Categories
Legal

TEN MAJOR INNOVATIONS AND/OR CHANGES UNDER THE FINANCE ACT, 2020

Introduction

Deriving from its memorandum and long title, the Finance Act, 2020 is more or less a sweeping amendments of seven (7) different tax laws in Nigeria, that is to say: Companies Income Tax Act, Petroleum Profit Tax Act, Personal Income Tax Act, Value Added Tax Act, Customs and Excise Tariff, ETC (Consolidation) Act, Capital Gains Tax Act and Stamp Duties Act.

The objectives of the Act includes to promote fiscal equity, reform domestic tax laws to align with global best practices, introduce tax incentives for investments in infrastructure and capital markets, support MSMEs, and raise revenues for government.

Thus, the amendments of the various tax laws are primarily geared towards helping the government to raise revenue by increment of some tax rates, mitigate tax avoidance, clarify ambiguous tax provisions, thereby broadening the tax net. We shall now proceed to discuss the various innovations or changes in the Act.

SOME INNOVATIONS AND/OR CHANGES UNDER THE FINANCE ACT, 2020

There are various innovations or changes enshrined in the Finance Act, 2020. Some of these shall be discussed under the various tax laws which the Act amended.

Companies Income Tax Act (CITA)

Introduction of New Tax Rates For Different Categories of Companies for Purposes of Corporate Tax Liability

One of the changes in the Finance Act, 2020 is that companies are now categorized for the purpose of corporate tax liability using their annual gross turnover, and a corresponding new tax rate has been introduced. Hence, the Act categorises companies into small, medium-sized and large companies for purposes of companies income tax. A small company is defined as a company which has an annual gross turnover of N25, 000, 000.00 (Twenty Five Million Naira) and below. Such a company does not pay Company Income Tax.

A medium-sized company is defined as a company having an annual gross turnover of over N25, 000,000.00 (Twenty Five Million Naira) per annum but below N100, 000, 000.00 (One Hundred Million Naira). Such an entity pays Companies Income Tax at the rate of 20%, while a large company is defined as a company that is neither a small company nor a medium-sized company and it pays Companies Income Tax at the extant rate of 30%. This is the purport of section 22 of the Finance Act, 2020 which amended section 105(1) of CITA to the above effects. Also, section 16 of the Finance Act, 2020 is relevant in this regard.


Comment:


It is most likely that for the purpose of tax avoidance, company promoters might elect to incorporate multiple small companies in the same or similar line of business with the aim of taking advantage of the zero percent tax rate for small companies by structuring the businesses of such companies to ensure that their gross turnovers per annum do not exceed the N25, 000, 000.00 (Twenty Five Million Naira) threshold so as to avoid payment of companies income tax, unless regulations are made by the supervising Minister to forestall this possibility.

Inclusion of Non-resident (Foreign) Companies With “Significant Economic Presence” in Nigeria Into The Tax Net

Before the Finance Act, 2020, to be taxable, a non-resident (foreign) company must have a fixed base in Nigeria. In determining what amounted to a “fixed base,” it was held in the case of Shell International Petroleum BV v FBIR (2004)3 NWLR (Pt.859)46 to the effect that the phrase should not be interpreted to mean “residence” or “ordinary residence” but that in the context of CITA, it connotes a place where a foreign company has carried on its business over a long period of time, notwithstanding that it is not the owner of the place or otherwise resident in that place.

However, it appears this issue is now somewhat statutorily settled by the provision of section 4 of the Finance Act, 2020, which amended section 13 CITA by inserting after paragraph (b) a new paragraph to the effect that non-resident companies “with significant economic presence” in Nigeria that profits can be attributable to are now within the tax net. The expansion of taxable activities of these non-resident companies would no doubt serve the end of the objective of increased tax revenue.


Comment:


The implementation of this provision might raise unintended consequences. Firstly, the failure to define what constitutes “significant economic presence” in the Finance Act leaves room for ambiguity and vests so much latitude in the supervising Minister in her discretion of determining what constitutes significant economic presence, considering that such discretion might be open to abuse (section 4 Finance Act, 2020, which amended section 13 of the CITA by inserting a new subsection “(4)” to the above effect).

Secondly, this provision may be a disguised “digital tax” targeted at the global tech companies operating in Nigeria without necessarily having a fixed base therein. This might pitch Nigeria against some of her allies, e.g the USA, which is strongly opposed to the digital taxation of the big tech American companies.

Limitation of Tax on Dividend Distribution (Excess Dividend Tax) Only to Untaxed Profits And Abolition of Payment of Tax on Interim Dividend

Hitherto, companies were charged to tax at 30% on their dividend distributions where such dividends exceed the taxable profits for the year notwithstanding that profits being distributed may have been taxed in prior years, exempt from tax, or taxed under a different tax law. This particularly affects holding companies on dividends received from their subsidiaries thereby making Nigeria unattractive as a headquarters or group holding company location.

However, the situation has been changed under the Finance Act, 2020. The Finance Act, by virtue of section 7, which amended section 19 of the CITA by inserting a new subsection “(2)” now limits the tax chargeable on dividend distribution only to untaxed profits that are not exempt from tax, inter alia. Likewise, before now, companies that declare and pay interim dividends were required to remit income tax at 30% on such dividends to the FIRS. The Finance Act, 2020 has abolished this practice. Also, the Act stipulates that withholding tax (WHT) shall not be applied on dividends that are not paid in money (section 7 Finance Act, 2020).

Personal Income Tax Act (PITA)

Abolition of Children And Dependent Relative Allowances

Before the enactment of the Finance Act, 2020, every person subject to tax in Nigeria was entitled to certain allowances, including children and dependent relative allowances (section 33 of the PITA). This has now been abolished under the Finance Act, 2020. This was achieved by the deletion of the provisions granting children and dependent relative allowances.

This is the purport of section 27 of the Finance Act, 2020 which amended section 33 of the PITA by deleting subsections (4), (5) and (6). It appears this amendment is to resolve the controversies surrounding the entitlement of chargeable persons to children and dependent relative allowances in addition to the consolidated relief allowance granted under the PITA. It equally means that the base of a tax payer’s personal income tax has been expanded.

Tax Identification Number (TIN) as a Precondition For Opening And/or Continued Operation of Bank Accounts

By virtue of section 28 of the Finance Act, 2020 which amended section 49 of PITA by inserting before subsection (1) a new subsection “(1)” and renumbering the section appropriately, banks are now required to request for TIN before opening bank accounts for individuals, while existing account holders must provide their TIN to continue operating their accounts. This provision seems to apply with greater force in respect of business/corporate accounts and not necessarily private accounts. Section 3 of the Finance Act, 2020 which substitute for section 10 CITA, a new section “10” is also relevant in this respect.

Tax Exemption on Pensions, Gratuities And Other Retirement Benefits No Longer With Approval of the Federal Inland Revenue Service (FIRS)

Before now, pensions, gratuities and other retirement benefits were only exempt from tax under certain conditions, including that the beneficiary must obtain the approval of the FIRS before his/her claims would be successful. However, by the provision of section 26 of the Finance Act, 2020, which amended section 20(1) of the PITA by substituting for paragraph (g) a new paragraph “(g),” the requirement of the an approval a government authority, that is, the FIRS has now been removed as a precondition for claiming deductions on contributions made to a pension, provident and other retirement benefits fund as a tax-deductible expense. Therefore, pensions, gratuities and other retirement benefits are now unconditionally tax exempt.

Value Added Tax Act (VATA)

Increment in Value Added Tax (VAT)

Pursuant to section 34 of the Finance Act, 2020, which amended line 1 of section 4 of the VATA, the VAT rate is now raised from 5% to 7.5%. This represents an increment of 50%. Also, section 38 of the Act however substitutes and provides a new Section 15 of the Value Added Tax Act. Subsection 1 of the new section 15 now reads; “A taxable person who, in the course of business has made taxable supplies or expects to make taxable supplies, the value of which, either singularly or cumulatively in any calendar year is N25, 000, 00 or more shall render to the Service , on or before the 21st day of every month in which this threshold is achieved and on or before the same day in successive months thereafter, a return of the input tax paid and output tax collected by him in the preceding month in such a manner as the Service may prescribe”.


Comment:


This implies that small businesses, individuals, entities and other taxable persons whose taxable supplies or projected taxable supplies fall without this threshold are not caught by this provision. Despite the widely held view that anyone who does not fall within the threshold above is exempted from registering, remitting, issuing tax invoice and collecting VAT, the correct position is that such individuals and entities are still to register and file their returns monthly. “Taxable supplies” is defined under the Finance Act as “any transaction for sale of goods or the performance of or for a consideration in money or money’s worth.”

Expansion of VAT-able (Taxable) Goods and Services

Before the enactment of the Finance Act, 2020, VAT was mostly chargeable on tangible “goods” and barely on intangible goods and services. This confusion was largely because the VATA did not even define the words “goods” and “services”. This meant that many goods and especially services were not VAT-able. Consequently, VAT-able goods were limited to tangible goods that were not exempted under the First Schedule to the VATA. Incorporeal property was generally accepted as non-VATable, by taxpayers, on the basis that such property neither constitute goods nor services. Hence, in the case of CNOOC Exploration & Production Nig. Ltd v AGF & 2 OTHERS [FHC/ABJ/CS/605/2007] the Federal High Court held to the effect that interest in rights in an oil concession is an incorporeal property; it is neither a good nor service, which are the two categories of taxable items under the VATA.

Thus, consolidating the argument that transactions in intangible property are not subject to VAT. However, by virtue of section 33 of the Finance Act, 2020 which substitute for section 2 of the VATA a new section “2,” VAT shall now be charged and payable on all goods and services in Nigeria, other than those listed in the First Schedule to the VATA. Also, by virtue of section 46 of the Finance Act, 2020 which amended section 46 of the VATA, “goods” means “(a) all forms of tangible properties that are movable at the point of supply, but does not include money or securities; and (b) any intangible product, asset or property over which a person has ownership or rights, or from which he derives benefits, and which can be transferred from one person to another, excluding interest in land”.

Furthermore, the section defines “services” as “anything, other than goods, money or securities which is supplied, excluding services provided under a contract of employment.” It is also in this light that section 47 of the Finance Act, 2020 amended the First Schedule to the VATA. The effects of this is that there has been an expansion of VAT-able products, so much so that the VATability of incorporeal property, such as rights (to intangible assets), patents, trademarks, royalty, copyright etc., that was hitherto at large has now been statutorily brought within the tax (VAT) net.

Upward Review of Monetary Penalties For Late VAT Filing And Failure to Register For VAT

Penalty for late VAT filing of returns is now increased to N50,000 for the first
month and N25,000 for subsequent months of failure (section 44 of the Finance Act, 2020, which substitute for section 35 of the VATA a new section “35”). Likewise, the penalty for failure to register for VAT is reviewed upwards to N50,000 for the first month of default and N25,000 for each subsequent month of default (section 35 of the Finance Act, 2020, which substitute for section 8 of the VATA a new section “8”).

Also, the penalty for failure to notify FIRS of change in company address is increased to N50,000 for the first month of default and N25,000 for each subsequent month of default. This penalty also covers failure to notify FIRS of permanent cessation of trade or business (section 42 of the Finance Act, 2020, which substitute for section 28 of the VATA a new section “28”).

Capital Gains Tax Act (CGTA)

Introduction of Business (Group) Reorganisation Tax Relief

Similar to the VAT amendment, the Finance Act, 2020 introduced CGT exemption on group reorganisations, provided that the following conditions are met, to wit: assets are sold to a Nigerian
company and is for the better organisation of the trade or business; the entities involved are within a recognised group 365 days before the transaction subject to tax; and the relevant assets are not disposed of earlier than 365 days after the transaction.

This is the purport of section 49 of the Finance Act, 2020, which substitute for section 32 of the CGTA a new section “32”. Hitherto, the practice was that companies send an approval request letter under Section 29(9) CITA to the FIRS, and include a CGT exemption request. The Act defines “recognised group of companies” as “…a group of companies as prescribed under accounting standards” (section 51 of the Finance Act, 2020, which amended section 46(1) of the CGTA).

Conclusion

The Finance Act, 2020 with its innovations or changes is not without its fallibilities. Still, it is indeed a timely piece of legislation capable of addressing the revenue shortfalls in Nigeria. What more, the idea of having fiscal regulation annually alongside the Appropriation Bill can only provide clarity to tax payers and people impacted by taxes. If this practice is sustained, it would surely make for easy tax planning by tax payers.

This notwithstanding, whether or not the Act will live up to its billing remains an anxious wait for all stakeholders. And perhaps, not until the end of the taxable period, we may never really know the degree of the impact this statute might have on the socio-cultural and economic landscape of Nigeria.
(Note: I acknowledge Wole Obayomi and Tunde Esan whose works “Finance Act 2020: Impact Analysis” and “The Tax Implications of the Finance Act, 2020” respectively, greatly influenced this write-up)

Categories
Legal

LATEST AND NOTABLE CASE LAW DEVELOPMENTS UNDER NIGERIAN LAW

By Bizibrains Okpeh

Introduction

Are you a lawyer or do you think you are? A true lawyer must never cease not just to learn the nuances of his profession but also generally. This is what differentiates a true lawyer from the one who thinks he is. No one has the monopoly of (legal) knowledge. It must be won; it is not gifted, neither is it inherited. Put in the words of Gay, “Learning by study must be won; Twas ne’er entailed from son to son.” (cited in Glanville Williams: Learning the Law p.70).

While knowledge of statutory law (and any other law) is most desirable, perhaps no lawyer can ever attain the status of an outstanding lawyer without a near excellent knowledge of case law. In fact, it may indeed be what stands between you and your “Fawehinmi.” For as Tennyson posited, and rightly so, “Mastering the lawless science of our law, That codeless myriad of precedent (case law), That wilderness of single instances, Through which a few, by wit or fortune led, May beat a pathway to wealth and fame.” (cited in Glanville Williams: Learning the Law p.92).

Latest Case Law Developments

1.Although a counter-claim is a separate, independent and distinct claim from the main claim, and cannot be affected by any defect in the main claim, where the defect in the main claim is incurable and touches on jurisdiction—to wit, robs the court of the jurisdiction to entertain the claim—the court must strike out the suit, together with the counter-claim.

For the avoidance of doubt, before the peculiar development stated above, this was (and still is) the general position of the law on counter-claim as stated in Shemar Ltd v Moki Industries (2000) LPELR-887 “For all purposes except those of execution, the plaintiff’s claim and the defendant’s counter claim are two separate actions and the court gives separate judgment and costs both in the original claim and on the counter claim. Accordingly, if for any reason the plaintiff’s action is stayed, discontinued, struck out or dismissed, the counter claim may be proceeded with.”

The court further emphasised in the case of Susainah (Trawling Vessel) v Abogun [2007] 1 NWLR (Pt.1016)455 to the effect that “This distinction is not symbolic or symbiotic…Since the Judgment in the principal action is not interdependent on the judgment in the counter claim, a vice in one cannot destroy the other.” This is further because “Both are like rivers Niger and Benue which like the principle of law and equity flow in the same stream but their waters will never mix” (Dimacon Industries Ltd v Ajayi-Bembe (unreported) Appeal No. CA/L/421/2013 delivered on 19 May 2017, per Georgewill, JCA.

Now, here is the current unprecedented development. While affirming the general position on counter-claim adumbrated above, the Court of Appeal in Aberuagba v Oyekan [2020]2 NWLR (Pt.1707)165, a case of “first impression” held thus; “A counter-claim is a separate and independent claim in the same action with the plaintiff’s claim not as a matter of action but in relation to proof and distinct treatment in adjudication.

Thus, when the court lacks jurisdiction to entertain the main claim, a counter-claim cannot stand on its own. To insist that the counter-claim in the circumstance can be prosecuted, when there is no writ or statement of claim originating the action, amounted to initiating a claim by way of counter-claim, as against the four known methods of commencing an action, to wit, writ of summons, originating summons, originating motion and petition.” (per Barka, JCA). The Court of Appeal further buttressed that, “The above (general) rule of law which treats the counter-claim as a separate and distinct claim, does not save the counter-claim when the court is deprived of jurisdiction to entertain the main claim.” (per Owoade, JCA).

Comment:
It should be noted that the general principle is still very much the law on counter-claim. It is only when the issue is held to turn on jurisdiction that the court will depart from the general rule. Being a case of “first impression, ” this is the ratio in Aberuagba’s case and not otherwise. After all, as was held by the Supreme Court in The State v Kapine [2019]18 NWLR (Pt.1703)1 at 17, cases are authorities for what they decide.

2.In interpreting the word “from” for the purpose of determining whether or not a pre-election action is statute-barred as per the provision of section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 as amended by the Fourth Alteration Act, No. 21 of 2018, the date the course of action arose “shall” be reckoned with.

For some more clarity, in dismissing the Appellants appeal to the Supreme Court in the case of Zailani v Gumau [2020] 2 NWLR (Pt.1709)452 it was held thus; “In the instant case, the appellant’s complaint, being his wrongful substitution, was the event, decision or act that occurred on 17th October, 2018. From 17th October (the date inclusive) to 31st October, 2018 [when the appellant filed his action] was 15 days…and for the purpose of section 285(9) of the Constitution, as amended, the suit was therefore statute-barred since it was not filed within 14 days from the date of the occurrence of the event, decision or action complained of in the suit.” (see also Idiagbon v APC [2019] 18 NWLR (Pt.1703) 102 at 120-124) (underline mine)

However, barely one month after the above decision was delivered (it was delivered on Friday, 21 June 2019), the Supreme Court, on Friday, 5 July 2019, in the case of Garba v APC [2020] 2 NWLR (Pt.1708)345 at 360 delivered another judgment where it excluded the date the cause of action arose thus; “From the passage I have reproduced above (that is the Appellant’s originating summons)…I am satisfied that the cause of action occurred on the 7th of October, 2018. The appellant’s suit was filed on the 29th of October, 2018, 22 days (excluding the 7th October) after the conduct of the primary election. Clearly, the action was filed outside the prescribed period and it is therefore statute-barred.” (see also Ibrahim v Abdallah [2019]17 NWLR (Pt.1701)293 at 314; Daniel v Ayala [2019]18 NWLR (Pt.1703)25 at 40).

Comment:
It appears the Supreme Court is not consistent with its interpretations of the word “from” in section 285(9) of the Constitution which provides that, “Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of.”

It has always been the general law that, except there is anything to the contrary on the face of a statute or instrument, in construing the word “from,” the mentioned date is usually excluded as opposed to the interpretation of the word “on” where the mentioned date is reckoned with. What we now have is a difficulty as to which of the two most recent cases stated above creates a binding precedent on the lower courts.

The above being what it is, it suffice to say that when there is a seemingly conflicting decisions of the Supreme Court on the same issue, the latest in time prevails. This is one of the purports of the Supreme Court’s decision in the case of Osakue v Federal College of Education (Technical) Asaba [2010]10 NWLR (Pt.1201)1. By this, it means the decision in Garba’s case should be preferred (and it is indeed preferred) over that of Zailani’s.

With respect, I humbly think that there is need for consistency of Supreme Court’s decisions in this regard (and generally). Once the two variables, that is, the date when the cause of action arose and the date when the action is filed, which are issues of fact as per the parties’ pleadings, are determined, there should then be some measure of certainty as to the mode of interpreting whether or not the action is within the limitation time as prescribed by the Constitution. This is largely, if not conclusively, amenable to a universal formulation or construction. So that when the court strikes its gavel on the bench of justice, it should not be perceived to sound hot and echo cold at the same time.

3.A judgment entered upon a guilty plea is a consent judgment and cannot be appealed against, except with the consent or leave of court as provided under section 241(2)(c) of the Constitution.
See the case of Adamu v FRN [2020] 2 NWLR (Pt.1707)129 at 163 where the Supreme Court held thus; “By virtue of section 241(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, nothing in the section shall confer any right of appeal without leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court or a High Court made with the consent of the parties or as to cost only. In the instant case, the appellant’s appeal to the Court of Appeal was against a consent judgment (the appellant entered a guilty plea upon which he was convicted and sentenced). It was therefore incompetent and an abuse of the court’s process by dint of section 241(2)(c) of the Constitution and the judgment of the Court of Appeal, delivered on 31st May 2017, from which the appellant purported further appealed to the Supreme Court was similarly incompetent, abuse of court process, ultra views and a nullity.” (per Eko, JSC).

4.Printouts of electronically generated evidence or e-documents constitute primary documentary evidence. See AG Federation v Kashamu (No.1) [2020]3 NWLR (Pt.1711)209 at 276 where the court held that “Evidence generated from Global Satellite Mobile System(GSM) is computer evidence. Hence, mobile phones are computers and printouts of messages delivered through GSM are required as primary documentary evidence vide section 258(1) of the Evidence Act which defines documents to include any device by which information is recorded, stored or retrievable including computer output.”

5.A lawyer cannot after retirement accept retainership in connection with a matter he had previously acted in judicial capacity, including ministerial or administrative functions as a legal officer (e.g AGF, SGF, DPP, SGS etc.) in ministry of justice of the Federation or a State.
See the case of State v Ughanwa [2020]3 NWLR (Pt.1710)22 at 39-40 where the Court of Appeal reversed the decision of the trial court which had held that the respondent only acted in ministerial or administrative capacity in connection with the retainership under consideration, and not in “judicial capacity” (that is to say he was not a judicial officer) as contrmplated under Rule 6(1)(2) of the Rules of Professional Conduct for Legal Practitioners, 2017.

6.A letter or notice of resignation need not be formally accepted by the employer before it takes effect and the employer has no discretion whether or not to accept same, as there is absolute power to resign. Also, a notice of resignation is effective, not from the date of the letter or from the date of the acceptance, but from the date the letter is received by the employer or his agent.
See Ibrahim v Abdallah [2019]17 NWLR (Pt.1701)293 at 315 SC.

7.A building plan approved by government or its lawful agency raises a presumption of regularity under section 168(1) of the Evidence Act, 2011 in favour of the title of the holder. This title remains good in law and equity until the presumption is rebutted by superior and proved evidence.
See Mohammed v Farmers Supply Co. (KDS) Ltd [2019]17 NWLR (Pt.1701)187 at 207

8.An employee who accepts salary in lieu of notice of termination of appointment is estopped from complaining later that his employment was not properly determined.
See Gbedu v Itie [2020]3 NWLR (Pt.1710)104 at 133

9.An appellate court must concern itself only with finding out whether the decision of the lower court appealed against is correct and not whether the reasons for the decision are. See Zailani v Gumau (supra)

Notable Pronouncements

10.“While the physical presence means a lot, the truth is that the true test of love is not necessarily in physical presence.”
See Okobi v Okobi [2020]1 NELR (Pt.1705)301 at 341

11.“Firstly, I must observe that learned counsel in relying on Alake v The State in paragraph 4.03 of his brief lifted ratio 4 at page 263 of the law report. It must be borne in mind that the numbered ratios (sic: rationes) in the law report are not necessarily the ratio decidendi in the case. They are merely what the authors of the law report consider the ratios (sic: rationes). In other words, it is essential to read the entire judgment to appreciate the reasoning of the court.” (per Kekere-Ekun, JSC).
See Obioma v State [2020]3 NWLR (Pt.1710)45 at 63; See also Kolawole v Alberto [1986]1 NWLR (Pt.14)76 where Ayorinde, J, having refused to follow the case of Boot Pure Drugs Co. Nig. Ltd. v Saki Estates Nig Ltd (1976)6 CCh, dismissed the applicant’s application for renewal of writ. Upon appeal, the Court of Appeal held to the effect that the ratio decidendi in Boot’s case, as so reported in law reports is slightly misleading.

Conclusion
There is perhaps no better way to end this write-up than with the witty words of Scott. In urging every lawyer to be a reader, the writer concluded that,“A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” (cited in Glanville Williams: Learning the Law p.269).

By the Supreme Court’s warning in Obioma’s case (supra), numbered rationes decidendi in law reports or indeed any book or written material, including this write-up, are not final and conclusive as same may be misleading.

In the final analysis, the only way to properly appreciate this write-up is not only to glance over the cases reported in the law reports but to thoroughly read the entire judgment (entire judgment means the leading judgment and the concurring–and dissenting where there is one—judgment). Do this now and always and the dry bones of your “Fawehinmi” may yet come alive someday.

Categories
Public Commentary

AN HISTORICO-LEGAL PERSPECTIVE TO THE DETHRONEMENT OF TRADITIONAL RULERS IN NIGERIA: THE EMIR SANUSI QUESTION

By Bizibrains Festus Okpeh

Introduction

In similitude to the great epiphany of Chief Olusegun Obasanjo in his much-publicised “personal” letter to the former Emir of Kano, many Nigerians woke up on the morning of March 9, 2020, to be greeted with the sordid news that Mallam Sanusi Lamido Sanusi (Muhammadu Sanusi II), the 14th Emir of Kano in the order of the Fulani dynasty has been deposed/dethroned as a result of what the government of Kano State, under the governorship of Ganduje described as “total disrespect to lawful instructions from the office of the governor and other lawful authorities, including persistent refusal to attend official meetings and programmes organised by the government without any lawful justification which amount to total insubordination.” This was the Governor’s final act in the over three years of continual confrontation between the number one citizen of and the most powerful man in Kano State on one hand, and the most ceremonious traditional ruler on the other hand that has also ensured the banishment of the latter from the state.

Since the news of Emir Sanusi’s dethronement, many have taken to various platforms to express divergent opinions. While to some, and these include official echoes from the Presidency, Emir Sanusi’s dethronement was (is) in order as every Governor is empowered by law to literally appoint and remove traditional rulers, to others, it was undeserved and illegal and a disrespect to the person of the former Emir, and a fortiori, the traditional institution. Thus, many have described as mere cosmetics and eye-service the purported kind gestures Nigerian Governors make to traditional rulers in the name of homage and courtesy. This sanctimonious relationship between Government (Governors) and traditional rulers, which pre-dates the birth of Nigeria and has been continually oxygenated with the instrumentality of law has become the proverbial colonial gunboat in the hands of fourth republican politicians with which they cajole and shoot out of the throne any traditional ruler who patently refuses to come under their self-acclaimed good books and “protection.” The question may be asked; how did we get here?

This write-up generally presents an historico-legal view of the state of the relationship between Government and the traditional institution in Nigeria. It further argues that the formal politicisation of the traditional institution, the legal consolidation of colonial-traditional politics post-independence, and the consequent proliferation of traditional rulers constitute the three most important factors that undermined (and continue to undermine) the sanctity of the institution of kings and chiefs in Nigeria.

Finally, while this writer is inclined to the notion that the existing legal mechanism supports the dethronement of traditional rulers by Governors, if and only if proper procedures as laid down by law are followed, the consequential banishment of the dethroned ruler more or less presents real constitutional crisis.

Pre-colonial Traditional Institution

In its most traditional and strictest sense, and according to a pre-colonial definition as offered by Bello-Imam, “a traditional ruler is defined as a person who by virtue of his ancestral position occupies the throne or stool of an area and who has been appointed to it in accordance with the customs and traditions of the area and whose throne has been in existence before the advent of the British in Nigeria.” This definition presupposes that a traditional ruler emerges out of the national consciousness, rooted in the customs and traditions of the area and/or people over whom he exercises authority, such authority being complete, total and conclusive and free from any external influence. Hence, the traditional stool must have been in existence before colonialism. This was traditional institution in its purest unadulterated form.

Before the British colonisation of the area now referred to as Nigeria, many autonomous rulers existed in various clans, chiefdoms, emirates and kingdoms. Although many of these rulers had considerable influence in their spheres of operation, some had complete and total control of the areas they administered. They were too powerful so much so that they could afford to embark on military expeditions, conquering smaller kingdoms and dethroning weaker kings and forming great alliances, caliphates and empires. And in the process, many established long-ruling dynasties (e.g the Dunama ruling dynasty, the Fulani ruling dynasty, etc) which survived them. Some of these 18th Century empires included the Kanem-Borno Empire, the Old/New Oyo Empire, the Benin Empire and the Sokoto Caliphate of Uthman Dan Fodio which became the forerunner and firmly established the ruling Fulani dynasty in the northern part of Nigeria till date.

It is important to note that these centralised “states,” kingdoms, emirates and empires operated generally in the northern part of Nigeria, except the case of the Oyo Empire which also comprised areas of the south west. They had well-defined structures and administrative strata with the “Mai,” “Emir,” “Alaafin” or “Caliph,” as the case may be, at the centre. It was this set-up, more than anything, that endeared the northern emirs to and gave them seats at the table of colonial administration; a bromance which also became the undoing of northern emirateship. The communities of the southern and central Nigeria were generally “stateless.” They operated a decentralised system that may be likened to a modern-day democracy. There was no one ultimate ruler or ruling dynasty as the people collectively chose their leaders as times and occasions demanded.

In the final analysis, the point being made here is that pre-colonial traditional institution was largely autonomous with its own judiciary, executive and legislature. It controlled its own finances and dealt with its property how it pleased. It commanded reverence and respect from its followers, including the kingmakers irrespective of the age, status and overall personality of the ruler. In fact, in some climes, the rulers were seen as gods, celestial and immortal, so that if deposed, they were required to voluntarily offer themselves to death (or exile/banishment) to perpetuate their immortality. Although this was abolished by the colonial Lords for being against human conscience, and rightly so, colonialism further robbed the traditional institution of its much cherished independence and reverential flavour, subjecting it to the facades and “goodwill” of the colonial State; a phenomenon which became the Coronavirus (Covid-19) of the traditional institution to which no cure has been found till date.

And as the traditional institution continues to shiver from the cold of this “colonial virus,” a new definition has been found, one that evolved from the exigencies of political gluttons who continue to meat from whatever that is left of the traditional institution. Cookey succinctly captured who a traditional ruler is today thus; “a traditional ruler is the traditional head of an ethnic unit or clan who for the time being the holder of the highest traditional authority whose title is recognized as a traditional ruler’s title by the government of the state.” (underline mine for emphasis). This sums up the nature and character of a contemporary traditional ruler; a ruler chosen, recognised and installed by Government (Governors)   as opposed to the convictions of the people. Several factors are responsible for this state of affairs and they include but not limited to:

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  1. Colonial-Traditional Politics and the Subjugation of Traditional Institution to the Powers of the Colonial State

Following the Berlin Conference of 1884-85 at the behest of Otto Bismarck, the plan was perfected by the Europeans for the partition of Africa. Every European colonial power was to take effective control of the areas of Africa where she held the greatest trade influence. It was to implement the outcome of this conference that Britain took effective control of Nigeria (or the area now so called), the Royal Niger company having prepared the ground with its numerous trade treaties and treaties of “protection” with influential traditional rulers in the coastal cities and the hinterland. Consequently, from 1879 up to 1900 when it handed over to the British Government, a vast area of the territory now referred to as Nigeria had been conquered. And so Nigeria became a colony of Britain under the “protection” of the Queen with Lord Frederick Lugard as the first High Commissioner of the Northern Protectorate. And in other to effectively administer the vast area of the North, he introduced the indirect rule system, whereby northern Emirs were brought into colonial administration as Paramount rulers under the Lordship of Lugard, as the representative of the Queen, the Head of Government. In the decentralised communities of the Southren Protectorate, Lugard appointed Warrant Chiefs who acted as Paramount rulers, thus distorting the original traditional structures in those communities.

In fact, in some communities in central Nigeria, which were also decentralised communities and hitherto had never had any form of effective central traditional institution, the colonial master created for and imposed one on them. One of such instances is the Tiv nation where the colonial State created the traditional stool of the Tor Tiv in 1947 and installed Makere Dzakpe as the first Tor Tiv (Dudly:1968). Needless to say that this traditional stool had little or no ancestral bearing to the Tiv nation before its creation. At the time independence was attained in 1960, following the amalgamation of the Northern and Southern Protectorates, traditional rulers absolutely lost their power to the Government which became even more influential in traditional and chieftaincy affairs.

A traditional institution is supposed to be sacred and originate from the common national consciousness and convictions of the people and not an arbitrary creation of Government or the State. This would help strengthen the “national spirit” and the willingness to respect and subject to the authority of the traditional institution. This is what Carl Von Savigny referred to as the “Volkgeist.”  According to the erudite historical jurist in his essay “Of the Vocation of Our Age for Legislation and Jurisprudence,” every community or nation has a common “spirit” or “folk-spirit” rooted in its customs and traditions, from where comes its strength and which is formed internally and instinctively. Hence, any institution, including a traditional institution, “grows with the growth and strengthens with the strength of the people.” While colonial politics co-opted traditional rulers in its administration, it ensured that they remained stooges to the colonial Lords. And those traditional rulers who refused to yield their communities and powers were deposed in favour of the rulers who were ready to do the bidding of the colonialists. Many traditional rulers were dethroned and exiled in this fashion.

As colonial politics reigned supreme at the fall of the 19th Century, one of the traditional rulers who was vehemently opposed to British rule was King Jaja of Opobo, Jubo Jubogha. However, using “gunboat diplomacy” he was dethroned in 1887 and exiled to St. Vincent, West Indies. Another of such traditional ruler was King Dosunmu of Lagos who was also dethroned but later became the Oba of Lagos. Nigerian politicians have since followed in the footsteps of their colonial mentor to dethrone traditional rulers who they perceive are opposed to them. According to the Nation Newspaper(https://thenationonlineng.net/monarchs-and-tales-of-deposition/), the Alaafin of Oyo, Oba Adeniran Adeyemi, was deposed by the old Western Regional Government headed by Chief Awolowo in 1953 following a dispute between him and  Bode Thomas. Upon the death of the latter, he was banished to Oshogbo and ended up in Ijora, Lagos. Also, the Emir of Kano, Alhaji Muhammadu Sanusi I (the grandfather of Mallam Sanusi Lamido Sanusi) was dethroned in 1963, and banished to Azare in the present day Bauchi State.

Again, Alhaji Ibrahim Attah, the Attah of Ebiraland, was deposed in the sixties and banished, never to regain his throne. Also, Oba Olateru Olagbegi, the Olowo of Owo, was suspended, and later, deposed by the military government of Western State. Oba Raji Adebowale, the Aseyin of Iseyin, was deposed by the Akintola government because of his sympathy for Action Group. Likewise, For travelling out of the country to Israel without permission, the late Ooni of Ife Oba Okunade Sijuwade and the late Emir of Kano Alhaji Ado Bayero were restricted to their respective palaces for six months by the Buhari/Idiagbon military regime, without recourse their right to freedom of movement and such other associated rights. In the same vein, The Emir of Gwandu, Major Mustafa Jokolo, was deposed by the Kebbi State government in 2005 and banished to Loko, a Fulani town in Nasarawa State. Oba Adepoju Adesina, the Deji of Akure was dethroned by the Ondo State government following his alleged unruly behaviour which ridiculed the throne. Records also show that the Sarkin of Suleja, Awwal Ibrahim was deposed by the late military ruler, General Sanni Abacha.   And the latest of it all, the dethronement of Mallam Sanusi Lamido Sanusi (Muhammadu Sanusi II), the Emir of Kano by the Kano State government.

Still, the dethronement virus continues to spread, as it was reported on March 12, 2020, by Rasaq Ibrahim of the Nation that Oba Rufus Adejugbe, the Ewi of Ado-Ekiti alongside ten other traditional rulers might be dethroned by Fayemi, the Governor of Ekiti State.

  • Legal Consolidation of Colonial-Traditional Politics Post-independence

We have made the case that questions of traditional institutions are essentially questions of customary law. This is because traditional rulers derive their powers from customs and traditions, in which lies the consciousness and convictions of the people, their behaviour and habits from time immemorial. Thus, the import of the case of Lewis v Bankole (1908)1 NLR 81 is that one of  the fundamental characteristics of customary law is its unwritten nature. This is because it is flexible and dynamic and continues to grow. It comprises the actual behaviour and tenets of the people as against statutes or Legislation. Eugene Ehrlich described it as the living law.” In his book “Fundamental Principles of the Sociology of Law” Ehrlich buttressed the importance of custom found in actual societal behaviour thus, “The centre of gravity of legal (or indeed institutional) development lies not in legislation nor in juristic science, nor in judicial decision, but in society itself.” The colonial Judges, including native Judges trained in colonial Britain, in undertaking their judicial and interpretative functions, subjected the validity and enforceability of customary law (which is the bedrock or superstructure of the traditional institution) to the English law, rightly or wrongly.

This means that for any rule of customary law to be valid and enforceable “it must not be repugnant to natural justice, equity and good conscience, nor incompatible either directly or by implication with any (written) law for the time being in force, nor contrary to public policy.” (see Laoye v Oyetunde (1944) AC 170; Esbughagi Eleko v Officer Administering the Government of Nigeria; Re Adadevoh (1951)13 WACA 304). Again, by virtue of section 36(8) of the Constitution, no act or omission is a crime except, prior to the commission of the act, it was written down to constitute such a crime and punishment provided therefor. Also, in the case of Tofi v Uba (1987) 3 NWLR (Pt. 62) 707 the court held that adultery was not a crime in Benue State because at the time it was not so find in the customary statute (the Tiv Declaration of Native Law and Custom) of the state. The above, coupled with the difficulty in proving oral evidence and the tendency of confusion that may arise from multiplication of rules of custom, means that customary law has largely lost its unwritten nature and is now (largely) subject of legislation. Hence, he who alleges any rule of custom must prove that the custom actually exists, sometimes not in the regular habits of the people, however prevalent or far back in time, but also in a statute, except the court has taken judicial notice of the existence of such custom (see sections 16, 17, 18 and 122(2)(L) of the Evidence Act, 2011).

 Therefore, all the states of the federation now have there customary laws legislated upon and enacted into the declaration of native law and custom of the various states. In the same vein rules of custom relating to kingship, emirship and chieftaincy are enacted into laws by the various states. The real danger here is the tendency of state Governors, who usually control the State Houses of Assembly to introduce articles into the customary statutes that make it easier for them to manipulate traditional institutions. For instance, this was exactly the case in Kano State, where the Kano Emirates Council Law 2019was quickly amended by the Kano State House of Assembly at the behest of Governor Ganduje to make for the creation of four new emirates just to settle scores with Emir Sanusi (since dethroned).

In the final analysis, the British colonialist, having weakened the traditional institution, imported their laws and justice system to Nigeria and subjected our customary law to them. This further consolidated the deterioration of the traditional institution. And this colonial sentiment against the traditional institution, and customary law upon which it stands and finds meaning has been sustained even after independence. It has become more or less our national sentiment.

  • The Proliferation of Traditional Rulers

God forbid that one day we would wake up to the reality of a more traditional Nigeria; the one where there would be a traditional ruler to every family. Of course, this might sound outrageously hyperbolic. But unlike Robert Frost’s “The Road Not Taken,” it is the road already taken by our Governors, where they are sprinting in full and outright overdo vis-à-vis their colonial counterparts. At the height of colonial rule in the 19th century and in a bid to tighten their hold on power and exercise much more control on their new found tenants (albeit tenants in their own land), the colonial Landlord, apart from using Emirs already in power in the North, created traditional rulers as it pleased them. The traditional stool of the Tor Tiv was (is) one of such stool created out of colonial administrative necessity and/or expediency in 1947. Likewise, Paramount rulers were appointed in the South in the form of Warrant Chiefs.

Fast-forward to post-independence and many traditional rulers have been created by successive Governors in Nigeria. According to Wikipedia (https://en.m.wikipedia.org/wiki/Nigerian_traditional_rulers retrieved 11 March, 2020), Yobe State was created with just four emirates, but in early 2000 it was increased to 13 at the behest of Bukar Abba Ibrahim, who was then the governor. Also, in August 2010, Bukola Saraki, the then governor of Kwara state appointed three new monarchs. It has also been reported that by June 2010, Akwa Ibom State had 116 traditional rulers with official certificates from the state. And fairly recently, in a move that literally dismantled one of the oldest and strongest traditional stool in Nigeria, the government of Kano State created four new Emirs in the state in addition to the Emir of Kano, an act that quaked the Kano emirateship to its founding ancestors.

As the saying goes, too many cooks spoil the broth. While this saying may have become a cliché, it has never lost its truism. It is axiomatic that the obsession of Government (Governors) with creation of titular kings, chiefs and traditional ministers, sometimes as sheer political settlements and at other times as arbitrary manifestations of their grip on power, has somewhat crippled the effectiveness of the traditional institution as the bearer of the collective conscience of the people. There are now so many traditional rulers all over the federation that one may be forced to lament that the essence, beauty and importance of many of them lie only in their colourful regalia (with utmost respect to them). Yet, this is not entirely their making. Is it then the making of their creators? Permit me to kindly adopt your guess as mine.

The Emir Sanusi Question

The Emir Sanusi question is a million Naira question not because his deposition as the Emir of Kano was too difficulty an algorithm to draw, given his frosty relationship with Governor Ganduje, but because any attempt at enquiring into why the widely celebrated bank expert and economist would venture into traditional politics sends one into infinite imagination. Lost in such ocean of wonder and imagination, Olusegun Adeniyi, writing for Thisday on March 12, 2020 could not help but reveal his helplessness; “This is somebody that has all the attributes of a president. He has the clout and capacity to reinvent Nigeria if he had jumped into the political fray. It is very difficult for me to discern how blue bloods think.” Mallam Sanusi did jump into the political fray; the traditional political fray.

The rift between Governor Ganduje and the former Emir of Kano, HRH Sanusi Lamido Sanusi survived over three years amidst irregular manifest and public intervention by some prominent Nigerians, not including President Buhary. The happenstances between the two from 2017 was well chronicled by Raymond Mordi, the Deputy Editor of the Nation (https://thenationonlineng.net/the-ding-dong-affair-between-ganduje-sanusi/). Why the public is still absorbing the shock of Emir Sanusi’s dethronement, it is his detention and banishment firstly to Loko and now Awe towns of Nassarawa State that presents real constitutional conflicts. Now, I take great care not to overreach or preempt the possible decision of the court as this matter is currently pending before a Federal High Court  in the Federal Capital Territory, Abuja.

However, apart from the fact that this practice was hallowed in pre-colonial and colonial States, as our Constitution stands, it is unconstitutional to detain, confine, restrain or forcibly eject or otherwise exile or banish a citizen of Nigeria from any part of the country. This is because by virtue of Sections 35, 40, and 41 of the Constitution, every citizen of Nigeria has the right to personal liberty, peaceful assembly and association and freedom of movement respectively. And except as provided under the Constitution, these rights cannot be derogated from. This are the purports of Sections 35(1), 40(2) and 45 of the Constitution. The above position of the law was given judicial enforcement by the Court of Appeal in the case of AG Kebbi State v HRH Alhaji Al Mustapha Jakolo (2013) LPELR 22349

Thus, notwithstanding that Emir Muhammadu Sanusi I, the grandfather of the deposed Emir Muhammadu Sanusi II, was exiled to Azare (in present day Bauchi State) where he remained for some time before returning to Kano where he died in 2002, it is highly unlikely, given the circumstances already stated above, that the banishment of the latter by the Kano State Government would legally stand.

Conclusion

To draw the curtain to a close, the insincere relationship between Government and traditional rulers and the incessant meddlesome interloping of Governors in traditional affairs are rooted in history,  backed and perpetuated by law and the Constitution, which inter alia, vests in the Governor of a State the sole/chief executive power (see Section 176(2) of the Constitution). Perhaps the Constitutional framers did not envisage the intractable politics of the fourth republican politicians. Perhaps they should have known that there is something called the “Nigerian factor.” Whether we know or claim not to know, wanton dethronement of and disregard to traditional rulers in Nigeria are positive symptoms of “colonial (dethronement) virus.” It has permeated our politics; it is part of our laws; in fact, it may survive for generations to come. We can only hope for saner politicians or genuinely retrace our very existence as a political unit.

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Bizibrains, also known as Festus Ikechukwu Okpeh is a public commentator, a disability rights advocate and a Barrister and Solicitor of the Supreme Court of Nigeria who specialises on general legal practice, especially in the area of energy law. You can reach him on 07061096037 or bizibrains@gmail.com

Categories
Legal

OF JUSTICE OKON ABANG AND THE ORDER THAT NWAFOR-ORIZU PRODUCE A CERTIFICATE OF MENTAL FITNESS BEFORE APPEARING BEFORE THE COURT: MATTERS ARISING

By Bizibrains Festus Okpeh

Background

It was reported that Hon. Justice Okon Abang of the Federal High Court, Federal Capital Territory, Abuja, in a bid to discipline Mr. Nwafor-Orizu, the learned senior counsel to the third defendant in the case of OKOROCHA VS. INEC & 2 ORS suit no. FHC/ABJ/CS/296/2019 ordered the latter not to appear before him, or any other court, unless he produces a certificate of mental fitness from a government psychiatric hospital. It is said that the court took exception to counsel’s sustained interference with court proceedings by insisting that he must be heard (even though he was not a counsel on record) against the advice of the court. In fact, according to the report, counsel almost hijacked proceedings when he insisted thus; “the court will not proceed until my motion is heard”. And the court in response to counsel’s persistent and willful disobedience of its order to sit down and allow proceedings to continue made the order thus; “On account of Nwafor-Orizu’s conduct, not being counsel on record, and displaying such conduct not worthy of a senior counsel, he shall not be allowed to appear as a counsel in this matter, or any other court, unless and until he furnishes the court with a medical report from a government psychiatric hospital certifying him to be mentally fit…He shall also sign an undertaking and serve on all counsel that he shall henceforth be of good conduct and until then, S.M Anichebe shall appear as counsel to the third defendant.” (underline mine for emphasis) (see the Vanguard news online, May 18, 2019).

Introduction

There is a general feeling, especially among legal minds, that the court belongs to the Judge(s). And subject to extant laws and rules of procedure and practice, he commands it howsoever he deems fit, and according to his temperament and haunches. Hence, the popular saying; “a lawyer must learn the court.” Whether or not this assertion is debatable, it is a paramount rule of law that “A lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.” (see R. 1 Rules of Professional Conduct for Legal Practitioners, 2007, hereinafter referred to as “RPC”).

While this paper recognises the ultimate jurisdiction of the court to discipline a lawyer for disrespecting the court, arising from the instant case under consideration, it seeks to answer the following crux questions: (i) Can a court deny audience to, and to what extent is the power of a court to discipline a lawyer before it. (ii) Should the court have cited counsel for contempt instead? (iii) Should the court have referred to the Legal Practitioners Disciplinary Committee(LPDC)?

These questions shall be answered seriatim.

(i) Can A Court Deny Audience To, And To What Extent Is The Power Of A Court To Discipline A Lawyer Before It

It must be quickly noted that, subject to certain restrictions, it is the exclusive right of every lawyer to appear before all courts in Nigeria. And no court shall deny audience to any lawyer properly so called (see S. 8(1) Legal Practitioners Act, hereinafter referred to as “LPA”). This in all ways also ensures the provision of the Constitution to the effect that every defendant to a criminal  charge (and a fortiori, a party to a civil cause) can defend himself in person or by a legal practitioner of his own choice (see S.36(6)(c) of the Constitution). However, a lawyer maybe denied audience by the court under certain circumstances. These includes where he has not paid his annual practising fee for the relevant year (see S.8(2) LPA), obtained his annual practising certificate for the relevant year (see R.12 RPC), attained the required continued mandatory professional development programme (see R.13 RPC, this Rule is yet to be enforced), obtained his official stamp and seal approved by the NBA (see R.10 RPC), or not properly attired before the court (see R.36(a) RPC). From the foregoing, it can be seen that the conditions upon which a lawyer maybe denied audience by the court has either been laid down statutorily, or spelt out by or under rules made pursuant to enabling statutes. It necessarily follows that, while the court may deny audience to a lawyer in appropriate circumstances, it appears it may only do so to the extent that extant laws and/or rules allow.

Therefore, while not in any way downplaying the seriousness of counsel’s disrespect to the court, with respect, it is for the above reason that I find the order of the court, to wit, production of a certificate of mental fitness, too elastic and overstretched. Perhaps counsel did deserve his sanity to be questioned by the court, an invitation he willingly made by his unruly behaviour, I humbly think that the court went too far, outside the law (and precedents) to settle an act of disrespect by a lawyer for which the law has already provided what should be done in such a circumstance.

(ii) Should The Court Have Cited Counsel for Contempt Instead?

There is no gainsaying that no lawyer, whatever his rank, is permitted to disrespect the court in anyway, however minute. It is thus a breach of the ethics of the Bar and a professional misconduct for a lawyer to act disrespectfully or discourteously, especially before the court. Hence, “If a lawyer acts in contravention of any of e rules in these Rules (the RPC) or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in Legal Practitioners Act, 1975.” (see R.55(1) RPC).  Thus, “When in the court room, a lawyer shall conduct himself with decency and decorum, and observe the customs, conduct and code of behaviour and custom of practice at the bar with respect to appearance, dress, manners and courtesy.” (see R.36(b) RPC).  In the same vein, a lawyer shall “not engage in undignified or discourteous conduct which is degrading to a Court or tribunal.” (see R.36(e) RPC).

Again, it is possible for the same act of disrespect to the court, constituting a breach of the code of ethics of the Bar and a professional misconduct to also be sufficient enough to amount to contempt. While I do not intend to go into the philosophies and arguments regarding contempt of court, briefly stated, interrupting court proceedings is regarded a criminal contempt, and disobedience of court order a civil contempt. Both of which must be proved beyond reasonable doubt. The question is, should the court have cited counsel for contempt? There is no doubt in my mind that counsel’s insubordination interfered with, or interrupted court proceedings to the extent that the court had to go for a five minute recess. While this line of reasoning may sound harsh, perhaps it would have been much more in compliance with the law, if counsel were docked and invited to show cause why he should not be cited for contempt, and if found culpable, punished in accordance with the law, than resolving the issue in a manner more or less unknown to our law, as the court has done. I do not suppose that any such punishment would include production of certificate of mental fitness by the offending lawyer, the punishment for contempt being a term of imprisonment (which varies depending on the type of contempt) and/or an apology by the contemnor to purge himself of the contempt.

(iii) Should The Court Have Referred To The LPDC?

It has been held by the Supreme Court that where a lawyer disrespects the court, the act of disrespect “being sufficiently related to the pursuit of the profession, (and) is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence,” then, prima facie, he is said to be guilty of infamous conduct in a professional respect (see Re Idowu (1971)1 ANLR 128 at 132; NBA v. Alabi (2006)14 NWLR (pt.1000)841 at 857; S.12(1)(b) LPA).

In the case under consideration, I could only imagine how the Bar (and even the gallery) would have felt as they watched their brother’s stubborn attempt to bring the proceedings of the court to a standstill. In my mind I harbour no doubt that counsel’s act was sufficient enough to have attracted a referral to the appropriate authority (which may still be possible) for disciplinary measures. Were (should) this (be) done, counsel would eventually be invited by the LPDC to defend himself. And disciplinary proceedings would then run its course. And if found culpable, counsel may be derobed, or suspended from practice for a specified period, or admonished (see S.13 (2) LPA).

Again, even in this instance, though some of the punishments may have the effect of denying audience to the offending lawyer, it does not include the evaluation of the mental fitness of the offending lawyer, which the condition for production of certificate of mental fitness seeks to attain. More so, only the Supreme Court and the CJN (to the extent of suspension only) have original jurisdiction to so discipline an offending lawyer. (see S.13(1) LPA and S.13(3) LPA respectively).

Conclusion

For all it is worth, the conclusion of the matter is this; “A lawyer shall always treat the Court with respect, dignity and honour.” (see R.31(1) RPC). The RPC sets the standard to which every lawyer must accede to ensure discipline in the legal profession. And it is also part of the duties of the court, I think, to help police lawyers to see to the attainment of this cherished standard. Some of the ways the court can do this is to be quick to call out offending lawyers, admonish, caution, warn or reprimand them, report them to the LPDC for appropriate disciplinary action,  or deny them audience before the court, until they comply with or satisfy the law/rules in any particular instance.

However, in doing this, the court should be seen to comply with extant laws and rules. It is understandable that the court may want to shame an offending lawyer. Still, in my humble opinion, this should be done in accordance with the law. Of course, it was Oliver Wendell Holmes who wrote to the effect that it is for the courts to make law. To quote the erudite legal realist;  “…The prophecies of what the courts will do in fact and nothing more pretentious are what I mean by the law.” (Pragmatism, 1907). Yet, it will make for a better legal regime, I also humbly think, for the courts to always prophesy as though they are possessed (or anointed) with the spirit of the law.

Bizibrains, also known as Festus Ikechukwu Okpeh is a Barrister and Solicitor of the Supreme Court of Nigeria and specialises in general legal practice.. You can reach him on bizibrains@gmail.com