Lawyer aisha
Lawyer
by aisha
Legislature’s Power to Make Laws: Upholding the Pillars of Governance
November 7, 2023 in Civil Law
Introduction
The legislative body plays a crucial role in the maintenance of democracy worldwide, the legislature has the power to create, amend, and repeal laws that govern a nation’s constituents. This authority vested in the legislature forms the backbone of governance, influencing social, economic, and political frameworks within a country. The important aspects of the legislature’s power to make laws extend far and wide, influencing diverse spheres of national life and embodying the essence of democratic governance. Read the rest of this entry →
by aisha
STUDENT LOAN ACT: WHAT YOU NEED TO KNOW
June 15, 2023 in Educational Law
Introduction
The student loan Act is one of the laws assented to by President Tinubu upon his assumption of office. Recall that one of his manifesto is to make education accessible to all . There is already a provision for free education from Primary school to secondary school level in line with Universal Basic Education Act.The Student loan bill was sponsored by Femi Gbajabiamila, the former speaker of the House of representatives.
The notable provisions in the Act.
1.A new bank will be established called Nigerian Education Bank and shall have branches all over the states. This is contained in section 5 of the Act
2. To be eligible for the loan. The applicants must meet the following conditions
(i) must have secured admission into one of the Nigerian Universities, polytechnics, colleges of education or any vocational school established by the Federal Government or the Government of the state of federation
(ii) The annual income of the applicant or his family must be less than #500,000 per year.
(iii) The applicants must provide at least two guarantors each of the guarantor must be a civil servant of not less than 12 years in the service; or a lawyer with at least 10 years post call experience; a judicial officer or a justice of peace. Section 18 of the Act
3. Any student that is guilty of exam malpractice, convicted of an offence involving dishonesty or fraud and drug offences will be disqualified from accessing the loan. Section 19 of the Act
4. Non-repayment of the previous loan by the applicant or the parent is a ground for disqualification. Section 19 of the Act.
5 . The loan covers only the tuition fee. Section 3 of the Act.
6. The repayment of the loan will start 2 years after completion of the NYSC . Section 22 of the Act
7. The repayment will be by way of 10percent deduction from the salary or if he is self employed 10 percent of his income monthly. Section 22 of the Act.
8. Any student that is aiding the default of any provision of the Act is guilty of an offence and upon conviction liable to imprisonment for two years or a fine of #500,000 or both.
Conclusion
Student Loan Act is a laudable development that deserves an applause from Nigerian. However, the requirement for two guarantors can be a very stringent condition to be met by the students. Some indigent students may find it pretty difficult to get those caliber of people as their guarantors.
The Act is also silent on Nigerians who do not get a job two years after NYSC but prescribes a two-year jail term for loan defaulters.
by aisha
The concept of 25 percent in winning elections: The legal position
March 9, 2023 in Civil Law
Introduction
The 2023 presidential election is gone but the aftermath still remains and in no distant time the court will be filled with election matters. There has been speculations in the country on the APC presidential candidate and presidential candidate who people acclaimed that they did not win 25 percent vote in 24 states and in Abuja pursuant to sections 133, 134 and 179 of the Constitution. This article will discuss the concept of winning 25percent in the 24 states and in Abuja in accordance with the law.
Position of the Law
The Electoral Act, 2022 states that “…the result (in an election to the office of the President or Governor) shall be ascertained by counting the votes cast for each candidate and the candidate that receives the highest number of votes shall be declared elected by the appropriate returning officer.”
Section 134, subsection 2, of the 199 Constitution states:
“A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election-he has the highest number of votes cast at the election; and he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.”
This therefore interprets that, the constitutional requirements for 25 percent of votes in two-thirds state and the FCT only means that the FCT be added to the 36 states to arrive at 37 states.
However Section 299 of the Constitution states that the FCT shall be treated like a state, In other words the Federal Capital Territory should be treated as one of the states in the Federal Republic of Nigeria. One does not just choose when to consider Abuja as a state
Another issue to also be considered is the word “AND” as used in Section 134, subsection 2, of the 199 Constitution. The word “AND” to the lay man is mostly used simultaneously that is, it is used to join one or more thing together. However this can differ in legal terms.
Agbakoba the president of the Nigeria Bar Association (NBA) between 2006 and 2008 expressed his dilemma that there could be multiple interpretations of section 134 of the 1999 Constitution, which prescribed the requirements to be met by a presidential candidate to become the president of Nigeria. He also further
requested the ‘correct’ interpretation of certain sections of the 1999 constitution (as amended) that determine who wins a presidential election.
Conclusion
In conclusion a declaration should be made by INEC as it is rightly done, then the aggrieved party can approach the court to seek legal redress.
by aisha
Federal Inland Revenue Service Non-Interest Finance (Taxation) Regulations 2022: The Impact on Islamic Banking in Nigeria Part 1
February 6, 2023 in Civil Law, Wills, Trust and Probate Law (family law)
Introduction
The Federal Inland Revenue Service ( FIRS) is clothed with power to make subsidiary legislation that will give full effect to the provisions of FIRS (Establishment) Act this is pursuant to section 61 of the Federal Inland Revenue Service Establishment Act (FIRSEA). The FIRS issued the Non-Interest Finance (Taxation) Regulations 2022 to regulate the taxation of institutions offering non-interest financial services in Nigeria, in accordance with principles of Islamic commercial jurisprudence.
The Regulation is also aimed at providing a legal framework on the tax regulation of financial institutions offering non-interest financial services as well as ensuring equal treatment for both conventional and non-interest finance transactions.
The Notable Provisions
1. Murabaha ( cost plus mark-up) : This is a contractual agreement between an institution who sells a specified asset with a cost price and the profit margin. For the purpose of taxation, the initial purchase price will be treated as a loan to the customer, the resale price, excluding the markup, will be treated as a loan repayment and will not be subject to value added tax (VAT), stamp duties and capital gains tax (CGT). A mark-up is an increase in the price of something, for example the difference between its cost and the price that it is sold for.
However, the markup element will be treated as interest payable on the loan and subject to withholding tax (WHT). Similarly, the purchase of the asset from the vendor will be subject to both VAT and WHT respectively.
Paragraph 3 of the regulation
2. Istisna: This is where a financial institution undertakes the financing or engagement of a third party for a construction or manufacturing of goods or assets (the project) on behalf of its customers and transfers the project to the customer upon the completion of work by the third party.
The Regulations provide that the financing arrangement with the customer will be treated as a loan, which will not be subject to VAT and WHT. However, the transaction between the financial institution and the third party will be subject to VAT and WHT, respectively.
Further, the repayment of the principal amounts (or Istisna contract sum) by the customer will be treated in the same manner as a loan repayment. Therefore, only the markup portion, similar to an interest, will be liable to WHT. The customer will treat the capital portion and markup as qualifying capital expenditure (QCE) for income tax purposes, in line with the provisions of the Second Schedule to the Companies Income Tax (CIT) Act (as amended).
This is contained in paragraph 4 of the regulation.
3. Ijarah (Operating Lease): This is a situation where a financial institution acquires an asset from a vendor and leases it to a customer, who pays rent, at an agreed rate, for the use of the property to the financial institution.The Regulation provides that the property purchase transaction between the financial institution and the vendor is subject to the Value Added Tax Act, Stamp Duties Act and Withholding Tax Act while the lease rentals paid by the customer shall be subject to the provisions of the VAT Act and liable to WHT where it is practical to deduct same.
This is contained in paragraph 9 of the regulation
Conclusion
The new regulations is a welcome development as there will be a legal framework for the taxation of non-financial institutions. This will ensure that the Islamic banking is also at par with the conventional financial institution.
by aisha
RIGHT TO PRIVACY: ALL YOU NEED TO KNOW
January 16, 2023 in Civil Law
INTRODUCTION
As the world is now a global village, different happenings is now surfacing and more harm is being done to the fundamental human right of privacy.
In 2021, an unknown person circulated Tiwa Savage’s nude pictures on the internet and of recent on the 4th of January 2023 the popular actress Empress Njamah pictures was also circulated on the internet by her ex-fiance. In all of these, is it that the law is silent on these issues or does the victim not have any cause of action to pursue?
NIGERIAN LEGISLATIONS ON RIGHT TO PRIVACY
It is the constitutional right of every Nigeria citizen to have his/her privacy protected. This is contained in section 37 of the 1999 Constitution.
In Nigeria and more recently there has been a lot of cases of revenge porn especially by celebrities who post their ex-lover’s intimate moment as a way to get back to them. The two laws that deal with this phenomenon in Nigeria are The Criminal Code Act and the Cyber-crimes (Prohibition, Prevention) Act 2015.
The criminal code act particularly section 170 provides as follows: Any person who knowingly sends, or attempts to send, by post anything which;
(a)encloses anything, whether living or inanimate, of such a nature as to be likely to injure any other thing in the course of conveyance, or to injure any person; or (b) encloses an indecent or obscene print, painting, photograph, lithograph, engraving, book, card, or article, or which has on it, or in it, or on its cover, any indecent, obscene, or grossly offensive words, marks, or designs; is guilty of a misdemeanor and is liable to imprisonment for one year.
On the other hand, the Cybercrimes Act of Nigeria 2015 deals more on revenge porn and this is contained in section 24 of the act which provides as follows:
(a) Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or
(b) he knows to be false for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent: commits an offence under this Act and shall be liable on conviction to a fine of not more than N7, 000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.
CONCLUSION
From the foregoing, the Nigerian Constitution together with The Criminal Code Act and the Cyber-crimes (Prohibition, Prevention) Act 2015 expressly prohibit the sharing of nude pictures or video without the consent of the person captured in it. Doing so is a punishable offence under the law.
The challenge that is faced by the victims is the inability to report the matter to the relevant authority due to fear of ridicule and shame. Victims should report offenders to enable this serve as deterrent to others.
A victim of revenge porn should report to the police or contact a lawyer on the appropriate step to take.
by aisha
The Advertising Regulatory Council of Nigeria Act: What is new?
November 30, 2022 in Civil Law
INTRODUCTION
Advertisement industry had been regulated by different laws particularly the Advertising Practitioners Council of Nigeria Act. This is the body that regulates advertisement. However the major setback of this law is the limitation in its scope of applicability. This was held in the case of MIC Royal Limited v. Advertising Practitioners Council of Nigeria where the court held that the law was only applicable to Advertising Practitioners. The Advertising Practitioners was defined in the act as a person or company that is registered with APCON.
In order to remedy this anomaly, President Muhammadu Buhari signed the Advertising Regulatory Council of Nigeria ( ARCON) bill into law.
The APCON Act was repealed while the ARCON Act was enacted.
The NEW PROVISIONS IN ARCON ACT
1. Scope of Application: The act is now Applicable to all persons and individuals that is engaged in the advertisement whether directly or indirectly.
2. Compulsory Registration: The Act has made it mandatory for a person or a company that is involved in Advertisement to register with ARCON. In addition to that any advertisement that such company intends to make must first be submitted to the Council for vetting before it is put out in the public space.
3. There is now an investigating panel that investigate professional misconduct.
4. The law is now Applicable to digital advertisement.
5. There is now a ban on the use of foreign models and voice over artists on the nation’s Advertising space.
ENFORCEMENT OF THE LAW
The ARCON has amazing innovations and the Council has swung into action in enforcing them. The ARCON instituted an action against Meta Corporations ( Instagram, Facebook,Instagram and WhatsApp) for not vetting the ad that is publicised on their platforms. The matter is currently in Federal High Court.
CONCLUSION
The Act does not left the stone unturned also in the promotion of local content.
The Act has been criticised regarding the power of vetting that is vested on the body for its impracticability. The Act provides that every advertisement that has to be done by any persons must be vetted by the body.
by aisha
NLNG DECLARATION OF FORCE MAJEURE: WHAT IT MEANS IN LAW
October 31, 2022 in Civil Law
INTRODUCTION
On the 17th of October 2022,the Nigerian Liquefied Natural Gas (NLNG), the highest supplier of gas (Liquefied Petroleum Gas) in the Nigerian domestic market declared force majeure on gas supply.
NLNG stated that it was forced to declare forced majeure because all of its gas suppliers had declared force majeure due to high flood water levels in their operational areas that lead shut down of gas production which has caused significant disruption of gas supply to NLNG. The three (3)joint ventures provide gas to NLNG, Shell Petroleum Development Co. (SPDC), Total Exploration and Production Nigeria (TEPNG) and Nigerian Agip Oil Co. (NAOC).
The negative effect of the flooding in some part of the country is no longer news. The recent flooding has had a lot of devastating effect on the people living in the affected areas and by extension affected businesses including NLNG’s upstream gas suppliers and the NLNG.
Therefore, in line with its sales and purchase agreement, the NLNG declared force majeure.
FORCE MAJEURE
A force Majeure is defined in Black’s Law Dictionary, as ‘an event or effect that can be neither anticipated nor controlled. It is a contractual provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event that the parties could not have anticipated or controlled.’
HOW FORCE MAJEURE WORKS
The nature of the doctrine of Force Majeure is such that it relieves a party from performing an obligation in a contract when the occurrence happens. It is usually included in a contractual agreement. An Example of force Majeure clause included in agreements between parties is as follows:
“A Party shall not be considered to be in default or breach of this Agreement, and shall be excused from performance or liability for damages to the other Party, if and to the extent it shall be delayed in or prevented from performing or carrying out any of the provisions of this Agreement, arising out of or from any act, omission, or circumstance by or in consequence of any act of God, labour, disturbance, sabotage, failure of contractors or suppliers of materials, act of the public enemy, war, invasion, insurrection, riot, fire, storm, flood,ice, earthquake, explosion, pandemic, epidemic, breakage or accident to machinery or equipment or any other cause or causes beyond such Party’s reasonable control
WHAT DOES THE DECLARATION OF FORCE MAJEURE MEAN FOR NLNG?
The declaration of Force Majeure by NLNG means that NLNG is removed from the obligation of gas supplies or other affected obligations and liability for the breach of such obligations in its sales and purchase agreement; provided that NLNG can prove that the flood affected their activities and prevented or made impractical for them to fulfil those obligations in the sales and purchase agreement.
If Force majeure is proved, then the law will protect the declaring party (which is NLNG in this instance) and no Liability if any will be made against NLNG.
CONCLUSION
Force majeure removes liability for catastrophic, unforeseen events that prevent participants from fulfilling obligations. When force majeure is declared the law allows the declaring party to waive its obligation as far it is proved by the declaring party. Force majeure is important in agreements because a party may be incapacitated by a circumstance that is beyond its control.
by aisha
The Nomination of Residential Electoral Commissioner by Buhari: The Position of the Law
October 22, 2022 in Uncategorized
Controversy has trailed the recent nomination of Residential Electoral Commissioner (REC) by the President into the Independent National Electoral Commission (INEC). According to one of the civil societies whose members alleged that Muhammad Bashir, the nominee from Sokoto State, was a governorship aspirant under the All Progressives Congress (APC) in the 2015 elections cycle.Sylvia Agu, the nominee for Enugu State, is believed to be the younger sister of the APC Deputy National Chairman, South-east.
Queen-Elizabeth Agwu, a former Accountant-General in Ebonyi State, was suspended allegedly on the grounds of incompetence and corruption in 2016.
Amidst this controversy, it is pertinent to consider the provision of the constitution that empowers the president to make such appointment. Section 154, 155 and 156 empowers the president to appoint REC however subject to the confirmation of the Senate. With few months to the 2023 General Election, the president via a letter dated 25th July 2022 wrote to the senate to confirm 19 nominees as Resident Electoral Commissioners of the Independent National Electoral Commission (INEC).In the said letter, President Buhari mentioned that the Nomination is in accordance with section 154(1) of the Constitution of the Federal Republic of Nigeria,1999. The Nomination of Five REC is for renewal while the remaining fourteen are fresh appointments.
The former vice president of the Nigeria Bar Association,Dr Monday Ubani, threatened to sue the president and the Senate if they do not turn down the request of the President.
However, following the lettering of the Constitution which gives power to the president of the Federal Republic of Nigeria to appoint members of the INEC subject to the confirmation of the Senate.
Consequently, the propriety or otherwise of the appointments can be determined by the interpretation of the relevant laws and establishment of facts for the disqualification.
by aisha
FEDERAL GOVERNMENT VS ASUU. Can FRN really win ASUU in court?
September 22, 2022 in Government Advisory
ASUU strike has generated a lot of controversy and backlash from different quarters in the country.
Recall that Academic Staff Union University embarked initially on a four weeks strike from February 14 2022 before embarking on an indefinite strike. Since then, there has been a series of negotiations and engagement between the FG and ASUU which have been fruitless.
The reason behind ASUU strike is simply the inability of the Federal Government to honour their pledge on proper funding of the Educational Sector since 2001.
The matter gathered up to head when the Federal Government sued ASUU before the National Industrial Court. The victim of the strike which are the students were also represented by a lawyer. The students have taken different steps and demonstration to show their dissatisfactions, one of such is the blockage of Lagos -Ibadan expressway which left many people stranded. National Association of Nigerian Student also posted on the social media on the 17th September,2022 as follows: “We shall begin another round of protest next week by storming the airspaces on Monday, 19th September 2022 to #OccupyTheAirports. We want to let the world know 7about the pains and anguish students are going through.”
In all of this what is the position of the law. Does the Federal Government have the right to sue ASUU?
There are two set of laws that come to mind which are the Trade Dispute Act and the Constitution of the Federal Republic of Nigeria,1999 (As amended).
The Constitution of the Federal Republic of Nigeria 1999, Section 40, guarantees its citizens right to freely join any political party or trade union in order to protect its interest.
Sections 18 and 31(6) of the Trade Dispute Act are relevant to this current case.
Section 31(6) provides for four conditions that must be followed before embarking on strike which are
1. The workers must not engaged in the provision of essential service
2. The strike must be in contemplation or furtherance of a labour dispute that must constitute a dispute of right.
3. The provision of the Arbitration Act must be complied with.
4. The union must have conducted a ballot at which a simple majority of all registered members voted to go on strike
The above provisions make it abundantly clear that ASUU must have fulfilled all the above conditions before they embarked on strike. Did ASUU really fulfilled the condition? The answer is in affirmative. ASUU is not engaged in essential service as defined by section 9(1) of the Trade Dispute Act. The conditions here are cumulative. Majority of the ASUU members voted in support of the strike.
For the purpose of clarity, section 18(1) provides as follows:
An employer shall not declare or take part in a lock-out and a worker shall not take part in a strike in connection with any dispute where –
(a) The procedure specified in section 4 or 6 of this Act has not been complied with in relation to the dispute; or
(b) A conciliator has been appointed under section 8 of this Act for the purpose of effecting a settlement of the dispute; or
(c) The dispute has been referred for settlement to the Industrial Arbitration Panel under section 9 of this Act; or
(d) An award by the arbitration tribunal has become binding under section 13(3) of this Act; or
(e) The dispute has subsequently been referred to the National Industrial Court under section 14(1) or 17 of this Act; or
(f) The National Industrial Court has issued an award on the reference.
Another conditions set out in the Act as contained in Section 18(1) of the Trade Dispute Act are disjunctive because of the use of the word “or”. Paragraph (a) provides that before strike can be commenced section 4 of the Act which provides that the parties to a trade dispute are enjoined to attempt to settle the dispute amicably by any agreed means and if settlement fails then the dispute should be settled by mediation within seven days.
Section 6 that is mentioned in the paragraph deals with the formal declaration of a trade dispute. This occurs if the parties fail to reach an amicable settlement within seven days of the appointment of a mediator. The section requires either of the parties to report the dispute to the Minister of Labour within three days of the end of the seven days.
In the present case, ASUU has complied with the paragraph (a) of section 18(1) of the Trade Dispute Act.
Section 18(2) makes it an offense for any person who contravenes subsection (1) of the section. Thus, if workers take part in a strike in contravention of section 18(1), the strike will be prima facie illegal and the strikers will be visited with criminal sanctions.
The Case of Eche v. State Education Commission is relevant in this present case.In that case, after efforts at mediation failed, public primary and post primary school teachers in Anambra State proceeded on a strike. The judge held that the teacher’s strike was lawful because they don’t have to comply with all the conditions in section 18. The judge said;
It is therefore not correct, “if a strike is not to be considered as illegal, all the provisions of the various subsections must be complied with by the worker. It is sufficient, in my view, if the provisions of only one of the subsections have been fully complied with”.
That is the effect of the word “or” that has been used after each subsection.
Relying on the above case, ASUU fulfilled one of the conditions particularly paragraph.
The outcome of the FG case with ASUU depends on the interpretation of the relevant laws by the court
by aisha
APC PRIMARY ELECTION: THE PROPRIETY OF THE MUSLIM-MUSLIM TICKET
August 29, 2022 in Government Advisory
The social media has gone agog on the recent decision of the Apc on Muslim-Muslim Ticket
by Asiwaju Ahmed Bola Tinubu and Kashim Shettima. This article will discuss the legal
implication of the decision. It is important to firstly discuss the constitutional requirements
for the post of President and the vice president. In this regard, Sections 131, 141 and 142 of
the Constitution of the Federal Republic of Nigeria will be examined. Sections 131 provides
thus
A person shall be qualified for election to the office of Vice-President if:
(a) he is a citizen of Nigeria by birth;
(b) he has attained the age of forty years;
(c) he is a member of a political party and is sponsored by that political party;and
(d) he has been educated up to at least School Certificate level or its equivalent.
From the foregoing , the qualification for the post of the president does not include religion or
ethnicity
The office of the vice president is established in section 141 and the process of nomination in
section 142.
Gleaning from the above, the candidates are both qualified to run for the post of president and
vice president in the forthcoming general election.
However the issue to be determined here is whether or not the decision of the party to choose
people of the same faith to run for the post of the president and the vice president is
constitutional ?
The answer to the above question is in affirmative. Section 10 of the Constitution of the
federal Republic of Nigeria provides that the government of the Federation or of the state
shall not adopt any religion as state religion. This reemphasises the religious neutrality of
Nigeria.
Another line of argument is that of Federal Character. It is pertinent to examine what Federal
Character is all about. Section 14(2) of the Constitution provides
(2) The composition of the Government of the Federation or any of its agencies and the
conduct of its affairs shall be carried out in such a manner as to reflect the federal character of
Nigeria and the need to promote national unity, and also to command national loyalty,
thereby ensuring that there shall be no predominance of persons from a few State or from a
few ethnic or other sectional groups in that Government or in any of its agencies.
However the above provision falls under chapter II of the constitution which is non
justiciable. And as a result no one can rely on the provision to invalidate the decision of the
party.
In conclusion, from the community reading of section 10,14, 131, 141 and 142 of the
Constitution of the Federal Republic of Nigeria the decision of the party is not wrong from
the legal perspective however it is morally wrong considering the diverse nature of the
country. All the ethnic and religious sects of the country need to be adequately represented
for all the citizens of Nigeria to have sense of belonging.