Jurisprudential Conundrum

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Economic and Financial Crimes Commission

Economic and Financial Crimes Commission (Photo credit: Wikipedia)

Jurisprudence is probably the most important subject of study for would-be lawyers and anyone trying to understand how legal systems work. Jurisprudence provides the “back-story”, if you will, to why we have the laws and legal principles we have today. Theories of state and government have led to laws guaranteeing the separation of powers of government, as well as representation in government by virtue of a people’s assembly. Similarly, the evolution of thought over time on what constitutes justice has also impacted on how different societies punish crime differently. This is why, for instance, amputation as a punishment for stealing and execution for murder are acceptable in some countries and not in others.

Our legal system, including our criminal jurisprudence, like most countries in the Commonwealth, was handed down to us by the British while Nigeria was a colony. This system of law is generally referred to as “Common Law” and countries that practice it are referred to as Common Law jurisdictions. Now, for most CLJs, crimes are punished to achieve the following purposes:

  • Retribution – that punishment must be the convict’s “just desserts” for committing a crime. In other words, the punishment meted out to the convict should be commensurate with the offence committed.
  • Deterrence – that punishment should discourage the convict from repeating the offence, and also serve as a disincentive to the community at large
  • Rehabilitation – that a component of punishment should be attempting to give the convict a different philosophy to life, such that he does not even want to commit the offence again.
  • Incapacitation – that, in appropriate cases, offenders who are too dangerous be removed from society, ostensibly to the benefit of the society.

According to the Judicial Commission of New South Wales (Australia is a member of the Commonwealth), the following are the reasons for which a court may impose a sentence on an offender:

  1. to ensure that the offender is adequately punished for the offence,
  2. to prevent crime by deterring the offender and other persons from committing similar offences,
  3. to protect the community from the offender,
  4. to promote the rehabilitation of the offender,
  5. to make the offender accountable for his or her actions,
  6. to denounce the conduct of the offender,
  7. to recognise the harm done to the victim of the crime and to the community.

(See here and here for enlightening discussions on justifications for punishment).

In its Strategic Plan for 2008-2011, the UK’s Office for Criminal Justice reform said

“The fundamental test of any justice system is its effectiveness in bringing offences to justice. This means that the prosecution is well-managed, the guilty convicted and the innocent freed in a way that meets the needs of victims and treats all sections of the community fairly…It means criminal justice helping to deter crime because offenders know that be caught and punished and ensuring that, when caught, they do not reoffend…The public needs confidence that offenders are being punished and that crime does not pay.”

This background is necessary for a fuller understanding of what happened yesterday, in the prosecution of one Mr. John Yakubu Yusufu (formerly (??) of the Police Pensions Office), for his role in the theft of N39bn of Police Pension Funds. Yusufu, in court before Justice Abubakar Talba yesterday, admitted his role in the theft of roughly N23bn of the stolen funds, in connivance with others. He was charged under section 308 of the Penal Code (of 1959) and was sentenced under section 309 of the same law. Consequent to his admission of guilt on 3 counts and allocutus on his behalf by his lawyer, Justice Talba sentenced Yusufu to 2 years imprisonment on each count (to run concurrently, ie cumulatively, only two years) with an option of a N250,000 fine on each count, forfeiture of 13 houses and the sum of N325m. Public indignation at the proceedings has been torrid.

Section 308 of the Penal Code says “Whoever dishonestly misappropriates or converts to his own use any moveable property, commits criminal misappropriation.” Section 309 says “Whoever commits criminal misappropriation shall be punished with imprisonment for a term which may extend to two years or with a fine or both.” Thus, while a 2-year sentence on each count is what the law prescribes, the use of the judge’s discretion to rule that the sentences run concurrently and then give Yusufu the option of a fine is probably what has confounded most observers.

If we look again at the purposes or justification for sentencing, it would be extremely hard to say that Yusufu was adequately punished or that his punishment will serve as a deterrent to other public servants. Rotimi Jacobs (SAN), the EFCC’s counsel is reported to have complained to Justice Abubakar Talba that the sentence makes a mockery of the EFCC and the Federal Government’s fight against corruption.

I am not sure the EFCC is without blame, however. A cursory glance through the same Penal Code also contains Criminal Breach of Trust offences. Section 311 says “Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts that property to his own use or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.” Section 312 says “Whoever commits criminal breach of trust shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.”

Of even greater relevance is section 315, which says “Whoever, being in any manner entrusted with property or with any dominion over property in his capacity as a public servant or in the way of his business as a banker, factor, broker, legal practitioner or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to a fine.”

Unless my understanding is wrong and a pension fund accountant is not one “entrusted with” the funds, I am at a loss as to why conviction was not sought additionally under these sections.

Perhaps a final mention should be given to Yusufu’s allocutus (his plea for leniency after his admission of guit). I am reproducing it, as reported by PMNews, in full –

Yusufu’s lawyer, Mr. Maiyaki Theodore Bala, in his submission after his client pleaded guilty, told the court that the conduct of his client had demonstrated remorse to the court and to Nigeria as a nation for breaching its laws.

 

According to him, ”By pleading guilty, the convict has shown respect to this court and have saved precious time of the court. The court will also find that he is a first time offender without any previous record of conviction, furthermore, he is the head of a family of four, a wife and 3 children, two of who are university students while one is a primary school pupil. These people depend on him for their survival and well being, including the payment of school fees. It is also pertinent to note that he has a chronic heart condition which has aggravated to a serious case of high blood pressure, a condition that requires frequent medical attention. His aged parents are still alive and due to old age, have attendant medical complications which require regular medical attention and both depend on him to deal with these.”

 

The lawyer also told the court that Mr. Yusufu had grown to become a community leader with a number of students depending on him for scholarships, these Nigerian children, according to him, will loose (sic) the opportunity if justice is not tempered by mercy.

 

Continuing in his plea for leniency for his client, Maiyaki told the court that going by the application for complete forfeiture of the assets and properties confiscated from his client, that the EFCC had taken everything from his client and he is left with nothing. He urged the court to exercise the discretionary powers granted it under section 309 of the Penal Code in favour of the convict and give him an option of fine so as to serve as incentive to the other accused persons to take the courage of coming forward to admit their guilt where one exists.

Now, while the primary purpose of allocution is to mitigate the sentence for the offence to which one has just pleaded guilty, is its purpose simply to get accused persons the most lenient sentence possible? Surely not. A child kills his parents but begs for mercy because he is now an orphan? Given the tragic history of pensions and pensioners in Nigeria, the unending tales of pensioners fainting (dying, even) on queues to collect their pensions, the anti-corruption rhetoric of the current federal administration and the huge injustice in N35bn of public funds simply vanishing, should any allocution (even if it were from the lips of the late Rotimi Williams himself) absolve any Nigerian pension thief of jail time?

The fight against corruption needs to grow some mean teeth. The prosecution must push for the most severe punishment available and the brotherhood of judges must censure their colleagues who pervert the course of justice. Our criminal laws, especially as they relate to graft in public office, need periodic reviewing. If, truly, the most severe punishment available for stealing public money is a 2-year jail term commutable to a fine of N250,000, do not be surprised if the queue to confess suddenly elongates, with these criminals smiling all the way back to their banks.

Trademarks 101

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WHAT IS A TRADEMARK?

A trademark is a logo or a combination of words (or even words plus logo) that distinguishes the goods and services of one person from those of another. Trademarks, over time, also assure consumers of the origin and quality in the goods being purchased and can therefore be very valuable to a business or a proprietor. A registered trademark confers on its owner the right to exclusive use.

 

IS THERE A SYSTEM FOR REGISTERING TRADEMARKS?

Trademarks are registered in respect of distinct classes of goods and services, according to what is known as the Nice Classification. The class in which a trademark is registered depends on the goods or service in connection with which the proprietor intends to use it. As a result, trademarks can be registered in respect of more than one class of goods and/or services. For instance, a business that produces clothes, perfumes and printed material would need to register its trademark in three separate classes.

 

IS EVERY TRADEMARK REGISTRABLE?

No. Marks that are offensive or contrary to public policy are likely to be rejected. In addition, marks that are descriptive or generic are also not registrable. An example of a descriptive or generic trademark is “PURE WATER” in respect of bottled water. Because the trademark describes the product, it cannot be said to be distinctive and distinctiveness is the underlying principle here. Permitting “PURE WATER” to be registered as a trademark in this class would also be unfair to other manufacturers of bottled water, as they would not be able to use the words on their labelling.

 

WHAT IS THE PROCESS OF REGISTRATION?

The trademark to be registered is submitted to the Trademarks Registry (‘the registry’), with application forms and an application fee. The registry acknowledges the application with a ‘Notice of Acknowledgement’ and assigns the application a (temporary) application number. The registry then conducts a search on its register to ensure that the application is not confusingly similar to an existing trademark. If it is determined that the application is too similar or there happen to be other grounds for rejecting the application, a ‘Notice of Refusal’ is issued, stating the registry’s reasons. Otherwise, a ‘Notice of Acceptance’ is issued. If the application is refused and the applicant  is dissatisfied with the grounds of refusal, he can write a letter to the Registrar of Trademarks, requesting a review of the registry’s decision.

 

Once the application is accepted, the next stage is publication in the trademarks journal. The purpose of the journal is to give existing owners of registered trademarks the opportunity to oppose any application they feel is confusingly similar to their mark. They must do this within 2 months from the date the journal is published. If the application is opposed, opposition proceedings in the form of a mini trial are held to determine whether or not the application should be registered. If the application is not opposed within the stipulated time-frame, the owner can apply (with forms and application fee) for the certificate of registration to be issued.

 

HOW LONG DOES REGISTRATION LAST?

Registration is valid, in the first instance, for 7 years. Upon renewal, it is thereafter valid for periods of 14 years in perpetuity (i.e. for as long as the owner wishes).

 

 

WHAT CAN A TRADEMARK OWNER DO IF HE SUSPECTS HIS MARK IS BEING INFRINGED?

Trademark infringement is a very serious matter. The whole point of intellectual property protection is to ensure that owners enjoy the fruit of their mental exertions. Trademark infringement is effectively making use of (or stealing, actually) the goodwill the public attaches to a trademark in the delivery of the infringer’s goods or services. Examples of infringement abound; Sunny Electronics, for instance, or MackBerry phones.

 

If an owner suspects another’s infringement, it’s probably best to get in touch with a lawyer as soon as possible. The lawyer will assist the owner with investigating the infringement, gathering evidence of the infringing goods on the market and establishing their source. Then, depending on the nature, gravity or the scale of the infringement, the lawyer will decide if the best strategy would be a mere cease and desist letter or whether instituting legal action, obtaining court orders or conducting a seizure raid with the help of the police is the best line of action.

 

If a court action is successful, one of the orders the court can make is that the infringer hand over all the profits from the infringing goods to the rightful owner of the trademark, in addition to requiring him to destroy any remaining stocks.

 

IS EVERY TRADEMARK WORTH REGISTERING?

Technically, this isn’t a yes or no question – it depends on one’s long-term strategy for the company or business. If your product is going to be a “one-off” or isn’t in your primary line of work, then you would have to weigh registration costs against (realistic) projected earnings. If, on the other hand, the product or service to be trademarked is the thrust of the business, or you’re running a multifaceted business but want to ensure that consumers realise that the various products are from the same origin, then it is well worth registering one’s trademarks.

 

Perhaps what should also be borne in mind is that if an owner’s trademark isn’t registered, the owner can only sue the “infringer” for ‘passing off’ and not for infringement, and the remedies for infringement exceed those for passing off.

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(IL)LITERACY IN LEADERSHIP

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The Nigerian quest for leadership continues and, unfortunately for progressives, zoning and entitlement to others standing down so that a particular region can enjoy its turn to produce the next president is the current preoccupation of the ruling elite and the chasing pack. The pro-zoning argument is mostly that it corrects marginalisation and encourages “a feeling of belonging”. As there is a gaping lack of evidence that any region has benefitted from being the sitting president’s home-region, one must question what exactly those who protest it are being marginalised from?

 

The North (I use these geo-political groupings only very nominally) has produced the majority of the country’s heads of government post-Independence. The consensus is however that it is largely the region lacking the most in infrastructure, education and several other key development indices. The South-West had its own turn but no one can point to the exclusive benefit this conferred on the region during those eight years. The incumbent is from the South-South and it would also be hard to point to anything that has accrued to that region specifically. What then can the accusation of marginalisation be in reference to, if the regions do not enjoy special benefits for producing the president? This zoning argument also scales down to politics at the state level, where the governorship “must” be rotated between the different regions that comprise the states. Marginalisation apparently also exists at the state and local government levels too. The majority of the country must therefore be suffering from this malaise of marginalisation at every point in time.

 

My guess is that it is not the benefits that would accrue to the region that these marginalisation politicians refer to. It is more than likely to be the benefits that accrue to the members of the office-holder’s circle of trust and their hangers-on – the ability to influence appointments (and accumulate political capital), the potential to increase their own personal wealth and [in the tiniest of whispers] the opportunity to assist with how looted funds, if any, will be laundered.. If the President or Governor emerges from your region, you can expect a handsome personal reward depending on how close a friend you are or how prominent a role you played in his election. The cry of marginalisation cannot have very much to do with the progress of the officer-producing region.

 

It is extremely idealistic but I am hopeful that one day, marginalisation will cease to be the motivation or justification for a candidate’s eligibility, and the most important factor in our choices at the ballot will be the quality of the candidate’s learning and the strength of his character. I have often wondered whether the prosperity of the world’s richest nations has anything to do with how well-educated their leaders are. I finally did some digging this week and the results are in the table that follows. The table tries as much as is possible to either go as far back into time as 1980 or, where the information was not readily available, to list the last four heads of government. The table omits schools outside the US and the UK, as most of us (Nigerian readers) are unlikely to be familiar with their pedigree.

 

Name of Head of Government

Profession/Education

  
UNITED KINGDOM  

David Cameron

 Oxford University, 1st Class in Philosophy Politics & Economics  

Gordon Brown

 1st class History

University of Edinburgh, PhD History

  

Tony Blair

 Oxford, 2nd Class BA Arts, later became a barrister  

John Major

 O-Levels, Correspondence course in banking  

Margaret Thatcher

 Oxford, 2nd Class Honours BSc Chemistry, later became a barrister

 

  
UNITED STATES OF AMERICA  

Barack Obama

Columbia University (Political Science, International Relations); Harvard Law School

  

George W. Bush

Yale University (History), Harvard Business School (MBA)

  

Bill Clinton

Georgetown University (BSc Foreign Service); Oxford (Philosophy, Politics & Economics); Yale Law School

  

George H. W. Bush

Yale University, BA Economics

  

Ronald Reagan

Eureka College, BA Economics

  
GERMANY  

Angela Merkel

PhD, Physical Chemistry

  

Gerhardt Schroeder

Law

  

Helmut Kohl

History & Political Science

  

Helmut Schmidt

Army conscript

  
FRANCE  

Francois Hollande

Political Studies

  

Nicolas Sarkozy

Law

  

Jacques Chiraq

Political Studies

  

Francois Mitterand

Political Science

  
JAPAN  
Shinzo Abe Political Science, Public policy  
Yoshihiko Noda Political Sciences & Economics  
Naoto Kan Patent Attorney  
Yukio Hatoyama PhD, Industrial Engineering  
Junichiro Koizumi Economics  
SWEDEN  
Fredrik Reinfeldt Business & Economics  
Göran Persson Social & Political Sciences (didn’t graduate)  
Ingvar Carlsson

 

 Diploma in Business Economics, BSc in political science  
AUSTRALIA  
Julia Gillard BA, Law
Kevin Rudd BA Arts, Asian Studies
John Howard BA, Law
Paul Keating (No higher education)
Bob Hawke BA Arts, Oxford
SINGAPORE
Tony Tan BSc Physics (1st Class)

MSc, MIT

PhD Applied Mathematics

  
S R Nathan Social Studies  
Ong Teng Cheong Architecture  
Wee Kim Wee Journalist (Political Features)  

 

There is a preponderance of degrees in political science, law, business, economics and arts (with Singapore throwing its own unique party). Leaders educated in the science of statehood, jurisprudence, commerce and humanities. Of course, this is incomplete, almost half-arsed, data and not much can be gleaned from it. For instance, we do not know from this table if the citizens of these countries prefer leaders with this sort of education or whether it is each country’s political infrastructure that ensures that the cream rises to the top. The table does not examine the presidents’ cabinets and the quality of the team they are surrounded with. We cannot tell if the countries are rich because their leaders are well-educated or whether the leaders are well-educated because the countries are rich.

Regardless, there does appear to be a correlation between the level to which a country’s leaders over time have been educated and how prosperous the country is. This is more so when Sub-Saharan Africa (in which a huge number of the world’s poorest countries are located) is examined in a similar vein and we see several countries that have been pillaged [mostly] by soldiers in the period under review. The soldiers that have usurped civilian rule have also mostly not been of the senior ilk – coups are rarely planned by generals. Many of these countries have also endured long stretches during with the same head of government. Imagine a first-year medical student performing heart surgeries, and answerable to no one for the inevitable cock-ups.

Going forward, while I realise that the “masses” probably do not care much for what university the president went to nor, indeed, if he even went at all, the nature of candidates’ education must be taken into greater consideration. It should come as no surprise, for instance, when people who know nothing of the theories of state get onto our television screens and spout heresies. How can we expect such people to be aware of their own responsibilities in the social contract? When merit is perpetually sacrificed on the altar of marginalisation, how can we expect progress or growth? Perhaps our change advocacy needs to make much more of an issue of this.

 

 

Before We Abolish the Senate

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In recent discussions on the need to cut down the size of government and its expenses, many have questioned whether it is necessary to have two federal houses of parliament. After all, goes the argument, they are virtually never in disagreement with each other. The ruling party controls both chambers and thus, any notion of one operating as a checks and balances mechanism against the other is mere fiction – one set of lawmakers is clearly redundant.

It is tempting, in the red mist of revolutionary fervour, to align oneself with this position and demand, on the singular basis of unnecessary expenditure, that one of the legislative chambers be abolished.

However, we know from basic economics that apart from cash cost, there is also an opportunity cost to be considered when allocating scarce resources.

To ascertain the opportunity cost of moving to a unicameral legislative system, one must first understand the thinking behind designing legislatures to consist of two chambers. My research suggests that there are at least two cogent reasons for it – philosophy and representation.

On the underlying philosophy, NYU law professor, Jeremy Waldron, in a very informative paperwhich I urge every “change agent” to read, begins his discussion with an interesting anecdote, which I have reproduced in full: ‘Herodotus and Tacitus report that the ancient Goths of Germany, when they had to decide anything important – like going to war, or moving their settlements or entering into a treaty – they would debate it not once but twice. The first time, they would debate the issue drunk, the second time they would debate the issue sober. Drunk – to give a bit of vigour and spirit to their deliberations; sober, to add a dimension of prudence and discretion.’

These ancients believed in the wisdom of two different approaches to considering an issue, almost in the style of two-heads-are-better-than-one, with the expected consensus hopefully being somewhere in the middle of the two ‘ideological’ extremes. The idea was also to guard against the likely tyranny of a legislature with no checks.

There is also a less politically correct thesis, which in spite of its inherent classism still rings true.

The fact is if true democracy is really practised, it would result in the supremacy of the will of the masses/the mob (as the majority) over that of the minority elite. Even for the rigid idealists, it is clear that the affairs and policies of state cannot be left exclusively to the will of the majority.

The history of the US Congress provides an excellent example of how bicameralism serves to ease fears of lopsided representation in the legislature. At the constitutional convention, delegates from smaller states were fearful of having no voice in government and advocated representation on an equal basis regardless of the size of the state. Larger states insisted on representation based on population and the convention seemed headed towards gridlock. The bicameral system solved both problems. Each state got an equal number of senators, with the number of lower house representatives being determined by population.

To recap, therefore, bicameralism guarantees against the subjugation of smaller constituent members (population wise) and should also serve as a wiser, calmer counterfoil to the effervescence of the will of the people.

If, in the quest to reform the legislature, we were to opt for a unicameral assembly, what would we be gaining apart from the expected savings in salaries and emoluments?

Currently, we would not be losing much. The president’s party, the PDP, has the majority of the seats in both houses and is therefore the party from which the speaker and the senate president are drawn. Apart from the dispute, a few years ago, over which house was the ‘lower’ house, the two houses have taken identical positions and reached identical conclusions on the issues and laws they have considered.

The senate can hardly be said to have been a calming, more enlightened voice on the house of representatives. The house of representatives itself can hardly be said to be the voice of the masses, there being very little difference in the ilk of members of both houses and the distance between the electorate and those who have represented them so far in this dispensation.

Taken with the relatively insignificant number of laws that would facilitate development and the huge amounts spent on legislators’ remuneration (which embarrasses them to anger each time they’re reminded),  bicameralism does not appear to have demonstrated any of its touted benefits in Nigeria, since the current democratic dispensation began in 1999.

But democracy and reform should be about building enduring institutions. We should be working towards the answer we want, rather than away from what we find undesirable. The distinction between the two is very fine but it exists nonetheless. If each manoeuvre we make seeks to neutralise what we perceive as bad rather than establish the good we desire, we run the risk of ‘playing’ what Arsene Wenger refers to as ‘anti-football’ and establishing an ‘anti-democracy’ – establishing democratic institutions that are primarily designed to handicap government rather than a system for the ages.

Our discussion must therefore not simply be about the financial cost. There are undoubted benefits to bicameralism.

Rather than jettisoning bicameralism, could we think instead of maybe tweaking the version we currently practice to bring it closer to what would be best for us?

Could the constitution be amended such that the Speaker and the Senate President never come from the same party?

Can there be a default number of people-sponsored bills that must be debated each year in default of which the bills pass as presented?

To truly make the senate a bedrock of wisdom, can we work towards minimum educational/experience requirements for would-be senators?

Are there other measures we can employ to ensure that allowances and sham investigations are not all our legislators are preoccupied with? If the answer to all these questions is a resounding no, then perhaps there truly would be no further point to two legislative houses and our dialogue can then move on to creating the best unicameral legislature possible.

 

This piece was first published in TheScoop.

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200 Broken Covenants

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On the final weekend of the year 2012, we awoke to the news that Covenant University had expelled roughly 200 students for the gross malfeasance of missing the final church service of the semester (or “term”, some would say). One by one, people trooped into the village square that is Twitter to air their views. The more popular trend of thought was that if indeed there was a violation of school rules (again with the secondary school terminology), the punishment was egregiously excessive. This was more so because the news report suggested that the students were only expelled because the Chancellor of the school was especially angry at the poor attendance at church and the expulsions were summarily handed out.

At the other end of the opinion spectrum were people who believed, given that the expulsion letters reportedly cited violation of a section of the university’s student handbook, that people generally know what they’re signing up for when they enrol at Covenant University and students who knowingly break rules ought to face the punishment.

In the middle, a position taken by many of my learned friends (a cautious lawyer, what a cliché), were people who decided to reserve categorical comments until they had seen the wording of the rules allegedly broken and the punishment prescribed.

Eventually, some wording emerged but not from Covenant University. Some, of the excessive impunity camp, believed they had found support for their position on the website of the National Universities Commission (NUC). According to the excerpt, “(1) A proposed institution shall have an adequate environmental base and shall be open to all Nigerians irrespective  of ethnic derivation, social status, religious or political affiliation. (2) Accordingly, its laws and status shall not conflict with the conventional responsibilities in academia or interfere with avowed traditional institutional autonomy.” Much was made of the first of these two requirements but, for me, it does not go much further than the issue of a candidate’s admissibility into the institution.

Shortly after that, a screen shot of a very pertinent section of the student handbook, the contents of which students reportedly sign to adhere to, began to circulate, the text of which is reproduced in full below.

  • [Unclear but presumably a list of school assemblies]
  • These assemblies are mandatory for all students.
  • No student is allowed to remain in the rooms whenever there is a university General Assembly
  • Any student caught in the hall of residence during any General Assembly shall be issued a letter of warning and may be expelled if the act becomes habitual.
  • Any student caught in the hall of residence during any General Assembly, particularly Chapel Services, Sunday Services and variety Night shall be suspended for four (4) weeks at the first instance and may suspended for One (1) academic session or expelled from the University if the act becomes habitual by being caught twice for this same offence.

This last text puts paid to any controversy. Every organisation, even a religious one, must be governed by rules. These rules cannot be subject to the effervescence of the governing authority’s temper, no matter how divinely we may choose to believe it is being inspired. That is the recipe for chaos and anarchy. What is more, the typical university, private or not, has a proper governance structure. The Vice-Chancellor is the head of administration, with the professors and other senior academics forming the senate. The senate is usually the supreme disciplinary body on campus. It is extraordinarily strange for a student (let alone 200) to be summarily expelled (ie without a disciplinary hearing) merely because the Chancellor (the ceremonial head of the university) commands it. A university that charges top naira for tuition cannot be run like a fiefdom.

However, the reality is that 200 students have been expelled. Two hundred young adults have had their dreams, ambitions and lives truncated without due process being followed. In fact, expulsion isn’t available to the University, even for “habitual” offenders. It is also unclear if the University bothered to sift habitual offenders from first timers. What can these students do about their situation? The idea of a law suit has been bandied and the students would be well within their rights to pursue legal redress. However, they need to be mindful of the fact that law suits in Nigeria take time to reach a conclusion. If Covenant University chooses to appeal a most likely unfavourable judgment (and this isn’t too far-fetched if the Chancellor is as given to whims as the reported command to expel 200 students suggests), they could very well be in court until 2018. Litigation should be the last resort, when all else has failed.

The first step would be to write to the University’s Council, requesting a reversal of the expulsions, highlighting the fact that the punishment meted out was far in excess of what the University rules stipulate. This is not only inappropriate, it is also unconstitutional (s. 36 (6) (8), 1999 Constitution). A copy of the letter should be sent to the head of the NUC, also requesting its immediate intervention. The parents of these students also need to pool their resources together to wage a public relations campaign to get Covenant University to reverse these expulsions. Publish the expulsion letters side-by-side with the relevant sections of the student handbook. Nigerians are typically fearful of ‘victimisation’ but you/your child currently stands expelled – what’s the worst the could happen?

Everyone else who is concerned must also apply as much pressure as they can. Focused, articulate, logical pressure, showing that while we appreciate the need for discipline and conformity to laid down rules, we are also trying to build a society in which constituted authority respects the confines of its power within the same legal framework.

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Navy KabuKabu: The Three Other Fingers

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I grew up in what possibly remains, the sanest, most morally upright university campus in Nigeria – the University of Ibadan. I graduated from UI 10 years ago and, especially at that time, the code of ethics enforced by the old guard, many of whom are sadly approaching their terminal 70th year now, was such that vices like handouts-for-profits, sex-for-grades and victimisation were fiercely resisted. This old guard comprised academics who themselves were undergraduates at UI in its glory days and, afterwards, all seemed to find funding for post-graduate studies at the very best universities in the US and Great Britain. Almost a Knights Templar sort of elite, if you like. If your hands were clean, as a student (or a junior member of staff), you could certainly approach equity and equity would rise up in the sturdiest defence of your rights possible.

However, even in the midst of this austere probity and uprightness, there was plenty of the sort of behaviour that many have condemned in the past few days as “abuse of office”. For instance, if someone needed to attend a wedding or funeral outside Ibadan and (as was frequently the case back in the day) they didn’t have a car capable of doing interstate journeys, it was not out of place for one to speak to a friend who was a dean or head of department to borrow an official car and a driver, provided one fuelled the car and ensured the driver received a gratuity for his ‘overtime’. It was not a big deal.

Outside academia, even till the present time, it is not uncommon to find buses with government plate numbers ferrying large numbers of people to and from social events; events that have nothing to do with the official business of the government ministry or department – usually birthdays, weddings and funerals. Many would not give it a second thought or consider it unlawful use of government property.

The same thing probably happens in private establishments. Without thinking about it, many convert business resources to personal use. We’re on social media (or searching for other jobs online) on company time, we download music using the company’s bandwidth, we use the printers and photocopiers to copiously print private material, we use the company phones to make non-business calls, we run our on-the-side business with company resources and so on. Not a big deal either, right?

The fatal helicopter crash of the past weekend has caused many people to question the propriety of using  a naval helicopter to ferry guests between Port Harcourt and Oronto Douglas’s village. The question has been asked with such tenacity that it seems many consider it the issue on which everything around the crash turns. I don’t think the commandeering of the naval helicopter by personnel from the Presidency is any different from our penchant as a people to take advantages of privileges that are available to us. I also don’t think it matters as much as whether or not the aircraft was airworthy or verifying claims that it exploded mid-air rather than crash-landed.

Government must be kept on its toes and remain accountable, yes, but surely this is one of those “living in glass houses” and stone moments. We’re incensed and pointing angrily at the Presidency but, on this occasion, I believe the proverbial three fingers are pointing back at us. As we seek to reform government, we must be mindful that perhaps the greater fight is reforming ourselves, the pool from which government is drawn.

*Braces self for invectives*.

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Good King Flashoslas

/ Scribe of the Tword / 1 Comment

 

Flashoslas

 

Good (?) King Flashoslas looked out o’er the Lekki people

With the 4-eyed man he thought, let us fleece the people

Widen roads and build a bridge, then exact full measure

For a quarter century, jingling pockets, pleasure.

 

What if they revolt, F said, could we still withstand them?

Do not fret your little head, we will just disband them.

Bring out tanks and sub-machines, gas to end their gathering

When they beat a full retreat, there’ll be no more blathering.

 

And, the 4-eyed man went on, see their feeble leaning

Gutless, rudderless and poor, full of empty steaming

They are well-renowned, you see, for a deep resilience

After feeble mutiny, they’ll accept their sentence.

 

-Timmy Flowers, 1734 -1862

Endangered Specie: Save the Side-Mirror

/ Scribe of the Tword / 3 Comments

The Lagos side-mirror is endangered and someone has to do something about it. Every car comes off the assembly line with two unique side-mirrors, the beginning of a life-time ménage a trois. The car and the side mirrors work hard together under the hot sun in the traffic, huddle together in the rain and enjoy those long, moonlit nights in each others’ company. In Lagos, this happily ever after almost never is.

Wing mirror VW Fox

Wing mirror VW Fox (Photo credit: Wikipedia)

 

From the days of area boys smashing the side-mirrors of “one-way” infringers, to one-side mirror being stolen at wedding receptions (why just the one?) to okadas scratching them in every single go-slow , the Lagos side-mirror has suffered violence and the violent keep triumphing by their force. Lagos has now been rated 300th out of 299 cities surveyed for the likelihood of cars to be scrapped with the same two mirrors (10+ years of use) with which it left the manufacturer’s warehouse.

Only today, I lost my second side-mirror in three years. I was at the front of the queue at the traffic lights. Once the lights turned green, the cars in my lane (on the right) would go forward and the cars in the lane to our left would turn left. Easy, no? Well, the lights turned green and, out of nowhere, this construction truck raced up and tried to squeeze itself in between my car and the median in the road. It almost succeeded. The measure by which it didn’t make it resulted in the smashing of the side-mirror on the driver’s side of the car. I swear I virtually heard my car heave a moan of despair at its bereavement.

 

 

Side mirrors are easily damaged

Side mirrors are easily damaged (Photo credit: Wikipedia)

 

At that unfortunate moment, I snapped. It was the final straw, you know, the one that broke the camel’s back. How much longer will we stand by and let the dregs of society continue this inhumane action against side-mirrors and their owner cars? How many more vehicles will go through the traumatisation of losing their assembly-line mirrors? Apart from affecting their sense of perspective and hindsight, other studies show that 73% of Lagos-based cars find it harder to concentrate for the first 13 months after an assembly-line mirror is replaced. The statistic goes up to 93% when the replacement side-mirror is a “Made in China” tokunbo. A few cases of loss of horsepower have even been reported but studies are currently inconclusive.

The time has come to pool all our collective goodwill and money into the brand spanking new NGO I’m about to register (the MirrorMax Movement) and let’s save the assembly-line side-mirror. The MirrorMax Movement will take donations from sympathetic members of the public and plough it into the development of the MirrorMax MirrorCush™ (patent pending). This revolutionary device creates a protective force-field around side-mirrors, ensuring that even if the car is smashed by a speeding train, the side-mirrors will always remain attached to the car. Until the very end, when crushing does them part.

Given the data available to us at MirrorMax, the business of this NGO is extremely urgent and needs to be taken expeditiously across all the motoring locations in Nigeria and, eventually, to the ends of the earth. Going by the Doctrine of Notorious Facts, this clearly means that one of our most pressing needs is a private jet, as we have no time to lose. If you feel as strongly about saving the precious vehicle/side-mirror relationship as we do at MirrorMax, then you must give violently – the earlier it seems like we’re reaching our targets, the better. Side-mirrors are counting on us to stop the genocide. Will you stand up and becounted?

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A Judicious Judiciary

/ Scribe of the Tword / 9 Comments

Professor Charles Debatista, in his Carriage of Goods and International Trade classes, would always remind us that the wheel on which all trade, domestic and international, turns is the principle of pacta sunt servanda – that promises must be kept. If I do not have the confidence that you will uphold your end of a bargain, or that there is a reasonably quick recourse for me in the event of your default, there is no logical reason why I should enter into a commercial relationship with you.

One of the very first questions intending international investors or their lawyers ask in pre-incorporation due diligence is “Do Nigerian courts uphold agreements freely entered into by Nigerians with non-Nigerian parties?” Typically, the question that would follow is “If yes, how long does it take, on the average, for lawsuits for the enforcement of contracts to be concluded?” It was very easy then, to casually respond that the average lifespan of a suit at the court of first instance is 3-5 years, with appeals to the Court of Appeal and the Supreme Court lasting another 2-3 years each, on the average. The math is hard to ignore, however. You could very easily be in court for 10 years trying to get someone to keep his end of a bargain. And even if you had 10 years to fritter away, there are no guarantees that you would be able to afford to keep paying your lawyer for that long.

The negative consequences of a judiciary with this speed of enforcing contracts are quite a few. I have previously retold here how an employer dared his expatriate employees to go to court to claim the 6 months’ arrears of salary he was owing them. Even though they had fixed contracts for 2 years, on the basis of which these workers relocated to Nigeria, this employer called their bluff. Unable to afford the cost or time of a trial, one by one they slunk back to their respective countries. However, this was even on a relatively small scale. An investor bringing in, say, $300million dollars wants to know how quickly he can cut or recoup his losses in the event that his Nigerian partners default on their obligations.

In addition to anecdotal evidence of the consequences of a slightly sluggish judiciary, empirical studies, as reported here (Doing Business – Enforcing Contracts 2013) and here, show that a judiciary that resolves commercial disputes in a timely and cost efficient manner is crucial to a healthy economy. The studies suggest that “countries with slower judicial systems, on the average, have less bank financing for new investment” and that “financial intermediates are likely to reduce the amount of lending if the ability to collect on debts is no longer given or obtaining control over property as collateral to secure loans is denied.” The latter part of the preceding sentence is evident here in Nigeria, where the consensus amongst small business owners is that it is extremely difficult to obtain affordable finance or credit from banks for their businesses.

Table culled from the Doing Business Report

Speeding up the judicial process will also be critical to resolving at least 2 current front-burner issues – corruption in government and the lack of respect for the Rule of Law. The chairman of the Economic and Financial Crimes Commission was recently reported to have expressed frustration with the ability of high profile (political/government) suspects to delay their trials. His lack of faith in the country’s judiciary is shared by the millions who would rather exact summary justice on suspected robbers or rapists than hand them over to the authorities to be investigated and charged.

Nigeria is ranked 87th out of 185 countries in ease of enforcing contracts and 8th most improved since 2005

Speedier prosecutions would lead to many positives. Wrongly accused persons would no longer waste half their lives away in police and prison cells awaiting trial. Public officials would be deterred from stealing public funds because there would be less time to manipulate (or be perceived to be manipulating the system).  The confidence of citizens in the judiciary would also be restored.

So how do we accelerate the dispensation of justice? Let us take a look at Singapore, ranked the easiest country in the world in which to enforce contracts (download data here and sort in descending order) and, coincidentally, also the best country for doing business. In this speech by one of its Justices of the Supreme Court in 2009, the history of the country’s judicial system is recounted, along with the steps taken to reform it and expedite the resolution of civil cases. To summarise, Singapore did the following:

  • Appointed more judges
  • Changed rules of court to empower courts to be more proactive in the management of cases
  • Denied adjournments
  • Gave hearing dates to moribund cases
  • Expanded jurisdiction of subordinate courts (e.g., in the Nigerian context, magistrate and customary courts) in terms of subject matter and size of monetary claims
  • Set and maintained target timelines and benchmarks, for example –
    • Seek to dispose of all cases within 18 months of filing
    • Seek to dispose of more cases than are filed every year, disposing of a number equivalent to 104% of cases filed in 2007)

In Nigeria, Lagos State is easily at the forefront of judicial reform, especially with the appointment of judges and the expansion of the jurisdiction of subordinate courts. Lagos State judges are also mandated by current civil procedure rules to encourage parties to a dispute to settle prior to a full hearing. However, courts in Lagos are still very congested, indicating that there still might not be enough judges. We are provided with an idea of what would be an acceptable ratio of judges to the population in this article on litigation and delays in the Indian judiciary. The article reports that as far back as 1987, the country’s Law Commission had recommended a ratio of 107 judges per million citizens. It is instructive that while India was planning (in 1987) to achieve this target by 2000, the USA had already achieved it in 1981. Another piece, also from India, compares India’s judges per 100,000 to the ratio in “well-administered” countries. The information is reproduced in the table below.

Country No. of Judges/100,000
USA 11
Sweden 13
China 17
Belgium 23
Germany 25
Slovenia 39
India 1.2

What, then, is the current ratio of judges to Nigerian citizens? I spent over an hour trawling through various judiciary websites and even the site of the National Statistics Bureau, with no luck finding out the number of judges (including customary court judges and magistrates) that we currently have in Nigeria. But, making assumptions, on the premises explained below, I reckon we have about 4,000 -5,000 “judges” at the very maximum.

The Supreme Court currently has fewer than 15 justices out of a constitutional maximum of 21 but let us assume a full court. There are currently roughly 70 justices of the court of the court of appeal but let us assume a bloated estimate of 100 judges for both courts. There are also roughly 70 judges of the Federal High Court. Each state has a State High Court. If we use Lagos as a benchmark, with roughly 50 judges per State (an unreasonably high estimate given that there will be several States nowhere near as busy as Lagos, but you’ll soon see where I’m going with this), that is 1850 state High Court judges for all the states and Abuja. This gives a total figure of 2,020 judges. If we then doubled the figure to accommodate judges of the National Industrial Court, judges of the customary court and the customary court of appeal, as well as magistrates, we would have an estimate of roughly 4,000. Thus, even if we assumed a figure of 5,000 judges for a population of 160 million people, the ratio is 31 judges per million individuals (or 3.1 per 100,000), approximately a third of the Indian and American ‘optimum’. The argument for more judges however, needs to be counter-balanced with the need to ensure that the integrity (not in the context of ‘honesty’ – see speech here where the former Chief Judge of Nigeria remarks that expanding the size of the Court of Appeal has led to conflicting judgements) of the system isn’t compromised or lost.

I realise that the references from which my conclusions concerning the judiciary have been drawn were primarily focused on civil proceedings but I see no reason why the same measures cannot be applied to the congestion in the criminal justice system as well. I realise too, however, that the criminal justice system also includes the police. On police reforms, I will again refer readers to the most comprehensive discussion of which I’m aware on the subject, here.

The government has taken many measures to convince foreign investors that Nigeria is a good destination for their money. The Minister of Trade has introduced accelerated the process for obtaining business visas, while the Minister of Aviation also recently announced an investment road-show. The government can give as many assurances as it wishes but it is clear that reducing the speed at which the wheels of the judiciary roll will be one of the most significant steps that will be taken.

FLYING SOLO

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When I quit my old job to go into solo practice, I looked for every single piece of advice I could find, to be sure I wasn’t being foolish. There was a lot of material on the internet about “flying solo” but it was all from the UK and the USA, which is fine until you remember that many of your colleagues studied law thinking life would be like Matlock after graduation. We all realise, a little too late, that Nigerian legal practice is nothing like Matlock.

I was 6 years post-call at the time and while most colleagues, family and friends thought it was “brave” and “a good decision”, the Partners at my old job advised against it and urged me to reconsider my decision for different reasons. One thought it was premature, another suggested I would be unhappy with the type of work I would “regress” into and yet another predicted that a liquidity crunch was coming and even they were apprehensive of what the year ahead had in store for them. At the time, vanity convinced me they just didn’t want me to leave their employment but, three years later, I see that there was some objectivity in their remarks. The almighty liquidity crunch did come (seemingly to stay) and there has been significantly less M&A/Financing/transactional work than I’d anticipated/had grown accustomed to. Was my departure premature? Not really, but I see what my old boss meant.

My Constitutional Law lecturer, the late Professor JD Ojo, would frequently observe in his classes (and also in his capacity as dean of the faculty) that “the practice of law is for the rich”. We were in our late teens and early twenties at the time and reactions to the statement were varied. Prof Ojo studied for his masters and doctorate degrees at the University of London but wasn’t himself a “wealthy” man by most standards, at least not before the Abdul-Salam/Obasanjo transformation of the wages of academics. Thus, people wondered whether or not he saw the irony in his remark. Others were angry at what they perceived a condemnation to a life in penury, given their humble backgrounds. When it was made mandatory for law students to dress in monochrome with proper footwear and we all protested (at different things, including the cost of new wardrobes), Prof Ojo reminded us “without any apologies” that law is for the rich. I have come to agree with him, in a sense. I will return to this point later.

Given that I haven’t been flying solo for that long yet, is there any advice that I can give to someone considering leaving the nest? Let me try. I won’t get into marketing, networking or business development as I’m assuming every new business owner has some strategy or the other for this at the inception of their business.

1.       When is a good time to quit the old job and fly solo?

People leave big law firms for different reasons. Some are terminated and physically pushed out of the nest. Some grow tired of the monotony. Some find themselves on the cusp of an opportunity and need to be masters of their own time to effectively pursue it. Others are fed up with verbal abuse from their bosses.

It’s important to leave for the right reasons and at the right time. I think the best time to leave is when you can afford to leave: young enough to start a business and, in the event that it fails, still be young enough to be employable; if you have a family, they need to be able to remain comfortable while you find your feet; or you leave when you’re already earning so much money on the side that you’re no longer dependent on your salary (kind of like Lagos and Rivers States re federal allocations).

2.       Perseverance

Unless you’re from a wealthy family, with a wealth of ready connections to people in positions that can dispense quality work, it’s likely your stabilisation period will be fairly tough. This is probably where I agree with my old dean. It is much easier to practice law properly with a safety net(work) of family pedigree and all the perquisites that come with it. Otherwise, you need to keep plugging away at it. Persevere Until Success Happens (*kind of stolen jingo*).

3.       “Dirty Work”

There is a great deal of sleight-of-hand and smoke and mirrors out there. You keep seeing this chap who was called two years after you, yet he’s driving Range Rovers and Jaguars. If he’s not a trust-fund baby, chances are he’s a property wheeler-dealer (big ticket transactions rarely trickle down that low). Now, the purist in me hates showing people round empty houses – that’s an estate agent’s work. But there’s an opportunity cost to being a purist. And, positioning yourself to contend with bigger law firms costs money. Sometimes, therefore, you do what you have to do. Again of course, who you are, who you know and who you’ve come to know are also all very important here.

4.       Be an Authority – Be the “Go-To”

If you’re keen to practice law properly, it’s probably best to be well-renowned in your field of practice before you go solo. Yes, your Partners and the name of their firm attract the work while you’re with them but to survive after you leave them, enough of the big-paying clients had better realise that you’re the brains of the operation. That way, they may come looking for you when you leave the nest.

5.       Keep Improving Yourself/the Business

At some point, if the business doesn’t fail, work will come and you need to have the capacity to deliver at “big law” level if you want to retain the client. Capacity, both in the context of intellectual manpower and of technological hardware. You must personally be ready for that time, as must your business.

6.       Consider Staying in the Nest

The image that hardened my resolve to give self-employment a go was a 10yr+ Senior Associate almost on his knees (figuratively, at least) begging for a bonus from the Partners. And then there was the time a senior lawyer was let go without warning. But for every senior associate that carries on in an antithetical way to your ideal, for every seemingly decent lawyer let go, there are another 3 or 4 who rise through the ranks and eventually make Partner. At the end of the day, there’s no rule that says everyone must own their own law firm. Worth considering.

NB. If any other lawyer flying solo wants to add to this list, please send to rfawole@gmail.com. Contributions will receive proper attribution.