CAN A SENIOR ADVOCATE OF NIGERIA APPEAR IN A MAGISTRATES' COURT?? The Legal Debate Continues...
ALTERNATIVE TO THE RANK OF SENIOR ADVOCATE OF NIGERIA (SAN) ON NON-LITIGATION LAWYERS IN NIGERIA.
ERRONEOUS TRANSFER OF FUND AND IT'S REVERSAL: STEPS TO TAKE IN NIGERIA
CAC DISCLAIMS FAKE CERTIFICATES OF INCORPORATION OF 3 COMPANIES- CORPORATE AFFAIRS COMMISSION, NIGERIA.
THE GOVENORS' FORUM AND THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA CANNOT E
RIOK NIGERIA LIMITED VS. INCORPORATED TRUSTEES OF NIGERIAN GOVERNORS' FORUM & ORS (2022) LPELR-58087(SC) Per AGIM, JSC (Pp. 37-39, para D)
The Supreme Court in the above cited suit resolved the issue as to whether the Governors Forum and the Association of Local Governments of Nigeria can perform the duty of Government. The apex Court held decisively (per Agim, JSC) thus:
I cannot help wondering about the Constitutional or statutory basis for the exercise of the powers of States and Local Governments by non-governmenta
My impression is that the two bodies collected London and Paris Club refunds from the Federal Government on behalf of the States and Local Governments, engaged consultants, awarded contracts on behalf of the said governments and made payments from the said funds on behalf of the said governments.
The fact that Governors Forum consist of Governors of States, does not automatically vest it or delegate to it the power of each State government in Nigeria. The governor of a state is not the State or the State Government. He is merely the head of the executive arm of the State government. The government of the State is vested by the Constitution on the State Government to be exercised in the manner prescribed by the Constitution. The Nigeria Governors Forum is not part of a State Government. There is nothing in the 1999 Constitution creating it or allowing it to function as the State government or part of it.
Equally, ALGON is not part of a Local Government Council or Area Council. There is nothing in the 1999 Constitution or any Act or Local Government Law making it part of the Local Government. The fact that ALGON is made of Chairman of Local Governments does not vest it or donate to it the power of each Local Government in Nigeria. As the Chairman of the Local Government Area or Council, he is merely the head of the Local Government.
The funds belonging to a state or Local Government must be kept in an account belonging to the State or Local Government as the case may be, and disbursed or expended by the State strictly in the manner and for the purposes prescribed in the Constitution and an Appropriation Law or as prescribed by the House of Assembly of the State and in the manner and for purposes prescribed in the Constitution, a Local Government Law or as prescribed by the Council of the Local Government.
The collection and use of funds belonging to the State Governments and Local Governments by the Nigeria Governors Forum and ALGON subverts the Constitution and the rule of law. It is a democratic governance aberration.
EFFECT OF COURT MARRIAGE ON ESTATE DEVOLUTION/SUCCESSION
Yes. When a person who was married with children dies intestate (without a will) then the following questions arise for determination- Who are the beneficiaries entitled to the deceased’s property? Should the estate devolve according to Customary Law or the received English Law? What happens to the deceased children born outside wedlock, are they entitled to partake in the deceased estate? Resolution of these questions sometimes causes the members of the family to engage in bitter dispute which has resulted into litigations/lawsuits.
One of such lawsuits is the case of Salubi v Nwariaku (2003) 7 NWLR (Pt. 819) 426, where the Supreme Court held that the applicable law to the succession and distribution of the estate of the deceased who died intestate without a Will but married under the Marriage Act was the Administration of Estates Law and not the Marriage Act. The Court further held that both laws have similar provisions and apply the English law on the subject.
Section 49 of the Administration of Estates Law deals with succession to real and personal estate on intestacy. Section 49(5) states that, “Where any person who is subject to Customary law contracts a marriage in accordance with the provisions of the Marriage Act and such person dies intestate after the commencement of this Law leaving a widow or husband or any issue of such marriage, any property of which the said intestate might have disposed by Will shall be distributed in accordance with the provisions of this Law, any customary law to the contrary notwithstanding.” Section 36(1) of the Marriage Act states that, “where any person who is subject to customary law contracts a marriage in accordance with the provisions of this Act and such person dies intestate leaving a widow or husband or any children of the marriage, the real and personal property of such person which might have been disposed off by a Will, shall be distributed in accordance with the provisions of the Laws of England relating to succession of estates, notwithstanding any contrary customary law.” The difference between the provisions of both laws is that, while section 36(1) of the Marriage Act incorporates by reference the English law into our law of intestate succession, section 49(1) of the Administration of Estate Law directly enacts the provisions of the English law on the subject into Nigerian law.
The Supreme Court also decided on the issue of the estate succession of children born out of wedlock. The Supreme Court held that such children were legal beneficiaries and therefore entitled to share in the estate of their father because the provisions of section 42(2) of the 1999 Constitution prohibits any form of discrimination by reason of the circumstances of birth.
Another of such cases is Obusez v Obusez (2007) 10 NWLR (pt. 1043) 430 S.C, wherein the Supreme Court followed its decision in Salubi v Nwariaku and held (per Onnoghen JSC) as follows: “It is not disputed that the deceased and the 1st respondent were married under the Marriage Act in 1972 but that prior to that marriage both parties were subject to customary law with the deceased being particularly subject to Agbor Customary Law. It follows, therefore, that by virtue of the said marriage and upon the death of the deceased intestate, the provisions of the Administration of Estate Law of Lagos State becomes applicable particularly as the deceased and 1st respondent together with the children of the marriage resided in Lagos State at the time of the death of the deceased intestate.”
From the above, we can authoritatively drive home the point that those entitled to the estate of a deceased person are determined by the law under which the deceased contracted his marriage at the time of his death. If the deceased was married under the customary law, the customary law of his native land on succession/devolution applies. If the deceased, on the other hand, was married under the Marriage Act, the Administration of Estate Law applies. However, the best bet to circumvent the headaches that come with dying intestate is for all Men to write their Wills while still breathing especially persons who own substantial properties as well as those with children out of wedlock. Writing a Will is the only solution to posthumous family feuds.
THE NATIONAL PENSION COMMISSION AND ITS FUNCTIONS UNDER THE PENSION REFORM ACT, 2014
INTRODUCTION
The Pension Reform Act (PRA), 2014 which established the Contributory Pension Scheme (CPS) provides that the CPS should be privately managed and ‘exponentially’ transparent. To this end, the Act made provision for specific institutions that will manage the Scheme. Principal among the institutions is The National Pension Commission (PenCom), established under Section 17 of the Act. PenCom has its headquarters in Abuja and its zonal offices in the five geopolitical zones of the federation-North-West (kano State); South-South (Cross River State); South-West (Lagos State); North-East (Gombe State); North-Central (Kwara State) and South-East (Anambra State). PenCom was established by the PRA to do the following and more:
OBJECTIVES/POWERS/FUNCTIONS/DUTIES/RESPONSIBILITIES OF PENCOM
✓ It enforces and administers the provisions of the Act
✓ It issues regulations, circulars and guidelines to PFAs, PFCs and CPFAs, that is Pension Fund Administrators, Pension Fund Custodians and Closed Pension Fund Administrators respectively.
✓ It regulates, supervises and ensures the effective administration of pension matters and retirement benefits in Nigeria.
✓ It establishes standards, rules and regulations for the management of the pension funds under the Act.
✓ It investigates any pension fund administrator, custodian or other party involved in the management of the pension funds.
✓ It imposes administrative sanctions or fines on erring employers or pension fund administrators or custodians.
✓ It co-ordinates and enforces all other laws on pension and retirement benefits.
✓ It issues licences to Pension Fund Administrators and Custodians as well as regulates their activities.
✓ It formulates, directs and oversees the overall policy guidelines on pension matters in Nigeria.
✓ It regulates and supervises the Nigerian Pension Industry to ensure that retirement benefits are paid promptly and as and when due.
✓ It oversees the regulation and supervision of the Contributory pension Scheme established under the Act.
✓ It processes applications and issues certificate of compliance to companies and employers who have complied with the provisions of the Act on the established Contributory Pension Scheme.
✓ It imposes penalties on companies that fail to remit deductions as stipulated by the Act or that default in complying with the provisions of the Act.
✓ Where there is an established misappropriation of pension funds, it removes from office, any Director or Officer of the Pension Fund Administrator (PFA) or Pension Fund Custodian (PFC) who misappropriates the funds.
✓ It takes and processes complaints from RSA holders or beneficiaries who have any problem with their PFA or employer.
12 BENEFITS OF THE CONTRIBUTORY PENSION SCHEME (CPS)UNDER THE PENSION REFORM ACT, 2014
INTRODUCTION
In the wake of the exposure of a monumental pension fraud amounting to billions of Naira in 2012 which indicted the then pension boss Abdulrasheed Maina, the National Assembly took a rather drastic step to reform the pension system in the federation which led to the enactment of the now Pension Reform Act, 2014 with the sole objective to govern and regulate the administration of the uniform contributory pension scheme for both the public and private sectors in Nigeria.
The Act under Sections 3, 4, 5, 6 of Part II establishes the Contributory Pension Scheme which ensures that every qualified employer of labour maintains an RSA (Retirement Savings Account)for each of its employee wherein both the employer and the beneficiary employee are to contribute specified minimum percentage of the employee’s salary into the RSA. Click here for more on the CPS.
As stated above, the reform of the pension sector is a laudable step packed with so many benefits. Here are some of the benefits:
BENEFITS OF THE CPS
✓ The CPS allows RSA holders to select any Pension Fund Administrator (PFA) of their choice to open an RSA.
✓ Where an RSA holder is not satisfied with his PFA, the Pension Reform Act, 2014 entitles him to transfer his Retirement Savings Account from one PFA to another. But he can only do so not more than once a year.
✓ RSA holders retiring under the CPS can decide on the mode of their retirement benefit payment, either by making a lump sum periodic pragrammed withdrawal or by subscribing for single-life annuity/joint and survivor annuity.
✓ Another benefit of the CPS is that RSA holders are allowed to open individual Retirement Savings Accounts (RSA), where their contributions and that of their employees are accumulated till retirement.
✓ The RSA under the CPS addressed the problem of pension liabilities, mismanagement and misappropriation.
✓ Contributions and retirement benefits accummulated in the RSA are tax exempt.
✓ The pension scheme, CPS, is contributory in nature, in that both the employer and the beneficiary employee grow the RSA into its maturity age when the employee will retire.
✓ The RSA is fully funded and privately managed by third party custodians of the pool of fund. These third parties are established under the Pension Reform Act as the Pension Fund Administrator (PFA).
✓ By the CPS, RSA holders receive their retirement benefits promptly and as and when due. The Act empowersw the holders to report any PFA that is invoved in fraud to the National Pension Commission (PenCom) for disciplinary action.
✓ Having grown significantly over the years, the Contributory Pension Scheme (CPS) has been providing painless access to retirement income/allowance to its retiree members.
✓ The pension scheme is maginally secure and guarantees safety of the pension funds as the PFAs are mandated to invest the funds in government bonds and treasury bills, bank deposits and securities, real estate development investments, specialist investment funds and other financial instruments as approved by the Commission from time to time.
✓ As a result of the mandate to invest the pensioin fund, this has therefore provided a domestic source of borrowing for business corporations, which majorly does not attract excessively high interest rate. Thus, the transfer of resources in favour of long term assets by the fund has significantly impacted on the nation’s GDP growth rate.
PENSION REFORM ACT, 2014- The Contributory Pension Scheme (CPS)
THE CONTRIBUTORY PENSION SCHEME (CPS)
The Pension Reform Act, 2014 (PRA) establishes a mandatory scheme called “the Contributory Pension Scheme”. This Scheme is an arrangement whereby both the employer and the employee collectively pay/save/contribute every month a specified minimum percentage of the employee’s monthly salary into the employee’s Retirement Savings Account (RSA).
WHAT IS THE MINIMUM CONTRIBUTION UNDER THE CPS
The minimum contribution mandated under the PRA is an aggregate of 18% of the employee’s monthly salary/emolument (with a minimum contribution of 10% by the employer and 8% by the employee). What this means is that the employer is bound to contribute a minimum of 10% of the employee’s monthly salary into the employee’s RSA while the employee, on the other hand, is bound to contribute a minimum of 8% of his/her monthly salary into the his/her RSA. However, either or both may choose to contribute more than the required minimum percentage.
The PRA also makes provisions for a situation where the employee chooses to pay or bear the payment of all the contributions into its employee’s RSA, in which case the employee is absolved from the mandate of making monthly contribution into his/her RSA except he feels like so doing. If that is the case, the Act provides that the minimum contribution to be made by the employer is 20% of the monthly emolument/salary of the employer.
ILLUSTRATIVE EXPLANATION/SCENARIO OF THE CPS CONTRIBUTION
John is an employee of Jungal Ltd. If he earns as monthly salary the sum of N200,000 (Two Hundred Thousand Naira), his employee, Jungal Ltd, is expected to remit into John’s RSA a sum not less than N20, 000 (10% of 200,000) every month while John is expected to contribute nothing less than N16,000 (8% of 200,000) every month to his RSA. These sums are remitted monthly by both until John retires.
SMALL ONE-MAN BUSINESS - BENEFITS OF REGISTRATION WITH THE CAC AND SMEDAN.
Few days ago, one of my viewers sent me an email with the poser on whether it is compulsory for him to register his small one-man business with the CAC and SMEDAN. Here is my legal advice to him, I thought to share it here for the benefits of all.
CORPORATE AFFAIRS COMMISSION (CAC)
It is not compulsory to register your small one man business with The Corporate Affairs Commission (CAC) but it is extremely necessary that you register your small business with the CAC if you want to enjoy the following benefits:
1. Your business name will gain relevance on the CAC portal and database any day, any time.2. Your business name takes priority as the CAC will not register any other name exactly or similar to your registered business name.
3. Security of name till eternity: Failure to register your business name as soon as you commence business may expose you to the risk of losing the name if you take step to register it in future since another business-oriented fellow may have possibly registered your exact business name. The effect is enormous, you may be forced to register a new name unknown to your already-built-client base, you may lose customers as a result and tend to start from square one in building your client base.
4. If you anticipate growth of your small business in the near future, it is ideal to register your business name now and secure the name in case you desire to convert the business into a company.
5. Registration of your business name with the CAC entitles you to open a bank account in the name of the business so registered. With this, you will have an edge over fellow businesses that are unregistered. Think of the credibility your business gets when you give your customer/client a bank account details in the name of your business rather than one in your individual names.
6. Registration of your business name hypes customers trust and confidence in doing business or dealing with you. This also builds your business Goodwill dramatically.
SMALL AND MEDIUM ENTERPRISES DEVELOPMENT AGENCY OF NIGERIA (SMEDAN).
The benefits of registration with SMEDAN are:
2. Also, registration with SMEDAN entitles a registered business to enjoy free accommodation/relevance in the SMEDAN database which habours all small and medium scale business enterprises in Nigeria.
You can register your small business name with both CAC and SMEDAN for the purpose of the benefits enumerated above.
SECTION 84 OF THE EVIDENCE ACT, 2011 DOES NOT APPLY TO ORDINARY DOCUMENTS PRINTED OUT OF THE COMPUTER.
A.G OF THE FEDERATION v. ANUEBUNWA( 2022) LPELR-57750(SC) (Pp 28 - 38 Paras C - D)
In determining the extent of the application of Section 84 of the Evidence Act, 2011 on computer generated documents, the Supreme Court, Per HELEN MORONKEJI OGUNWUMIJU (JSC) held as follows:
"My Lords, extradition of a citizen by the country of origin or a host country obligation arising from multilateral and bilateral international treaties between countries is a special (quasi-criminal) proceeding which is substantially regulated by the Extradition Act Cap E25 LFN 2004, Extradition (Amendment) Act, 2018 and Federal High Court (Extradition Proceedings) Rules 2015. A lot of energy has been expended by both sides on the issue of the applicability of Section 84 of the Evidence Act 2011 to Extradition proceedings. Section 84 (1) and (2) of the Evidence Act provides as follows: (1) In any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question. (2) The conditions referred to in Subsection (1) of this Section are: (a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual; (b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and (d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities. The correct interpretation to be given to Section 84 of the Evidence Act, where electronically generated document is sought to be tendered is that such electronically generated evidence must be certified and must comply with the preconditions laid down in Section 84(2). It appears that the documents in question do not even fall within the scope of Section 84 of the Evidence Act. The documents relied upon by the Appellant are as follows: i. Original copy of Letter of Certification with the seal of the United States of America's Department of State dated 18th day of October, 2017 signed by the Secretary of State of the United States Rex W. Tillerson. ii. Original copy of Letter of Certification with the seal of the United State of America's Department of State dated 6th day of October, 2017 signed by the Director/Deputy Director, Office of Internal Affairs, Criminal Division, Department of Justice and duly commissioned and qualified in the presence of the Attorney General of the United States - Jefferson B. Sessions. iii. Original copy of a letter of Certification, dated 6th October, 2017, certifying the affidavit and all attached documents in support of the request for the extradition of the Respondent and iv. Original copy of affidavit in support of request for the extradition of the Respondent and duly sworn to by Assistant U.S. Attorney, United States Attorney's Office for the Southern District of New York - Adrew K. Chan. These documents are three original letters and one original affidavit. These are not computer-generated documents. The wordings of Section 84 of the Evidence Act 2011 do not contemplate that before an original official letter is tendered and admitted in evidence, the party tendering same must satisfy the conditions in the provision. Neither does the provision envisage same where the admissibility of an original affidavit is in issue. It would be ridiculous to assume that a document which was typed using a computer is a computer-generated document. For example, it is the algorithm or data imputed by a Bank Officer into the bank's data base that generates the various information on the statement of account of a customer. That Bank Statement is a computer-generated document which has to be certified by the officer to ensure that no one illegally or without authorization tampered with the source data as officially imputed in the computer. Also, the certification must include that the computer was operational or in good working order when the document was generated. I cite with approval the book by S.T. Hons "Law of Evidence in Nigeria" (Based on the Nigerian Evidence Act, 2011) VOL. 1, 2nd Edition particularly Pages 468-469 wherein the learned Senior Advocate and author opined as follows: "Be it noted that the legislature, in enacting the various sections of the Act that deal with admissibility of computer evidence under the 2011 Act never intended this practical result. For instance, and as will be shown hereunder, Section 84 of the Act, which deals generally with admissibility of computer generated evidence, was lifted directly from Section 65B of the Indian Evidence Act, 1872, as amended and substantially from Section 69 of the English Police and Criminal Evidence Act, 1984, popularly called in the United Kingdom the PACE Act, 1984. A deep consideration of most of the reported cases from those jurisdictions has revealed only one pattern: Disputes as to admissibility arise only with respect to admissibility of hi-tech evidence generated from the computer, especially evidence that has much to do with accuracy of the computer or any other machine generating it. It is not part of the practice in India and England that spurious objections be raised on admissibility of commonplace, ordinary documents printed out of the computer, as is being done daily in Nigerian Courts today. It is very significant to further note that just like Section 64B of the Indian Evidence Act and Section 69 of the PACE Act, Section 84 of the Nigerian Evidence Act, 2011, intends that only complex evidence generated from the computer, against which the calculating or measuring accuracy of the computer is depended upon or stands to be tested is to be objected to or subjected to scrutiny by the Courts and not ordinary documents printed out of the computer. Indeed, even before the enactment of the 2011 Evidence Act, computer printouts of ordinary documents like letters, deeds and correspondences were easily admissible, the only objections then being as to whether they were pleaded, or they were originals, or they were admissible as photocopies only upon fulfillment of certain conditions. It will amount to a dishonest attempt to rubbish the intendment of the new Evidence Act, therefore, to have computer evidence admissible as provided in the various Sections of the Act, if such spurious objections are entertained and at times upheld against the admissibility of ordinary documents emanating from the computer, like letters, deeds, etc. Trial Judges should always scrupulously resist such attempts, if for nothing else, to avoid unnecessary delays in trials occasioned by such unwarranted objections." The opinion of the learned author accords with the law and I adopt it as mine. In the circumstances of this case, the bundle of documents, not being computer-generated documents, ought to have been relied upon by the Court below in the extradition proceedings.
VARIOUS SCHEMES/TECHNIQUES OF MONEY LAUNDERING, NIGERIA
The most common money laundering channels/schemes include the following:
- Real-Estate Laundering
- Casino Laundering
- Bank Laundering
- Trade-Based Laundering
- Layering
- Laundering Money Through Cash Businesses
- Structuring
Real-Estate Laundering
Real-estate laundering works because the deals involve large cash amounts as well as legitimate financial systems such as banks and mortgage companies. Criminals will often buy a piece of real estate using cash from illegal activity and then quickly sell it, depositing the proceeds into a legitimate bank account. They may have a third party buy the property or use shell companies to make the purchase. Once they have sold the property, tracing the origins of the purchasing funds becomes more difficult.
Although buying and selling real estate through cash transactions is not inherently illegal, it can catch the attention of the Economic and Financial Crimes Commission (EFCC) in Nigeria and the equivalent regulatory agencies in other countries. Multiple cash real estate deals are especially suspicious to law enforcement officials who are on the lookout for questionable financial transactions.
Casino Laundering
Casinos (the Pool or Sports betting) have a well-earned reputation as places to launder illegal funds. People come into these establishments with large amounts of cash and can disguise their dirty money as they gamble. They simply pay for their casino chips with their illegal proceeds, gamble a little and then cash in their chips. The result is that they walk in with dirty money and walk out with clean cash disguised as winnings.
Organized crime has long been associated with gambling establishments because these criminal organizations use casinos as part of their money-laundering operations. Casinos and betting companies are profitable businesses on their own as well as a great place to disguise the large amounts of dirty money that these criminal organizations collect.
Banks do monitor frequent deposits from gamblers to ensure that people and businesses are not using casinos to hide their illegal funds. These deposits are often a sign of money laundering activity.
Bank Laundering
Another money laundering example is bank laundering. Owning your own financial institution is one of the best ways to clean illegal funds on a large scale. If a money launderer owns a bank, mortgage company or stock trading company, they can move the money through their organization to another financial institution pretty easily. These transfers often take place in the form of currency exchanges that are extremely hard to detect by the other financial institutions involved and by regulatory agencies.
Bank laundering was one of the main reasonsThe Central Bank of Nigeria reviewed the CBN AML/CFT (Anti-Money Laundering/Combating the Financing of Terrorism) Regulations, 2013 and its amendments to comply with provisions of the recently enacted Money Laundering (Prevention and Prohibition) Act, 2022, Terrorism (Prevention and Prohibition) Act, 2022 and relevant extant AML/CFT/CPF regulations. The law stipulated that financial institutions had to follow certain reporting requirements that help expose money launderers. Even with the AML Act, money laundering is still a big problem, but the accounting and reporting regulations have curbed many of the excesses.
Trade-Based Laundering
Trade-based money laundering is defined as “the process of disguising the proceeds of crime and moving value through the use of trade transactions in an attempt to legitimise their illicit origin.” This can include:
- over- and under-invoicing of goods and services;
- multiple invoicing of goods and services;
- over- and under-shipments of goods and services; and
- falsely described goods and services.
Companies can pull off this maneuver by lying about the price and quantity of imports and exports to make their profits look larger than they are. Financial criminals often use this practice in concert with other money-laundering techniques, which makes it even more difficult to trace the money’s origin.
Criminals frequently choose this tactic to launder their dirty money because it provides a solid paper trail that banks find hard to dispute. Invoices and bills of sale lend legitimacy to their efforts. In these money laundering cases, banks will sometimes flag a business that suddenly shows a large increase in profits and investigate them for financial crimes.
Laundering through Layering
Layering is another popular and effective way for financial criminals to launder their illegal funds. The idea is to distance the money from its illegal origins by putting it through numerous transactions and various forms.
For instance, cash can become gold, then become real estate, and then become casino chips. This layering also means that the money usually goes around the globe, entering multiple countries and going through even more transactions. The overseas element makes enforcing AML regulations even more challenging, since multiple jurisdictions and different laws are involved.
Layering is a favorite method of white-collar criminals, including those practicing embezzlement, tax evasion and cryptocurrency fraud (including bitcoin scams). Layering makes it incredibly difficult to track the origin and journey of illegal funds, which means many money launderers go undetected.
Laundering Money Through Cash Businesses
Cash businesses, including car washes, laundromats and strip clubs, are favorites of money launderers. Although these common companies have legitimate operations, they can operate partially or mostly as shell companies whose real business is to launder illegal funds. After all, it’s hard to prove how much money actually goes through a laundromat each day or how much a strip club takes in.
Using a heavy cash business for money laundering leaves law enforcement agencies, with little evidence to act on. However, the tax boards at the federal and state levels, frequently look closely at these businesses’ cash records to detect suspicious activity. And law enforcement might compare a business to similar businesses to detect outliers, such as a small scale business that brings in twice as much cash as a similar SME down the street.
Laundering through Structuring
Structuring, also known as smurfing, is the money laundering practice of splitting large cash amounts into smaller chunks and depositing them into many different accounts, making detecting the illegal funds nearly impossible.
Criminals often use money orders and cashiers checks in structuring, but multiple deposits of these forms in a short period can trigger the suspicion of financial institutions, which may decide to launch a money-laundering investigation, even if current reporting requirements do not force them to do so.
Since financial institutions are always on the lookout for suspicious transactions, suspected smurfing may cause them to look more closely at individual accounts for other scams. Most money launderers use more than one method to wash illegal funds.
COURT NULLIFIES "NO REFUND OF MONEY AFTER PAYMENT" POLICY. SAYS IT'S ULTRA VIRES THE LAW
With the enactment of the Federal Competition and Consumer Protection Act, 2018 (FCCPA), the legality or otherwise of No Refund Policy is gradually becoming a subject of judicial scrutiny. The combined effect of sections 120 and 129(1)(a)(b)(iii) of the FCCPA is to outlaw the practice of no refund policy in Nigeria subject to the exception provided under the Act. The Nigerian Courts inspired by the said provisions are gradually rising to the occasion and have in recent times struck down such obnoxious practices which many business owners and service providers have used as a shield in order to escape liability for shoddy services or sometimes to arm-twist the customer or client to patronize their services.
The decision by the Lagos State Magistrate Court is a reminder to business owners, vendors and service providers who hide under No Refund Policy to resile from their obligations to clients and customers that the day of reckoning is here. It is illegal to place a bar on the right of customers or consumers to cancel any booking or order made under the guise of No Refund of Money policy. This decision is not alone, The High Court of Enugu State sometime in April 2022 had reportedly ordered Peace Mass Transit (a transport company) to pay N500,000 damages for refusal to refund a lawyer for canceled trip. The Court in that case also held that non refund policy mostly used by service providers to prevent returning payments made to them by their clients/users is illegal as it violates section 120 of the Federal Competition and Consumer Protection Act, 2018.THE COURT HAS NO POWER TO REMAND/COMMIT TO PRISON A SURETY FOR FAILURE TO PRODUCE THE ACCUSED PERSON IN COURT
NDUME v. FRN (2022) LPELR-58272(CA)
In determination of the issue as to whether a trial Court is empowered to remand a surety for failure to produce an accused person standing trial in a criminal offence, the Court of Appeal, per DANLAMI ZAMA SENCHI, (JCA) in NDUME v. FRN (2022) LPELR-58272 (Pp 32 - 34) (Paras D - A); held as follows:
"In the instant appeal evaluating the facts at the trial Court, there was a contractual relationship between the trial Court and the Appellant wherein the Appellant was the surety to the Defendant (now a convict) to ensure his appearance in Court to face his trial at all times. And the Appellant as surety denotes that he was primarily liable for paying for another's debt or obligation whether primarily secondarily, conditionally or unconditionally. See the Blacks Law Dictionary, 9th Edition, 2009 on the meaning of "surety."? If I may ask, what is the criminal offence of the Appellant that warrants the trial judge to make an Order remanding the Appellant in Correctional Centre? I have perused the provisions of both the Administration of criminal Justice Act 2015, the Criminal Procedure Act and Criminal Procedure Code dealing with sureties, I am unable to lay my hands on any provision that empowers the Court to remand a surety for failure to produce a defendant, suspect or accused person standing trial in a criminal offence. The relationship between the surety and the Court is contractual and where the surety fails to produce the Defendant/suspect in Court for his trial, the Court will now evoke those bail conditions in accordance with the law before bond is forfeited. In otherwords, the Appellant, Senator Mohammed Ali Ndume was remanded in the correctional centre without a known offence in law. A close look at the provisions of Sections 165 and 179 of the ACJA, 2015, it does not empower the trial Court to remand the Appellant. A judicial officer must be circumspect in the application of his judicial powers and such exercise must be done judicially and judiciously in accordance with the law. Thus, therefore the order remanding the Appellant in the correctional centre by the trial Court, the trial Court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional."
NBA MEMBERSHIP IS COMPULSORY FOR ALL LAWYERS. MEMBERSHIP IS AUTOMATIC UPON BEING CALLED TO BAR- COURT'S DECISION.
SUIT No. OB/27/2020
BETWEEN
BEN OLOKO
AND
THE INCORPORATED TRUSTEES OF NIGERIA BAR ASSOCIATION
DELIVERED ON FRIDAY, THE 29TH DAY OF JULY, 2022
BY HON. JUSTICE R.O. ODUGU, Enugu State High Court, Obollo-Afor Division.
An Enugu High Court Judge rules that membership of the NBA is mandatory for all legal practitioners and therefore automatic upon call to Bar and/or on commencement and/or continuance of the practice of the Legal profession in Nigeria.
In an originating summons, the Plaintiff claimed the following reliefs against the Defendant:
1. A declaration that the Nigerian Bar Association is not a compulsory association to which every legal practitioner becomes a member automatically upon call to the Bar or commencement and/or continuance of the practice of the legal profession in Nigeria; but a completely private and voluntary organization of legal practitioners, who are interested in the set objectives of the association and have exercised their free volition to join and or/participate in the activities of the association per time.
2. A declaration that the Nigerian Bar Association lacks the power to increase the Annual Practising Fee for legal practitioners in Nigeria, same being a function reserved for the office of the Attorney-General of the Federation, hence the Annual Practising Fees remains as stipulated under the Legal Practitioners (Bar Practising Fees) Notice, 2002, viz: Senior Advocates of Nigeria (N20,000); Legal Practitioners of 15years or more standing post call (N10,000); Legal Practitioners of 10years or more standing but less than 15 years post call (N7500.00); Legal Practitioners of 5years or more standing but less than 10 years post call (N4, 000.00); Legal Practitioners of less than 5 years standing post call (N2,000. 00)
3. A declaration that the Nigerian Bar Association lacks the power to produce and/or issue stamp and seal to be used by all legal practitioners in Nigeria in a professed bid to curb the encroachment of quacks into the practice of the legal profession, same function having been conferred on the Registrar of the Supreme Court by statute.
4. An order of perpetual injunction restraining the Defendant either by itself or its agent(s) or servant(s) from imposing any form of structures and or/duties and//or obligations on the Plaintiff and indeed all other legal practitioners, who may opt not to belong to the Defendant’s association, (including payment of annual dues; mandatory acquisition and use of Nigeria Bar Association seal and stamp on processes and documents) tends in any way to constitute the Defendant as a general umpire, overseer and/or superintendent of all legal practitioners in their practice of the legal profession in Nigeria, including the Plaintiff and other legal practitioners, who may choose not to be members of the Defendant’s association.
The issues for determination as formulated by the Plaintiffs, and adopted and determined by the Court are as follows:
1. Whether the membership of the NBA is mandatory for all legal practitioners and therefore automatic upon call to Bar and/or on commencement and/or continuance of the practice of the Legal profession in Nigeria.
2. Whether the NBA has the power under the law to determine (increase or decrease) tax and/or collect Annual practicing fees for legal in Nigeria.
Resolution: This issue was resolved in favour of the Plaintiff. The Court held that the NBA has no business in the collection of practicing fees direct from Legal Practitioners in Nigeria because it has no lawful power to do so based on the Legal Practitioners Act which empowers the Chief Registrar of the Supreme Court to collect the practicing fees and disburse same in accordance with the law.
3. Whether the NBA has power and/or authority to produce seal and stamps that all legal practitioners, whether they belong to the NBA or not, must affix on processes they prepare for same to be cognizable under the law.
Resolution: This issue was declared to be no longer a life issue as same was withdrawn by the Plaintiff arising from the supervening action of the AG of the Federation which the Plaintiff acknowledged.
The issue of jurisdiction raised by Defendants was resolved in favour of the plaintiff as the Court held that it has the requisite jurisdiction to hear and determine the reliefs of the Plaintiff.
In conclusion, this judgment favours the NBA in that it is compulsory for every Lawyer called to the Nigerian Bar to become a member of the NBA. The NBA still has the power to increase or decrease tax/practicing fees. However, it cannot continue to engage in direct collection of the practicing fees of lawyers in Nigeria and has been restrained from doing so.
I LOOK FORWARD TO THIS SUIT BEING APPEALED AGAINST UP TO THE SUPREME COURT.
THE IMPACTS/BENEFITS OF THE NIGERIA STARTUP ACT, 2022
President Muhammadu Buhari recently signed the Nigeria Startup Bill into law much to the delight of industry stakeholders. The new act, which seeks to provide an enabling environment for technology-enabled businesses in Nigeria, has been described as a game-changer for the burgeoning startup ecosystem in the country.
BENEFITS OF THE ACT.
1. The Act will ensure that federal laws and regulations are clear, planned, and designed to work for the tech ecosystem. With the new Act, Nigeria’s tech ecosystem is expected to see an improved enabling environment soon.
2. The Act set up a Council known as the National Council for Digital Innovation and Entrepreneurship. The main function of the council is to ensure the monitoring and evaluation of the regulatory framework. It will also formulate and provide general policy guidelines for the realisation of the Startup Act’s objectives and give overall directions for the harmonisation of laws and regulations that affect a startup.
3. The Act will usher in a new era and set in motion new rules of engagement for the startup ecosystem. Crucially, it brings an end to some of the challenges that may have held the startup ecosystem back since its rapid rise within the last decade.
4. It marks as one of the most historic pieces of legislation in Nigeria, as it positions the startup ecosystem to thrive through its targeted provisions. These policies, collaborative in their making, will now guide the operations of startups in Nigeria.
5. It gives legal backing to both the sector and the players in the ecosystem.
6. It ensures the protection of young Nigerians that are coming up with innovative ideas without the requisite knowledge of dealing with international investors.
7. The offer of incentives such as tax holidays will allow startups to scale up without the burden of taxation in their formative years.
8. It establishes the Startup Investment Seed Fund, which is designated for startups alone to provide finance and tech relief for startups. This means increased access to funding that will grow the startup ecosystem. To this end, it will be easier for startups to fund their operations by leveraging the grants and loans that will be available to them.
9. Companies labelled as startups under the act are eligible for pioneer status incentives and other tax reliefs.
10. Also, companies labelled startups with at least ten employees where 60% of the employees have no prior work experience within three years of graduation or any vocational program have access to percentage-based tax relief.
THE NIGERIA STARTUP BILL HAS BEEN SIGNED INTO LAW- NIGERIA STARTUP ACT.
The Nigeria Startup Bill (NSB) has been passed into law and is now recognised as the Nigeria Start-up Act, 2022.Over a year after its first draft was produced, President Muhammadu Buhari assented to the NBS, which is targeted at the growth of the country’s tech ecosystem.
The Minister of Communications and Digital Economy, Isa Pantami, disclosed this via his Twitter handle.He said the new act would establish the National Digital Innovation and Entrepreneurship Council.The bill’s passage into an act automatically eradicates the legal uncertainties that have trailed the startup industry in the past.The new act is a joint initiative by Nigeria’s tech startup ecosystem and the Presidency to harness the potential of the country’s digital economy through co-created regulations.
It is believed that it will ensure that Nigeria’s laws and regulations are clear, planned and work for the tech ecosystem.According to Pantami, it is an executive bill initiated by the offices of the chief of staff and the minister of communications and digital economy.With the new act, Nigeria’s tech ecosystem should see an improved enabling environment soon. Tech startups in Nigeria face several regulatory hurdles and suffer from a lack of basic amenities like constant power supply and limited funding.
A HIGH COURT IN PORT HARCOURT ORDERS NIGERIAN AGIP TO PAY OVER $8M TO F & G TRINITY MARINE LTD, AWARDS N20M DAMAGES AGAINST CHEVYLN RESOURCES LTD.
A High Court in Port Harcourt has ordered Chevlyn Resources Ltd and Nigerian Agip Oil Co. Ltd, to pay F & G Trinity Marine Ltd, the sum of N230 per liter for the balance of 147,467 liters of A.G.O and the sum of $815,778, for 852,532 liters of A.G.O, respectively.
The court also awarded the sum of N20,000,000, as general damages to be paid by the 1st Defendant, Chevlyn Resources Ltd to F & G Trinity Marine Ltd
Justice, David Gbasam, while delivering the judgment on 30th Sept, in suit No: PHC/6/2022 entered it in favour of F & G Trinity Marine Ltd. He dismissed the counter-claim of the Chevlyn Resources Ltd, for lacking in merit.
Justice Gbasam, held that F & G Trinity Marine, at all material times in the case had the exclusive possessory right of the BARGE christened “KOBA 1”, as well as in control and charge over the content to the exclusion of the Defendants.
The court further held that the conversion and diversion of 1,000,000 liters of A.G.O being the content “KOBA 1” property of F & G Trinity Marine by Chevlyn Resources Ltd at Nigerian Agip Oil Co’s Farm Tank in Brass amounts to conversion, especially when it is done without its authorization.
The judge commended the counsel to the claimant, Chief AA Malik SAN and B. O. Iyasere-Kayode, Esq, for their professionalism, commitment, consistency in the suit.
In the Certified True Copy of the judgment the court made the following orders; “Restraining and/or prohibiting the 2nd Defendant from making any payment to the 1st Defendant and/or honouring any request for payment in respect of the plaintiff’s 1,000,000 liters of A.G.O being content of barge “KOBA 1” property of the Claimant converted by the 1st Defendant at the 2nd Defendant’s Tank Farm, Brass , Bayelsa State, between the period of June. 2018 to July, 2018.
“An order to be and is hereby made that the 1st Defendant ie Chevlyn Resources Ltd , pay to the Claimant forthwith the total gross price in the sum of 815,778 USD, for 852,532 liters of A.G.O belonging to the claimant and supplied to the 2nd Defendant by the 1st Defendant as admitted within 14 days from the judgment.
“The 1st Defendant is hereby ordered to pay to the claimant N230 per liter for the balance of 147,468 liters of A.G.O being the content of Barge “KOBA 1” property of the Claimant converted by the 1st defendant within the 14 days from judgement.
“The 1st defendant is hereby ordered to pay the claimant the sum of N20,000,000, as general damages