK in June 1990. in the last three years both of which Paul completed his LLB at were won and thereby clarifying the University of Wolverhampton law and creating precedents. The through Holborn Law Tutors in case of Hounga v Allen has now been July 1994 and his LLM from Surrey appealed further to the Supreme University in July 1995. He wrote Court and will be heard early in 2014. his dissertation on “Banks and Environmental Liability.” This Paul’s Factsheet assisted him in securing a post as a Legal Researcher, focusing on impact Most notable achievement: of environmental law on banking and Recognised as a top London Lawyer corporate transactions at Lawrence in Thomson Reuters publication, the Jones. This is where he cut his teeth London Super Lawyers 2013. in legal practice. Paul later focused on both Advice to aspiring lawyers: contentious and non-contentious Determine whether law is the commercial work and he is now a necessary way of reaching your goal. Solicitor Advocate with a Right of If you are certain that law is the way Audience in all the Courts in England to achieve your goals then you have Wales. He described his typical day to work extremely hard. It is not as being focused on commercial easy. The minimum is to attain a 2:1 litigation, which is “about 70 per classifi cation in your fi rst degree. cent” of his current work load. Paul Make sure you are at the top of your is a founding Partner of the boutique class in everything you do. That may law fi rm, Crowther Solicitors, in the help, but will not guarantee success. City of London. He has substantial experience in advising clients in Future plans: cross-border work and investment To become a much bigger practice opportunities in Nigeria. He also within the next fi ve years. We are advises high net worth clients in aiming to have fi ve to ten partners. matters relating to off-shore trust and We intend to remain in the City doing fi nance, among others. more commercial work, but still Paul has published papers in accommodating pro bono work to some of the leading law journals and help vulnerable clients.

We asked Segun to tell us about at the end of it,” Segun said about something that had the thrust of a Federal Government of Nigeria in its his Nigerian heritage. He quickly his training in London at Wilde profession about it”. successful case against the estate of reasoned that ‘heritage’ connoted Sapte LLP, now Denton Wilde He was not opposed to the idea the late General Abacha (to recover that his links to Nigeria were in the Sapte LLP. Moreover, he wanted to and can now say about his 20-year the proceeds of embezzlement), past. He was happy to tell us about his be actively involved in developing legal career, “I have no regrets... whilst still being only a Senior ever-current “Nigerian-ness”, which the common law since “the cases It has been = very exciting, very Associate. has much infl uence on his work as a which are reported and which we all demanding, very rewarding… I have commercial litigator. learn at law school and university are done some very interesting cases, met Fantasy career: That is an example of Segun’s predominantly litigation cases”. a huge number of talented lawyers, I love watching and playing polo. So, obvious witty nature. Segun came Whilst his drive towards high wonderful clients, and had many I always say if I had a blank sheet of to the UK to complete his ‘A’ Levels educational achievement is a feature successes and a few defeats, which paper and can do anything I want after his primary and ‘O’ Level of his “Nigerian-ness”, his calling one learns to cope with… It is all I then, maybe, I would get people to schooling in Ibadan, Nigeria where into the law was not always so. After have known and what I suspect I will pay me to play polo as opposed to me he grew up. After his “A” levels, he ‘A’ Levels, Segun pursued a degree carry on doing for a very long time.” having to fork out my own money to fi rst read economics at Queen Mary, in economics and, during his national Segun maintains regular contact play it! London University and after a year of service in Nigeria, worked as a banker with Nigeria, where his mother and doing his national service in Nigeria, for one year. “You can put it down many good friends still reside, and he Future plans: then law at Balliol College, Oxford to a very Nigerian father, who said frequently visits the country both for To become a leader in the fi eld of University. to me after my economics degree, personal and professional reasons. commercial litigation and to marry He pointed out that it was the “you mean you’re not going to get a that with my leadership of BLP’s mental acuity of litigious work that profession? What are you going to do Segun’s Factsheet Africa Group, which is a cross- enticed him into the area of dispute with economics?’’ Most notable achievement(s): departmental group. To ensure that resolution. “What made it enjoyable Segun explained that both of his Becoming Partner, fi rst at DLA Piper BLP and my practice remains focused was the combination of the challenge, parents were medical doctors, and in in 2003 and then at Berwin Leighton to a large extent on business and which you face in having to pit your Nigeria “in those days you were either Paisner LLP which he joined as a opportunities in sub-Saharan Africa, wits against an opponent with a prize a lawyer, doctor or an accountant, partner in 2008. Representing the generally and Nigeria in particular.

61 The Forum brings together eminent local and international lawyers to discuss trends and development in international litigation and asset recovery. The Forum will discuss issues such as:

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