A weekly pull-out 27.03.2018

‘Nigerian Elite Evade

Taxes’ Professor Abiola Sanni 2/DASHBOARD 27.03.2018

Doctrine of Covering the Field page 4

‘Democratise Award of SAN Rank,’ – Falana page 5

Lagos CJ, Sagay, Osipitan, Magu, Others to Grace NBA Rights Symposium page 6

Lawyer: National Assembly Can Reorder Elections Schedule page 6 Quotables ‘Oil prices were at an average of $110 a barrel, and only N99 billion was spent on Power, Works, and Housing; and in one day, a hundred billion was issued, and people essentially shared it. When we talk about our economy, we talk about it as if it’s not that bad. ‘A Lawyer That is abnormal. I’m not saying that corruption under this administration, has been completely dealt with. Must be a Mini No, certainly not. Where corruption has become Encyclopaedia’ systematic, such as we have in our country today, you can’t deal with it in one fell swoop. It’s not possible ‘ page 6 – Professor Yemi Osinbajo, SAN, GCON, Vice President, Federal Republic of Nigeria

‘We have been in negotiations with this faction of insurgents for quite a while, and one of the understandings was that, while we negotiate towards a total cessation of hostilities, there would be no abductions. So, for us, it was a moral issue. The The Passing of Government, led by its negotiators, reminded them of the agreement that there would be no abductions, that a Legal Icon: they had breached the agreement. That was why there was no swap. There was no money paid. Any other Chief Idowu story to the contrary, is false.’ Sofola, MON, – Alhaji Lai Mohammed, Lawyer, Honourable Minister of Information and Culture SAN page 13 columnist ABUBAKAR D. SANI Abubakar D. Sani holds a Bachelors degree The Use of from the University of Maiduguri, and has been in active private legal practice since he Social Media was called to the Nigerian Bar in 1987.He is the Principal of Abubakar D. Sani & Co., which has Within offices in Abuja and Kano. " INSIGHT" aims the Legal to unravel, analyse and proffer solutions to nu- merous anomalies in Nigerian law and practice, particularly Profession statutes, vis-a-vis the Constitution, International Treaties page 14 and Conventions to which Nigeria is a signatory, Judicial Precedent and other relevant statutes and issues.

ONIKEPO BRAITHWAITE EDITOR JUDE IGBANOI DEPUTY EDITOR AKINWALE AKINTUNDE REPORTER TUNDE BUSARI GROUP HEAD OCHI OGBUAKU II ART DIRECTOR /3 Dapchi and the Shame of Northern Elite Return of Dapchi Girls and pass the GCE O levels or whatever 30%, while Kenya has spent 23%. In am extremely happy that majority examinations they now take to complete Nigeria’s case, it is interesting that the of the Dapchi girls have been secondary school, not understanding Military Governments spent more on returned to their families, safe, English? Are the examinations taken education, and that there has been a sound and unspoiled. I mourn in Vernacular/Hausa? downward trend from 1999 when Nigeria with the families that lost their Section 18(1) & (3) of the 1999 Constitu- became a democracy, from about 11% beloved daughters. May God tion of the Federal Republic of Nigeria to 7% budget allocation. Meanwhile, strengthen and comfort them, (as amended) (the Constitution), provide recurrent expenditure has been on a during this difficult time. Amen. respectively that “Government shall direct constant rise, which goes to show that As for Leah Shuaibu, the only its policy towards ensuring that there are Government is run more inefficiently young lady in this batch of girls equal and adequate educational opportu- without proper focus on crucial sectors Onikepo Braithwaite that is still in captivity, because she refused nities at all levels”, and “Government shall like education, as the years go by! to denounce her faith, I pray that God strive to eradicate illiteracy” providing willI touch the hearts of her abductors, when practicable, free education from Honourable Kazaure so that she will be returned home to primary to tertiary level, and even adult The other day, I saw a video clip The her family unharmed. Amen. education programmes. It seems that, of Honourable Gudaji Kazuare, APC successive Governments have failed in Member representing the Kazaure/Roni/ Can the Girls Speak English? delivering on the constitutionally provided Gwiwa/Yankwashi Federal Constituency Advocate That said, what struck me about the educational objectives, especially to some of Jigawa State, talking about Women [email protected] Chibok and Dapchi girls, is that at of the Northern States. Why are their purportedly to mark International secondary school level, these girls seem cut-off marks so low? Women’s Day. Honourable Kazaure is [email protected] unable to express themselves in English said to have obtained his WASC at the Language. Each time any of them has Low Budget Allocation for Education age of 22 in 1994, and did not seem to appeared on television to give some Why is it that people like Governor further his education after that. The video “It is time to account or the other of their ordeals, Nasiru El-Rufai, who said that he is was hilarious, and at the same time, declare a state of the accounts have been given in Hausa. a beneficiary of our public education sad and somewhat derogatory towards Last Thursday, I watched a clip of an system, are properly educated and women. His command of the English emergency in the interview of one of the Dapchi abductees, articulate, while we now have secondary Language was rather poor, leaving a lot area of education Khadija Grema, recounting their ordeal. school students in the same system, to be desired. He referred to women as The whole account was animatedly given that cannot even express themselves ‘womens’ and children as ‘childrens’, in Nigeria, before it in Hausa. My question is, do these girls in English? The answer is that, our saying that women should only be giving not understand the English Language? I educational system is in shambles! so much opportunity, so that they do is too late. If not, am beginning to suspect that they may The quality of our educational system not take over from men. That women one day in the not not! Considering the fact that English in Nigeria, has fallen to rock bottom, were meant to serve men, and that if is our official language in Nigeria, and ground zero. In our grandparents days, they took over the Chamber (which he too far future, we pupils and students are supposed to be those that studied up to ‘Standard 6’, pronounced as ‘Chambas’), they would taught in English, how can this be? that is, passing out of Primary School, mess up! I know that members of the will wake up and There is a message which has made the seem to have been more literate and House of Representatives travel abroad discover that we rounds on social media, about the National educated, than some of our Secondary to meet their counterparts, and attend Common Entrance Examination (NCEE) School finalists of today. all sorts of programmes; I wondered are one of the most cut-off mark for each State in Nigeria, Successive Nigerian Governments, whether Honourable Kazaure would backward countries for the 2017/2018 session. Where Imo have failed to allocate enough funds understand anything, if he was part State has the highest cut-off mark of 66% for the development of education. While of any of those trips abroad, and what in Africa, because without any discrimination between males UNESCO has recommended that 15%-20% positive contribution he would be able and females, for the same examination, budget allocation for education is the to make. Making the kind of submission we are a mostly Sokoto State has the lowest cut-off mark international benchmark, Nigeria has he made on the floor of the House uneducated nation” of 7% for females, while Zamfara State consistently been allocating something of Representatives at a forum abroad, comes in second to the last with 14% for in the region of 6%-7% since the return would be seen as the ‘faux pas’ that males and 12% for females. According to civilian rule, less than half of the it was, highly offensive, derogatory to the table, Yobe has 20% while Borno recommended budget allocation. It is and discriminatory (to use the latest has 33% cut-off marks for both sexes. therefore, no surprise, that our educational Nigerian slang, “hate speech” against My next question is, how does a person system is in such a deplorable condition. women!). Yet he holds such an esteemed Hawking. who only needs 7%, which is closer to 0%, For 2018, the budgetary allocation for position, and is responsible for making and an abysmal failure by any standard education in Nigeria its 7.04%, that is, laws etc for the country! State of Emergency worldwide, get into the same class and about N60.5 billion or so out of an N8.6 Honourable Kazaure, "It is not It is time to declare a state of emergency compete with someone that gets 66%? A trillion budget. Other smaller African scientific proof of gender equality in the area of education in Nigeria, before person that gets 7%, I am sorry to say, countries, spend more on education than that is required, but general ac- it is too late. If not, one day in the not too knows next to nothing! How does such a Nigeria. Ghana has spent up to 31% of ceptance that women are at least the far future, we will wake up and discover person, go through secondary education, its budget on education, Ivory Coast equals of men or better."~ Stephen that we are one of the most backward countries in Africa, because we are a mostly uneducated nation. It is time for Government to cut useless expenditure like having Special Assistants, Special Advisers, Luxury cars for Government Officials, constantly sending Politicians and Government Officials on wasteful trips abroad, and so on, and instead use the funds gainfully, providing the international recommended budget allocations for the educational sector. Teachers in Nigeria are so poorly paid, that there is hardly any incentive to be a Teacher anymore. Only those who are barely educated and have limited options, are interested in teaching, so that they can at least attempt to make ends meet, and earn a salary, instead of dying of hunger! We saw this happen in Kaduna State, where Teachers could not even pass basic Maths and Literacy Examinations. Governor El-Rufai certainly did the right thing, in expunging those who are not qualified to teach, from the system. Our educational system also seemed to work better, before this 6-3-3-4 system we have now. It seems that, we may have to rethink our whole educational system from scratch. So much needs to be done, like increase in Teachers’ remuneration and welfare, proper professional training for them, upgrading of educational infrastructure, libraries, equipment, school boarding facilities etc. The curriculum also needs Dapchi girls to be re-evaluated and overhauled. 4/LAW REPORT 27.03.2018 Doctrine of Covering the Field Facts of covering the field, is not applicable so as to make he 1st Respondent filed an Originating the VAT prevail over the Sales Tax Law. For the 1st Summons before the Federal High Respondent, Counsel argued that the constitutionality Court, Lagos, seeking a determination of the VAT Act, was not in issue at the lower Court. of the question whether remittance of He submitted that VAT and Sales Tax are the same, money collected as tax by it from its as the incidence of both taxes is on the consumer. He consumers, should be paid to the Fed- submitted further that, the lower Court was right to eral Board of Inland Revenue (FBIR) or have held that the VAT Act had covered the field. to the Lagos State Government, having Counsel for the 2nd Respondent submitted that VAT is regard to the provisions of Sections 1, a tax payable on goods and services all over Nigeria, 2, 10, 11, 12, 13, 14, 15 and 16 of the and that all tiers of government, including Lagos State, Value Added Tax (VAT) Decree No 102 and Sections 1, are beneficiaries. He concluded that since VAT is a 2, 3, 4, 5 and 6 of the Sales Tax Law. Both the Appel- valid law of the National Assembly, the Sales Tax Law lantT and the 2nd Respondent, filed Counter-affidavits is void to the extent of its inconsistency. in opposition to the Originating Summons. The Judge On issue 3, Counsel for the Appellant submitted held that the 1st Respondent could only be a ‘taxable that, double taxation might arise in two situations: person’ or remitting agent in respect of the amount due (i) the imposition of two taxes on the same property, as tax on its sales to its consumers to a single agent, tax payer or profit or goods, during the same period which is the FBIR. The Appellant, who was dissatis- by one taxing authority; and (ii) the imposition of fied, unsuccessfully appealed to the Court of Appeal; it comparable taxes in two or more States on the same has further appealed to the Supreme Court. tax payer for the same subject. He relied on Black’s Law Dictionary, 8th Edition. He submitted that, neither Issues for Determination: situation is applicable in this case. Counsel for the 1st The issues as formulated by the Appellant which Respondent countered the submission of Counsel for were adopted by the Respondents are: the Appellant, and posited instead that in so far as 1. Whether the Court below was right when it the objectives of the VAT Act and the Sales Tax Law In the Supreme Court of Nigeria held that the cases of ATTORNEY-GENERAL OF are the same and the incidence of the taxes is on the Holden at Abuja OGUN STATE v ABERUAGBA (1985) 1 NWLR consumer, then the imposition of both taxes would cre- On Friday, the 23rd Day of February, 2018 (Pt. 3) 395 and NIGERIAN SOFT DRINKS LTD v ate double taxation. Counsel for the 2nd Respondent, ATTORNEY-GENERAL OF LAGOS STATE (1987) Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC agreed with the Counsel for the 1st Respondent on this 2 NWLR (Pt. 57) 444 cited to the trial Court as stare point. Before Their Lordships decisis, is a non-issue, and that none of those decisions Olabode Rhodes-Vivour was authority to say that the 1st Respondent is obliged In the Supreme Court of Nigeria Court’s Judgement and Rationale Mary Ukaego Peter-Odili to remit proceeds of Sales Tax to Lagos State Govern- On issue 1, the Supreme Court relying on Black’s Holden at Abuja Clara Bata Ogunbiyi ment. Law Dictionary, 8th edition defined ‘Stare decisis’ On Friday the 8th Day of December, 2017 Amiru Sanusi 2. Whether the Court of Appeal was right, when it as follows “’to stand by things decided’, the doctrine of held that the Value Added Tax has covered the field of precedent under which it is necessary for a court to follow Ejembi Eko Sales Tax, and its provisions prevail over the Sales Tax Before Their Lordships earlier judicial decisions when the same points arise again Justices, Supreme Court Law of Lagos State. Musa Dattijo Muhammad in litigation”. Based on this definition, the Apex Court SC.175/2005 3. Whether the Court below was right, when it held held that the issue in ABERUAGBA’S case was the that imposition of both Value Added Tax and Sales Kudirat Motonmori Olatokunbo Kekere-Ekun validity of the exercise of the legislative powers by the John Inyang Okoro Between Tax, will create double taxation. Ogun State House of Assembly in enacting the Sales Amiru Sanusi Tax Law of 1982, which imposed tax on the purchase Heritage Bank Limited ...... Appellant Arguments: Ejembi Eko of specified goods and services. The Court held On the first issue, Counsel for the Appellant further that, in this case, the 1st Respondent did not Justices, Supreme Court And contended that the cases of ATTORNEY-GENERAL challenge the validity of the Sales Tax Law of Lagos SC.321/2007 Bentworth Finance (Nigeria) Limited ...... Respondent OF OGUN STATE v ABERUAGBA (1985) 1 NWLR State; therefore, the cases of ABERUAGBA and the (Pt. 3) 395 and NIGERIAN SOFT DRINKS LTD v NIGERIAN SOFT DRINKS LTD cannot constitute ATTORNEY-GENERAL OF LAGOS STATE (1987) Between stare decisis for the trial Court. (Lead Judgement delivered by Hon. Ejembi Eko, JSC) 2 NWLR (Pt. 57) 444 have conclusively determined Attorney-General, Lagos State ...... Appellant On issue 2, the Learned Justices held that the Value the sales taxing power of Lagos State, and were Added Tax Decree No. 102 of 1993 was promul- decisions of the Supreme Court and Court of Appeal gated by the Federal Military Government and it respectively and that by the doctrine of stare decisis, And remained in effect until the coming to effect of the both the Federal High Court and the Court of Appeal 1. Eko Hotels Limited 1999 Constitution. At the time the cause of action should have held themselves bound by the decisions. 2. Federal Board of Inland Revenue ...... Respondents arose, the VAT Act was deemed to be an Act of the He relied on NAB LTD v BARRI ENGINEERING National Assembly and until there is a decision of NIGERIA LTD. (1995) 8 NWLR (Pt. 413) 275 at 289. a competent Court invalidating it, it remains valid. He argued that, the Federal Government derived (Lead Judgement delivered by Hon. Kudirat Motonmori The Court held further that Section 2 of the VAT Act, its power to enact VAT Act from Item 61 in the Olatokunbo Kekere-Ekun, JSC) provides that the tax to be charged and payable on Exclusive Legislative list, and that the provision was goods and services is as set out in column A of sched- considered and interpreted by the Supreme Court in ules 1 and 2 of the Act. Section 1 of the Sales Tax Law Aberuagba’s case, wherein the taxing power of the of Lagos State makes similar provision. The Supreme Federal Government was limited to international and Court, agreeing with the two lower Courts, held interstate trade and commerce. On their part, Counsel that the goods and services covered by the VAT Act for the 1st Respondent submitted that Aberuagba’s and the Sales Tax Law, are the same. It follows case was distinguishable from the present case. The that the VAT Act has effectively covered the field present action was for a determination as to who in that regard. The provisions of the VAT Act, should receive remittance of tax already collected by “The doctrine of covering having covered the field on the issue of Sales Tax, the 1st Respondent, as against the validity of the Sales its provisions prevail over the provisions of the Tax Law of Lagos State, which was the decision in the field, is essentially Sales Tax Law of Lagos State. Aberuagba’s case. Counsel for the 2nd Respondent Deciding issue 3, the Supreme Court held that, not submitted that, even though a State has power to enact that where the main, only do both the VAT Act and the Lagos Sales Tax a Sales Tax Law, that law must not be inconsistent with principal or superior law cover the same goods and services, they are also any validly made Act, especially where the Act has targeted at the same consumer. The court is un- covered the field. law has covered a given equivocal that it would amount to double taxation On issue 2, Counsel for the Appellant argued that, for the same tax to be levied on the same goods it is not in all cases where a statute enacted by a State field or area, any other and services, payable by the same consumers, is in conflict with an Act on the same subject, that the subsidiary law made in under two different legislations. former would be declared invalid and inoperative. He Having resolved all the issues against the Appellant, submitted that, for the doctrine of “covering the field” that area or field, cannot the Supreme Court dismissed the appeal. to apply, the Federal Government must first have the Appeal Dismissed. legislative competence to enact the law. He conceded operate side by side with that the Federal Government has incidental sales taxing Representation: power in respect of trade and commerce, but that the the main, principal or S.A. Quadri Esq. (DCL) with E.R. Agu (Mrs.) (CSC) power is incidental only to the exclusive power of the superior law. If the inferior Ministry of Justice, Lagos State for the Appellant. National Assembly over international and interstate trade and commerce. He submitted that, the National law is inconsistent with the M.N.O. Olapade Esq. with Ibiye Tyroll Thompson for the Assembly does not have power to make laws on 1st Respondent. B.H. Oniyangi (Mrs) with Ibrahim Abdul- intrastate trade and commerce and therefore, cannot principal law, it has to be lah for the 2nd Respondent. impose tax on such trade as the VAT appears to do. declared void to the extent Reported by Optimum Law Publishers Limited He relied on FAWEHINMI v BABANGIDA (2003) (Publishers of the Nigerian Monthly Law Reports 3 NWLR (Pt. 808) 604. He concluded that the issue of its inconsistency” (NMLR)) 27.03.2018 NEWS/5

L-R: Mr. Jide Gomez (son), Pa Tunji Gomez, Aduke (daughter); Mr. Chukwuka Ikwuazom, NBA Lagos Branch Chair- Pa Tunji Gomez flanked by the clergy and (from left) grand-daughter, Jumoke; daughter, Aduke and NBA Lagos man; Chief S. M. Olakunrin, SAN, former Chairman of Body of Benchers and Mr. Chukwuma Ezeala, Chairman of Branch Vice Chairman, Mrs. Bola Animashaun at the birthday thanksgiving service at The Cathedral Church of Planning Committee, at the dinner to mark the 90th birthday of PaT unji Gomez, Life Bencher Christ, Marina, Lagos recently

Lagos CJ, Sagay, Osipitan, ‘Democratise Award of Magu, Others to Grace SAN Rank,’ - Falana NBA Rights Symposium Akinwale Akintunde Mrs. Caroline Ibharuneafe stated Leading human rights activist, however, noted that over the be fit and proper persons to be adding that Senior Advocates that Professor Taiwo Osipitan, Mr. Femi Falana, SAN, has years, “it is undeniable that Senior Advocates of Nigeria.” should play more leading roles The Nigerian Bar Association SAN will deliver the keynote advised further review of the the rank has been mired in He observed that late Chief in the affairs of the Bar at the (NBA), Ikeja Branch, will today address, while the Lagos State guidelines for the award of rank controversy, just like any honour Gani Fawehinmi and himself branch level. hold a one-day symposium at Chief Judge will be the special of Senior Advocate of Nigeria given in Nigeria. It ought to be were listed consistently for 10 Falana urged that the awards St. Leo’s Catholic Church, Toyin guest of honour, and Professor (SAN), to ensure that all quali- pointed out that, the campaign and 8 years respectively, before should be democratised, say- Street, Ikeja. Itse Sagay, SAN, is expected to fied applicants are awarded. for the abolition of the rank is not they got frustrated, adding that ing: “There is no way you can The symposium with the be the Chairman of the occasion. Delivering the dinner speech limited or peculiar to Nigeria”. “it was the system on its own” justify giving the award to only theme ‘Salvaging Nigeria’s Other dignitaries expected at an event to mark the 90th He observed that, the rank that invited him to take silk. 21 lawyers in a year, where Criminal Justice System: The to grace the event include, birthday of foremost activist and was abolished in Ghana in 1988 Falana enumerated some you may have shortlisted Jury Option’, was organised by the Acting Chairman of the Life Becher, Pa Tunji Gomez, following a court judgement, of the shenanigans that had over 200 applicants. It gives the Human Rights Committee Economic and Financial Crimes Falana also commended the adding that the attempt by the attended the award of silk, room for a lot of discretion, of the Branch in collabora- Commission (EFCC), Mr. Ibrahim Nigerian Bar Association (NBA), abolitionists in Nigeria led by Pa and noted that the revised and this has to go”. Instead, he tion with The Jury Justice & Magu, Lagos State Commissioner Lagos Branch for “celebrating Gomez to replicate that feat, was guidelines had sought to said Nigeria should emulate Rectitude Advocacy Initiative. of Police, Mr. Edgal Imohimi, Pa Gomez while he is still very truncated by the Federal High reverse this, by focusing on England, Jamaica and Canada, A statement issued by the Justice Mohammed Idris, Dr. much with us”. Court on a “technical ground” advocacy at the trial courts, where all qualified applicants Chairman of the branch, Mr. Muiz Banire, SAN, Rt. Hon. According to him, the dinner/ of lack of service. adding however, that this are awarded the rank. Adesina Ogunlana and Chair- Razak Atunwa and Hon. Aminu lecture which was held at the He however, noted that former may cause hardship to some Falana also deprecated the man, Human Rights Committee, Shagari. MUSON Centre, Lagos “is also Chief Justice of Nigeria, Justice applicants “in the midst of situation where only two a challenge to all Mahmud Mohammed, had many senior advocates” whose percent of female Lawyers, Lawyers to live a good life, advised the abolitionists to seek cases take precedence. have been awarded the rank so that they can be celebrated an amendment of the enabling He observed that, the since inception, adding that Court Dismisses N200m in their lifetime”. law, in their bid to sound the new guidelines also sought this does not show Nigeria as Falana noted that Pa Gomez’s death knell on the rank. to strengthen the award progressive. In his remarks, Suit Instituted Against anti- SAN rank stance “is Falana stated that he owed a mechanism, and ensure that NBA Lagos Branch Chairman, borne out of his commitment debt of gratitude to the Gomez- more people are admitted to Mr. Chukwuka Ikwuazom said Peninsula Garden Estate to equality before the law led abolitionists for the award of the inner Bar, adding that that the decision of the Branch and equal rights. As far as he the rank to him, “and for keeping the guidelines equally place to honour Pa Gomez, was to Residents is concerned, a Lawyer is a up the struggle”, adding that emphasis on the conduct of appreciate his “uncommon and Lawyer. And if we are running without Pa Gomez’s struggle, “it the awardees, as they may zealous” commitment to the Akinwale Akintunde by building the wall, thereby a truly democratic system like would have been impossible to now be derobed. Branch, even as the Chairman forcing him and others who live in America, there should be no open the floodgates as it were” Falana however, warned of the Planning Committee, Mr. Justice Wasiu Animahun of in Ogombo Town, to use an ranking of Lawyers.” Falana to accommodate more applicants. that “the legal establishment Chukwuma Ezeala, thanked a Lagos High Court sitting in unsafe, bushy, and impassable however, observed that since “Today, large-scale reforms of a conservative profession, is all who contributed in making Igbosere, has dismissed a N200 road. Nigeria “inherited the British have taken place,” he said. “And not going to abolish the rank the celebration a huge success. million suit filed against some In a counter-affidavit sworn tradition of having a club of when I stand before you and l of senior advocate. What the The event which was residents of Peninsula Garden to by Adesina, the Respondents Lawyers to act as a shining am described as SAN, I think it authorities have settled for chaired by former Chairman Estate in Lekki, Eti-Osa Local said Femab Properties bought example for others, we are was the struggle that pushed the is to reform the process”. of the Body of Benchers, Government Area, by a Lawyer, the large expanse of land, on retaining the rank of Senior legal establishment to expand the He therefore, advised better Chief S. M. Olakunri, SAN, Mr. Fredrick Chinedu Anaje. which the Estate and the road Advocate”. frontiers to accommodate those case management by Judges, was attended by the cream The Judge dismissed the are situated. The human rights activist, who were otherwise said not to to accommodate non-SANs, of Nigeria's Bar and Bench. suit, on the ground that the The Respondents, through Applicant’s rights were not their Lawyer Prince Adebayo violated. Adesola of Midas Solicitors, ar- The Lawyer had dragged gued that although contravention the Estate residents to court, notices were issued by the State, Stop MTN from Listing on NSE, claiming that they violated his the wall was not demolished, rights by denying him access which supports their claim that to a road within the Estate. the Government admitted that Lawyer Tells Court Joined as Respondents in the the wall was on a private road. suit were Mr. Sulyman Bello, In his judgement, Justice Akinwale Akintunde MTN before the Federal High objection raised by MTN on is shares in the stock market. Olu Adewusi, Dr. Maureen Animahun held: “What the case Court sitting in Lagos, over the the competence of the suit, In an affidavit in support Igwe, Nicholas Adesina, reveals, is that the Applicant A Lagos Division of the breach of a contractual agree- presiding Judge, Justice of the motion on notice, Abiodun Ekeade, Funmilayo would not have complained of Court of Appeal, has been ment by firms representing the Mojisola Olateru, asked par- the Appellant averred that Ekeade and Femab Properties infringement of Section 34 of the asked to restrain telecoms company in a privately placed ties in the suit to explore the sometime in February, 2008, Ltd. Constitution, if the other access operator, MTN, from listing share units offer. arbitration clause embedded Lotus Capital and Stanbic According to Anaje, residents road was motorable. its shares on the Nigerian Joined in the suit as co- in the disputes contract. IBTC Asset Management, had erected a wall barricade on "It follows that, infringement Stock Exchange, pending the Defendants are Lotus Capital Dissatisfied with the ruling via a private placement Ogombo Road in the Estate, of the Applicant’s right, arose determination of a suit filed Ltd, Stanbic IBTC Asset Man- of the lower court, Mekwunye memorandum, represented without approval from the from the deplorable state of the against the telecoms operator agement Ltd, IHS Holding Ltd, through a motion on notice that MTN International was State Government. road. It is my view, that this head by a legal practitioner, Dr. and INT Towers Ltd. filed on February 26, 2018, offering to allocate shares of The Applicant sought N200 of claim is only maintainable Charles Mekwunye. Mekwunye had contended approached the Court of MTN Nigeria to the Nigerian million in general damages against whoever made the road Dr. Mekwunye, in the appeal at the Federal High Court, that Appeal. public as investors, through against them, for violating his to be in deplorable condition. with suit No: CA/L/1349/16, after buying about 5,000 MTN Mekwunye insisted in the private placement arrange- rights, as well costs of the action The Judge further held that, is seeking an order of inter- Linked Units shares through appeal papers, that the crux ment. “on a full indemnity basis”. no citizen has a fundamental locutory injunction restraining MTN's nominee, Stanbic IBTC of the matter is the failure According to the deposi- Anaje said he lives on a street right to use good roads. MTN, its agents or licensees, Asset Management Ltd via a of the Respondents to list tion, Stanbic IBTC Asset in Ogombo Town, and that he “The right to a good road from listing its shares in the private placement memoran- MTN shares in Nigerian Management, which was uses the Ogombo Road to ac- may be recognised in law, but Nigeria Stock Exchange dum, the firm failed to fulfill Stock Exchange in 2013 as appointed as nominee cess the Lekki-Epe Expressway. it is certainly not an inalienable or any globally recognised its obligation of converting the agreed by parties, and that for the MTN linked offer, He said that, despite being is- right. It does not qualify for stock exchange, pending the share units into MTN Nigeria until the suit or appeal is subsequently, engaged Lotus sued with contravention notices litigation under Chapter IV determination of his appeal. shares. properly determined, MTN by the State, the Respondents Mekwunye had dragged But ruling on a preliminary ought not be allowed to list Continued on page 6 restricted his access to the road Continued on page 6 6/ 27.03.2018 Lawyer: National Assembly Can Reorder Elections Schedule Akinwale Akintunde way”, he added. “They did some cases and suddenly, they Ogunjebe, who contested during the 2011 made him a Judge, but they paid him for A Lagos based legal practitioner, Dayo elections on the platform of PDP, for the Lagos those cases; is he now going to say, my Ogunjebe, has lent his voice to the controversy House of Assembly from Ikeja Constituency Lord, you cannot collect any money from surrounding the attempt to re-order the 2019 2, also commented on judicial corruption, this case anymore, because you are now a general elections by the National Assembly, adding that it may be difficult to differentiate Judge? He can’t do that! In the other case, saying that it is within the power of the between a bribe and gift to a Judge. the Judge was his classmate, and an old boys legislators to do so. He gave the example of Justice Ademola, association member. They were contributing Ogunjebe explained that, since it is the who during his trial, was able to lead evidence money together. So, it would be ridiculous duty of the Legislators to make laws, and the that one of President Muhammadu Buhari’s to say that a Judge dropped from the skies”, Independent National Electoral Commission Lawyers, passed him some money. he said. (INEC) is a product of the laws made by “So if you describe all other money he had On Nigeria’s human rights record, Ogunjebe the National Assembly, they (Legislators) received as bribe, then, that too is a bribe. said, “It is not good at all. I have tried to therefore, have the power to vary the law, “Judges are human beings, just like every- tell some people, because some of them are modify it or scrap it altogether. body else. If I am a Judge, and my father saying the record is getting better because “Whether it is good or bad, I can tell you or my uncle decides to give me something, we have dropped from 136 to 138. I tell what I feel. Most of the politicians went into I will collect. them to stop looking at the numbers. It is office, due to the bandwagon effect of the “People look at Judges, as people isolated a good index. Buhari candidature at that time. in one corner, but they are not. In the case “The farther you are away from that index, “Because they feel he has disappointed of Rickey Tarfa, he said he and the Judge shows how bad you are. The truth of the the public now, they don’t want a recoil, had worked somewhere, before he was matter is that, this government has not been if he was to loose the election. They now made a Judge. transparent”, he added. Dayo Ogunjebe want to operate solo. But the problem here is this; even if they operate solo, it will not absolve them from the backlash effect because Stop MTN from Listing on NSE, Lawyer Tells Court Continued from page 5 they are still in All Progressive Congress (APC) party. Capital Ltd to procure investors. structure as spelt out in the agreement papers the Nigerian Stock Exchange or any globally “And if the APC is not considered a good Mekwunye subsequently, bought 5,000 units was to last for three months, after which recognised Stock Exchange, pending the final party, to project to the National Assembly or of the shares at the rate of US$122,800, the the shares would be transferred to an exit determination of his appeal. even the Presidency, whether they stagger then Naira equivalent of N18, 376, 800. special purpose vehicle, which would then An order of interlocutory injunction the elections or not, they will fall in the same The Appellant averred that, the nominee be exchanged for MTN Nigeria shares. restraining MTN or its agents from putting According to the Appellant, at the end up signs, adverts or notices, which may sug- of three years, the Respondents failed to gest the listing of its shares on the Nigerian Court Dismisses N200m Suit Continued from page 5 create the agreed exit SPV, on the ground Stock Exchange or any globally recognised that MTN International is already quoted StockExchange. of the Constitution. is an alternative route, there cannot be an on the Johannesburg Stock Exchange. An order of interlocutory injunction “It is a luxury in the class of economic, infringement of freedom of movement... He further averred that, the Respondents restraining MTN or its agents, from putting social and educational rights guaranteed in Restriction of movement will not arise, where opted to create an alternative exit mechanism, up advertisements inviting the members of Sections 16, 17 and 18 of the Constitution, the Applicant is at liberty to use alternative which is not listed on the Nigerian Stock the public to buy or purchase it shares in and yet rendered unenforceable. routes. Exchange, without his consent or knowledge. any public offer in Nigeria, pending the “I, therefore, hold that the claims anchored “The restriction envisaged under Section Mekwunye claimed that, series of deduc- determination of the appeal. on Section 34 of the Constitution, are not 41 of the Constitution, must be total. This is tions were made on his share units by the The Appellant is also asking the court, well founded and, therefore, fail”, Justice not the case here. In view of the above, I hold Respondents in the new agreement, which to reverse the interference of IHS Holdings Animahun held. that the fundamental rights of the Applicant, he never gave his consent to. and INT Tower in the agreement between The Judge also dismissed the Lawyer’s claim, were not infringed. The prayers sought by the Appellant him, MTN, Lotus Capital, and Stanbic IBTC that his right to freedom of movement under “The amended originating motion on notice include; an order of interlocutory injunction Management Ltd. Section 41 of the Constitution was violated. dated 19/06/2017, therefore, fails and is hereby restraining MTN, its agents, servants, privies, The court is yet to fix a date for hearing “Once there is no confinement and there dismissed”, Justice Animahun held. employees, licensees from listing its shares in of the matter.

Legal Personality of the Week Florence Adesola Falaiye ‘A Lawyer Must be a Mini Encyclopaedia’ My name is Florence Adesola Falaiye, a a different file in my rush. I was thrown a direct influences also include my supervisors Lawyer with Ph.D. in Commercial Law from little off balance, but I still carried on using and academic mentors, my bosses at work. In the University of Lagos (2015). I was called to the meeting agenda as a guide. When it was general, I have a long list of mentors; I am in the Nigerian Bar in 2005. I started my legal time to pass resolutions and sign, I couldn’t relationship with some of them, and I watch career with Dokun Makinde & Co. In 2008, find my arranged paperwork. The Chairman some of them from afar. I have a list of things I joined the corporate world and began a of the Board usually wouldn’t be patient; his I look out for in successful people, especially career in legal practice and Administration. pass mark is 110 percent. But I guess they felt women, and when I identify any of those values, Learning on the job and being lucky to have my misery, and they gave me a few minutes to I include them in my list. Whenever I meet expert mentorship, I rose through the ranks comport myself. Fortunately, the right file was them, I introduce myself to them, and a few of to become the Deputy Managing Director and next door. I picked it, got my act together, and them have taken interest in me. One can never Company Secretary of Afkar Printing and subsequently had my excellent meeting. But get it wrong with the right influence/mentors. Publishing Company Limited, an international it could have been worse, if I had not found standard company situated in Lagos. I became my file. Why did you become a Lawyer? a CEDR (UK) Accredited Mediator in 2009 and I have always wanted to study law. I believe was admitted as a Mediator and member of What was your most memorable experience that one should pursue whatever one can easily Panel of Neutrals, Lagos Multi Door Court as a Lawyer? handle. I am a natural problem solver and for House (LMDC). I am a Member of the Nigerian Oh I have had many memorable events! Every me, being a Lawyer fits perfectly into that. Bar Association (NBA), Member, Society for success I have recorded as a Corporate Lawyer, Corporate Governance Nigeria (SCGN), Associate has been memorable. The ones I enjoy talking What would be your advice to anyone Member, Business Recovery and Insolvency about: Having the best Ph.D. thesis in law, and wanting a career in Law? Practitioners Association of Nigeria (BRIPAN), Florence Adesola Falaiye one of the best 10 out of 103 Ph.D. graduating Anyone wanting a career in law, must be Member, Nigerian Institute of Management students in Unilag in 2015. It was memorable interested in reading and research. You must (Chartered) (NIM), Fellow, Association of know-all, since you are the “learned person”. because, it was an example of experience is the strive to know a little of everything, in your Corporate Governance Professionals, Nigeria A Lawyer/Counsel that wants to grow and best teacher; the research was more live than area of specialisation. You have to be a mini (ACGPN), Member, Manchester Business School go far has to be perpetually on his/her feet. abstract, because I was experiencing what I was encyclopaedia. Continuous learning, is a must Association and Associate Member, Chartered To meet up with this expectation, I always writing about at work. The second would be on for a Lawyer who wants to remain relevant Institute of Taxation, Nigeria (CITN). “forward plan”, I have my list of compliance an opinion I wrote to my Board of Directors, for long. I enjoy working, reading, travelling and requirements with time limits. This has helped opposing a very senior Lawyer’s opinion on dancing. me to be on top of my game. a Board matter. It was audacious, and getting If you had not become a Lawyer, what it wrong may have cost me a lot, but instead, career would you have chosen? Have you had any challenges in your What was your worst day as a Lawyer? I got a commendation for it. A Counsellor and Motivational Speaker, or career as a Lawyer, and if so, what were I had a Board Meeting and AGM on the a Researcher, an Events Planner or an Interior the main challenges? same day, and I had prepared the resolutions Who has been most influential person Decorator. As a Lawyer in a corporate setting, every and CAC forms to be signed. I always like to in your life? day comes with its own challenges. You are be perfect in my preparation for meetings, so Many people! My parents taught me values Where do you see yourself in ten years? expected to know almost everything, advice I had spent sleepless nights ensuring that there like hard work, integrity, perseverance, discipline, By God’s grace, in 10 years, I should be at the appropriately, and ensure full compliance with were no mistakes and smooth meetings. Alas, loyalty, humility etc., on which I measure success. peak of my career; be on the Board of quality regulatory requirements. You are expected to have the Board Meeting started and I discovered My husband, Prof. Muyiwa Falaiye, and my corporate establishments, and a reference point your eyes everywhere and be the company’s my checklist was not in my file, in fact I took children have also been a great influence. My in Corporate Governance. 27.03.2018 /7 8/COVER 27.03.2018

Professor Abiola Sanni PHOTOS: Kolawole Alli ‘Nigerian Elite Evade Taxes’ Tax, is such a touchy issue in Nigeria, so much so that the various tax regimes, are viewed with circumspection by most Nigerian elites, who perceptibly, chronically evade taxes. While in most advanced jurisdictions, tax evasion attracts stiff penalties, including jail terms, in Nigeria, the rich are never punished for refusing or neglecting to pay their taxes. The ongoing uproar engendered by the upward review of Land Use Charges in Lagos State, took Onikepo Braithwaite to the University of Lagos Law Faculty, to seek the views of a tax expert, Professor Abiola Sanni on various tax related issues

rof, there has been a can see and appreciate judicious use of taxpayers tated war and collapse of empires. serious outcry against the money, does not mean that they will not engage Property tax is particularly complex, because tax- new Lagos State Land Use government and ask critical questions on its tax payers who consider the rate to be outrageous and Charge Law. Despite the policy preferences and manifestation. History is unacceptable, cannot physically move their proper- subsequent 50% reduction, replete with how unpopular tax policy, precipi- ties to another location. This is what inspired the people are still protesting taxpayers in California, to initiate a constitutional that the new Lagos State tax amendment which capped the rate of properly tax and various charges regime, in what is popularly known as Proposition 13. For is oppressive. As an expert me, the takeaway for the Lagos State Government in Taxation, do you believe “It would appear that, nothing from these developments, is to make a conscious it is oppressive? prepared taxpayers generally and deliberate effort to consolidate on its manifold There is no doubt that the new Land Use achievements, by leveraging on leading practices in ChargeP Law, 2018 has generated a lot of con- for the increase. While the State its tax policy formulation and legislation. troversy, which has put an otherwise popular In response to your pointed question whether the Governor and his administration on the spot. House of Assembly must have done tax is oppressive, I will rather use a well-settled This reinforces the aphorism that, no one pays a public hearing to fulfill the terminology in tax parlance which is equity or tax with a smile, even in climes where there is fairness. One of the cardinal principles of taxation transparency and accountability in governance. constitutional ritual, it appears espoused by Adam Smith in his The Wealth of It is important to note that, it was Lagos State that critical stakeholders have Nations, which is reinforced in the Revised National that popularised the cliché “Taxpayers money in Tax Policy, is equity. For the category of taxpayers action”. The fact that Lagosians, to a large extent, not been carried along” whose tax burdens have been significantly increased 27.03.2018 COVER/9

suddenly, it would be unfair. The sense of unfair- Law of Osun State, recently suffered the same fate may be, that Lagos State is the most “tax aware” ness, cannot be rationalised by generous treatment however, on the basis that a House of Assembly State in Nigeria. We can trace this development of another category of taxpayers. It would appear not known to law enacted it. Anyway, it is elemen- to the advent of the administration of Asiwaju that, nothing prepared taxpayers generally for the tary that decisions of the Rivers and Osun State Bola Ahmed Tinubu, which envisioned a State run increase. While the State House of Assembly must High Courts on this matter, have no force of law mainly through taxes. Whatever people may say have done a public hearing to fulfil the constitu- in Lagos State. So, Land Use Charge Law remains about Asiwaju, without his vision, Lagos would tional ritual, it appears that critical stakeholders constitutional in Lagos State, until the decisions have also been drenched by fiscal rain, and be have not been carried along. In future, I will sug- are set aside on appeal, or there is a pronounce- on the verge of failure like some other States. All gest that the type of open and frank consultative ment of the Court of Appeal or Supreme Court on the manifestations of fiscal adversity, would have meetings which took place after the crisis, should the matter. I have consistently advocated through had multiplier effects in Lagos, far beyond smaller have come before the passage of the law, in order my writings, my preference for strengthening the States. With a relatively decent investment in the to gauge the public pulse and form a consensus local government system, through appropriate establishment of Lagos State Internal Revenue on critical issues. I will urge the Government, to decentralisation of critical responsibilities to them, Service (even before the FIRS was established urgently rethink the policy of imposing charges on rather than the current centralisation even at the under a statute), Lagos State was able to recruit drilling of boreholes and water treatment, if the State level. It is doubtful if there can be sustain- experienced and innovative people from the document on the scale of charges circulating in the able development at the grassroots, without a private sector, to drive the reform. That Mr. Tunde social media is true. Without mincing words, that well-structured and well-funded local government Fowler now calls the shots at FIRS, is a testimony will be tyrannical and oppressive. system. that Lagos tax reform has largely succeeded. I There have also been questions about the Lagos Residents have over the years, com- wish and pray, that we do not fritter the goodwill legality of the Law, as some aspects of it seem plained about being the most taxed in Nigeria, and the brand advantage. to be unconstitutional, like the collection of in comparison to Residents of other States. Is What is your assessment of the nation’s tax tenement rate which the Constitution makes this true? regime? What can be done to improve it? the exclusive preserve of the Local Govern- It is not correct, to state that Lagos State The problem of the Nigeria tax system, is well ment, and the attempt to devolve this constitu- residents are the most taxed in Nigeria. Practically documented. The National Tax Policy 2017 listed tional power to the State by virtue of the new all the tax laws existing in Lagos State, also exist 11 critical issues, which we must focus on as a Law. Kindly, comment on this. in most states of the Federation, except the Wharf nation. They include lack of a robust framework This is a tricky question. Let me clarify that, it Landing Fee. Even taxes that did not previously for the taxation of the informal sector and high will be wrong to suggest that the entire law is exist in those States, are now being enacted as by net worth individuals, fragmented database of illegal and unconstitutional. Rather, the concern other States, including non- APC States who tend taxpayers and weak structure for exchange of on constitutionality centres on the section which to copy Lagos. And the rates are the same, even information by and with tax authorities, inordinate permits the local government to delegate the though in an ideal federal system, taxes cannot drive by all tiers of government to grow internally collection to the State. Having said that, the be uniform. Tax rates in the cities may not be generated revenue, lack of clarity on taxation provisions of Section 7 item I(J) of the Fourth the same in the provinces. The correct statement powers of each level of government, and encroach- Schedule of the Constitution seems clear enough; ment on the powers of one level of government to mandate every State to confer the function of by another; poor accountability for tax revenue; levying tenement rate on a local government. The use of aggressive and unorthodox methods for basis of this, in my view, is to give local govern- tax collection; failure by tax authorities to honour ment access to independent revenue, with which refund obligations to taxpayers; the non-regular it can discharge its functions. However, due to the “No tax authority in Nigeria, review of tax legislation, lack of strict adherence to near collapse of the local government system in tax policy direction and procedural guidelines. The Nigeria, it is almost illusory to expect local gov- has the power to impose taxes list is almost endless. ernment, to efficiently perform this role. The need In my view, the expression of these challenges, to reinvigorate the property tax system, led to the on properties that are situate constitutes an admission in the National Tax introduction of the Land Use Charge Law of 2001. outside Nigeria, since tax is Policy, that all is not well with the Nigerian tax I did a critical review of the Law in an article, system. My take is that, focus should now be on which the new Law could have benefitted from. territorial. However, Nigeria how to develop appropriate responses to get out Anyway, irrespective of the popular view that of the fiscal wood. Stakeholders in the system, section 3(2) of the Land Use Charge Law is uncon- can impose taxes on incomes should devote their intellect and energies on stitutional, the Lagos State High Court had held in (rents) derived from properties designing a new tax system, which will be simple, a number of cases that there was no constitutional administrable and efficient, as envisaged by the infraction. However, in GRINAKER v ATTOR- situate outside Nigeria, if the Revised National Tax Policy. NEY GENERAL OF RIVERS STATE, a similar owners of those properties are Many are complaining that in a country provision in the Property Law of Rivers State, was where most people have to provide their own declared as unconstitutional. The Land Use Charge resident in Nigeria” services, like electricity and water, while the roads are practically non-existent and public education and healthcare are almost nil, that it is unfair to make people pay such high taxes. That instead, Government should reduce expenditure on frivolities. Do you agree? The question speaks to a general lack of basic infrastructure, which are taken for granted in other climes. It is most unfortunate, and negatively impacts on tax culture. If taxpayers in developed societies are not happy paying taxes; you can then imagine what the attitude would be in a society where taxpayers spend private funds to do or mend road, provide security and other basic amenities. It is even worse, because of the perva- sive corruption in the public sector, which makes it difficult even in accessing available public services. In some cases, it is like daylight robbery. Imagine where a complainant has to facilitate the police to get them to act, or is made to pay a civil servant for “pushing” your file. There is no doubt that, more revenue will be available for infrastructure development, if we minimise waste and white elephant projects. But I think that, the problems run deeper than just availability of revenue for developmental projects. States have continued to be in an unending contention about the sharing formula of Value Added Tax (VAT). The main argument has been that, some States like the core Northern States, which prohibit the consumption of alcohol and some other activities that are subject to VAT, have no moral justification to share from VAT revenue generated from other States that do not prohibit such activities. How can this be resolved? Let me correct one general erroneous impression. A significant amount of VAT revenue comes from importation, which is clearly beyond the powers of States. To that extent, all States are entitled to share from the revenue accruing from international and inter-state supplies of goods and services. This however, does not minimise the clamour by advo- cates of fiscal federalism on the constitutionality of VAT under the extant Constitution. The Federal Government should come to terms with the fact that, an important aspect of VAT on intra-State supply of goods and services, is es- sentially within the taxing powers of the States. It is therefore, ultra vires the Federal Government, to Continued on page 10 10/COVER 27.03.2018

‘Nigerian Elite Evade Taxes’ Continued from page 9

continue to impose and collect VAT on intra- State prosecute recalcitrant tax defaulters. Various coun- Nigerians resident in the country, to determine supply of goods and services. Hence, the Federal tries have at one time or the other, implemented whether the owners of these properties have either Government should yield the power to administer tax amnesty with fantastic results. For example, it discharged their tax obligations in Nigeria, or VAT on intra-state supplies to the States. As more was recently reported that, Indonesia realised over paid taxes on their global incomes including rent, States introduce their consumption tax alongside 8 Billion USD from tax amnesty last year. So, in dividend, interest from their offshore investments/ VAT; following the Lagos State model, the problem my opinion, it is a right step in the right direction. assets. of multiplicity of taxes will be exacerbated. I commend the Honourable Minister of Finance, Are Tax Tribunals really fulfilling their States who desire to continue with the federally Mrs Kemi Adeosun for this initiative. Posterity statutory roles? administered VAT, should be able to work out will remember her, for this quantum leap. Tax Appeal Tribunal (TAT), has no doubt filled the modalities for such an arrangement, while a Lately, we have been hearing that Nigerians an important gap since their establishment until State like Lagos and few others, who desire to will now be taxed on the properties that they the term of the Chairmen and Commissioners stand alone and administer their consumption own outside Nigeria. How will this particular lapsed in 2016. As a publisher of All Nigerian tax, should be free to do so. Lagos State should tax operate? In a situation where for instance Tax Cases (a compendium of all Nigerian tax internally resolve the multiplicity of taxes, arising in the UK, people have bought their properties cases since 1922 till date consisting over 500 tax from the concurrent administration of VAT and by means of mortgages meaning that they do cases), the project would not have seen the light its consumption tax. It should take an informed not own the property in entirety until payment of the day, without the contributions of the TAT. decision on whether to stay with VAT, or go the is made in full, does this tax still apply to Having said that, I believe that, the time is ripe whole hog in implementing its consumption tax. them? for us to have proper tax courts as recommended If it chooses the latter, which to me is a better I do not think that information is correct. No tax by the National Tax Policy. It will be recalled that option, the base of the consumption tax should be authority in Nigeria, has power to impose taxes on the Federal High Court (formerly known as the widened beyond the tourism and hospitality sec- properties that are situate outside Nigeria, since Federal Revenue Court), was initially established tor. This will require an amendment of the charg- tax is territorial. However, Nigeria can impose as a revenue exclusive court, until its jurisdiction ing clause of the Hotel Occupancy and Restaurant taxes on incomes (rents) derived from properties became convoluted during the military era. While Consumption Law, to include all taxable intra-state situate outside Nigeria, if the owners of those this will require a Constitutional amendment, it supply of goods and services, and the adoption properties are resident in Nigeria. Accordingly, the is achievable in the long run. At a recent retreat of a new title which is general and not hospitality focus of the Personal Income Tax Act, is on income organised by the FIRS for members of the National sector-specific. and not properties/assets. Assembly, a few Legislators expressed their sup- What is your opinion on the Federal Govern- What is being currently carried out is an port for this recommendation, which is an indica- ment’s VAIDS tax regime? investigation on the properties abroad owned by tor that the conversation is gaining traction. VAIDS (otherwise known as Tax Amnesty), is Kindly, shed some light on their composition one of the strategies for encouraging voluntary and legality. compliance and widening the tax net by offering In terms of composition, the Tribunal is estab- incentives (sweeteners) for those who have been lished in different zones. Each zone is made of up defaulting on their tax obligations to come clean; of five Commissioners headed by a Chairman who within a specified period of time; failing which is Lawyer, well versed in tax law. Other members the full weight of the law will be brought against “However, the elite, by virtue are a mix of Lawyers and other non-Lawyer tax them. It is a good programme which, if imple- experts. By reason of their composition, they mented properly, will yield manifold advantages. of their wealth, are able to ordinarily should not dabble into core legal issues, First, there will be increase in revenue. Secondly, but they are vested with jurisdiction to adjudicate it will help the government to gather and enrich hire experts have structured on all disputes arising from the operation of the its taxpayers’ data base. Thirdly, it will increase their businesses in a tax federal tax laws, which I think is too wide. The compliance, as more people will take advantage focus should have been on, dispute on assessment. of the fact that they will not be prosecuted or efficient manner, largely avoid While some claim that the common man made to suffer interests and penalties, for failing tax. The ones they cannot who is in the majority, does not pay tax at all to pay or remit taxes. In addition, it will provide the government with more and better arsenals, to avoid, they evade” Continued on page 11 27.03.2018 COVER/11

‘Nigerian Elite Evade Taxes’ Continued from page 10

Postgraduate levels. Most of the practitioners statutes. I don't agree with the logic of consolidat- “I sincerely think that it is now, are accidental tax practitioners. We need to ing all the laws applicable to a sector, into a single conceptually, legally, and encourage young persons, to elect from the onset statute. It is just unwieldy. If the logic is sound, to study taxation the way people choose account- why are we not applying it to all sectors, such constitutionally wrong, ing, law, medicine, because they have mentors as financial institutions and even the university who have succeeded in that field. Then, we will system. Even when these laws are scattered in for a court to entertain have well-rounded students with knowledge of different statutes, practitioners have no difficulty a suit which seeks to tie economics, legal and administrative dimensions of in collating them into a compendium. So, what is taxation. the sense in an omnibus law, that has taken almost the hands of the National There has been an ongoing debate by Law- forever to be passed into law? Assembly, in the exercise of its yers about the Election Act Amendment Bill, as What is your opinion about Restructuring to whether the National Assembly can change Nigeria? How do you think Government should constitutional power” the sequence of the elections. What is your go about this? Since the proscription of IPOB, opinion on this issue? it seems that the movement for Restructuring Beyond legalism, I think our basic concern et al seems to have lost steam. should be on the credibility of the processes, I am an advocate of Restructuring. I honestly rather than the effect of the political manoeuvring believe that, Nigeria is not going anywhere with- of the legal framework by seekers of elective out Restructuring. Restructuring will bring about (aside from those that are forced to by virtue offices. I really do not see how the outcome of the efficiency, in terms of allocation of resources. of PAYE), the man on the street claims that it sequence, will affect the common man in the real Allocation of functions, should be done based on is the Nigerian elite that are notorious for tax sense. So, we should leave those who are contest- the doctrine of subsidiarity. If the States are in evasion and they are never really prosecuted ing election, to worry about the consequences of the best position to provide certain services such for tax related offences. Are these assertions the sequence, while we live with what is provided as policing, it makes no sense to centralise it, true? in the Electoral Act, as amended. while the States continue to share the cost with The two assertions are true to a large extent. Having said that, while I appreciate the value the Federal Government. The current challenges Most of the “common men” usually belong to of separation of powers and checks and balances, facing the nation, have rather brought the issue the sector of the economy, known as informal I believe the intrusion of the National Assembly of restructuring to the fore. You can see that even economy. Transactions and payment in this sec- into the executive turf, is becoming unacceptable. APC who failed to deliver on its election campaign tor are undocumented and difficult to track, so Besides politics, what could be the basis for the to restructure, is again posturing to be determined they are off the radar of the tax authorities and Legislators foraging into purely executive matters? to do so. therefore, untaxed. The informal sector is quite In the University where I work, Senate approves I believe that, the struggle for restructuring huge, and larger than the formal sector. However, the period of examinations, while the nitty-gritty predated, and is bigger than IPOB. The radical the elite, by virtue of their wealth, are able to hire of administration, is left for the management. The approach of IPOB and the Niger Deltans, has experts who have structured their businesses in right question to ask, is whether the attempt by however, reinforced the imperative of restructur- a tax efficient manner, largely to avoid tax. The the National Assembly, has succeeded in over- ing. I believe that in the long run, we are all ones they cannot avoid, they evade. If it may be riding the well- established line of judicial cases, victims of over-centralisation, including those who asked, how many so-called big men have been that sequence of election is an executive matter, are benefiting from the current arrangement. convicted for tax evasion in Nigeria? The recent either the Amendment of the Constitution or the The Lagos State Government recently exposé by the Vice President, that only 214 big Electoral Act. If the answer is in the affirmative, endowed a Chair on Taxation, of which you men pay taxes in Nigeria, is a pointer to the fact we have to err on the side of the existing law, are the pioneer distinguished Lecturer. Kindly, that Nigerian big men do not pay taxes. So, the and clamour for its review in future, if considered shed some light on this. statements are correct to some extent. It suffices intrusive and unacceptable. Lagos State broke a new ground, by being the to say that, VAIDS is aimed at addressing some of Does the court also have the power to stop first State in Nigeria to invest in a professorial the perceived inequities in the tax system. the National Assembly from performing an act chair. The main object, is to provide finance over As crucial as it is, Taxation Law does not that is provided for by the Constitution, that a period of time towards teaching, research and seem to be a popular subject taught in Law is, to override the President’s veto on a Bill? public service, on State and local government Faculties or the Law School. Yet, it is a grow- There are express provisions in the Constitution, taxation in Nigeria, on which I am passionate. The ing and lucrative area for Lawyers. Having empowering the National Assembly to override whole idea is that, the occupier of the Chair, will taught the subject for so many years, how the Presidential veto. To that extent, there is be able to meaningfully contribute to the develop- can the curriculum be tinkered with to fully nothing wrong if the National Assembly decides to ment of State and local taxation in the State. I accommodate Taxation? activate or leverage those provisions. I believe that owe Lagos State Government a debt of gratitude, The story is changing. Taxation was not avail- by so doing, our jurisprudence will be enriched. for this honour, and I hope that they will take able, when I was in the University. I virtually read Their motive is secondary. I sincerely think that it full advantage of what the Chair has to offer. up the subject, in the course of my teaching and is conceptually, legally, and constitutionally wrong, Governor Ambode has challenged us to come up research. The first tax class I taught at the Obafemi for a court to entertain a suit which seeks to tie with innovative ideas, and this is what we hope to Awolowo University under the mentorship of Prof the hands of the National Assembly, in the exercise do. My prayer is that other States and the Federal Margaret Okorodudu-Fubara, consisted of only 7 of its constitutional power. It is wrong, in my view Government, will follow the lead of Lagos State in students. Tax classes are now larger in the region for a court to issue an injunctive order against this regard. of about 150 students, at both undergraduate and the National Assembly, in these circumstances. You have authored several books, including postgraduate levels (Master of Laws Degree). The proper thing, in my view, is to challenge the one on Taxation which you recently published. There are Tax Clubs in tertiary institutions across exercise after it has been exercised, not before. What is your book ‘Introduction to Nigerian the country, and even all the secondary schools Of what advantage would it be for Nigeria if Legal Method’ about? in Kwara State. To me, these are the future of the the Petroleum Industry Bill is passed? I will like to say that the best is yet to come, Nigerian tax system. I use this opportunity, to For one, it would bring about stability and in terms of my offerings on law of taxation. I appreciate and commend all the institutions and certainty to the petroleum industry. The uncer- am humbled, by the rate of penetration of The persons, supporting the project. The Chairman of tainty surrounding that sector, owes to a large Nigerian Legal Method in Nigeria and West Africa the FIRS and Joint Tax Board, Mr Tunde Fowler, extent to the non-passage of that Bill. This also Sub Region. Since its publication, in 1997 (21 years the President of the Chartered Institute of Taxation makes investment in that sector very difficult, ago), the book has enriched the teaching of the of Nigeria, Lagos State Internal Revenue Service as no businessman worth his salt, would love to subject. I edited the book as a Lecturer 1 while (LIRS), Kwara State Internal Revenue Service invest in an environment full of uncertainty. I have at OAU, providing leadership for colleagues who (KWIRS) and the Big 4, deserve special mention. always advocated that the fiscal aspect should be contributed to it. The book is long overdue for There are on-going efforts in University of severed from the Bill, considering the nature of review. By the grace of God, that mission will be Lagos, to introduce Taxation at the Bachelors and taxation and the rules on interpretation of taxing accomplished before the end of this year. 12/ 27.03.2018 Insight Abubakar D. Sani [email protected] Alleged Non-declaration of Assets: Any Reprieve for Ekweremadu? Introduction t its sitting of Thursday, the 22nd day of March, 2018, the House of Rep- resentatives is reported to have resolved to probe the validity of the Recovery of Public Property Panel, set up last year by the then Acting President Prof. Yemi Osinbajo, SAN. The House Resolu- tion, is apparently in response to a flurry of Ainvestigations reportedly commenced by the Okoi Obono Obla-led Panel, into property allegedly acquired by public officers in contravention of the Recovery of Public Property (Special Provisions Act (formerly Decree), Cap. R. 4 LFN 2010. The immediate trigger for the intervention of the House, appears to be the report that the Panel is investigating the Deputy Senate President, Dr. Ike Ekweremadu, over allegations of failure to declare a number of local and foreign properties, in the assets declaration form which he submitted to the Code of Conduct Bureau. For reasons that will shortly be manifest, I believe that House might be on a strong footing here. This would be in marked contrast to its Chairman, Recovery of Public Property Panel, Okoi Obono Obla Deputy Senate President, Ike Ekweremadu recent antecedents, which have fuelled the public perception of the House, as engaging provisions of the Act. The former empowers because the Constitution has covered the of the EFCC Act which unequivocally in quixotic oversight and outright bombast. the Code of Conduct Bureau (which is field: See ISHOLA v AJIBOYE (1994) 6 charges the EFCC with “the co-ordination established by Section 153(1)(a) of the NWLR pt. 352 pg. 506 @ 573D and enforcement of all economic and finan- Legal Construct of the Act Constitution), to: cial crimes laws and enforcement functions The long title of the Act reads: “An Act to “Receive and examine declarations by public Non-Public Officers conferred on any other person or authority”. make provisions for the investigation of assets officers made under the Fifth Schedule to this By the provisions of Section 2 of the The implication of this is that, at least in of any public officer who is alleged to have been Constitution in accordance with the requirements Act, it appears that it is almost limitless in relation to economic and financial crimes, engaged in corrupt practices, unjust enrichment of the Code of Conduct or any law; scope, as they expressly extend it “to any the Panel is precluded from exercising the of himself or any other person who has abused “Receive and investigate complaints about other person to the same extent as it applies to powers conferred on it by the Recovery his office or has in any way breached the Code non-compliance with or breach of the provisions a public officer”, and further, to “any person of Public Property Act. of Conduct for Public Officers contained in of the Code of Conduct, and, where appropriate, who engages in any manner whatsoever in any the Constitution of the Federal Republic of refer such matters to the Code of Conduct form of corrupt practice or corruptly enriches Conclusion Nigeria.” Tribunal” himself or any other person (whether a public The distinct overlap between the powers Sections 1, 2, 3(1),(3) and 11(1) thereof, The latter, specifically Paragraph 12 officer or not) or has engaged in any unlawful of the EFCC and those of the Panel over however, provide as follows, respectively: of the Code of Conduct in Part 1 of activity in any form whatsoever, including economic/financial crimes on one hand, - Section 1(1)(a) empowers the President the Fifth Schedule to the Constitu- banking or other business.” Section 3(5) and those of the Code of Conduct Bureau to constitute a panel to investigate the assets tion, provides that an allegation that a of the Act empowers the Panel to apply and the Panel in respect of the Code of of any public officer who is suspected of public officer has committed a breach of it to a person who, though not a public Conduct for Public Officers, is the result corruptly enriching himself or any other the Code, shall be made to the Code of officer, is related to or connected with a of the glaring inconsistencies between the person or has in any other way violated Conduct Bureau. Paragraph 11 thereof public officer whose assets appear to be aforesaid enabling provisions of the Panel, the Code of Conduct; enjoins public officers to declare their “far in excess of any income from his known the EFCC and the Code of Conduct Bureau - Section 1(2) provides that any such assets periodically; any declaration that or ostensible means of livelihood”. and Tribunal under the 1999 Constitution. public officer who is convicted shall forfeit is found to be false, shall be a breach of I believe that, a close analysis of these However, the solution is clear enough. The property connected with the commission the Code. Paragraph 15 establishes the sweeping provisions vis-a-vis relevant Constitution is supreme. Accordingly, its of the offence to the Federal Government Code of Conduct Tribunal referenced in statutes such as the EFCC Act, the provisions prevail over those of the Act, - Section 3(1)(a) provides that the Panel Paragraph 3(e) of Part 1 of the Third ICPC Act, the Money Laundering in respect of alleged contraventions of the may require a Public Officer to fill and Schedule to the Constitution. Act, the Advance Fee Fraud Act, the Code of Conduct by public officers. return a form for declaration of his assets Similar provisions in the 1979 Constitution, Anti-Terrorism Act, etc, reveals that, As for economic/financial crimes, corrup- - Section 1(4) defines a ‘public officer’ were interpreted by the Supreme Court rather than being enablers to the Panel, tion and “any unlawful activity in any form as any person who holds or has held any and the Court of Appeal in OKOYA v they actually limit its scope. This is because, whatsoever” (to use the words of Section of the offices specified in Part II of the Fifth SANTILI (1994) NWLR pt. 338 pg. 256 @ to the extent that these and other statutes 2 of the Act), in my view, whether the Schedule of the 1999 Constitution at any 323 and EPEROKUN v UNILAG (1986) make specific provisions for investigating Panel may validly investigate them or not, time after 30th September 1979 4 NWLR pt. 34 pg. 162 @ 184, respectively. and prosecuting distinct criminal offences, depends on the existence or otherwise, of - Section 3(3) provides that any public In the former, the court held that “any al- they derogate from the powers conferred any other statute(s) which deal(s) specifi- officer who fails to declare his assets or legation that a public officer has committed a on the Panel under the Recovery of Public cally with those offences. With regard to makes a declaration which he knows to breach of the Code, shall be made to the Code Property Act. The reason is the trite principle economic and financial crimes, the EFCC be false shall be guilty of an offence and of Conduct Bureau. The Tribunal would impose of statutory construction, that special things Act is clear, that the EFCC enjoys a near liable on conviction to imprisonment for a punishment, if it finds a public officer guilty derogate from general things. Accordingly, monopoly in terms of their investigation five years without the option of a fine as of contravention of any of the provisions of the in my view, in respect of those offences, and prosecution; I submit that, the fact well as forfeiting any undeclared assets Code . . . Only the Code of Conduct Tribunal the powers of the Panel are ousted. See that it is the latter in time, puts it beyond to the Federal Government. and not the regular Courts, can declare the action INDEPENDENT TELEVISION & RADIO peradventure: F.R.N v OSAHON (2006) - Section 11(1) defines “Code of Conduct” of (a public officer) a breach of the provisions v EDO STATE BOARD OF INTERNAL 6 SCNJ 348. as the Code of Conduct for Public Officers of the Code of Conduct.” These decisions REVENUE (2014) All FWLR pt. 759 pg. Suffice it to say that, given the similarity contained in Part 1 of the Fifth Schedule make it clear that the affected provisions of 1144 @ 1167G. of functions between the Panel, the Code of to the Constitution. the Act, are invalid. The reason, is simply This view is supported by Section 6(c) Conduct Bureau, the EFCC and the ICPC, There is no doubt that the object of the both the Panel and its enabling statute, are Act, is to tackle official corruption, as well not just superfluous and otiose, they are as economic/financial crimes allegedly simply invalid. Accordingly, in the light committed by both public and non-public “Accordingly, in the light of the anomalies of the anomalies in its legal construct officers - with a clear emphasis on the former. highlighted herein, the Panel ought to With regard to official corruption, I believe in its legal construct highlighted herein, be quietly disbanded, in the interest of that Paragraphs 1 - 3 of Part 1 of the the rule of law. Does this mean uhuru Third Schedule and Paragraphs 11, 12 the Panel ought to be quietly disbanded, in for Ekweremadu? Hardly, as the Code of & 15 of Part 1 of the Fifth Schedule to Conduct Bureau and Tribunal, are waiting the Constitution, completely displace the the interest of the rule of law” in the wings . . . 27.03.2018 TRIBUTE/13 The Passing of a Legal Icon: Chief Idowu Sofola, MON, SAN Folabi Kuti pays tribute to Chief Idowu Sofola, MON, SAN, a former President of the Nigerian Bar Association (1980-1982) and Chairman of the Body of Benchers (2012-2013), who died on Friday, March 23, 2018 at the age of 83, and was buried in his hometown Ikenne, Ogun State according to Islamic Rites on Saturday, March 24, 2018. Chief Sofola was called to the English Bar at Middle Temple on July 17, 1962, and he enrolled at the Supreme Court of Nigeria on July 30, 1962. He was elevated to the rank of Senior Advocate of Nigeria in 1989. May the Almighty Allah grant him Al Jannah Firdaus

Folabi, Have You Heard? litigator (some of my fond experi- ttending court ences along the journey, shared here). hearings in Port- My period of pupillage with Oga, Harcourt between saw me travelling around the coun- the 21st and try, representing the firm’s clients 23rd of March, in matters spread across locations 2018, I had just as far-flung as Etinan, Akwa Ibom returned to Lagos, State; Kano; Port Harcourt; to nearby to the typical Ibadan, Sagamu etc. I did all of that, nerve-wracking under the watchful eyes of Oga. And 2-hour traffic ride Oga? I saw two sides- the Lawyer from the Airport back home. It was and the family man. a Friday. Braving the usual Lagos ‘go-slow’A (in the common tongue), I ‘Oga’:Legal Icon and Colossus eventually made it home at about In the field of law, Chief Idowu 10p.m, exhausted, and just needing a Sofola, MON, SAN, was an icon good night’s rest. I had barely retired and a colossus, looming larger than to bed, when I was jarred awake by life. A gentle, soft-spoken, and unas- the unwelcome sound of my phone suming man, you are likely to have ringing. It was a much-revered senior encountered, without knowing it. He colleague and friend on the line. worked assiduously and packed a ‘Folabi, have you heard?’ lot into a rich, fulfilled life, garner- That was an unexpected and ing professional accomplishments, foreboding salutation, especially for including, amongst many others, the a late-night telephone call. I had no preferment with the Senior Advocate clue and was not about to indulge of Nigeria rank in 1989. Chief was in any mental exertion. The details also at one time, the Chairman of soon hit me: ‘Chief Sofola is dead. He the Body of Benchers, and the first died a few hours back...’. I retorted Nigerian, the first African, and immediately, swinging into denial indeed, the first black man to become mode: ‘No, it can’t be. I saw him on the Secretary General of the Interna- Tuesday’. As though my explanations tional Bar Association. would somehow remind the caller, Away from the rank and file of that he had made a huge mistake, titles and professional accolades, I and that he was probably speaking saw Oga up close and personal in of someone else. As it turned out, The Late Chief Idowu Sofola, MON, SAN his private life. He easily exuded that was not to be the case. the virtues of integrity, humility either on my way to the airport the and leadership. A typical day in the Our Last Interaction next day, or upon return. Court en- “And when it came to office, was not complete without him Yes, Tuesday last, I had gone to the gagements on Wednesday morning, courtroom advocacy issuing a letter of introduction or purpose-built office, housing Ereke made it impossible to make it down rendering some other form of assis- Chambers, to give Oga some prepared to see him. I was barely on time for skills, he delivered his tance to a job-seeker, or someone else notes, summing up my comments my scheduled flight to Port Harcourt blows almost without in need. He was a man of the people. on a newly filed litigation he wanted by the time I passed through Ikeja, He genuinely loved his people, and me to look at. Even though prepared and I immediately decided to see being seen. He didn’t his Ikenne ‘homestead’. Weekends by some other law firm headed by him upon my return on Friday. And never saw Oga in Lagos. He was a senior advocate, Oga’s advice had so, fate conspired to rob me of one wear a particularly sociable, and equally made out time been sought on the prospects of the final meeting with Oga. serious mien; just to find a balance between work-life case, because of the sensitivity of the and socials. subject-matter. Oga had called me How I started soft-spoken and I remember court appearances as and sent the documents over, with But I remember... disguisedly empathetic a junior to Oga. Going to the Court instructions on areas to look at, and It all started the weekend after of Appeal, Lagos meant many things research upon. That was just the my law school exams. After a most to the man in the box; for me. We would make it back to other week. exacting period swotting to pass, the office (then at 5th Floor, Elephant I finally got around to it. Having I just wanted to relax and laze he did not barrage and Cement House, Alausa-Ikeja), but not not seen him in a while, I decided idly, pending the release of the harass witnesses being without first stopping at the Island to take the prepared notes down to examination results. I would then Club for lunch, richly interspersed him personally. As I walked into decide, what next to do with my law cross-examined. Yet, he with colourful anecdotes of the Lagos the expansive building housing the degree. I mean, yes, I was undecided effortlessly extracted of old, law practice in the 60s, and chambers and other offices, I met about the practice of law, until that 70s (Chief was a Court Registrar him in the parking lot, seated in the fortuitous meeting with Chief Idowu all he wanted” before travelling abroad), and how car – genial, unruffled and graceful Sofola, SAN, as facilitated by my grateful he was for the pupillage and – as ever. His 83 years of age were uncle, Otunba S.A Rabiu (former fatherly care his brother, the much- still packed strong. Pleasantries over, Chairman, Lagos State Board of In- more famous Kehinde Sofola, SAN, he explained that he had only just ternal Revenue). Uncle had given me gave to him. arrived the office, and was catching a a letter to go see his ‘egbon, personal And when it came to courtroom ad- breather before going upstairs to his lawyer’ for an internship, pending vocacy skills, he delivered his blows office. I handed over the documents, the release of Law School results. almost reluctantly, a career I eventu- almost without being seen. He didn’t discussed same briefly, and decided Oga, or Chief, as he would soon be ally grew to love to bits and pieces. wear a particularly serious mien; to return after he must have had a affectionately referred to, asked me a Results came, and Oga gladly just soft-spoken and disguisedly look at them. He would call me later few questions, before referring me to handed me a letter to NYSC, asking empathetic to the man in the box; he that same day to discuss briefly, and see the Head of Chambers, Mr. Sina that I be posted to the chambers did not barrage and harass witnesses when it became increasingly hard Sofola (later, SAN), ‘for another round for service year. That pupillage, being cross-examined. Yet, he effort- to make conversation due to poor of questions and answers’ (as I was to beginning February 2002, lasted till lessly extracted all he wanted; and network signal (despite his son’s later derisively put it, in a feedback July 2005. During that period, I had that devastatingly played out, time intervention, using his line to call to Uncle). The relevant detail here: the opportunity to learn, and finally me), I promised to return to see him I was employed, and thus began, make up my mind on a career as a Continued on page 15 14/ 27.03.2018 The Use of Social Media Within the Legal Profession

In this article, Adetola Ayanru discusses the use of social media within the legal profession, and the need for Lawyers to be professionally aware of what is expected of them, when they utilise this medium. She advices that the NBA and other regulatory bodies within the legal profession in Nigeria, ought to follow the example of the International Bar Association, in developing a set of principles to guide legal practitioners on their use of social media

Introduction ocial media are web-based and mobile technologies that turn text communication into active dialogue (International Bar Association Principles on Social Media Conduct for the Legal Profession). The influx of several social media applications, such as Facebook, Instagram, Snapchat, as wellS as professional applications, such as LinkedIn, raises concerns on the need to be professionally aware of what is expected of legal practitioners. This consideration is important, because the use of social media provides a platform where legal practitioners can promote the administration of justice, as a result of the opportunity to engage the public in legal practice and debate; and as professionals, we need to be mindful of our online activities, because they penetrate professional contexts and relationships, in addition to providing an access to a large audience and real time resources. Guiding Principles The International Bar Association’s with private and confidential informa- characteristics of an individual, which does not automatically mean that the Legal Practice Committee and Bar Issues tion. Therefore, a social media platform may include both positives and negatives. information shared/accessed will be Committee, have developed a set of is not where a lawyer is expected to Legal practitioners ought to be aware of protected. principles to guide practitioners of the reveal a client’s data or information, this risk, in the pursuit of their personal It is also possible that, members of the legal profession on their use of social expect when in accordance with profes- social lives online, in order to portray a public may rely on information pub- media, which are discussed as follows: sional, legal and ethical obligations. legal practitioner that can be trusted by lished by a practitioner on a particular An example is, when information current and potential clients. topic as legal advice, thereby uninten- Formulating Policies which can temporarily locate a Lawyer tionally creating a retainer and possibly, The Nigerian Bar Association and geographically, can be used to link Integrity assuming liability to third parties. It is other regulatory bodies within the legal professional involvement with a client. Legal Practitioners are expected to have advisable therefore, to always clarify the profession, should consider formulating This may be disadvantageous, especially a very high standard of integrity, in all capacity in which the content is being and adopting principles/limitations on when the client does not seek to publi- their dealings, including online. They created, and whether or not it should be the use of social media, in a professional cise his use of legal advice. are enjoined to consider the impact the relied upon as professional advice. manner. Law firms are encouraged to negative use of social media could have Also, legal practitioners need to participate, by submitting contributions Maintaining Public Confidence on their professional reputation, especially consider the propriety of a medium for this purpose. Law firms are also In abiding by the Rules of Professional because of the little or lack of control over for the dissemination of certain types encouraged, to develop guidelines for Conduct (Legal Practitioners Act, CAP other people’s social media activity. An of information. Factors such as context, their employees on personal and profes- 207, Laws of the Federation of Nigeria), example is, when content goes “viral”. potential audience, and nature of the sional use of social media, which may be legal practitioners are expected to ensure If the content is fictitious and with message contained in the information, included in letters of employment and that their conduct offline, matches their malicious intentions, it will be difficult should be considered by the practitioner also by consistent training to educate conduct online. Offline, a person has a to repair the damage to the reputation before dissemination. As a standard, them on the risks that may be involved level of independence over their affairs. such content may have caused. This also the type of information a legal practi- with the wrong use of social media. However, the situation is not the same extends to comments or content made tioner cannot say in front of an offline Confidentiality online, because activities are more likely unprofessionally, which may damage audience, should not be disseminated One of the key principles within the to be exposed to a wider audience. It public confidence. online. practice of the legal profession, is the is important for this to be considered In addition, the Rules of Professional issue of confidentiality. It is taken for in the use of social media, because it Independence Conduct lists some rules on advertising, granted, that a Lawyer can be trusted has the tendency of portraying the key Legal practitioners must maintain a touting and publicity (Sections 33,34 and high level of professional independence, 35 of the Legal Practitioners Act, CAP, offline and online. Legal practitioners are Laws of the Federation of Nigeria). These expected to not be subjected to external should also be adhered to, with regard pressures in maintaining their indepen- to online content. dence. Social media platforms where “Legal Practitioners are expected to have visible, links to clients, judges and other Conclusion legal practitioners, should be considered With social media being deployed a very high standard of integrity, in all before creation, to avoid professional by legal professionals in different parts implications of these public links under of the world in the administration of their dealings, including online. They certain circumstances. justice, it is important for the Nigerian are enjoined to consider the impact the Bar Association to ensure that structures Responsibility are put in place to promote the use negative use of social media could have on Most social media websites/applica- of social media in a professional and tions have privacy settings, which mem- responsible manner, without impeding their professional reputation, especially bers of the legal profession are advised on the guaranteed freedom of expres- because of the little or lack of control to access, in the use of their professional sion. and private accounts with social media Adetola Ayanru, Senior Associate, over other people’s social media activity” websites/applications. However, this S. P. A. Ajibade & Co., Lagos 27.03.2018 THE LIGHTER SIDE/15

LEGAL HUMOUR Q: Did you hear about the lawyer hurt in an accident? A: An ambulance stopped suddenly.

Q: How many lawyers does it take to change a lightbulb? A: None, they'd rather keep their clients in the dark.

Q: What do lawyers do after they die? A: They lie still.

Q: How can you tell a lawyer is lying? A: Other lawyers look interested.

Q: Why should lawyers wear lots of sunscreen when vacationing at a beach resort? We Hold Your Brief A: Because they’re used to doing all of their TOBI SONIYI lying indoors. Dear Counsel, Government had to do something about Q: What happened to the banker who went My nephew who is based in Scotland, will it, for the obvious reason that the act of be coming home for his traditional marriage spraying, results in the defacing of the to law school? next month. Initially he sent some money currency notes used. A: Now she’s a loan shark. for the preparations, but in our conversation For this reason, the Federal Government on the phone yesterday, he told me that one passed a law by an Act of the National Q: Where do vampires learn to suck blood? of his friends in Scotland had informed him Assembly in 2006, which makes spraying A: Law school. that it is now illegal to spray money on not only illegal, but punishable under celebrants at parties in Nigeria. the CBN Act 2007. Specifically, Section Q: How do you define double jeopardy? He therefore, requested that the new Naira 21(3) of the CBN Act 2007 provides that A: When a lawyer calls in her partner. notes we had already procured for that “For the avoidance of doubt, spraying purpose, be used for something else. I don’t of, dancing or matching on the Naira or Q: What do you get when you cross a particularly like the idea of spraying money any note issued by the Bank during social librarian with a lawyer? at parties, because I think it is ostentatious, occasions or otherwise howsoever shall A: All the information you need, but you and can attract thieves and robbers. But as constitute an abuse and defacing of the can’t understand a word of it for being illegal, I could not really verify Naira or such note and shall be punishable that, which is why I am sending you this under Sub-Section (1) of this section.” mail for clarification on the legal position Q: What's worse than pleading guilty to The said Section 21(1) provides for on this. murder? Kindly, enlighten me on this. punishment of not less than six months A: Getting jail time and getting robbed-- Mrs. K.E., Eket, Akwa Ibom State. imprisonment or a fine of not less than hiring an attorney to defend you. N50,000 or both. Selling of new notes to Dear Mrs. K.E., be used for spraying at parties, is also Q: What do honest lawyers and UFOs have The idea of ‘spraying’ money at parties is an offence in common? one of the old cultural practices in Nigeria, However, the authorities have not been A: You always hear about them, but you efficient in enforcing these laws as they that has refused to die with time. Over never see them. the years, it became so pervasive, that the should.

The Passing of a Legal Icon: Chief Idowu Sofola, MON, SAN Continued from page 13 and again in his masterful weaving of pleaded applying the rules of evidence, that was it. money, while ensuring that I was appropriately facts and evidence during trial proceedings. There was a long line of witnesses for the remunerated for my services as a junior. The heaps All of this only became more evident, at the petitioner. One after the other, various provisions of knowledge acquired in those 8 straight weeks, final address stage. He made no fuss, about his of the Evidence Act came to play in destroying was more than enough recompense, and I eternally achievements or status anywhere. Quietly advocat- their credibility, puncturing their testimonies and remain grateful to Oga. ing slightly above a whisper, but getting loudest rendering inadmissible, various pieces of evidence In 2014, I was midway through editing a galley ovation (for his results) in the long run. They just sought to be tendered. I recall very vividly a proof of his biography (set to be released to mark don’t make them that good anymore. witness (for the petitioner) who gave a ‘graphic his 80th birthday), when I realised there was a gap illustration’ of looting in a polling booth which - lurking in some recollection. I went back to Oga to JANG v DARIYE we were to discover- was many miles from where fill in the details. He gave me a long, probing stare Despite advancing in years, it was a delight he voted. He seemed cocksure, in confirming that before launching into the details. I had never seen to watch Oga rise majestically to cross- examine he actually voted at the polling booth under ques- him that overwhelmed with emotions, and thus for hours on end, several witnesses called by tion. He swore that he saw the returning officer could understand his wanting to keep details out of the petitioner in the JANG v DARIYE election stuff the box with already marked voters’ cards! the book. Looking back though, all I can say is that petition in 2003. In the wake of legal skirmishes He however, buckled under cross-examination (by his resolve to do so, much against the grain and that followed the 2003 elections, I was a junior in Oga), when he ‘innocently’ admitted that he learnt despite the positive reflection on his person which the team ably led by Chief Idowu Sofola, SAN, to of the alleged malpractices from a 3rd party! the narrative could have availed him, was a study defend the election petition brought against the The petition hearing lasted for about 8 weeks, in benevolence. Oga was generous in spirit, and return of Governor Joshua Dariye as Governor of and the team, led by Oga, with the equally kind in heart. Plateau State. As was characteristic of most elec- formidable assistance rendered by others such as While accepting Oga’s death as the inevitable tions petitions, our team was comprised of hard- Chief Robert Clarke SAN, and Mr. Joseph SAN, destiny of all mortals, I cannot help but note with a working lawyers from different law firms, who were all lodged in the Plateau Hotel, which we rueful smile, that he went as quietly and gracefully had all been briefed to conduct the defence. The retuned to daily, to analyse the evidence led at as he lived. At 83 plus, Oga was still attending his contestant to the seat, who had lost and brought the day’s hearing and make preparations tirelessly law office. He did not buckle to old age. Raging the elections petition, was Air Commodore Jonah though the night, for the days ahead. In between against the dying of the light, he made death seem Jang (rtd.). Incidentally, he later went on to all that, I would run to my room, and a few times so unimportant. And then quietly, true to his genial become the Executive Governor of Plateau State, try to make it back to spend time with Oga in his nature, went gently into that good night. May his after Dariye’s term in office. The hearing of his own chalet. Most times, he would be the one to soul find rest with his Maker. petition lasted for weeks. If there was ever a time look after me, and find out how I was faring. And, Folabi Kuti, Partner, Perchstone & Graeys, I saw the indispensability of forensic advocacy to of course, handing out generous sums as pocket Lagos 16/ 27.03.2018 PAST AND PRESENT

Culled from the Internet