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
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