Uniosun Students

Law Journal

OSUN STATE UNIVERSITY, OSOGBO.

Faculty of Law, Ifetedo Campus

VOLUME 1
 UNIOSUN STUDENTS LAW JOURNAL
Maiden Edition Volume 1, Number 1, July 2020

To be cited as
Uniosun SLJ
Vol 1, No 1, 2020

All Rights Reserved

ISSN:

Publication of:
Law Students Society
College of Law
Ifetedo Campus
Osun State University
Osogbo
 Contents

Editorial Committee 3

Editorial Advisory Board 3

Guide to Authors 4

Acknowledgement 5

Foreword 6

ARTICLES

THE CHALLENGES OF UNEMPLOYMENT IN NIGERIA 7

PROF. WAHAB EGBEWOLE SAN

STRATEGIES AND PROCEDURES FOR EXPEDITING ELECTION PETITIONS AND 20

APPEALS
YUSUF O. ALI ESQ. SAN

LEGAL AND REGULATORY FRAMEWORKS ON ACCESS TO FINANCE IN 29

NIGERIA
PROF. OLAIDE A. GBADAMOSI, & FALADE OLUGBENGA D.

AN EXPLORATION OF CONTENTIOUS ISSUES IN REVENUE ALLOCATION 41

UNDER NIGERIA’S FEDERAL CONSTITUTION
J. O. AROWOSEGBE

AN APPRAISAL OF THE CONCEPT OF PLEA BARGAINING IN THE 65

ADMINISTRATION OF CRIMINAL JUSTICE IN NIGERIA
KEHINDE KOLAWOLE ELEJA SAN.

DEBT RECOVERY IN MICRO FINANCE: CHALLENGES AND PROSPECTS 83

O. OLATOKE SAN.

EXCLUSIVE RIGHTS AND LIMITATIONS OF LEGAL PRACTITIONERS IN 96

NIGERIA
UGOCHUKWU CHARLES KANU

ISSUES ON JURISDICTION, CHIEFTAINCY MATTERS AND JUSTICE HALAN 117

LEGAL CALCULUS
PROF. A. TORIOLA OYEWO

MARITAL RAPE:THE NON-CRIMINALIZED CRIME IN NIGERIA 126

FAMILY CLASS LAW 2019/2020
 Editorial Board

Falade Olugbenga D. Editor-in-Chief

Sub-Dean Students’ Affairs

Tokode Theophilus Deputy Editor

Student

Alao Adedolapo Assistant Editor

Student

Adebayo Peace Secretary

Student

Komolafe Ayomide Student

Editorial Advisory Board

Hon. Justice (Prof.) Mojeed A. Owoade Justice of the Court of Appeal, Nigeria

Hon. Justice Peter O. Lifu Justice of the Federal High Court, Nigeria

Chief Micheal Abayomi B. Alliyu SAN Chief Yomi Alliyu & Co., Ib adan.

Prof. Olaide Gbadamosi College of Law, Osun State University, Osogbo

Professor Olayiwola Oladele Dean, Faculty of Law, Bowen University, Iwo

Dr. Muyiwa Adigun Faculty of Law, University of Ibadan

Dr. Diran Ayodele Acting Dean, College of Law, Uniosun

Dr. Nasiru Adeniyi HOD, Public and International Law, Uniosun

3
 Guide to Authors

1. Papers must be well researched and original and as much as possible, deal with
contemporary legal issues.
2. Authors should state the title of paper, brief personal details, e-mail postal address on a
separate page.
3. Papers should be typed on A4 paper size processed in Ms Words 1.5 line spacing; 15 to
20 pages with corresponding (automatic) footnote; Font: Times New Roman; Size: body
text 12, footnotes 10.
4. Referral: Articles will be Peer Reviewed for accuracy and relevance.
5. Submission of article is via email to Lssuniosun@gmail.com. Submissions are always
ongoing. All correspondence and enquiries should be addressed to the Editor-in-Chief via
email to Lssuniosun@gmail.com.

4
 Acknowledgement

In all gratefulness, I would love to appreciate Almighty God the maker and creator of the
universe for the success of this project.

Equally I would love to appreciate the efforts of our Vice Chancellor, Prof. Labode Popoola and
everyone who has served in the history of the College of Law, Osun State University, ranging
from the various men of intellect who has pivoted the affairs of the college from the days of
Professor O.O Oladele to the present regime, and equally to all Head of Departments, Staff
Advisers, Lecturers and our highly revered Sub- Dean Students’ Affairs, Olugbenga Damola
Falade.

In the same manner, I will equally take into cognisance the efforts of my predecessors who have
in their best capacity tried to attain this and contributed in one way or the other, ranging from the
days of Omowunmi Ojoge, Kehinde Lateefat, Amure Opeyemi, Ebunoluwa Dapo- Thomas, Tobi
Oyesowo, Adekunle Ridwan and Akintola Akindele Abdul -quadri.

Never will I forget the efforts of my amiable members of the Golden Benchmark 2019/2020 led
administration towards the attainment of this project and equally the Law Students
Representative Council led by the Rt. Hon. Alao Adedolapo who has equally joined hands with
us to the actualisation of this project.

Lastly, I want to appreciate the efforts of everyone I cannot mention in course of this most
especially the members of the Editorial Advisory Board and the entire members of the Law
Students Society, Osun State University.

It’s my kind hope that the coming regimes of leadership uphold this as a legacy and keep the flag
flying.

Thanks and God Bless.

Tokode Theophilous Abiodun

President, Law Students Society (2019/2020)

5
 Foreword

It is with great excitement and delight that I write this foreword to a journal I consider novel
especially amongst student organisations in higher and tertiary institutions.

I have had the privilege of going through the various materials and notes from the challenges of
unemployment in Nigeria to the Strategies and Procedures for Expediting Election Petitions and
Appeals to Exploration of Contentious Issues in Revenue Allocation under Nigeria Federal
Constitution, etc. These articles deal and cut across several areas of law such as Labour Law,
Evidence, Constitutional and Administrative law, to mention a few; which every law student and
intending lawyer must be well abreast of.

The Osun State University Law Students Society, has by this work, contributed its quota to the
legal educational system in Nigeria particularly in the areas of law mentioned above. Students
and Law Teachers alike are by this piece, enabled to access various sources, principles and
judicial decisions on several topical issues in Nigeria.

I hereby congratulate the Society for its foresight and resourcefulness in putting this work
together. I affirm that it is a useful tool in the hands of students and lawyers as well.

It cannot also be overlooked that law students in other Universities and Law Schools will have
within their reach, an immensely rich source in further developing their understanding of law.

Hon. Justice G.A. Oguntade, JSC (Rtd), CFR, FNIALS, FCIArb.

6
THE CHALLENGES OF UNEMPLOYMENT IN NIGERIA

PROF. WAHAB EGBEWOLE (SAN)

INTRODUCTION

Perfect freedom is reserved for the man who

lives by his own work and in that work does
what he wants to do.
These famous words of Robin George Collingwood1would seem to state that a man is only free
indeed if he is employed. Thus, an unemployed is as good as someone who is not free. It has
been noted that:

Every year, youths in their millions are turned

into the labor market with no corresponding
demand for their skill and services.2
Unemployment has no doubt been a bane in Nigeria’s development as a nation and over the
years, it has come to be settled that unemployment in a nation can be the cause of many
nefarious acts and has retarded the progress of Nigeria as a country. It has been noted that
Nigeria would have no prospect of measurable development or of improving the welfare of its
people, unless the chances of employment for graduates are improved.3This work (without
claiming to be the first on the obviously over-flogged subject) would espouse the problem of
unemployment in Nigeria, its effects on the Nigerian economy and suggest probable way
forwarding the bid to reducing the menace of jobblessness which has grown from being a knotty
domestic issue to one that of a global phenomenon.

CONCEPTUALISING UNEMPLOYMENT IN NIGERIA

An attempt at defining the phrase unemployment would not really be helpful as anyone who has
had the most minimal contact with the Nigerian society would not be oblivious of the threat and

1
(1889-1943) in Speculum Meritis quoted in Book of Quotations (Geddes and Grosset, Poland)
2
Ojewumi A.K, Olasupo M.O, Unemployment Challenge in Nigeria: Vocational Education Through Open and
Distance Learning Model To the Rescue
3
Anameza L.N, (2000) Problems of Unemployment in Nigeria, J Counsell; 1 (1): 20-27

7
menace of unemployment. This section would only attempt to appraise the phenomenon and jolt
to reality those who seem unperturbed about the increasingly rising phenomenon.

However for the sake of this work, unemployment can be described as the state of not having a
job.4 The International Labor Organization5 states that unemployment occurs when people are
without jobs and they have actively sought work within the past five weeks. According to
Fajana,6 unemployment can be described as the state of worklessness experienced by persons
who are members of the labour force who perceive themselves and are perceived by others as
capable of work. Moro and Zoctizoum7 define unemployment as those available for employment
whose contract of employment has terminated or been temporarily suspended and who are
without a job and seeking paid employment; persons never previously employed whose most
recent status was other than that of employee, together with persons who had been in retirement,
who were available for work during the specified period and were seeking paid employment;
persons without a job and currently available for work who have made arrangements to start a
new job at a date subsequent to the specified period; and persons temporarily or indefinitely laid
off without pay. 8

Adebayo9 has described unemployment as one which exists when members of the labor force
wish to work but cannot get jobs. As a matter of fact, when the supply labour outstrips and
outmuscles the demand for labour, it causes joblessness and unemployment. 10

Categories of unemployment have been stated to be frictional unemployment, technological

unemployment and residual unemployment.11 While frictional unemployment is one caused by

4
See Oxford Advanced Learner’s Dictionary, 7 th Edition, International Students’ Edition
5
(1982), Resolutions Concerning Statistics of the Economically Active Population and Underemployment, adopted
by the 13th International Conference of Labor Statisticians
6
Fajana S, Economic Recession, Collective Bargaining and Labour Market Segmentation in Nigeria, Nigerian
Management Review CMD, Lagos, Vol.2, No.1 pg 9 -16
7
Morlo S and Zocilizoum, Y. (1980) Two Studies in Unemployment Among Educated Young People, France,
UNESCO
8
SeeNwagwu E.J, Unemployment and Poverty in Nigeria: A Look to National Security, European Centre for
Research Training and Development UK (www.ea-journals.org), Global Journal of Politics and Law Research,
vol.2, No.1, pp.26
9
Adebayo A. (1999) Youth Unemployment and National Directorate of Employment Self Employment
Programmes, Nigerian Journal of Economics and Social Studies, 41 (1) 81-102
10
Uddin P.S.O and Uddin, Osemengbe O, Causes, Effects and Solutions to Youth Unemployment Problems in
Nigeria, Journal of Emerging Trends in Economics and Management Sciences (JETEMS) 4 (4): 397-402
11
Uddin et al Ibid

8
industrial friction in which jobs may exist, yet the workers may be unable to fill them earlier
because they do not possess the requisite skill, or because they are not aware of the existence of
such jobs, residual unemployment on the other hand is caused by personal factors such as old
age, physical or mental disability, poor work attitude and inadequate training. Technological
unemployment however is caused by changes in the techniques of the production of the goods
and services. Seasonal unemployment is one that involves changes in employment that follow
recruitment pattern over years while structural unemployment is one that occurs when there is a
mismatch between supply of labour and demand for workers due to factors like lack of skills or
regional unemployment problems.12 The cyclical unemployment is one which occurs as a result
of fluctuations in thea market cycle. 13

Youth unemployment in Nigeria is unremarkably high. 14 Youth population in Sub -Saharan

Africa has been estimated at 138 million people in 2002 and 2003 with 21% unemployed.15It has
been noted that youth unemployment in Africa is geographically oriented in the sense that
unemployment is higher in the urban areas than in the rural areas. It has been noted that statistics
from the Manpower Board and the Federal Bureau of Statistics shows that Nigeria has a youth
population of 80 million which represents 60% of the total population. 64% of them are
unemployed while 1.6 million are under-employed.16

The Nigerian economy is no doubt growing on a daily basis without appreciable employment
opportunities for the population thus occasioning grave socio-economic consequences.17 In their
words, ‘for every graduate, finding a decent job is a milestone towards self-reliance, and
continuity to poverty reduction, social stability and sustainable development.’ The Nigerian High
Commissioner to India, Ambassador DutsinaLawal was reported to have said that:

12
Kaplan J (2002) Principles of Macroeconomics available at www.colorado.edu/...section5-main.html assessed on
1st of July, 2014
13
Ademulegun S.O, Unemployment and Poverty Paradigm in Nigeria: Challenges and Prospects; International
Journal of Managements and Administrative Sciences (IJMAS), Vol.2 No.3, Feb, 2004 (16 -23) available at
www.jimas.org assessed on 2nd July, 2014.
14
See Salami C.G.E, Youth Unemployment in Nigeria: A time for Creative Intervention, Department of Business
Administration and Marketing, Faculty of Management Societies, Delta State University
15
International Labor Organization (2004)Global Employments Tends for Youths, Geneva
16
Awogbenle, A.C and Iwuamadi K.C (2010) Youth Unemployment: Entrepreneurship Development Porgramme as
an Intervention Mechanism, African Journal of Business Management 4 (6), 831-835
17
Eneji M.A, Mai-Lafia and Weiping S, Socio-Economic Impact of Graduate Unemployment on Nigeria and the
Vision 20:2020, International Journal of Development and Sustainability available at www.isdsnet.com/ijds vol 2
No.1 (2013)

9
 You can’t go to India and get a job because they
have about 1.3 billion people to take care of. Half
of them are educated and qualified. Every one of
them is trained in one skill or another. So don’t
go there and think you will get, there is
absolutely no job.
According to Keynes18the level of unemployment in a given country can be ascribed to be
determined by 3 factors namely the marginal propensity to consume (the income that people
choose to spend in goods and services), the marginal efficiency of capital (the rates used to see
whether investments are worthy) and lastly, the rate of interest. The unemployment rate in any
country is the number of unemployed workers divided by the total civilian labour force. 19

Employment and poverty are intrinsically linked with each other as there is a linkage between
income and poverty.20 Thus, the reduction of joblessness is a global concern. It must however be
noted that due to free market economies, zero unemployment is an impossibility. 21

CAUSES OF UNEMPLOYMENT IN NIGERIA

Many factors have been ascribed to be the causes of unemployment in Nigeria and it must be
noted that these factors have no doubt gone a long way in making Nigeria’s economy despite 53
years of existence, to still be at the nascent stage in terms of growth. The factors include the
following amongst others:

1. Low economic growth22

2. Low economic activity23
3. Low investment24

18
Keynes J.M, (1936), ‘The General Theory of Employment, Interest and Money, Macmillan ISBN:0984061401
PP.246
19
Ajayi K, Adeniyi I.A and Adu E.O, Graduate Unemployment in Nigeria: A blind Spot in the Nation’s educational
System, the African Symposium, Vol.8, No.2 December, 2008
20
Boating k, 2004, Youth and ICT Skills in African Labour Market with particular reference to Ghana, being a
paper presented at the 3rd Annual General Conference of the African Youth Foundation, Frankfurt, Germany.
21
See Adawo M.A, Essien E.B and Ekpo N.V, Is Nigeria’s Unemployment Problem Unsolvable? Current Research
Journal of Social Sciences 4 (6) 389-395, 2012, Maxwell Scientific Organization
22
Salami Ibid
23
ibid
24
Ibid

10
 4. Over regulation in an economy also hinders business expansion and job creation.
5. Wage rigidity.
6. Government insensitivity
7. Graduates’ lack of relevant marketable skills 25
8. Long period of initial unemployment among University graduates in Nigeria.
9. Faulty man power planning and expansion of educational facilities that have unduly
raised the expectations of Nigerian Youths.
10. Economic recession
11. Continued proportionality of expatriates in Nigerian employment
12. Institution of the NYSC in 197326
13. Collective bargaining process
14. Graduate attitude to some type of jobs attitude to jobs in other location as well as search
behavior of employers and job seekers.
15. Use of capital intensive technology
16. Wide rural-urban migration. It has been noted that ‘urban employment is worse than the
regions, because after completing their compulsory one year National Youth Service
Scheme (NYSC), the graduates are crowded, jobless in the urban squalor. This has
created multiple socio-economic problems in the regions, very vulnerable to
criminality.27
17. Formal-informal sectors differentials.
18. The World Bank28 attributes high youth unemployment in sub-Saharan Africa to purely
conceptualized, inadequate, vocational and technical education in Nigeria.
19. It has also been argued that the appointment of expatriates in Nigerian countries is also a
factor to consider that has retarded the Nigerian economy. Elegbede 29has noted quite
rightly that ‘the employment of expatriates in technological and professional jobs is not
the cause of unemployment in Nigeria. Rather, their employment plays a complimentary

25
Ibid
26
Elegbede, S.T, Unemployment In Nigeria, Department of Industrial Relations and Personnel Management, Faculty
of Business Administration, University of Lagos
27
Eneji et al (ibid)
28
World Bank (2012), Reducing Youth Unemployment Through Skills Development in Sub -Saharan Africa South-
South Knowledge Exchange Hub.http://wbi.worldbnk.org/ske/result_story/2160
29
ibid

11
 role in the economy, where there are no qualified Nigerians for such purposes.”
20. Ethnicity and insecurity in some parts of the country e.g Boko Haram crisis would make
people run from the Northern part of the country and make such places they run to over-
crowded.
21. The increase of universities in Nigeria is also a factor that has contributed to
unemployment in Nigeria. It has been noted that before independence, there was only one
university in Nigeria and between 1960 and 1999, 39 universities and presently there are
89 universities in Nigeria. Job opportunities have not increased in comparable terms.30
22. Poor quality of education and paucity of good schools
23. The absence of good population policy to control population increase which is incidental
to rapid population growth. It has been observed that the 2006 census reads 140,431,790
as the population of Nigeria but it could be over 180 million by 2020 given the annual
growth rate of 3.2 percent.31
24. God-fatherism and not merit is the yardstick to measure eligibility for job and this no
doubt makes the qualified that are in the large percentage unemployed. 32
25. Non diversification of the economy
26. Lack of serious emphasis on skill acquisition
27. Preference for graduates with foreign certificates by firms and companies.
28. A major factor causing unemployment in Nigeria is the provision of the Constitution on
employment. Section 17 (3) touches on right to employment in Nigeria.it provides as
follows:
The State shall direct its policy towards ensuring
that-
(a) All citizens without discrimination on any group
whatsoever, have the opportunity for securing
adequate means of livelihood as well as adequate
opportunities to secure suitable employment;
(b) Conditions of work are just and humane, and
that there are adequate facilities for leisure and

30
Ajayi K, Adeniyi I.A and Adu E.O, Graduate Unemployment in Nigeria: A blind Spot in the Nation’s educational
System, the African Symposium, Vol.8, No.2 December, 2008
31
See Uddin Ibid
32
See Alexander H.S, Ezugwu D.C, Titilayo A.O and Ajiboye D.I, Unemployment in the Nigerian Democratic
Setting: Challenges and the Way Forward.

12
 for social, religious and cultural life;
(c) The health, safety and welfare of all persons in
employment are safeguarded and not
endangered or abused;
(d) …
(e) There is equal pay for equal work without
discrimination on account of sex, or on any other
ground whatsoever;
(f) …
(g) …
(h) ….
However, as laudable as these provisions are, they are covered (ashamedly) under the garb of
unjusticiabilty.33 This non-justiciability principle is no doubt not unconnected to the express
provisions of section 6 (6) (c) of the 1999 Constitution which provides thus:

The Judicial powers vested in accordance with the

foregoing provisions of this section shall not, except
as otherwise provided by this Constitution, extend
to any issue or question as to whether any act or
omission by any authority or person as to whether
any law or any Judicial decision is in conformity
with the Fundamental Objectives and Directive
Principles of State Policy set out in chapter two of
this Constitution.
The Court of Appeal decision in ARCHBISHOP OLUBUNMI OKOJIE V. THE LAGOS
STATE GOVERNMENT 34 is very instructive as regards this principle that chapter two of the
Constitution is unjusticiable. The Court of Appeal in the case held as follows:

The Fundamental Objectives identify the

ultimate objectives of the Nation and the
Directive Principles lay down the policies which
are expected to be pursued in the efforts of the
Nation to realize the national ideals. While
section 13 of the Constitution makes it a duty
and responsibility of the judiciary among other
organs of government, to conform to and apply
the provisions of Chapter II, Section 6 (6) (c) of
the same Constitution makes it clear that no

33
Otaru R, Fundamental Objectives and Directive Principles of State Policy: The Need for Amendment to Ensure
their Justiciability, (The Jurist, An Annual Publication of the Law Society, University of Ilorin, Essays in Honour of
Hon. Justice SalihuModibbo Alfa Belgore (CJN), (CON), Vol.11, 2006)
34
(1981) 2 NWLR 337 AT 350

13
 court has jurisdiction to pronounce any decision
as to whether any organ of government has acted
or is acting in conformity with the Fundamental
Objectives and Directive Principles of State
policy. It is clear therefore that Section 13 has
not made Chapter II of the constitution
justiciable.
Aguda35 described Chapter II as ‘a white elephant…attempt (sic) to introduce into the
Constitution some ideals and concepts in the nature…of a by-gone era.’36Olowu37 also noted that
as laudable and innovative as the provisions in chapter two are, they are prone to becoming
worthless platitudes because of their emasculated constitutional status.

The non-justiciability principle has been given tacit judicial affirmations in the case of AG
BORNO STATE V. ADAMU 38 where the Court of Appeal per Oguntade J.C.A (as he then
was) held that:

It is clear that the above Section 6 (6) (c)

excludes jurisdiction of the court in the
determination of whether or not any authority
of person is in breach of the provisions under
Chapter II of the 1979 Constitution. Section
18 of the 1979 Constitution…falls under
Chapter II of the 1979 Constitution. It is
therefore obvious that if the claim of the
Plaintiffs/Respondents and their appeal before
this court are in pursuit of rights said to be
derived under section 18 of the 1979
Constitution that the Court has no
jurisdiction in the matter.
The causes of unemployment in Nigeria abound and this work is not exhaustive of what factors
cause unemployment. It is necessary also at this juncture to take a look albeit briefly into what
effects unemployment has on the Nigerian nation. They would be discussed in the next section of
this work

EFFECTS OF UNEMPLOYMENT IN NIGERIA

35
Aguda T.A, The Judiciary in the government of Nigerians (1983) 77-78
36
See generally Olowu. D, An Integrative Rights-Bases Approach to Human Development in Africa, (Pretoria
University Law Press (PULP), 2009) available at www.pulp.up.ac.za accessed on 12th April, 2014
37
Ibid at page 95
38
(1996) 1 NWLR (PT. 472) 681 at 689. See also Buhari V Obasanjo (2005) ALL FWLR (PT 273) 1 at 104

14
 1. It ruptures the relationships and ties graduates form with people. 39 People who are
unemployed feel inferior to their contemporaries who are well employed. Elegbede noted
that unemployed persons are usually seen as parasites by people from whom they demand
money.
2. The financial, emotional and psychological effects of the ph enomenon cannot be
underestimated. The unemployed youth feels disillusioned with life and has the
inferiority complex to relate with his mates. This psychological injury is not unconnected
to the breakdown in social contacts which affects negatively the life of such unemployed
individual.40
3. Elegbede41 also noted that in certain societies, unemployment is not welcome hence
young people strive to find work as much as they can. He noted that ‘at the beginning of
the search period, they look for jobs suited to their qualifications, trainings or trade but
later on, they look for any kind of job.
4. Unemployment and under employment cause people to move from the rural areas to the
urban areas and on the larger scale, move to advanced countries from the less developed
countries, causing brain drain the less developed country.
5. Unemployment leads to overcrowding, crime and insecurity. It is often argued that where
unemployment rate is high, there will be considerable increase in deaths due to increase
in murders and some life threatening ailments.
6. Loss of status in the society is also a far-reaching effect of the phenomenon of
unemployment.
7. An unemployed individual also suffers loss of prestige and economic strength.
8. Unemployment causes isolation, loss of responsibility, loss of identity and loss of
respect.42
9. Loss of purchasing power.
10. Loss of union check off dues. 43
11. Loss of production and stunting of the gross national product.

39
Elegbede ibid
40
Fajana Ibid
41
ibid
42
Fajana S, (1987) Economic Recession, Collective Bargaining And Labour Market Segmentation in Nigeria,
Nigerian Management Review CMD, Lagos, Vol.2, No.1 p9 -16
43
ibid

15
 12. Reduction in the pay-roll tax revenues of the state.
13. It has also been noted that unemployment causes premature death which result from
criminality, incapacitation, stroke, hypertension, malnutrition, diabetes, vehicular
accidents, poverty caused tragedies, etc.44 the pressure to earn income and survival
pushes the unemployed youth to engage in crimes, risky and menial jobs.
14. Unemployment leads to insecurity.45
15. Unemployment has also been argued to lead to disputes among married people, delayed
marriages among singles and sometimes broken homes46
RECOMMENDATIONS

1. There should be coordinated efforts towards labor-intensive projects.

2. Orientation of university graduates to change their perceptions about menial jobs.
3. There is need to eliminate rigid job and wage preferences.
4. Overhauling of the NYSC.
5. There is an imperative need to diversify the Nigerian economy from over-concentrating
on oil. Due regard should be given to investments in resources like cocoa, palm oil,
rubber, cotton, cassava, cashew, pineapple, rice, groundnut and other cash crops. As a
matter of fact, there should be synergy between the governments (at the local level) and
farmers to modernize agriculture.47
6. Specific allocations should be made by the government for job creation and skill
acquisition.
7. Government should partner with private individuals to establish industries
8. The government should strive to eliminate insecurity and corruption that are dissipating
public funds.
9. Infrastructures like good roads, electricity should be improved on.
10. There is need for universities to revamp or overhaul their curriculum to make their
graduates more relevant in the contemporary world. Emphasis should be had on the fact
that the labour world is a competitive world with little or no opportunities for the youths.

44
Eneji et al, ibid
45
Salami Ibid
46
Adawo et al ibid
47
Adawo et al ibid

16
 11. There is need to amend the Nigerian laws on employment. The American Government
seems to have a positive attitude towards the provision of employment for its citizens by
the enactment of the Employment Act of 1946. 48Commenting on the American posture,
the American congress was reported to have held that:
The Congress hereby declares that it is the
continuing policy and the responsibility of the
Federal Government to use all practical
means…to promote maximum employment,
production and purchasing power.49
12. On the non-justiciability principle within the corpus of Nigerian law, Adelodun50 noted
rightly that there seems to be a ‘window’ for enforcing chapter II of the Constitution by
the application of the phrase “except as otherwise provided by this Constitution.” He
cited with approval the case of ORGAN V. NIGERIA LIQUIEFIED NATURAL GAS
LTD 51where the Court of Appeal per Saulawa, J.C.A held as follows:
It is not in doubt that the fundamental rights of
the applicants as cherishingly enshrined in the
Constitution of the Federal Republic of Nigeria,
1999 have been wantonly infringed upon by the
1st respondent with the tacit collaboration of the
2nd respondent. And it’s the duty and
responsibility of all organs of Government, and
of all authorities and person, exercising
legislative, executive or judicial powers, to
strictly conform to, observe and apply the
provisions of the Constitution, most specially
under chapter II i.e. regarding fundamental
objectives and directive principles of State
policy.” 52(Underlining is mine for emphasis)
In A.G ONDO STATE V. A.G., FEDERATION, 53it was held that the National Assembly has
the powers to abolish corrupt practices and abuse of power (provided for in Chapter 2 of the

48
See Adawo et al Ibid
49
Ackley, G. 1978 Macroeconomics: Theory and Policy, Macmillan Publishing Co. Ltd, Inc, New York
50
Adelodun A.O and Abdul O.Y, Enforcing Economic, Political and Social Rights: The Nigeria Legal System and
Islamic Legal Framework, The Jurist, Essays in Honour of Chief (Mrs) ‘FolakeSolanke CON, SAN, An Annual
Publication of the Law Students’ Society, University of Ilorin, Vol.18, 2013 at p. 92
51
(2010) ALL FWLR (PT. 535) 293 AT 338
52
See also AG ONDO STATE V. A.G FEDERATION (2002) 9 NWLR (PT 772) 222
53
Supra

17
Constitution) by legislation. Thus ADELODUN54noted that:

The effect of the above decision is that the

provisions on Fundamental State Policy can
be made enforceable by legislation.
Furthermore, any legislation within the
respective legislative competence of the
National Assembly and the State Houses of
Assembly may statutorily provide for the
enforcement of any of the provisions of
Fundamental Objectives and Directive
Principles of State Policy relating to the
economic, political and social rights, as well
as other rights provided for under Chapter
II of the Constitution
On the authority of ABACHA V. FAWEHINMI, 55where provisions of Chapter II are found in
the African Charter on Human and People’s Rights and because same charter has been
domesticated and is thus enforceable in Nigerian Courts, such rights in Chapter II can be deemed
justiciable. It is thus my humble view that the provisions of the Constitution on employment as
can be seen in section 17 (3) can now be enforced in Nigerian law. I strongly suggest that this
would go a long way in curbing the menace of unemployment that has eaten deep into the fabrics
of the Nigerian nation in its strife to grow and develop.

The most potent solution to the challenges of unemployment in Nigeria is for the wealthy to pay
Zakat regularly, contribute to the society by doing Zadakat. This will go a long way in re-
ordering the society.

CONCLUSION

It is no gainsaying the fact that unemployment impedes Nigeria’s growth and progress 56 and it
has been shown particularly that the negative consequences of unemployment extends to youth
drifting into crimes, hence the saying ‘the idle hand is the devil’s workshop.’ It must be noted
that enhanced employment and productivity are integral to the growth of Nigeria as a nation

54
Ibid
55
(2000) 6 NWLR (PT 660) 228 at 242
56
Ipaye, B (1998) Counseling the employed. See explanatory ideas for the Nigerian Counselors; 7 1-15

18
hence the need to ensure same.57 This work has thus embarked on a voyage of what connotes
unemployment, its causes, its effects on the Nigerian nation and the individual and also
recommendations with a view to curbing the menace as soon as practicable.

57
The brilliant performances of the Chinese and Japanese economies have been ascribed to their enhanced
employment and productivity. See World Bank Report on Unemployment (1993) Retrieved from
http://www.worldbank/unemployment/report.org.

19
STRATEGIES AND PROCEDURES FOR EXPEDITING ELECTION PETITIONS AND
APPEALS

YUSUF O. ALI ESQ. SAN

INTRODUCTION:
For any type of dependable democracy, sound and credible election is the most reliable means
for the determination of who the representatives of the people will be and Nigeria is not an
exception. However, it is an accepted fact in Nigeria today that an average politician who goes to
the poll and looses, either justly or unjustly, would turn to the election tribunals in a bid to
reclaim his ‘stolen’ mandate. With the recent amendments to our Electoral Act and the
Constitution, this would have the effect of regular civil and criminal cases being adjourned sine
dine (indefinitely) in order to give full attention to election petitions, since they are sui generis.
Putting the issue of sidelining of the regular cases apart, the electorates are also kept in suspense,
upon the filing of election petitions, as to who their leader would eventually be. The suspense
and fear of the electorates is not unfounded, given the unseating of incumbents by the courts just
months to the end of their tenure.

In discussing this topic, I will be highlighting the history of electoral disputes in Nigeria,
strategies for expediting election petitions, both statutory and procedural, provisions of the
Electoral Act and Constitution (as amended) as to the time for taking steps in election petitions,
the effect of delay in election petitions, factors responsible for delay in election petitions,
consequences of delay, and recommendations for expediting election petitions.

GENERAL NATURE OF ELECTION PETITIONS:

In legal circle, it is common knowledge that election petitions are “sui-generis” which means
special, or, put in another expression, proceedings of its own kind or class; unique or peculiar.

Election petitions have peculiar features which modify the operation of certain rules of civil
proceedings. Some technical defects or irregularities which in other proceedings are considered

20
too immaterial to affect the validity of the claim, could be fatal to proceedings in election
petitions. The courts have also severally expressed this opinion and in the admirable words of
Justice Uwais CJN (as he then was) in the case of Orubu v. N.E.C. (1988) 5 NWLR (Pt. 94) 323
at 347:

‘An election petition is not the same as the ordinary civil

proceedings. It is a special proceeding because of the nature of
elections which, by reason of their importance to the well-being of
a democratic society are regarded with aura that places them
above the normal, day to day transactions between individuals
which give rise to ordinary or general claims in court. As a matter
of deliberate policy to enhance urgency, election petitions are
expected to be devoid of the procedural clogs that cause delay in
the disposition of the substantive dispute.’ (Underlining mine for
emphasis).

The essence of the special nature of election petitions is brought to fore by the promulgation of
practice directions which bring election petitions out of the procedural clogs that cause delay in
the disposition of substantive disputes. The Electoral Act 2010 also provides, in its section 142,
for accelerated hearing of an election petition, giving it precedence over all other cases and
matters before the tribunal or court.

HISTORY OF ELECTORAL DISPUTES IN NIGERIA:

One can confidently say that real disputation in electoral matters started in 1959 as a result of the
general elections of that year and thereafter, it has been on the increase. As an upshot, machinery
was put in place to address the issue of electoral disputes using the courts. The 2007 general
elections however, seem to have put election petitions in top gear as the influx of aggrieved
candidates into the courts for reprieve greatly increased, leading to the devotion of the better part
of the tenure which the election ushered in, to the resolution of election disputes.

21
Agreeably, some of these disputes were resolved in a reasonably short space of time (like the
case of Imam V. Sheriff (2005) 4 NWLR (PT. 914) 80 CA. and AD V. Fayose (2005) 10 NWLR
(PT. 932) 151 CA). However some others spanned over three years. An example is the petition
of Wamakko against Dingyadi of Sokoto state which is considered as the longest election
petition ever entertained by the Judiciary in the Northern part of Nigeria.
In Anambra state another intriguing script was also played. Shortly after the April 17 2003
gubernatorial elections, Peter Obi, filed a petition challenging the return of Dr. Chris Ngige, the
erstwhile governor, as the Governor of the state. The tribunal gave its decision invalidating the
governorship of Dr. Chris Ngige and installed Peter Obi, thirty six months after the swearing in
of the former.
A most interesting scenario was also played out in Delta State where after three and half years,
Great Ogboru convinced the courts to nullify Delta states’s governorship election and after the
re-run Uduaghan retained his seat. Now it is settled that his tenure will elapse by May and
another governorship election in Delta state was held on 26th April, 2011, it is apparent that the
three and half years spent in the court was a load of waste and difficulty in terms of logistics that
has been created for the state and INEC
The South-West has also had its share of delayed resolution of electoral disputes in the cases of
Fayemi V. Oni and Aregbesola V. Oyinlola in Ekiti and Osun States respectively.

STRATEGIES FOR EXPEDITING ELECTION PETITION DISPUTES:

Under the 1982 Electoral Act in sections 129 (3) and 140 (2), election petitions were meant to be
concluded not later than 30 days from the date of the elections. However, the Supreme Court
struck down the provisions in the case of Unongo v. Aku SCNLR [1983] 2 SCNLR 332 at 342-
343, in the following words:

‘I do not see how a reasonable person will have the impression

that a party has had a fair hearing where his petition which has
been instituted within the time stipulated by the Electoral Act

22
 cannot be concluded because the time available to the court for
the petition to be heard will not be sufficient for either or both
parties to present their case or will not allow the court at the close
of the parties’ case sufficient time to deliver its judgment. Ther e
can be no doubt that the provisions of section 129 subsection (3)
and 140 subsection (2) of the Electoral Act neither allow a
petitioner or respondent reasonable time to have a fair hearing,
nor give the court the maximum period of 3 months to deliver its
judgment after hearing a petition as envisaged by sections 33
subsection (i) and 258 subsection (1) of the Constitution
respectively.
Accordingly, the provisions of section 129 subsection (3) and 140
subsection (2) of the Electoral Act, 1982 which limit the time for
disposing of election petitions by the courts are in my view ultra
vires the National Assembly and therefore null and void.’

Under military rule, however, whenever elections were to be conducted, there were provisions in
the Electoral Decrees prescribing the time limit within which electoral petitions must be
concluded. These provisions were heeded by the courts but not without protest from the courts.
The Court of Appeal, in the case of Maikori v. Lere [1992] 3 NWLR (Pt. 231) 525 at 535-536,
expressed their dissatisfaction with the provisions of the Decrees imposing a time limit in the
following words:

‘We have heard three Election Petition Appeals today. Pursuant

to Para. 1 (3) of Schedule 6 of Decree No. 50 of 1991 an Election
petition must be heard and determined within one month from the
date of filing of Notice of Appeal. The Appeal on this matter was
filed on 28 February 1992. Judgment ought to have been
delivered on 29th March 1992 but yesterday was Sunday and so
today is the last day when judgment must be delivered. It seems
that the justices of the Court of Appeal and Election Tribunals

23
 have been strained without exception.
It appears the position has not improved from what Aniagolu JSC
said in Ojukwu v Onwudiwe (1984) 15 N.S.C.C. 172; (1984) 1
SCNLR 247 when he observed:
“During the 1983 elections and the petiitons that
followed all the Judges in Nigeria without exception
were strained to the utmost by reason of pressure of
urgency which the then state of law out on the Judges.
All courts seized with election petitions versed round
the clock beat the deadline resulting in some court
sitting till late hour in the night, and delivering
judgment immediately after closure of address of
counsel no matter how late it was in the day or in the
night.”
(See also (1984) 2 SC. 15 at 88/89)
That is exactly what we have done today. Aniagolu JSC says that
this is an intolerable burden for the effective discharge of which
the judiciary deserved. Justices of the Court of Appeal have been
moved all over this country, the president of the court leading the
team.
I am of the view that the law makers ought to look at this rush of
the dispensation of justice, particularly in election petition matters
afresh.
There is need to give adequate time to all courts to hear case in a
manner conducive to proper administration of justice without any
health hazard to Judges.’

It was therefore, not surprising that the provisions of the Electoral Act of 1982 and the Decree
became anachronistic with the coming into force of the 1999 Constitution, on the grounds of fair
hearing, constitutional time frame allowed for the delivery of judgment and the fear that justice
would be sacrificed on the altar of haste. Since then all the subsequent Electoral Legislations of

24
2002 and 2006 jettisoned the provisions imposing time limit for the disposal of election petitions.

PROCEDURAL STRATEGY FOR EXPEDITING ELECTION CASES:

Various attempts have been made using the rules of court to fast track election petitions.
However, the most significant of all is the Practice Direction issued by Justice Umar Faruk
Abdullahi CON, the then President of the Court of Appeal relying on the provisions of section
285 of the 1999 Constitution, section 8(2) of the Court of Appeal Act 1976 and section 149 of
the Electoral Act 2006. The Practice Direction introduced the practice of frontloading of
documents as a means of fast tracking matters and even though it did not prescribe a time limit, it
abridged the time for taking steps.

AMENDMENT OF THE CONSTITUTION:

Apparently, in a bid to expedite the disposal of electoral disputes and still act within the purview
of the Constitution, the 1999 Constitution has been amended. Thus Section 285 of the
Constitution has been substituted with a new one and according to Section 9 of the Constitution
of the Federal Republic of Nigeria (Second Alteration) Act 2010, Section 285 subsection (5)-(8)
provides thus:

(5) An election petition shall be filed within 21 days after the date
of the declaration of the result of the elections;
(6) An election tribunal shall deliver its judgment in writing
within 180 days from the date of the filing of the petition;
(7) An appeal from a decision of an election tribunal or Court of
Appeal in an election matter shall be heard and disposed of within
60 days from the date of the delivery of judgment of the tribunal
or Court of Appeal.
(8) The court, in all final appeals from an election tribunal or
court may adopt the practice of first giving its decision and

25
 reserving the reasons therefore to a later date.

The above innovation is yet to be tested or activated, therefore, it remains to be seen how
effective it will be in the new dispensation. If it works out well, election petitions and appeals
ought to have been finally disposed of by the end of the 1st quarter of 2012.

FACTORS RESPONSIBLE FOR THE DELAY IN ELECTION CASES:

From experience, the major reasons for the delay in the determination of election petition cases
can be recapitulated as follows:
1. Provisions of the rules of court that are exploited by lawyers to stall proceedings.
2. Lack of seriousness on the part of litigants.
3. The sheer volume of election petitions the judiciary has to attend to.
4. Weak bench.
5. Knowledge of the bench.
6. Dilatory practices of lawyers.
7. Lack of equipment for electronic recording.
8. Logistic deficiencies in the courts.
9. The Electoral Body.
10. Security agencies.

EFFECT OF DELAY IN THE DISPOSAL OF ELECTION CASES:

As election petitions drag for indeterminable periods, grievances linger, breeding anxiety and
uneasiness and leading to an inevitable eruption of rage. The cliché, ‘justice delayed is justice
denied’ is perhaps truest in the context of election petitions. The waiting period before the
disposal of election petitions dims the contesting party’s hope of enjoying the fruit of his
litigation, if he succeeds. While the tribunal is ‘taking its time’, an illegitimate president,
governor or legislator may be taking the privileges of an office to which he has no valid claim. In
many cases, at the time the election petition is finally concluded, it makes no difference to the
illegal occupant of the office, for he would have taken virtually all there is to the tenure.

26
The foregoing aside, the list of the effects that prolonged election petition has, though seemingly
endless, may be summarised as follows:
1. Economic.
2. Heightening of political tension.
3. Disruption of judicial activities.
4. Waste of public resources.
5. Exposing the judiciary to negative publicity.
6. Erosion of public confidence in the judiciary.
7. Tendency to cause social disequilibrium.
8. Employment of self help

RECOMMENDATIONS:

In order to curtail the above listed factors responsible for delay in election petitions, I wish to
submit the following recommendations to all the stakeholders:
1. Credible, free and fair elections.
2. Reduction in the number of judges that constitute a panel.
3. Introduction of better fast track methods.
4. Better equipment for the courts.
5. Change in the attitude and orientation of lawyers.
6. Proper orientation for the officials of the electoral body.
7. Controlled access by loosers of elections.
8. Curtailing of unjustifiable emphasis on technicalities.

CONCLUSION:

Lawyers play a large role in deciding the length of time an election petition will take. Thankfully
though, that has been limited by the amendment to our laws.

The point still has to be made, however, that as stakeholders and ministers in the temple of

27
justice, it behoves us to reflect on this matter and play our part conscientiously. Election
disputations are here again and the electorates will be held hostage for as long as the petitions last
to know who their leaders are. It is hoped that we will not be party to burdening the courts with
frivolous petitions as that is the starting point for delay in the whole process of election petitions.
The judiciary must also be reminded that its members should be ready to work harder in order to
dispense justice and not deny justice by engaging in a delay tactics. We all have a part to play in
ensuring that our budding democracy is not disparaged as a result of failure to diligently do our
part in the disposal of all legal disputes in the coming months.

28
LEGAL AND REGULATORY FRAMEWORKS ON ACCESS TO FINANCE IN
NIGERIA

Prof. Olaide Gbadamosi and Falade Olugbenga D.⃰

Abstract

Lack of access to finance is one of the major factors militating against economic growth in
Nigeria. Despite being the most populous African nation, Nigeria is a mid-level player in the
Sub-Saharan banking sector and lags behind some of its peers in Africa in terms of access to
finance. The paper examines the legal and regulatory frameworks on access to finance in
Nigeria and the barriers on access to finance.

Introduction

Access to finance refers to the possibility that individuals or enterprises can access financial
services, including credit, deposit, payment, insurance, and other risk management services. 1
Access to finance provides credit for the needy, promotes growth for enterprises through the
provision of credit facilities, and enables the beneficiary to grow with the aid of loan and
investment opportunities. Access to finance entails the availability of financial services – in the
form of deposits, credit, payments, or insurance – to individuals or enterprises. The availability
of such services can be constrained for instance by physical access, affordability or eligibility.

As a public good, access to financial services enable people to participate in the benefits of a
market-based economy analogous to access to safe water, basic health services and primary
education.2 Access to financial services forms a fundamental basis for the sustainability of many
of the essential interventions and is a critical contextual factor with a strong impact on the
achievement of the Millennium Development Goals.3 However, in many countries, access to

* Prof. Olaide Gbadamosi and Falade Olugbenga D. both of Department of Public and International Law, College
of Law, Osun State University, Nigeria
1
Demirgüç-Kunt, A., Beck, T., & Honohan, P. Finance for All?: Policies and Pitfalls in Expanding Access.
(Washington, D.C.: The World Bank, 2008).
2
S. Peachey and A. Roe, “Access to Finance: A Study for the World Savings Bank Institute.” Oxford Policy
Management, 2004.
3
Thankom Arun and Victor Murinde.“Microfinance Regulation and Social Protection.” Unive rsity of Birmingham,
2011.

29
financial service is limited to a small section of the population. 4

Usually in Africa, less than 20 percent of households have access to formal financial services,
with low population densities, poor transport and limited communications infrastructure
contributing to a short of supply in broad regions of the continent. Even where such services are
available, low-income individuals, small and medium businesses may have problem in meeting
eligibility criteria such as strict documentation requirements or the ability to provide collateral.5

Typically, the following four aspects of access to finance can be distinguished: 6

Informal finance refers to services that are unregulated by Central Banks or other supervisory
authorities. This type of financing is generally not arranged through formal agreements and is not
enforced through the legal system. Informal lending and savings schemes are very common in
Africa, particularly among the financially excluded or those on low incomes.

Microfinance covers the provision of a range of financial services to low income households,
including loans, savings, money transfers and insurance. Although microfinance still has low
penetration rates in Africa as a whole, research shows microfinance is growing rapidly. In 2007
more than 14 million people in Sub-Saharan Africa used microfinance institutions to help to
meet their financial needs.

Mobile banking refers to the use of mobile phones for transferring money and accessing other
banking services, such as balance inquiries. About four in ten Africans have a mobile phone and
increasing numbers are using them for financial transactions. Progress in mobile communications
technology and encryption systems has changed the economics of financial service provision,
particularly in remote areas, rapidly expanding the number of people able to access these
services.

SME financing denotes financial services for small and medium -sized enterprises. Access to
loans, leasing, trade credit and other forms of finance can be effective i n supporting the growth

4
Ibid.
5
Access to finance: article from making finance work for Africa. https://www.namfisa.com.na/educates/access-to-
finance-article-from-making-finance-work-for-africa/ accessed 31 July, 2020.
6
Ibid.

30
of these small and medium-scale businesses and increasing output. The SME sector, which
makes a significant contribution to the national economies of many African countries, is
increasingly becoming a focus of attention for development stakeholders interested in market-
based methods of encouraging economic development and fighting poverty.

Barriers to Access to finance

The lack of financial access limits the range of services and credits for household and
enterprises. Poor individuals and small enterprises need to rely on their personal wealth or
internal resources to invest in their education and businesses, which limits their full potential and
leading to the cycle of persistent inequality and diminished growth. 7 In many countries, financial
access is still limited to only 20–50 percent of the population, excluding many poor individuals
and Small and Medium scale enterprises. (SMEs).8 The factors responsible are:

1. The poor lack the education and knowledge needed to understand financial services that
are available to them.
2. Loan officers might find it unprofitable to serve the small credit needs and transaction
volume of the lower-income population.
3. Additionally, banks may not be geographically accessible for the poor since financial
institutions are likely to be located in richer neighborhoods.
4. The poor are also burdened by lack of collateral and inability to borrow against their
future income because their income streams tend to be hard to track and predict.9
Other barriers include:10

5. Cumbersome eligibility requirements,

6. Low financial literacy, and
7. High costs of financial services.
Current State of Access to Finance in Nigeria

More than 65 per cent of Nigerians do not have access to the formal financial institutions’

7
Kunt, A., Beck, T., & Honohan, P. Finance for All?: Policies and Pitfalls in Expanding Access.( Washington,
D.C.: The World Bank, 2008).
8
Ibid.
9
Ibid.
10
Sanusi Lamido Sanusi at the flag-off implementation of NFIS 2020 in Maiduguri, Nigeria.

31
services.11 With regards to the provision of financial services, Nigeria lags behind many African
countries. In 2010, 364% of adults – roughly 31 million out of an adult population of 85 million
– were served by formal financial services. This figure compares to 68% in South Africa and
41% in Kenya.12

Four distinct segments are identified with regards to Financial Inclusion:

"Formally banked" – adults who have access to or use financial services supplied by deposit
money banks

"Formal other" – adults who have access to or use formal financial institutions and financial
products not supplied by deposit money banks.

"Informal only" – adults .3who do not have access to or use any bank or other formal financial
services products but have access to or use informal services and products such as cooperatives

"Completely excluded" – adults without formal or informal financial products. 13

The EFInA Access to Financial Services in Nigeria 2010 survey identifies five major barriers to
Financial Inclusion: income, physical access, financial literacy, affordability and eligibility. 14

As of 2013, Nigeria is at the cross-roads where 46.3 percent of population comprising of about
64.8 million Nigerians were excluded from financial and banking sector in the country. This is
the segment of people without an access to formal financial services. With almost half of
Nigerians still lacking financial access, it is difficult to dream of a nation that is financially
inclusive by the year 2020. 15

Stakeholders in Access to Finance

11
Ugochukwu Okoafor, Central Bank of Nigeria’s Head of Corporate Affairs in an interview with the News Agency
of Nigeria on 9 March 2013.
12
EFInA Access to Financial Services in Nigeria, 2010.
13
National Financial Inclusion. Summary Report. Central Bank of Nigeria, Abuja, 20 January 2012.
14
Ibid. p.5.
15
Isern, J. et al, 2009. Access to Finance in Nigeria: Microfinance, Branchless Banking, and SME Finance.
https://www.cgap.org/sites/default/files/CGAP-Access-to-Finance-in-Nigeria-Microfinance-Branchless-Banking-
and-SME-Finance-Jan-2009.pdf accessed July 30, 2020.

32
The stakeholders in the provision of access to finance are as follows:16

i. Banks – This includes deposit money banks, primary mortgage institutions and
microfinance banks.
ii. Other financial institutions – This comprises discount houses, finance companies, pension
fund administrators and development finance institutions, such as the Bank of Agriculture,
Bank of Industry, NEXIM and Federal Mortgage Bank of Nigeria,
iii. Insurance – This includes insurance companies, loss adjusters and insurance agents.
iv. Regulators – This category comprises the Central Bank of Nigeria, Nigerian Deposit
Insurance Corporation, National Insurance Commission, National Pension Commission,
National Identity Management Commission, and Nigeria Communications Commission.

v. Public institutions – This category includes the Federal Ministries of Agriculture, Finance,
Education, Trade and Investment, as well as government agencies and programmes such as
SMEDAN, NAPEP and RUFIN. It also includes NIPOST and the National Planning
Commission.

vi. Development partners and experts – This category includes international finance agencies,
donor institutions, development partners, technical experts and advisers. This group is well
positioned to provide technical and international support to government and institutions.

Legal and Regulatory Frameworks on Access to Finance

i. The Central Bank of Nigeria (CBN)

The Central Bank of Nigeria is the apex regulatory authority of the financial system.
It was established by the Central Bank of Nigeria Act of 1958. Among its primary
functions, the Bank promotes monetary stability and a sound financial system, and
acts as banker and financial adviser to the Federal Government, as well as banker of
last resort to the banks. The Bank also encourages the growth and development of
17
financial institutions.

16
Ibid. p.7
17
Central Bank of Nigeria. https://www.cbn.gov.ng/AboutCBN/Coremandate.asp accessed 8 July 2020.

33
 Central Bank of Nigeria Act
According to the Central Bank of Nigeria Act (CBN Act),18 the principal objects of
the Bank shall be to -

(a) issue legal tender currency in Nigeria;

(b) maintain external reserves to safeguard the international value of the legal tender
currency;
(c) promote monetary stability and a sound financial systems in Nigeria; and
(d) act as banker and financial adviser to the Federal Government.

Section 28 of the Act on access to finance provides :

(1) In addition to any its powers under this Decree, the Bank may -
(a) require persons and institutions having access thereto, at all reasonable times, to
supply in such forms as the Bank may from time to time direct, information
relating to or touching or concerning matters affecting the economy of Nigeria;
(b) issue guidelines to any person and any institution that engages in the provision of
financial services, including operators of bureaux de change, development banks,
community banks, discount houses and insurance companies.

The supervisory function of the CBN is structured into two departments: Banking
Supervision and Other Financial Institutions. The Banking Supervision Department
carries out the supervision of banks and discount houses while the Other Financial
Institutions Department supervises finance companies, MFBs and other non-bank
financial institutions. 19

ii. Commercial Banks

The main functions of commercial banks are accepting deposits from the public and
advancing them loans. Banks charge interests on loans. Banks give mostly secured
loans for productive purposes. Generally, the value of security or collateral is equal
or higher than the amount of loan. This is done with a view to recover the loan money
by selling the security in the event of non-refund of the loan. Commercial Banks in

18
Cap C. 4 Laws of the Federation of Nigeria, 2004, section 2.
19
Isern, J. et al, 2009. Ibid.

34
 Nigeria operate under the legal framework of the Banks and other Financial
Institutions (BOFI) Act 25 of 1991 (as amended).

Banks and other Financial Institutions (BOFI) Act

The Act among other things, regulates banking and other financial institutions by
prohibiting the carrying on of such business in Nigeria except under licence and by a
company incorporated in Nigeria.20 Section 20 of the Act on access to finance
provides:

(1) A bank shall not, without the prior approval in writing of the Bank, grant-

a. to any person any advance, loan or credit facility or give any

financial guarantee or incur any other liability on behalf of any
person so that the total value of the advance, loan credit facility,
financial guarantee or any other liability in respect of the person is
at any time more than twenty per cent of the shareholders fund
unimpaired by losses or in the case of a merchant bank not more
than fifty per cent of its shareholders fund unimpaired by losses;
and for the purpose of this paragraph all advances, loans or credit
facilities extended to any person shall be aggregated and shall
include all advances, loans or credit facilities extended to any
subsidiaries or associates of a body corporate:
b. any advances, loans or credit facilities against the security of its
own shares or any unsecured advances, loans or credit facilities
unless authorised in accordance with the bank's rules and
regulations and where any such rules and regulations require
adequate security, such security shall be provided or, as the case
may required, deposited with the bank.

20
See ss. 2 of the Banks and other Financial Institutions (BOFI) Act, Cap B.3, Laws of the Federation of Nigeria,.

35
 (2) A bank shall not, without the prior approval in writing of the Bank-
a. permit to be outstanding, unsecured advances, loans or unsecured
credit facilities, of an aggregate amount in excess of N50,000-
i. to its directors or any of them whether such advances, loans or
credit facilities are obtained by its directors jointly or severally;
ii. to any firm, partnership or private company in which it or any one
or more of its directors is interested as director, partner, manager
or agent or any individual firm, partnership or private company of
which any of its directors is a guarantor;
iii. to any public company or private company in which or anyone or
more of its directors jointly or severally maintains shareholding of
not less than five per cent either directly or indirectly;

(7) Any bank which, after the commencement of this Decree , enters into any
transaction inconsistent with any of the provisions of subsection (1) and (2) of
this section is guilty of an offence and liable on conviction to a fine of N1,000
for each day during which any such transaction continues.

iii. Micro Finance Banks (MFB)

Micro finance Banks also operate under the legal framework of the Banks and other
Financial Institutions (BOFI) Act 25 of 1991 (as amended) 21. A micro finance bank in
Nigeria is a self-sustaining financial institution owned and managed within a
community to provide financial services to that community. 22 Microfinance is about
providing financial services to the poor who are traditionally not served by the
conventional financial institutions. The MFBs have a mandate to provide deposit,
credit and payments services and the regulations allow individuals and corporations,

21
See ss. 56 and 57 of the Banks and other Financial Institutions (BOFI) Act, Cap B.3, Laws of the Federation of
Nigeria, 2004.
22
Chukwunedu, O. K. 2009. The Role of Sustainable Microfinance Banking in the Economic Development of
Nigeria.https://www.researchgate.net/publication/228320426_The_Role_of_Sustainable_Microfinance_Banking_in
_the_Economic_Development_of_Nigeria. accessed 30 July, 2020

36
 both national and foreign, to own an MFB.23 Three features distinguish microfinance
from other formal financial products: 24

(i) the smallness of loans advanced and or savings collected,

(ii) the absence of asset-based collateral, and
(iii) simplicity of operations.

The latent capacity of the poor for entrepreneurship would be significantly enhanced
through the provision of microfinance services to enable them engage in economic
activities and be more self-reliant; increase employment opportunities, enhance
household income, and create wealth.25 The biggest challenges for MFBs are the high
refinancing costs compounded by a low focus on deposits, high operating expenses
and low staff capacity, leading to poor asset portfolios. As such, the vast majority of
MFBs lack the scale and operating capacity to have a strong impact on Financial
Inclusion.26

Existing requirements for obtaining a microfinance bank license require among other
things a minimum capital subscription of N20million naira; minimum of three and
maximum of seven directors who must be fit and proper persons; acceptable
feasibility proposal; qualified and experienced management team; and other
conditions Central Bank of Nigeria may impose as considered necessary for the
prospective applicant.27

The Central Bank of Nigeria guidelines for establishing a MFB provides two license
options. Unit MFBs are licensed to operate within the local government area in which

23 Isern, J. et al, 2009. Ibid.

24 Ibid.
25 Microfinance Policy, Regulatory and Supervisory Framework for Nigeria. Central Bank of Nigeria, Abuja,
December 2005.
26 National Financial Inclusion. Summary Report. Central Bank of Nigeria, Abuja, 20 January 2012.
27 Ibid.See also the Community Banks (Repeal and Transfer of Board's Functions) Act, 2010.Cap C 18 Laws of the
Federation of Nigeria which repealed the Community Banks Act, Cap. C 18 Laws of the Federation of Nigeria, 2004
and transferred its functions, assets and liabilities to the Central Bank of Nigeria and changed the name to
“MicroFinance Banks.”

37
 they are registered. The minimum capital requirement for a unit MFB is NGN 20
million (US$ 172,000). Unit MFBs may operate within their Local Government Area
and expand subject to the NGN 20 million capital requirement per branch. State
MFBs are licensed to operate in all parts of the state in which they are registered and
are subject to a minimum capital requirement of NGN 1 billion (US$8.6 million).
State MFBs can open branches anywhere in their registered state, but have to cover at
least two-thirds of the state before applying for a license, and raise an additional NGN
20 million to open a branch in another state.28

The Central Bank of Nigeria divides responsibilities for the microfinance sector
between Other Financial Institutions Department (OFID) and the Development
Finance Department (DFD). OFID is responsible for licensing, regulation,
supervision, and ensuring compliance with regulatory guidelines for MFBs. DFD is
responsible for capacity building for MFBs and their clients, development of the
sector, policy formulation and implementation, sensitization, and functions related to
non-licensed microfinance institutions. 29

Microfinance Regulatory Framework

Against the backdrop of concerns expressed by stakeholders and the need to enhance financial
services delivery, the 2005 Microfinance Policy, Regulatory and Supervisory Framework for
Nigeria was Revised in April, 2011, and in exercise of the powers conferred on the Central Bank
of Nigeria by the provisions of Section 28, sub-section (1) (b) of the CBN Act 24 of 1991 (as
amended) and in pursuance of the provisions of Sections 56-60(a) of the Bank and Other
Financial Institutions Act (BOFIA) 25 of 1991 (as amended). The policy recognizes existing
informal institutions and brings them within the supervisory purview of the CBN creating a
platform for the regulation and supervision of microfinance banks (MFBs) through specially
crafted Regulatory Guidelines.30

28
Jennifer Isern, J. et al, 2009. Ibid.
29
Ibid.
30
Central Bank of Nigeria. https://www.cbn.gov.ng/devfin/Microfinance.asp . Accessed 25 July 2020.

38
Policy Objectives of the Microfinance Policy, Regulatory and Supervisory Framework

The specific objectives of this microfinance policy are the following:

i. Make financial services accessible to a large segment of the potentially productive

Nigerian population which otherwise would have little or no access to financial
services;
ii. Promote synergy and mainstreaming of the informal sub-sector into the national
financial system;
iii. Enhance service delivery by microfinance institutions to micro, small and medium
entrepreneurs;
iv. Contribute to rural transformation; and
v. Promote linkage programmes between universal/development banks, specialized
institutions and microfinance banks. 31

This policy recognizes that the current financial landscape of Nigeria is skewed against Micro,
Small and Medium Enterprises (MSMEs) in terms of access to financial services. To address the
imbalance, the policy framework shall promote an even spread of microfinance banks, their
branches and activities, to serve the un-served but economically active clients in the rural and
peri- urban areas.

At the core of the Microfinance Framework are the CBN guidelines for the licensing of
Microfinance Banks (MFBs). The CBN created the MFB licenses to encourage existing
institutions and future investors to house their microfinance operations within a fully regulated
and supervised non-bank financial institution. In addition to defining the legal, regulatory and
supervisory guidelines for MFBs, the Microfinance Framework envisages the creation of
industry support organizations, industry associations, a deposit insurance scheme, a liquidity
facility, and state-funded wholesale programs.32

Conclusion

Limited access to finance is an important obstacle to economic growth and poverty reduction in

31
Ibid.
32
Ibid.

39
Nigeria. Nigeria’s financial sector has historically been unable to serve the majority of the
population effectively - namely the low income population and informal small businesses. Many
low income individuals are excluded from formal banking relationships due to the barriers
enumerated earlier. The availability of finance for entrepreneurs are not easily available or
accessible for aspiring entrepreneurs because of the legal hurdles created by the Central Bank of
Nigeria Act and the Bank and Other financial Institutions Act as well as strict eligibility
requirements stipulated by Banks. Robust economic growth cannot be achieved without putting
in place well focused programmes that increase access of poor and low income earners to factors
of production, especially credit.33 Liberalizing the legal barriers to access finance can allow
individuals and small businesses to maximize the leverage of their earnings for better standards
of living and enhance greater productivity, job-creation and, ultimately, growth. Liberal
regulations that take account of the pragmatic realities that face banks in reaching out to poor
citizens should be put in place. The Nigerian government should take a cue from United States
Community Reinvestment Act (CRA) enacted by the United States Congress in 1977 and revised
in 1995 which contain policy measures to improve access to finance whereby all banks are
directed to provide minimum banking services and concessionary credit facilities to small
enterprises. Fundamental literacy problems that impede access to finance should be fully
addressed. The Nigerian government must establish enduring institutions and effective policies
aimed at improving access to finance. High standards of living, political stability and national
security can only be achieved when access to finance is readily a

33
Ibid.

40
AN EXPLORATION OF CONTENTIOUS ISSUES IN REVENUE ALLOCATION
UNDER NIGERIA’S FEDERAL CONSTITUTION

J. O. Arowosegbe*

This article explored the contentious issues in revenue allocation

under Nigeria’s federal constitution focussing on history of
revenue allocation in Nigeria and specific contentious issues such
as power to raise revenue, Federation Account, allocation formula
and allocation principles. The author discovered that the crux of
the contentions is on the amount of money made available to each
beneficiary and not on how and on what the money is spent, a
factor not helpful to the intolerable level of corruption in the
country. He concluded by recommending constitutional
amendments to ensure equitable distribution, transparency and
accountability in public spending.

I. INTRODUCTION
As asserted by Wheare1 and re-echoed by Nwabueze2, division (or allocation ) of powers
between (to) a central government and two or more regional (state, provincial, sub-national )
governments is the quintessence typifying the constitutional concept of federalism and every
federal arrangement. Consequent to the division of powers scheme in a federation is the issue of
revenue allocation. As noted by Anderson3, arrangement and issues ‘around the raising, sharing
and spending of money are critically important, both politically and economically for the
functioning of federal systems.’ This is because the allocation of functions (powers) to a

* Lecturer, Faculty of Law, Osun State University, Ifetedo Campus (jacob.arowosegbe@uniosun.edu.ng)

1
KC Wheare, Federal Government (4th edn, Oxford University Press 1964). See also Kehinde M. Mowoe,
Constitutional Law in Nigeria (Lagos: Malthouse Press Limited 2008) p.49.
2
BO Nwabueze, Federalism in Nigeria under the Presidential Constitution (first published 1983, Lagos: Lagos
State Ministry of Justice Law Review Series 2003) 1
3
G Anderson Federalism: An Introduction (Ontario: Oxford University Press 2008) 30.

41
government is useless without empowering the government with the means (revenue) necessary
for the effective execution of the functions.
It is perhaps a notorious fact that revenue allocation or sharing in Nigeria is a highly
controversial and contentious one.4 In fact, since 1946 when the (pseudo) federal arrangement
was first introduced up till the present times, the contentions generated by federally generated
revenue remain unending. For example, as reported by Kalu.5
Since 1954 when Nigeria became a federation, revenue allocation
formula has always been a knotty issue, causing some resentments
and frictions in the wheel of the nation.
Recently, the Niger State Governor and Chairman of Northern
Governors’ Forum, Dr. Babangida Aliyu, stirred the hornet’s nest,
when he attributed the underdevelopment of the North to the paltry
allocations the states in the region receive from the federation
account. He called for the scrapping of the 13 per cent derivation
given to oil-producing states in the South, so that the states in the
North will get more for development.
Governor Aliyu was echoing what the Central Bank of Nigeria
(CBN), Mallam Lamido Sanusi, had said in an interview with
Financial Times of London. The CBN governor said that the low
financial allocation to the northern states was the major reason for
the underdevelopment and activities of such groups as Boko
Haram. Indeed, since Sanusi flew the kite and followed by Aliyu’s
outburst, the arguments have polarised the nation along North and
South divides, especially coming at a time when the agitation for
restructuring and convocation of a national conference has reached
fever pitch.

The governors and members of federal and state legislators from the oil-producing states in a
swift reaction to the above position of the Northern States governors retorted that the present
4
See for example VU Kalu ‘Revenue Allocation Tears Nigeria Apart’ (Naijapals, 11 March 2012) available ate
http://www.naijapals.com/modules/naijapals/nigeria/topic,95979.0.html (accessed 12 April 2012); ‘Governors
Demand 42% Revenue Allocation; Seek to Control State Security’ (Nigerian News Daily, 6 April 2012) available at
http://www.nigerianewsdaily.com/nigerianewspolitics/112-politics/20199-governors-demand-42-revenue-allocation-
seek-to-control-state-security.html (accessed 12 April 2012); O Fabiyi, Revenue Allocation and the Clash Ahead”
(Nigerian Best Forum, 5 March, 2012 ) available at http://www.nigerianbestforum.com/generaltopics/?p= 118039
(accessed 12 April 2012); C Amanze-Nwachuku and J Emejo “ALLOCATION STALEMATE: NNPC
SUSPENDS SUBSIDY DEDUCTIONS”, (This Day, 20 October 2011) available at http://www.thisdaylive.com
/articles/allocation-stalemate-nnpc-suspends-subsidy-deductions/100937/ (accessed 5 January 2012). See also A
Odutola, “An Exploration of Contending Issues in Nigeria’s Federal Practice” (2011) 3(1) Journal of Alternative
Perspectives in the Social Sciences 1-33 available at www.japss.org/upload/1._Odubajo[1].pdf (accessed 5 January
2012).
5
Kalu, above note 4.

42
derivation formula of 13% is not the issue and demanded the practice of fiscal federalism and
resource control by the component parts of the country. They also queried why the non-oil
producing states have refused to develop and exploit their own natural resources wondering
whether they are waiting for the time when the oil-deposits in the Niger Delta region of the
country will dry up before so doing.6
One principal reason for the contentious nature of revenue allocation in Nigeria is that
federally generated revenue accounts for more than 90 per cent of the total revenue accruing
annually to the States of the Federation7 and indeed as observed by Anderson,8 federally raised
or collected revenues relative to total government revenues across the nation amount to 98 per
cent. Nigeria alongside Venezuela’s 97 per cent, in this ma tter, thus ranks among the most
extreme cases of federations across the world.9
Two important factors are contributory to this phenomenon. First is ownership of natural
resources and second is assignment of power to raise and share revenue under the Constitution.
By section 44(3), Constitution of the Federal Republic of Nigeria (CFRN) 1999, the entire
property in and control of all minerals, mineral oils and natural gas in, under or upon the
territorial waters and the Exclusive Economic Zone of Nigeria, is vested in the Government of
the Federation with the National Assembly exercising exclusive legislative powers over them. 10
It is an open fact that Nigeria is an oil and gas producing country and earnings from the industry
constitute some 90 percent of total national income.
Second, the Constitution also grants the Federal Government the exclusive power to raise
revenue through the levying of customs and excise duties11, export duties12, stamp duties13, and
through taxation of incomes, profits and capital gains except as otherwise prescribed by the
Constitution.14 The proviso here is obviously meant to (among) others accommodate the listing
of collection of taxes15 in the Concurrent Legislative List. Allocation of revenue16 is also

6
I Akpan-Nsoh & A Olagoke, ‘S’South insists on fiscal federalism’ (Lagos, The Guardian, 17 April 2012) 96.
7
Nwabueze, above note 2, 181.
8
Anderson, above note 3, 34.
9
Contrast this with Canada and Switzerland where the central governments collect about 45 per cent of total
revenues and the United States where the federal government collects 54 per cent of total revenues.
10
See Item 39, Exclusive Legislative List, Pt.1, Second Schedule, CFRN 1999.
11
Item 16, Exclusive Legislative List, Pt 1, Second Schedule to CFRN 1999.
12
Item 25, Exclusive Legislative List ibid
13
Item 58, Exclusive Legislative List ibid
14
Item 59, Exclusive Legislative List ibid
15
Item D, Concurrent Legislative List, Pt.II Second Schedule, CFRN 1999.

43
interestingly listed in the Concurrent Legislative List. However looking closely at the
constitutional provisions on these two items, it is clear that there is no form of co-existence of
legislative powers whatsoever concerning them. Instead of permitting any co-existence of
powers, the Constitution rather distinguishes between the areas of Federal and States’ legislative
competence over the itemized matters thus making those areas exclusive to either the Federal
Government or the State Governments. Discernible from the preceding is the fact that the
Federal Government is invested with such widespread exclusive powers to raise revenue to the
detriment of State and Local Governments.
Indeed, federal finance according to Watts 17 is a highly important and controversial
subject for three basic reasons. First as previously stated, it determines the ‘allocation of
administrative responsibility’ since the scope of administration which a level of government is
able to offer and sustain is greatly determined by the amount of financial resources avail able to
it. Second, the assignment of fiscal and expenditure powers determine the extent to which a level
of government can use these instruments to control the economy. Third, it is an important factor
in the provision of political balance in a federation as the government in possession of the major
financial resources will also be in possession of political control in that society.
This article is divided into four parts. The first is the present introduction of the main
issues for discourse. Next is an examination of the historical perspectives of revenue allocation
in Nigeria while the third part closely examines the contentious issues in the constitutional
provisions on revenue allocation. The fourth part contains the conclusion and recommendations.
II. HISTORICAL PERSPECTIVES
The contentious nature of revenue allocation in Nigeria is perhaps best appreciated from
historical perspectives. Prior to 1946, revenue allocation was not an issue in Nigeria as the
country until then was purely run as a unitary state and the colonial central authority needed to
cater only for the provincial administrators. This situation however changed with the coming into
force of the Richards’ Constitution under which the three regions (Northern, Western and

16
Item A, Concurrent Legislative List ibid
17
R Watts, Administration in Federal Systems (Hutchinson Educational Ltd. 1970) cited by F Omotosho, ‘Nigerian
Fiscal Federalism and Revenue Allocation Formula for Sustainable Development in Niger Delta’ (2010) 5(3) The
Social Sciences 247 available at http://docsdrive.com/pdfs/medwelljournals/sscience/2010/246-253.pdf (accessed 4
September 2012).

44
Eastern region) were created.18 The need to allocate revenue to the regions arose and the
Phillipson Commission19 was set up in 1946 to formulate the administrative and financial system
to be adopted in implementing the constitutional arrangement.20
The Commission’s report which adopted derivation as the basis for revenue allocation
was however rejected in 1950. Seven other ad-hoc revenue allocation commissions21 were at
various times subsequently established to address the problem. It is striking to note that all the
reports of these commissions only ended up escalating the contentions concerning revenue
allocation in the country.
On 5 September 1988, a permanent revenue allocation body was for the first time
inaugurated by the then military government of General Ibrahim Babangida. The body which
went by the name National Revenue Mobilization Allocation and Fiscal Commission
(NRMAFC) was however given legal teeth via Decree No. 49 of 1989. 22 With this, the era of ad
hoc revenue allocation commissions ended. This body metamorphosed into the Revenue
Mobilization Allocation and Fiscal Commission (RMAFC) as provided for by section 153(1) of
the CFRN 1999.
The establishment of a permanent commission did not however put paid to the
contentious nature of revenue allocation in Nigeria. The NRMAFC’s report which was in use
between 199223 and April 2002 put the vertical distribution as: federal government (48.5 per
cent), state governments (24 per cent), local governments (20 per cent) and special funds (7.5 per
cent). The special funds were to cater for: FCT (1 per cent), ecology (2 per cent), stabilization
(1.5 per cent) and natural resources (3 per cent).
This allocation formula was however nullified in 2002 when the Supreme Court declared

18
See DN Ike, ‘Towards an Optimal Formula for Revenue Allocation in Nigeria’ (1981) 1(2) Nigerian Journal of
Development Studies 105. See also E.J. Nwosu, ‘Revenue Allocation in Nigeria’ in J.K. Onoh (ed), Foundations of
Nigerian Financial Infrastructure, (London: Croom Helm 1980)176-193.
19
Sydney Phillipson was the then Financial Secretary to the Nigerian Government. He was appointed as Sole
Commissioner. See N Orji, ‘Power-sharing: The Element of Continuity in Nigerian Politics’ (PhD Dissertation,
Central European University 2008) 129, available at http://web.ceu.hu/polsci/dissertations/orji.pdf (accessed 4
September 2012). See also Akpan H. Ekpo, ‘Intergovernmental Fiscal Relations: The Nigerian Experience’ (10 th
Year Anniversary of the Financial and Fiscal Commission of South Africa, Capetown, August 2004).
20
Omotosho, above note 17, 247.
21
Namely, Hicks-Phillipson Commission (1951), Chick’s Commission (1953), Raisman Commission (1958), Binns
Commission (1964), Dina Commission (1968), Aboyade Commission (1977), and Okigbo Commission (1979).
22
<http://www.rmafc.gov.ng/abt.htm> (accessed 4 September 2012).
23
The report was promulgated into law by Decree No. 106 of 1992 thereby amending the Allocation of Revenue
(Federation Account etc) Act, Cap. 16, Laws of the Federation 1990.

45
it unconstitutional in the case Attorney-General of the Federation v Attorney-General of Abia
State and Ors24 The RMAFC had before the judgement submitted its first proposal 25 to the
National Assembly prescribing the following vertical distribution formula: federal government
(41.3 per cent), States (31 per cent), local government councils (16 per cent) and special funds
(11.7 per cent). 26 The above Supreme Court’s decision however came before the National
Assembly could consider the proposal thereby rendering the proposal nugatory since the decision
recognised only the federal government, state governments and local government councils as the
proper beneficiaries of the Federation Account. 27
Subsequently, President Olusegun Obasanjo in May 2002 in exercise of his power to
modify an existing law under section 315 CFRN 1999 issued an executive order 28 prescribing a
new revenue allocation formula giving federal government 56 per cent, states 24 per cent and
local government councils 20 per cent. The new formula led to such a great outcry from other
tiers of government29 that the President had to review the Executive Order in July 2002 adjusting
the allocation formula to: federal government (54.68 per cent), states (24.72 per cent) and local
government councils (20.60 per cent). This was further modified in March 2004 when states’
allocation was increased to 26.72 per cent while federal government’s allocation was reduced to
52.68 per cent.30 This is the current vertical revenue allocation formula applicable in Nigeria 31
and yet the discontent over it is more volatile and widespread than ever before.

III. THE CONTENTIOUS ISSUES

Evident already from preceding discussions are some issues generating contentions in

24
[2002] 6 SCM 1
25
Under the CFRN 1999
26
Special funds was designed to cater for FCT (1.2 per cent), ecology (1 per cent), natural resources (1 per cent),
agriculture and solid mineral development (1.5 per cent) and basic education (7 per cent).
27
[2002] 6 SCM 1 at 43. One of the implications of this decision is that any allocation to special funds or any other
beneficiary (such as the FCT, Abuja) apart from federal, state and local governments is illegal.
28
Allocation of Revenue (Federation Account etc) Order of 8 May 2002
29
Note that an attempt by the states to have the Supreme Court declare the President’s order unconstitutional failed
as the Court held that the President has power to modify an existing law in order to bring it in conformity with
constitutional provisions. See Attorney-General of Abia State v Attorney-General of the Federation [2003] 1 SCM 1.
30
YA Shuaib, ‘Understanding the Revenue Allocation Formula’ available at http://www.yashuaib.com/formula.htm
(accessed 4 March 2012)
31
See Federal Ministry of Finance, ‘The Honourable Minister of State Finance Chaired the FAAC Meeting for the
Month of February 2012’ available at http://www.fmf.gov.ng/component/content/article/3 -trendingnews/ 70 -the-
honourable-minister-of-state-finance-chaired-the-faac-meeting-for-the-month-of-january-2012 .html (accessed 12
April 2012).

46
federal systems. Discussion in this part of the article now turns on a closer exploration of
pertinent provisions of the CFRN 1999 on revenue allocation eliciting the issues generating
contentions therefrom. Such issues are those relating to: power to raise revenue, Federation
Account, allocation formula, allocation principles, derivation, resource control, local government
funds, unconstitutional deductions and powers of the Revenue Mobilization Allocation and
Fiscal Commission. Only the first four issues are specifically considered while the others are in
the process equally explored.
A. Power to raise revenue
The power to levy taxes is crucial in every federation as taxation is the principal source of
revenue for governments. Indeed, in the words of the Supreme Court of the United States,
taxation is ‘the one great power upon which the whole national fabric is based. It is as necessary
to the existence and prosperity of a nation as is the air he breaths to the natural man. It is not only
the power to destroy, but also the power to keep alive.’32
As previously stated, the CFRN 1999 vests in the federal government the exclusive
power to raise revenue through the levying of customs and excise duties33, export duties34, stamp
duties35, and through taxation of incomes, profits and capital gains 36 without prejudice to the
listing of collection of taxes37 in the Concurrent Legislative List. There is however no doubt that
the federal government has exclusive legislative competence over stamp duties as well as
taxation of income and profit, and capital gains. The provisions of Item D of the Concurrent
Legislative List simply empower the National Assembly to, by law, grant State Governments the
authority to collect these taxes or duties (other than capital gains, incomes or profits of
companies) or administer the law imposing them and the National Assembly in so doing must
regulate the liability of persons to such tax or duty in order to ensure that such tax or duty is not
levied on the same person by more than one State. In like manner, a House of Assembly may
also empower a local government council with authority to collect any tax, fee or rate or
administer the law providing for such provided that the liability of persons to the tax, fee or rate
is regulated so that they are not levied on the same person by more than one local government

32
Nichols v Ames, 173 US 509 (1899) 515
33
Item 16, Exclusive Legislative List, Pt 1, Second Schedule to CFRN 1999.
34
Item 25, Exclusive Legislative List ibid
35
Item 58, Exclusive Legislative List ibid
36
Item 59, Exclusive Legislative List ibid
37
Item D, Concurrent Legislative List, Pt.II Second Schedule, CFRN 1999.

47
council.
To the above list may be added the exclusive power granted the federal govern ment over
other sources of public revenue such as mining rents and royalties, license fees for provision of
television and radio services, control of trade and commerce, and public borrowings (loans).
Federal power to raise revenue from mining rents and royalties derives from two sources. First is
the power granted it over mines and minerals including oil fields, oil mining, geological surveys
and natural gas.38 Second is the fact that ‘the entire property in and control of all minerals,
mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the
territorial waters and the Exclusive Economic Zone of Nigeria’ is vested in the federal
government.39
The power to impose licensing fees on provision of television and wireless radio services
flows from the exclusive legislative power granted the federal government over ‘wireless,
broadcasting and television other than broadcasting and television provided by the Government
of a State’ but including ‘allocation of wavelengths for wirele ss, broadcasting and television
transmission.’40 Range of services anticipated here surely extends to those offered by radio
stations, television stations, cable television and direct satellite broadcasting services, mobile
telephony41 operators, wireless internet service providers, communications bandwidth providers
and the likes.
It is incontrovertible that taxation power is implied in the exclusive power granted the
federal government over trade and commerce.42 This according to Nwabueze includes power to
levy licence fees for carrying on commercial enterprises and to impose sales tax 43 despite
uncertainties about the meaning of the term ‘trade and commerce’. The definition of commerce
as describing ‘commercial intercourse between nations, and parts of nations, in all its branches’
offered by Marshall CJ in Gibbons v Ogden44 however seems apt.

38
Item 39, Pt 1, Second Schedule, CFRN 1999.
39
Section 53.
40
Item 66, Pt.I, Second Schedule, CFRN 1999. See also section 39.
41
Item 46, Pt.I, Second Schedule, ibid specifically puts ‘telephones’ under federal government’s exclusive
jurisdiction.
42
Item 62, Pt.I, Second Schedule, ibid.
43
Nwabueze, above note 2, 221. Note however that the federal government exercises exclusive power over
‘Incorporation, regulation and winding up of bodies corporate’ except those established by a state Law,
localgovernment coucils and co-operative societies. See Item 32, Pt.I, Second Schedule.
44
22 US 1 (1824) 189-190. Commercial intercourse as used by Marshall CJ is a compendious term embracing: (1)
dealings in land, goods, commodities or any valuable thing both tangible and intangible, as by buying, selling,

48
 Raising revenue through public borrowing is another important income source for
governments and this power is exclusively granted to the federal government under the CFRN
1999.45 The immediate implication of this is that state governments in Nigeria unlike their
counterparts in other federations such as Canada, Switzerland and United States may not access
the capital market except in line with federal regulations.
It is thus obvious that the major sources of public revenue in Nigeria belong to the federal
government with the states being left with such negligible power to raise own-source revenue.
State governments’ taxation power by constitutional division of powers is traceable to three
sources. First is the residue of matters not contained in the Exclusive Legislative List and by
extension the Concurrent Legislative List. Second is the power granted over matters on the
Concurrent Legislative while the third is the power specifically vested in state governments in
the body of the Constitution.46 However, since both the Concurrent Legislative List and the body
of the constitution hold little promise, where to really look to for states’ taxing power is the
residual power granted states by the Constitution.
Nwabueze commenting on states’ taxation power under the 1979 Constitution contended
that:
The question as to the extent of the residue of taxing power left to
the states after taking away the forms of taxation included in the
Federal government’s exclusive taxing power turns largely on the
meaning of the word “excise” in the term “customs and excise
duties” under Item 14 of the exclusive legislative list.47

Nwabueze believes that where the words ‘excise duties’ extend to the levying of tax on both
domestically produced and imported commodities as well as tax on the right to carry on the
business of selling commodities, very little or insignificant taxing powers will avail the states.
According to him:
The only tax jurisdiction left to the states would seem therefore to
be the levying of land registration and survey fees, water rate,
entertainment tax, gift tax, a death duty, licence fees for customary

bartering or exchange (the words ‘goods or commodities being used to include valuable things), (ii)interchange of
goods and commodities between different countries or between parts of the same country, (iii)movement of goods,
commodities or persons by any mode of transportation, (iv)communications in connection with dealings in,
movement or interchange of goods or commodities.
45
Item 7, Pt.I, Second Schedule.
46
Section 4(7).
47
Nwabueze, above note 2, 223.

49
 or islamic marriages, births and burials, and licence fees for
carrying on business which do not involve buying and selling.48

The learned professor however seems to have come to this conclusion under the belief that the
federal government’s power over trade and commerce extends to trade and commerce within
each state. But as held by the Supreme Court in Ogun State v Aberuagba49, although both the
Federal and State Governments have powers to legislate on sales tax, that of the Federal
Government is limited to interstate trade and commerce while that of the State Government is
residual and limited to intrastate trade and commerce. It thus seems that the states in addition to
the items on Nwabueze’s list also have tax jurisdiction over trade and commerce within their
states as well as property tax.
Nevertheless, the fact still remains that there is a concentration of taxing powers in the
federal government in Nigeria. Watts50 has identified three factors that have contributed to the
centralization of taxing powers under some federal constitutions. First is the fact that
centralization of some sort is necessary if the federal government is to perform the redistribution
role usually expected of it. Watts attributes the second factor to ‘the influence of Keynesian
theories concerning the need for federation-wide policies pertaining to economic stability and
development’. The third factor is a recognition of the need to achieve economic union via the
promotion of tax harmonization and mobility.
The concentration of taxing powers in the federal government is a highly contentious
issue in Nigeria as it has had the effect of putting the states in a position of financial inferiority
and this is contrary to the principle of independence and ‘autonomy of each tier of government in
a federal system’.51 As remarked by the Aboyade Committee on Revenue Allocation, ‘the federal
government has become so fiscally dominant that the states are little more than fiscal vassals of
the centre’.52 In the words of Mimiko53, ‘a situation where a disproportionate percentage of
national revenue goes to the federal government is crippling of development, subversive of the

48
As above, 227.
49
(1985) 1 NWLR (Pt.3) 395.
50
RL Watts, ‘Comparative Conclusions’ availabe at www.federalism.ch/files/categories/Intensivekursl
lcomparativeg2.pdf (accessed 12 April 2012). This is the practice in India, Mexico and Spain.
51
Nwabueze, above note 2, 184.
52
Report of the Technical Committee on Revenue Allocation (the Aboyade Committee) 1977, vol.1, p.8.
53
Olusegun Mimiko is the current Governor of Ondo State.

50
federal arrangement and oppressive to the constituting states’.54
In fact as observed by Omotosho, while the revenues of the states show such little growth
potential, their expenditure shows a high growth potential. This according to him ‘is very
unhealthy and suicidal for the survival of a federal polity as so many state governments are often
forced to from time to time call upon the government at the centre for financial assistance.’
Wheare55 perhaps most aptly captures the direct implications of this phenomenon;
If states authorities ... find that the services allotted them are too
expensive for them to perform and if they call upon the federal
authority for grants and subsidies to assist them, they are no longer
coordinate with the Federal Government but subordinate to it.
Financial subordination makes an end of federalism ... It follows
therefore that both state and federal authorities in a federation must
be given the power in the constitution each to have access to and to
control its own sufficient financial resources. Each must have a
power to tax and to borrow for the financing of its own service by
itself”
B. Federation Account 56
Section 162(1) creates a special account known as ‘Federation Account’ into
which must be paid all revenues collected by the Government of the Federation. Excepted are
proceeds from the personal income tax of residents of the Federal Capital Territory and of the
personnel of the armed forces, Nigerian Police Force and Ministry of Foreign Affairs. Any
amount standing to the credit of the Federation Account is distributable among the Federal and
State Governments and the local government councils in each State on such terms and in such
manner as may be prescribed by the National Assembly. 57
So, what exactly constitutes the ‘revenues’ payable into the Federation Account? Section
162 (10) defines the word “revenue” used in subsection 1 as referring to ‘any income or return
accruing to or derived by the Government of the Federation from any source’ including:
(a) any receipt, however described, arising from the operation
of any law;

54
‘Mimiko says current revenue allocation against true federalism … calls for enactment of new legislation by
incoming Federal Law makers’ available at http://www.ondostate.gov.ng/press_release/Mimiko%20says%20
current%20 revenue%20allocation%20against%20true%20federalism.pdf (accessed 4 September 2012).
55
Quoted by Omotosho, above note 22, 246,250
56
For a succinct historical recital of the Federation Account previously known as the Distributive Pool Account, see
Nwabueze, above note 2, 190-192.
57
Section 162(3)

51
 (b) any return, however described, arising from or in respect of
any property held by the Government of the Federation;
(c) any return by way of interest on loans or dividends in
respect of shares or interest held by the Government of the
Federation in any company or statutory body.

From this, it is clear that all revenues accruable to the Federal Government are part of the
distributable pool account and thus payable into the Federation Account.58 Nwabueze59 believes
this ought not to be so. According to him, revenue accruing as a result of ‘activity or transaction
engaged in by the federal government … and involving the employment of labour, skill or
capital’ should be excepted from the distributable pool account. Thus, funds in form of tolls,
dividends or income from business enterprises or services, interests on loan, sale of capital assets
and reimbursements, loans and so on should be regarded as the Federal Government’s
independent revenue. This is more so as to do otherwise is antithetical to one of the principles of
fiscal federalism which requires:
Both the general and regional governments … (to) each have a
separate revenue base formed from independent revenue resources
belonging solely and exclusively to it and are not therefore to be
shared with the other. Such independent revenue should indeed “as
much as possible go a long way to provide a base for its revenue
needs”, in order to create a sense of fiscal responsibility so
essential to the efficient generation and management of public
revenue.60

It also seems that the matters specified in item D of Part II of the Second Schedule to the
Constitution, namely any tax or duty on capital gains, incomes or profits other than companies
and documents or transactions by way of stamp duties, are equally excepted from the
distributable pool account. By section 163, the net proceeds of such tax or duty are to be
distributed among the States on the basis of derivation and accordingly,
(a) where such tax or duty is collected by the Government of a
State or
other authority of the State, the net proceeds would be

58
Mowoe, above note 1, 80
59
Nwabueze, above note 2, 188-189.
60
Ibid (insertion in bracket mine). See also Aboyade Committee Report (1977), Vol.1, p81.

52
 treated as part of the State’s Consolidated Revenue Fund;
and
(b) where such tax or duty is collected by the Government of
the
Federation or other authority of the Federation, there shall
be paid to each State a sum equal to the proportion of the
net proceeds of such tax or duty derived from the State.

Where it is the Federal Government that did the collection, each State in each financial year must
pay to the Federation an amount equal to such part of the expenditure incurred by the Federation
for the purpose of collecting the taxes or duties which are wholly or partly payable to the State as
is proportionate to the share of the proceeds of those taxes or duties received by the State in
respect of that financial year. 61
What is the rationale for excepting proceeds from the personal income tax of personnel of
the armed forces of the Federation, the Nigeria Police Force, the Ministry of Foreign affairs and
the residents of the Federal Capital Territory from the Federation Account? The only explanation
seems to be because this revenue source is regarded as belonging exclusively to the Federal
Government.62 However while it is clear that proceeds from the personal income tax of residents
of the Federal Capital Territory, Abuja and that of personnel of the ministry charged with
responsibility for Foreign Affairs resident outside Nigeria being not derived from any State
belong to the Federal Government, same cannot be said of that of the other personnel in as much
as these personnel are resident in States and not in the Federal Capital Territory, Abuja or a
foreign country. This is because by the provision of section 163, the net proceeds of the personal
income tax of all persons are distributable ‘among the States on the basis of derivation’. Is there
therefore a conflict between the provisions of section 162(1) and section 163? Hardly! Especially
as the former section did not specify that the excepted revenues belong to the Federal
Government. It is therefore submitted with respect that the latter section’s provisions apply even
in the distribution of the excepted revenue.
One major contention over the Federation Account is the allegation that not all federally
generated or collected revenues are normally paid into it for redistribution among the different

61
Section 165
62
See Okigbo Commission Report (1980) vol.1. para. 180

53
tiers of government,63 thus short-changing the sub-national government beneficiaries of the
account. In fact the National Assembly is still battling to make some federal agencies such as
Nigerian National Petroleum Corporation (NNPC) and the Central Bank of Nigeria (CBN) to
submit their annual budgets to it for approval. The CBN as at the time of writing this article is
still refusing to comply.
C. Allocation Formula
As previously stated, any amount standing to the credit of the Federation Account
is to be distributed among the Federal and State Governments and the local government councils
in each State. The President after receipt of advice from the RMAFC will table before the
National Assembly proposals for revenue allocation from the Federation Account. In
determining the allocation formula, the National Assembly must take into consideration the
allocation principles especially those of population, equality of States, internal revenue
generation, land mass, terrain as well as population density, provided that the principle of
derivation is constantly reflected in any approved formula as being not less than thirteen per cent
of the revenue accruing to the Federation Account directly from any natural resources. 64 The
current allocation formula is: state governments - 26.72 per cent, federal government - 52.68 per
cent, and local government councils - 20.60 per cent.65
The Supreme Court per Uwais CJN (as he then was) had in Attorneys-General of
Adamawa and Ors v. Attorney-General of the Federation66 held that the National Assembly has
absolute power under the Constitution to enact a statute that deals with the manner in which
revenue accruing to the Federation Account is to be distributed among the beneficiaries. The
caveat to this decision of course is ‘provided the said statute complies with the applicable
provisions of the Constitution’.
First, as recognised by the CJN himself in the case preceding, the power of the National
Assembly here is limited by the proviso to section 162(2) which mandates any allocation formula
to reflect the principle of derivation which must not be less that thirteen per cent of the revenue

63
Omotosho, above note 17, 246,249
64
Section 162(2).
65
See Federal Ministry of Finance, ‘The Honourable Minister of State Finance Chaired the FAAC Meeting for the
Month of February 2012’, available at http://www.fmf.gov.ng/component/content/article/3-trendingnews/70 -thehono
urable-minister-of-state-finance-chaired-the-faac-meeting-for-the-month-of-january-2012 .html (accessed 12 April
2012).
66
[2005] SCM 1

54
accruing from any natural resources. An important question here is what exactly constitutes
‘natural resources’ as spoken of in this subsection? Unfortunately, the Constitution nowhere
defines the term but the Black’s Law Dictionary 67 defines it as ‘Any material from nature having
potential economic value or providing for the sustenance of life such as timber, minerals, oil,
water and wild life.’
Any State where any natural resource is being exploited to generate revenue for the
Federation is therefore entitled to the not less than 13% derivation fund. As it is widely known,
oil and gas (well accommodated in the previous definition of natural resources) constitute the
main source of revenue in Nigeria. While it is definite that a State is entitled to derivation fund
from revenue generated from the exploitation of oil and gas ‘on-shore’ its territory, but is it also
entitled to same of revenue generated from ‘off-shore’ activities? The Supreme Court answered
this question in the negative in Attorney General of the Federation v. Attorney General of Abia
State and Ors68 The real dispute in this case was between the Federal Government and the eight
littoral states of Akwa-Ibom, Bayelsa, Cross-River, Delta, Lagos, Ogun, Ondo and Rivers States
as to the Southern or seaward boundary of each State. The Federal Government contended this to
be the low-water mark of the land surface of each state or the seaward limit of inland waters
within the States maintaining therefore that natural resources located within the Continental
Shelf of Nigeria are not derived from any State but belong to the entire Federation. Each of the
littoral States on the other hand claimed that its territory extends beyond the low-water mark
onto the territorial water and even unto the Continental Shelf and the Exclusive Economic Zone
and that natural resources derived from both onshore and offshore are derivable from their
respective territory entitling each to derivation funds in respect thereof. The Court upheld the
plaintiff’s claims.
The National Assembly in 2004 however passed the Allocation of Revenue (Abolition of
Dichotomy in the Application of the Principle of Derivation) Act to the effect that for the
purpose of derivation, there will be no distinction between oil revenues derived ‘on-shore’ or
‘off-shore’. The plaintiffs in Attorney Generals of Adamawa and Ors v. Attorney General of the
Federation69 were aggrieved with this legislation as they felt that the abolition of the dichotomy

67
9th ed. (St. Paul: Thomson Reuters, 2009) 1127
68
[2002] 6 SCM 1
69
[2005] SCM 1; (2005) 12 S.C. (Pt. 11) 133

55
will reduce the distributable revenues in the Federation Account and consequently their
revenues. They therefore commenced the action claiming among others that the Act was
unconstitutional but the Supreme Court held otherwise and dismissed the suit.
Second, the powers and functions of the RMAFC also act as a limitation on the powers of
the National Assembly in revenue allocation. The Commission for example has the power to:
review, from time to time, the revenue allocation formulae and
principles in operation to ensure conformity with changing
realities:
provided that any revenue formula which has been accepted by an
Act of the National Assembly shall remain in force for a period of
not less than five years from the date of commencement of the
Act.70

In other words, the “allocation principles” the National Assembly must take into account in
approving the revenue allocation formula are as determined by the Commission. In the same
vein, the National Assembly is equally limited by the constitutional rule that the revenue formula
cannot be reviewed until five years have elapsed after previous enactment on same.
Can the FCT share from the Federation Account? The Supreme Court in Attorney
General of the Federation v. Attorney General of Abia State71 said no! Reason being that the
Federal Capital Territory, Abuja is neither a State nor a local government council as provided for
by section 162 (3). Its Area Councils also do not qualify as they are not local government
councils under the Constitution. The Court in the same case also held the following existing
practices of the Federal Government as being unconstitutional:
(i) Exclusion of natural gas as constituent of derivation for the purposes of
the proviso to section 162(2) of the 1999 Constitution,
(ii) Non payment of the shares of the 10th Defendant in respect of proceeds
from capital gains taxation and stamp duties,
(iii) Funding of the judiciary as a first line charge on the Federation Account,
(iv) Servicing of external debts via first line charge on the Federation Account.
(v) Funding of Joint Venture Contracts and the Nigerian National Petroleum
Corporation (NNPC) Priority Projects as first line charge on the
Federation Account, and
(vi) Unilaterally allocating 1per cent of the revenue accruing to the Federation
Account to the FCT.

70
Para. 32(b), Pt. I, Third Schedule CFRN 1999
71
[2002] 6 SCM 1

56
 Another question to be asked and answered here is - can the Federal Government
withhold funds due to a State from the Federation Account in punishment for alleged breach of
constitutional provisions by the State? This question arose in Attorney-General of Lagos State v.
Attorney-General of the Federation72 where the plaintiff among others sought:
A determination of the question whether or not there is power
vested in the President of the Federal Republic of Nigeria (by
executive or administrative action) to suspend or withhold for any
period whatsoever the Statutory Allocation due and payable to
Lagos State Government pursuant to the provisions of Section
162(5) of the Constitution of the Federal Republic of Nigeria 1999.

The Nigerian President had threatened to withhold and did withhold the funds due Lagos State in
respect of her local government councils as provided for by section 162(5) because of what the
President perceived to be an unconstitutional means by which Lagos State unilaterally created
new local government areas. The Supreme Court held that the President has no constitutional
power to withhold statutory allocation to local government areas through States. The court per
Uwaifo JSC said:
It does not appear to me that there is any power conferred on the
President to decide to withhold any allocation on the basis of a
conceived breach of the Constitution by any of the three tiers. It
seems to me also that the allocation principle of funds to local
government councils in each State is such that the amount payable
does not increase simply because a House of Assembly has created
more local government areas in the State. To take that into account
will simply encourage the proliferation of local government areas
for the main aim of earning more revenue. That cannot be right or
equitable … The, usual allocation to which a State was entitled
before the creation of more local government areas ought not to be
point of dispute. It must continue to receive that allocation on
behalf of the local government areas until there is a new general
allocation formula approved by the National Assembly in its
collective wisdom.

The court in fact rebuked the President for resorting to self help instead of using the
constitutional means of resolving conflicts in a federation which is adjudication. The court
further held that it is States that have power to create new local government areas through a Law
of its House of Assembly but the process is inchoate until the concerned State House of
72
[2004] SCM; (2004) 11-12 S.C. 85

57
Assembly makes adequate returns to each House of the National Assembly to enable the national
Legislature pass an Act making consequential alterations to the provisions of section 3 and Parts
I and II of the First Schedule to the Constitution with respect to the names and headquarters of
the local government areas in the Constitution.73
It should be noted that once the Federation Account is divided amongst the tiers of
government, the State Governments collectively become the absolute owners of their share and it
would be inappropriate for the Federal Government to administer same in any form without
authorization from the State Governments.74 In the same vein, although the amount standing to
the credit of local government councils in the Federation Account is payable to the States, 75 no
State Government has the power to unilaterally disburse any funds from it without authorisation
of its local governments. Rather each State should pay the allocations into a ‘State Joint Local
Government Account’ for the benefit of its local government councils. 76 Each State must also
pay to its local government councils a proportion of its total revenue in such terms and manner as
prescribed by the National Assembly77 while the total amount standing to the credit of local
government councils of a state is distributable among them in the terms and manner prescribed
by the State House of Assembly. 78
Allocation formula is no doubt one of the issues in revenue that has continuously
attracted the most strident and fiercest contentions. As amply illustrated in previous discussions
on historical perspectives, the issue of allocation formula is an unsettled question in Nigeria’s
intergovernmental fiscal relations. State Governors have been crying blue murder over the matter
and in truth an allocation formula which has the federal government receiving almost double the
amount which all the 36 state governments receive does seem disproportionate, oppressive and
antithetical to even national development and universal federal principles. For example, for
February 2012’s allocation from the Federation Account, the distribution was as follows: federal
government – N189.169 billion (52.68 per cent), state governments – N95.949billion (26.72 per
cent), and local governments – N73.973billion (20.60 per cent).79

73
See Section 8(3), (5), (6)
74
Attorney General of the Federation v. Attorney General of Abia State [2002] 6 SCM 1
75
Section 162(5)
76
Section 162(6)
77
Section 162(7)
78
Section 162(8)
79
See Federal Ministry of Finance, ‘The Honourable Minister of State Finance Chaired the FAAC Meeting for the

58
 This translates on the average to N2.665billion for each state to federal government’s
N189.169billion which is approximately ratio 1:71! When this is contrasted with the fact that
state governments rely on federal allocation for more than 80 per cent of their total revenue, it
becomes obvious that their impact on national economy and contribution to national
development may not be that significant. The Nigeria Governors Forum (NGF) 80 has in fact
called for the review of the allocation formula to the advantage of state governments in
particular. The new formula according to the forum should be: federal government-35 percent,
state government-42 percent and local government-23 percent.
D. Allocation Principles
Revenue allocation is in two dimensions. First is the vertical distribution of revenue
among the three tiers of government and second is the horizontal distribution of revenue among
governments at the same level. Horizontal distribution of revenue allocation comes into play
after the revenues due to the state government and local government councils have been
determined. The factors used in determining the allocation formula are what the CFRN 1999
refers to as allocation principles and they are particularly important in horizontal revenue
distribution among states. The contentions here are (1) the problem in determining the specific
components of the principles and (2) the question of the relative weight each principle should
carry in the horizontal revenue distribution.
Historically, various allocation principles such as derivation, equality of states,
population, population density, internal revenue generation, land mass, terrain, rural roads and
inland water ways, portable water, education, health, even national development, need,
absorptive capacity, fiscal efficiency and national interest have at one time or the other been
proposed or used for revenue allocation in Nigeria.81 The CFRN 1999 however only specifically
listed the first seven principles although it does not rule out any other like principle.
1. Derivation
Without any doubt the derivation principle is primal in the politics of revenue allocation

Month of February 2012’ available at http://www.fmf.gov.ng/component/content/article/3 -trendingnews/ 70 -the-

honourable-minister-of-state-finance-chaired-the-faac-meeting-for-the-month-of-january-2012 .html (accessed 12
April 2012).
80
The National body comprising all state governors in Nigeria.
81
Ike, above note 18,105, 106-08. See also M Aluko, ‘The Latest Revenue Allocation Formula in Nigeria- A Quick
Inspection’ available at http://www.nigeriavillagesquare.com/articles /mobolaji-aluko/the-latest-revenue-allocation-
formula-in-nigeria-a-quick-inspection.html (accessed 12 April 2012); Shuaib, above note 30.

59
in Nigeria. Derivation simply denotes a right of full or partial access to or control over the
revenues derived from economic activities especially from exploitation of minerals or natural
resources located in a particular state or region. The principle of derivation thus ‘requires that all
revenues which accrue from or are attributable to a particular state should be allocated in part or
in full to such a state, irrespective of the fiscal jurisdiction involved or the machinery for the
collection.’82
According to Ekpo, the derivation principle has since the time of Phillipson
Commission’s report ‘been a thorny issue in Nigeria’s inter -governmental fiscal relation[s]’. 83
On one hand lies the natural claim of right of local communities and state government over
revenue derived from their areas especially to meet the socio-economic, technological,
infrastructural and other developmental needs of these areas. On the other hand however lies the
need to foster national unity and ensure even development across the entire federation. The
former encourages policies that permit each member unit to hold on to its revenues and wealth
while the latter encourages centralization of revenue collection for the purpose of equitable
redistribution to all. The problem with Nigeria however is that the redistribution has been
anything but equitable!
The recent militancy and emphasis on the employment of the derivation principle by the
people of the Niger Delta areas in Nigeria are for example traceable to years of gross neglect,
devastating environmental degradation and impoverishment of the people despite the fact that
they are the geese that lay the golden eggs for the entire country. According to Orji and Jaja,
‘plunderous seismic and exploration activities’ have over the years ‘done irreversible damage to
the ecosystem, decimated flora and fauna and truncated the prevailing food chain’. 84
As previously noted, Nigeria’s Constitution presently provides that ‘the principle of
derivation shall be constantly reflected in any approved formula as being not less than thirteen
per cent of the revenue accruing to the Federation Account directly from any natural resources.’
Some people especially from the Niger Delta however believe that the thirteen per cent minimum
prescribed by the Constitution is too paltry sometimes demanding as high as 50 per cent as

82
SU Chijioke, EO Innocent & EIE Jeffry, ‘Issues in Nigerian Fiscal Federalism: The Relationship between the
Principle of Derivation and Resource Control’ (2012) 1(5) Kuwait Chapter of Arabian Journal of Business and
Management Review 84.
83
Ekpo, above note 19.
84
KE Oriji & JM Jaja, ‘The Dilemma of Resource Control Principle and Conflict Resolution in Nigeria’ (2007) 9(2)
Multidisplinary Journal of Research Development 6

60
minimum baseline. In fact, the Niger Delta representatives at the 2005 National Political Reform
Conference moved from a 100 per cent derivation to 50 per cent to finally rest at 25 per cent
after much vehement oppositions from other interest groups.85
It should be noted that the Constitution as regards revenues from personal income tax,
capital gains tax and stamp duties provides for their distribution among the States of the
federation on the basis of derivation. This is a 100 per cent application of the derivation
principle. The Lagos State Government has equally advocated for the application of derivation
principle in the distribution of Value Added Tax (VAT). The state currently contributes over 6 0
percent of VAT revenues shared monthly at the Federal Account Allocation Meetings. 86
2. Equality of states
The principle of equality of states is also referred to as the minimum responsibilities of
government principle. This principle is based upon the premise that each state government bears
the same (similar) basic responsibilities of governance. This is true at least in the sense of each
possessing the same administrative framework such as office of the governor, legislative
assembly, state courts, civil service, electoral commission and the likes, while each must equally
provide similar services in the areas of health, education, portable water, roads, agriculture and
industrial development. As recognised by the Okigbo Commission, the ‘smallest State, whether
in terms of population or size, or income or expenditure has to run a government’ 87 just like any
other state. Implicit however in the preceding quote is the fact that states are not really equal as
differences exist in their size, population, land mass, resource endowment, level of
industrialization and so on.
While equality of states is a sound democratic allocation principle, some have argued that
taking Nigeria’s peculiar circumstances into consideration, the weight to be attached to it may
have to be lower than it should ordinarily be. This is to discourage the inordinate clamour for
creation of more states out of the already unviable existing ones. 88 Already the principle has a
zero percentage for revenue allocation among local government councils in the country in the

85
As above, 5. See also Kalu, above note 4.
86
H Nosegbe, ‘Lagos State and the derivation principle’ The Guardian (Lagos, 1 June 2012) available at
http://www.ngrguardiannews.com/index.php?option=com_content&view=article&id=87855:lagos-state-and-the-
derivation-prin ciple-&catid=37:editorial&Itemid=612 (accessed 4 June 2012).
87
Okigbo Commission Report (1980), vol .1. para. 364.
88
Ike, above note 18, 105,107-108

61
presidential proposal on revenue allocation submitted to the National Assembly on 25 January
2005. It however attracts a higher 45.23 per cent to previous 40% as it concerns state
governments.89
3. Population
Every person residing in a state clearly has certain needs which should be met by the state
government. Thus the financial burden of state governments definitely has a high correlation
with the number of persons residing in that state. This is the essence of population as an
allocation principle and it has since the Hicks Phillipson Commission report of 1950 been
accorded an important status. Population is in fact perhaps the best measure of human needs.
However its application in Nigeria is fraught with problems. There is for example as at the time
of writing this article no valid data on the current population figures of the country. The last
national census put the nation’s population at about 140 million while current estimates are
putting it at between 160 million and 170 million. The question is how valid are these estimates
in a country where there is no accurate record of births, deaths, immigrants and emigrants? Also
is the fact that some ethnic leaders have in the past been accused of inflating their area’s
population with the aim of scoring political advantages such as those of increased representation
at federal level and more allocation of revenue from the Federation Account. It is thus contended
that the percentage allocated to population should be relatively lower than it ought to be so as to
discourage such inflationary tendencies.
4. Internal revenue generation
Internal revenue generation is another important principle designed to encourage internal
efforts at generating revenue for the states. As already noted, the principle of fiscal federalism
demands each state to have access to own-source revenues which must be effic iently expended to
encourage governmental accountability and responsibility. Utilizing this means that the more the
efforts of a state for optimal mobilization of its internal revenues and the more efficient its
expenditure of those revenues, the more will be due to it from the Federation Account.
IV. CONCLUSION
The contentions surrounding revenue allocation in Nigeria as discernible from preceding
89
See ‘Brief Historical Outline of Revenue Allocation Formulas in Nigeria’ available at
http://www.nigerianmuse.com/ important_documents/?u=historical_revenue_allocation_outline.htm (accessed 4
July 2012); YA Shuiab, ‘Proposed R evenue Allocation Formula since 1992 to 2003’ available at
http://www.yashuaib.com/revenuetable2.htm (accessed 12 April 2012).

62
discussions are quite plenary in effect and in number of Nigerians with passionate sentiments on
it. It is also evident that the main contentious issues revolve around the power to raise revenue
and the determinative components of the Federation Account including the formula cum
principles for its distribution among the constitutional beneficiaries which are the federal
government, state governments and local government councils.
Of concern however is the fact that in the final analysis, the crux of the contentions is on
the amount of money made available to each beneficiary and not on how and on what the money
is spent. This concern is consequential because taking the very high level of corruption in the
country into consideration, the question is ‘what is the guarantee that were more revenue to be
made available to state governments and local government councils, that these levels of
government would make more meaningful contribution to national development?’ It is
unfortunate that there is currently no specific constitutional direction as to how public revenue
should be expended. At this stage some recommendations on the way forward seems apposite.
First, there is need to revisit the power to raise revenue by granting more powers to state
and local governments so that reliance on federally generated revenue will be minimized. This as
previously noted is distinctive of the principles of fiscal federalism with the advantage of making
these governments accountable and responsible to their electors. In this line, the ownership of
natural resources system should be revisited in a way that the interests of the customary land
owners, local government councils and State Governments will be guaranteed. This will go a
long way in preventing the kind of gross neglect occasioning devastating environmental
degradation which the oil producing areas of the Niger Delta witnessed from the central
government precipitating the current militancy in the Niger Delta region of the country.
Akin to this is the application of the derivation principle especially as it relates to revenue
obtained from natural resources. There is nothing preventing increasing the constitutional
minimum of 13 per cent to 50 per cent. The immediate advantage of this is that non-oil rich areas
at the threat of extinction will be forced to among others industrialise, develop their agricultural
sector and also begin to exploit their own natural resources. After all, all states in Nigeria are
very rich in natural resources such as gold, tin, iron ore, coal, limestone, niobium, lead, zinc, and
arable land.90
The above notwithstanding, the revenue allocation system as it presently stands definitely
90
< http://www.indexmundi.com/nigeria/natural_resources.html> (accessed 4 September 2012).

63
leans too much in the favour of the federal government who can literally determine to allocate
any percentage of its liking to state governments and local government councils despite the fact
that the latter are the nearest and most visible to the ordinary citizens who hold such high
expectations towards them. A constitutional amendment in favour of states and local
governments is thus expedient as well as one giving specific directions on the spending of public
revenue in the public interest. In essence, principles of transparency and accountability in public
finance should be incorporated. The South African Constitution’s provisions on financial
matters91 may be a guide.

91
See sections 214-217, CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, ACT 108 OF 1996

64
AN APPRAISAL OF THE CONCEPT OF PLEA BARGAINING IN THE
ADMINISTRATION OF CRIMINAL JUSTICE IN NIGERIA

KEHINDE KOLAWOLE ELEJA (SAN) ESQ .⃰

INTRODUCTION

In a heterogeneous society like Nigeria, Law is used as a veritable instrument of social control 1.
It seeks to control human interactions and bring about order in the society. It imposes a duty to
the end of maintenance of order and peace in the society. Although, it has been argued severally
that morality also imposes a duty but Law is different from morality, a point which is recognized
even by the ‘natural lawyers’ that there is a field of positive law not deducible from any pre -
existing or presupposed system of natural law or morals2, and this is embedded in the truth that
Law has an attachment; a sanction or punishment.

Hence, any legal norm which imposes a duty, as opposed to those that merely permit an act,
should have a sanction attached to it3. This supposedly should be the bedrock of the criminal
justice system of any nation of the world. A nation without a viable and dynamic criminal justice
system is bound to be in chaos and disorder. In a more positivist approach therefore, apart from
the Law laying out what constitutes an offence, there should also be the provision of the kind of
punishment that will be meted out to whosoever is found guilty of same. This, as has been
argued is to deter subsequent potential offenders from toeing such path. This in itself is the
strength of criminal law.

Criminal justice administration today is taking new dimensions all over the world. One of the
recent developments in the administration of criminal justice is the emergence of plea
bargaining.4 Plea bargaining as a concept in the criminal justice system is not alien to Nigeria.

⃰LLB., B.L. Head of Practice, K.K. Eleja & Co., Ilorin, Kwara State. e-mail: kkeleja@yahoo.com, kk@kkeleja.net
1
Ifeolu J. K., ‘Appreciating Criminal Law in Nigeria’ (Iqra Publishing House: Ilorin 2012) p.
2
Freeman M.D.A., ‘ Lloyd’s Introduction to Jurisprudence’ (Sweet and Maxwell: London 2008) p.41
3
Ifeolu, Supra Note 2. p.
4
Samuel O., ‘ Development of Plea Bargaining in the Administration of Criminal Justice in Nigeria: A Revolution,
Vaccination Against Punishment or Mere Expediency?’ in NIALS Journal of Law and Development Eds; P. 1

65
Arguably, very new and undeveloped in our legal framework, it is a well-known phenomenon in
other countries of the world. As it would be argued in this paper, plea bargaining has been
introduced into Nigeria both at the Federal level and State level (Lagos State only) whether
expressly or impliedly. Although, there have been several arguments that plea bargaining is not
in any way embedded in the fabric of our legal system but certain recurring pointers towards the
phenomenon in our country cannot be denied. There have also been criticisms that the system is
not appropriate as sanction for crimes committed in our country. This therefore makes the
overall effect which the plea bargain process has in the system to deserve a proper attention.

This paper therefore seeks to examine the process of plea bargaining viz-a-viz the Nigerian
criminal justice system to see if indeed it is a blessing or a curse to our legal framework.

WHAT IS PLEA BARGAIN?

One approach with a long history has been to regard the act of giving the meaning of or defining
a word (or a term) as equivalent to naming or ‘denoting’ the thing for which it stands. 5 The
problem with having a conclusive definition or naming a thing is also a peculiar one to the
concept of Plea bargaining. Practitioners and scholars alike are not agreed on the exact meaning
of plea bargaining as it could be described in many ways according to the perspective of each
practitioner or scholar. 6 It has been defined as a negotiated agreement in a criminal case between
the prosecutor and defendant whereby the defendant pleads guilty to a lesser offence or to one of
multiple charges in exchange for some concession by the prosecutor, usually a more lenient
sentence or a dismissal of the other charges – also termed plea agreement; negotiated plea.7 This
may mean that the defendant will plead guilty to a less serious charge, or to one of several
charges, in return for the dismissal of other charges, or it may mean that the defendant will plead
guilty to the original criminal charge in return for a more lenient sentence8.

In another view9, it has been described as when the defendant agrees to settle a case with certain
guidelines and conditions. The prosecution will ask the defendant for a guilty plea in exchange

5
Freeman, Supra Note 3. P.33
6
Samuel, Supra Note 7. P 2
7
Garner, B. A., ed. (2000). Black's law dictionary (7th ed. ed.). St. Paul, Minn.: West Group. p. 1173.
8
Ibid
9
Tapscott. K. R., ‘Plea Bargaining Pros And Cons’ available at
http://www.articlecity.com/articles/legal/article_719.shtml last visited on 10/06/2014

66
for a reduced or even suspended sentence.10 It has been argued that plea bargain allows both
parties to avoid a lengthy criminal trial and may allow criminal defendants to avoid the risk of
conviction at trial on a more serious charge11. It is also called plea agreement, plea deal or
copping a plea12.Some jurisdictions also regard it as a negotiated plea or sentence bargain 13.

Flowing from the above attempts towards describing the concept of plea bargaining, it is perhaps
important to briefly trace its historical development in order to shed more light on the meaning
and its nature. Authors have claimed that the idea originated from the United States of
America.14 The assertion is not farfetched, the idea of having a plea agreement had been part and
parcel of the criminal justice administration in American jurisprudence. Most reported cases at
the earlier points where plea bargain was employed were American cases and although the idea
is not particularly exclusive to the United States, it had developed there much earlier than other
places15.

As a result of the fact that judges, not prosecutors, controlled most sentencing, plea bargaining
was limited to those rare cases in which prosecutors could unilaterally dictate a defendant’s
sentence16. Plea bargaining was unknown during most of history of the common law17. Traces of
the idea were only found during the nineteenth century England and America. 18 In modern time,
plea bargaining has become the primary procedure through which we dispose of the vast
proportion of cases of serious crimes.19

In its nature, plea bargain has been reputed to be of three forms: charge bargain, count bargain
and sentence bargain.20 In charge bargain, defendants plead guilty to a less serious crime than the

10
Ibid
11
Bergman P., and Berman S., ‘Defendants' Incentives for Accepting Plea Bargains’ http://www.nolo.com/legal-
encyclopedia/plea-bargains-defendants-incentives-29732.html last visited on 2nd June, 2014
12
Ibid
13
Garner, Supra Note 8
14
See for instance, Samuel, O., Supra Note p. 57
15
Dirk O., ‘Plea Bargain’ The New York Times Magazine. September, 29, 2002.
16
ibid
17
Beatie J. M. ‘Crime and Courts in Surrey’: 1736 – 1753 in J. S. Coeburn (ed:)
18
Samuel O., Supra note 22 p. 58
19
Ibid
20
Abdulqudri I. B. ‘ Plea Bargain in the Nigeria Criminal Justice: A Sword on the Victim and Shield to the

67
original charge. In count bargain, they plead guilty to a subset of multiple original charges and in
sentence bargain, they plead guilty agreeing in advance what sentence will be given, however,
this sentence can still be denied by the judge21.

PLEA BARGAIN IN THE NIGERIAN CRIMINAL JUSTICE SYSTEM

It is no exaggeration that the subtle incursion of plea bargain into Nigeria‘s criminal justice
system during the prosecution of some national political figures in recent times has provoked
flurry of debates in the polity. 22 As stated earlier, there is no denying the fact that certain
indicators would lead to a logical conclusion that the concept is being employed in the criminal
justice system in Nigeria. To bring this proposition to fore, it is perhaps necessary to give
examples of its use notably by the Economic and Financial Crimes Commission (EFCC) in
recent past.

Plea bargaining was first employed by the Economic and Financial Crimes Commission (EFCC)
in 2005 during the trial of the former Inspector General of Police; Tafa Balogun. Tafa Balogun
was charged to court on several counts charge including money laundering. By plea bargain, he
pleaded guilty to failing to declare his assets, and he was sentenced to six months in prison while
his assets reportedly worth in excess of $150 million was seized23. Also in the trial of Diepreye
Alamieyeseigha, a former Governor of Bayelsa State, plea bargain was employed thereby
resulting to his pleading guilty to failing to declare his assets. He was then sentenced to two
years in prison and released, for time served, the day after his sentencing24.

Plea bargain was also used in the trial of the former Governor of Edo State; Lucky Igbinedion
who was charged in 2008 for siphoning off more than $25 million of public funds. He pleaded

Accused’ in ‘The Advocate’ Volume 2, Nov. 2012 Annual Publication of the Law Society of NOUN, Ilorin Study
Centre. P.73
21
ibid
22
Famoroti F., ‘Plea Bargaining: A blessing or Curse to Nigeria’s Criminal Justice System’
23
Albin-Lackey, C., Human Rights Watch ‘Corruption on Trial?’ (2011) The Record of Nigeria’s Economic and
Financial Crimes Commission: available at
http://www.hrw.org/sites/default/files/reports/nigeria0811WebPostR.pdf last visited on 14/06/2014
24
Ibid

68
guilty to failing to declare his assets and was convicted thereon, he was sentenced with an
equivalent of a $25, 000 fine, which he paid right on the spot and walked away as a freeman.
This was reputed to be a rude shock to the EFCC because the Judge was said to have departed
from the spirit of the agreement between the EFCC and Igbinedion25.

In a related development, a plea bargain agreement was executed by the EFCC in respect to the
then Chief Executive Officer of the defunct Oceanic Bank, Mrs. Cecilia Ibru. This was in
connection with her conviction at the Federal High Court for three out of the 25 count charges
preferred against her. By the said agreement, Mrs. Ibru forfeited assets worth N191 billion to the
Federal Government.26

A more recent one is the conviction of John Yakubu Yusuf for the criminal misappropriation of
#27.2 billion, belonging to the Police Pension Office. With the instrument of plea bargaining, he
was sentenced to 2years imprisonment or a fine of #750, 000 in lieu of the custodial sentence 27.
This has generated serious adverse reactions from the Nigerian public which resulted in the
suspension for one year of the trial judge Hon. Justice A. Talba by the National Judicial Council
(NJC) for injudicious exercise of discretion regarding sentencing.

Apart from cases of notable political figures identified above, there are also instances, of recent,
through which the conviction of accused persons have ended up not on jail terms, but on
conditions of forfeiture of property or money. A record by the EFCC itself bears witness to this
position.28 From the track record of convictions obtained in year 2013 alone by the EFCC, the
record shows a total number of 117 convictions obtained from various High Courts and Federal
High Courts in the country out of the total of 533 cases that were charged to court.29 Out of the
said 117 convictions obtained by the EFCC, a total of 11 cases have their punishments as
forfeiture of money or property while there are two other cases with the option of forfeiture or

25
Ibid
26
Iriekpen D., “Cecilia Ibru Pleads Guilty, Jailed Six Months’ available at
http://www.thisdaylive.com/articles/cecilia-ibru-pleads-guilty-jailed-six-months/77051/ last visited on 14/06/2014
27
Ogunye J., ‘In Defense of Plea Bargaining is the Problem’ at http://www.premiumtimesng.com/opinion/121369-
in-defense-of-plea-bargaining-is-the-problem-by-jiti-ogunye.html last visited on the 2nd June, 2014
28
A report by the Economic and Financial Crimes Commission detailing the Convictions obtained by the
Commission in the year 2013. Available at the EFCC website for download
https://efccnigeria.org/efcc/images/EFCC_2013_Convictions.pdf last visited on 24/7/2014
29
Uwujaren W., ‘EFCC Sets to Secure More Convictions in 2014’ available at
http://www.efccnigeria.org/efcc/index.php/news/736-efcc-sets-to-secure-more-convictions-in-2014

69
fine. The contention with this idea of forfeiture as a mode of punishment presupposes an
arrangement not to get a sentence, but compounding of the offences which are otherwise
punishable by jail term or option of fine seems in keeping with the overall idea of plea bargain.

It must be stated at this juncture that there is nowhere in the Nigeria Criminal Law where there is
any express provision for plea bargaining except of course as embedded in the Administration of
Justice (Repeal and Re-enactment) Law of Lagos State, 2011. There have been several
arguments on this issue while some contend that by virtue of Section 14 (2) of the EFCC
Establishment Act which allows the EFCC to compound offences, plea bargain seems to be in
view30. The section provides:

Subject to the provision of Section 174 of the Constitution of the Federal

Republic of Nigeria 1999 (which relates to the power of the Attorney-
General of the Federation to institute, continue or discontinue criminal
proceedings against any persons in any court of law), the Commission
may compound any offence punishable under this Act by accepting such
sums of money as it thinks fit, not exceeding the amount of the
maximum fine to which that person would have been liable if he had
been convicted of that offence.
While others have argued objectively and strongly that, there is nothing of such in our criminal
justice system. The perception of the common man, and even the learned is that the idea of plea
bargain stems from an ‘escape route’ which the rich who have been found guilty of financial
crimes use to evade the ultimate criminal penalty. For, as explained above, upon conviction for
an offence like money laundering, express punishment provision under sections 14 and 15 of the
Money Laundering (Prohibition) Act CAP M18 LFN, 2004 include imprisonment, fine or both,
but not forfeiture of property. As blunt as the idea may seem, a columnist in one of our national
dailies captures it in the following words:

“... But then what sort of judiciary is Nigeria’s? How come the pri nciple
of plea bargain has become a dirty tool in the hands of highly placed
criminals, while disadvantaged citizens suffer the full weight of the law,
when they commit misdemeanors’… so far plea bargain has tainted the
image of the Nigerian Judiciary, as justice now seems to be for the highest

30
Ibid

70
 31
bidder.”
An eminent jurist of blessed memory, Kayode Eso, JSC (as he then was) in an interview 32, had
this to say about plea bargain in Nigeria:

“They bargain with the judge, bargain with the accused person, he returns half of
the money, and then they give him some hairy-fairy punishment – go and serve
three months in prison and the three months, will, of course, be in the hospital.
This is an encouragement for other governors to steal when they come into office.
There is no plea bargain in our law… The importation is wrong…To me, it is
corruption to bring plea bargain into the law of Nigeria. Look at the issue of
Igbinedion in Edo State who was alleged to have stolen billions and billions of
naira. …They asked him to plea bargain, there and then he was fined three
million naira which, he picked out of his purse and paid there…It sent a notion
that it had been pre-arranged that it would not be more than three million. Now,
after that they started to gloat and shed crocodile tears and said the punishment
was not adequate…Of course, the punishment can never be adequate when they
import this issue of plea bargain. But, let us say the issue of plea bargain was not
introduced and he was punished as he deserved, others would learn…Years back,
I was saddled with the case of Oba Akran and Ademiluyi – Oba Akran was the
Oba in Badagry, and Ademiluyi was the chairman of the biggest corporation in
the country, they were alleged to have stolen 500 pounds. They appeared before
me and I gave them seven years after I had found them guilty. They appealed to
the Supreme Court because there was no Court of Appeal then, their appeal was
dismissed. That was justice not this way of palliating people, rubbing them with
oil in the name of plea bargain…Plea bargain is actually not our law….And they
come around and say it is done in other countries, Nigeria is not any other
country. Nigeria is Nigeria not just any other country. In other countries, it may
be right for them to have plea bargain. We never had plea bargain….It is
corruption for anybody who imports plea bargain into our law.”
In a similar vein, a former Chief Justice of Nigeria Dahiru Mustdapher GCON on Monday,
March 5, 201233 in a keynote address34, said that:

“And so when I described the concept as of ‘dubious origin’ I was not

referring to the original raison-detre, or the judicial motive behind its
conception way back either in the United States or England in the early

31
Sola-Ade A., “Plea Bargain is Mockery of Justice”, in the Punch Newspaper. Available at
http://www.punchng.com/news/plea-bargain-is-mockery-of-justice/ last visited on 24th June, 2014
32
An interview by Vanguard newspaper first published on October 13, 2011 available at
http://www.vanguardngr.com/2011/10/why-plea-bargain-breeds-corruption-by-kayode-eso/ last visited on 24th June,
2014
33
Ibid
34
Delivered at a two-day capacity building workshop for judicial reporters, organized by the National Association of
Judicial Correspondents in collaboration with the Open Society Justice Initiative and Settlement House

71
 19th Century, I was referring to the sneaky motive -if not behind its
introduction into our legal system, then evidently in its fraudulent
application.”
This position he reiterated in a more detailed argument in yet another keynote address 35 that: “

Allow me to still reiterate my position on the concept of plea bargai n. I

still stand on my buckles to state that the concept is not only dubious but
was never part of the history of our legal system, at least, until it was
surreptitiously smuggled into our statutory laws with the creation of
EFCC. Though the concept of plea bargain may be noble to the Criminal
Justice System of the United States and possibly some common law
jurisdictions within Africa, it is pertinent to observe the case and
circumstances within which plea bargain is applied in those jurisdictions.
In Nigeria, a proper understanding of the concept of plea bargain by
prosecutors and law enforcement officers is seriously required to reduce
the misconception that what is being plea bargained is the proceeds of
crime rather than the crime itself with a view to having a lesser
punishment for the offence committed. Thus, there is need to establish a
legal framework that will be peculiar to our social norms, values and
circumstances.
The essence of the concept of plea bargain is the recovery of stolen funds
and therefore not subject to negotiation. What is subject to negotiation
should be the prosecution and punishment for embezzlement. Even where
the whole money stolen is returned by the offender, he has committed the
offence of theft or abuse of office for which he must still be tried and
punished. This concept is not ripe for our criminal justice system in Africa,
particularly Nigeria, because of the one thing that has plagued and
ravaged this beautiful continent- corruption, the hydra headed monster
that has eaten so deep into the fabrics of our justice system, leaving us at
its mercy.”
The contentions against plea bargain in our Nigerian Criminal Justice System seem to be
strengthened by the failure of the National Assembly in passing the Administration of Criminal
Justice Bill into law, which proposes to incorporate plea bargain into the Nigeria’s Criminal
Procedure at the federal level, for over 7 years.36

However, to argue that plea bargain is alien to our criminal justice system is to in fact over
generalize. This is because, although it is not stated in any of our Federal legislations, but it is

35
Ogunleye Supra Note 22
36
Ibid

72
already embedded in the criminal justice system of Lagos State wherein, the Law empowers the
Attorney General of Lagos State to accept plea bargain from an accused where he is of the view
that the acceptance of such plea bargain is in the public interest, the interest of justice and the
need to prevent abuse of legal process37.

To better appreciate this concept, it will be expedient to set out the procedure under the
Administration of Justice (Repeal and Re-enactment) Law, Lagos State, 2011. Plea bargain is
entered into before the accused makes his plea to the charge against him. The law provides that
the agreement must be in writing and signed.38 The bargain is to be made between the prosecutor
and the defendant or his counsel, as only a law officer is entitled to enter into a plea bargain
agreement with an accused person.39 The agreement would therefore determine the plea of guilty
by the defendant to the offence charged or a lesser offence of which he may be convicted on the
charge. This is then followed by a consideration of an appropriate sentence to be imposed by the
court if the defendant is convicted of the offence to which he intends to plead guilty. 40

The complainant or his representative is afforded the opportunity where it is reasonably feasible
to make representations to the prosecutor regarding: the contents of the agreement; and the
inclusion of a compensation or restitution order in the agreement.41

The circumstances that can accommodate plea bargain are: the prosecutor has consulted the
police officer for investigation of the case; the prosecutor has consulted the victim of the crime,
if reasonably feasible; and the prosecutor has paid due regard to the nature of and circumstances
relating to the offence, the defendant and the interest of the community. 42

The bargain process under the Lagos State Administration of Justice Law entails a limited input
from the judge or magistrate before whom the case is pending. He must not participate in the
agreement leading to the plea bargain, though may be consulted by counsel in respect of the
contents of the discussions, and he may inform them in general terms of the possible advantages

37
Hambali Y.D.U., ‘Practice and Procedure of Criminal Litigation in Nigeria’ (Lagos: Feat Print and Publish
Limited: 2012) p. 535
Section 75 of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011
38
Section 76 (4) of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011
39
Section 76 (11) of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011
40
Section 76 (1) of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011
41
Section 76 (3) of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011
42
Section 76 (2) of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011

73
of discussions, possible sentencing options or the acceptability of a proposed agreement. 43 The
prosecutor then informs the court of the agreement when it has been finalized and the court
confirms the correctness or otherwise from the defendant, and ascertain from the defendant if he
made the agreement voluntarily and whether he admits the allegations in the charge to which he
has pleaded guilty.44

If the judge or magistrate is satisfied that the agreement represents the true position between the
prosecutor and the defendant, he may convict the defendant on his plea of guilty to the offence
stated in the charge and contained in the agreement; or record a plea of not guilty in respect of
the offence of which the agreement was reached and to which the defendant had pleaded guilty,
and order the trial to proceed if he is for any reason of the opinion that the defendant cannot be
convicted of the offence or that the agreement is not made in writing or is not signed as required
by law.45

Upon conviction of the defendant on his plea of guilty, the judge or magistrate shall consider the
sentence agreed upon in the agreement and impose the sentence if he is satisfied that such
sentence is an appropriate sentence; or he may impose a lesser or heavier sentence than the
sentence agreed upon in the agreement. In the latter case, he shall inform the defendant of such
heavier sentence he considers appropriate. The defendant also in this instance can either
withdraw his guilty plea and the case is tried denovo before another judge or magistrate; or he
abides with the plea of guilty as well as the heavier sentence but subject to his right to lead
evidence and to present argument relevant to sentencing. 46

If the case is tried denovo, his plea and other related statements in the agreement is inadmissible
in evidence against him and also if he agrees to a heavier sentence, neither the prosecutor nor the
defendant can make reference to the agreement.47 Where he either withdraws his plea or agrees
to the heavier sentencing, the prosecutor and the defendant cannot enter into a similar plea and

43
Section 76 (5) of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011
44
Section 76 (6) and (7) of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011
45
Section 76 (7) (a) and (b) of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011
46
Section 76 (8) and (9) of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011
47
Section 76 (10)(a) and (b) of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011

74
sentence agreement.48

CRITICISMS OF PLEA BARGAINING

While several people have argued that plea bargain should not be allowed in the Nigerian
Criminal Justice System others have argued in its favour while a number have maintained a
middle course and assert that the stakeholders should better come up with ways to make the plea
bargain work in the Nigerian Criminal Justice System. The arguments for plea bargain stems
from the acknowledgment of certain merits that are derived from it. A number of these merits
will be considered while the views against same will also be considered under this heading.

One of the main advantages, as argued, that plea bargain seeks to bring is the issue of cost of
adjudication. This is not unconnected to the fact that the adversary system which is practiced in
Nigeria has made trial procedures so costly.49 The argument is more appreciated when one
considers the inability of the criminal justice system to handle voluminous criminal cases which
are on the increase every day. This has therefore prompted the need to use plea bargain in order
to reduce the cost of litigation. For instance, in the United States of America, in the Federal
District Courts alone, 69,769 cases were filed and 60,958 entered into plea agreements 50. One
could safely conclude, judging by the EFCC report of its convictions as provided above 51, that
had there not been the provision of compounding offences and allowing a verdict of forfeiture to
be entered in the instance of the accused persons, such cases might still be lingering on in our
appellate courts today.

It has also been argued that plea bargain seeks to reduce the workload on prosecutors and leads
towards having efficient work rate output. This in essence would help in saving time and avoids
necessity of public trials and protecting the innocent victim of crime from the ordeal of giving
evidence during trials.52 Furthermore, the sophistication with which economic/financial crimes
are being perpetrated, which has advanced even more with the use of information technology,
compared with the less sophisticated means of investigation employed by the police or various

48
Section 76 (10)(c) of the Administration of justice (Repeal and Re-enactment) Law, Lagos State, 2011
49
Samuel, Supra Note 5 p. 70
50
Ibid
51
Supra Note 29
52
Samuel, Supra Note 5. P. 70

75
commissions set up by the government, diminishes the chances of securing conviction for such
high net worth crimes. In such a situation, plea bargaining ought to be seen as an attractive and
productive tool to secure conviction and obtain a negotiated sentence. This is still seen as a better
option than allowing such offenders to walk away in the face of ineptitude in the investigation
process. The saying that half loaf of bread is better than none is not only axiomatic, but very apt
in the circumstances.

On yet another note, it has been argued that plea bargain helps in the decongestion of prisons
which is one of the major setbacks the criminal justice administration has been facing for a long
time. On a final note, some defenders of the concept also maintain that it is appropriate as a
matter of sentencing policy to reward criminal defendants who acknowledge their guilt. 53 The
logic is simple, once accused persons are willing to plead guilty and necessarily give up the loot,
it ultimately shows their acceptance of responsibility and remorse or enter a correctional state of
mind that may afford hope for rehabilitation. 54

The arguments against plea bargain flow from the inability of our criminal law and procedure to
competently grasp its use. It is further argued that the concept of plea bargain itself is not the
problem, but its application. Mr. Femi Falana (SAN), a member of the National Conference
Committee on Law and Judiciary said55

“It is not plea bargain that is the problem. It is abuse of the use of plea
bargain, more importantly, because it is limited and applicable to issues
involving the rich and powerful members of the society whereas the
ordinary people who run foul of the law are not entitled to such practice.
It is a special arrangement for now. It is for the rich to have some sort of
soft landing and this is why the public is totally opposed to it. Ordinarily,
because of the enormous cost of prosecuting a case, the state or the court
would want to feel compelled to temper justice with mercy if an accused
person comes forward to say I want to change my plea from not guilty to

53
Ibid
54
Ibid
55
Nwabughiogu L., ‘We 'll review plea bargain — Delegates’ available at http://www.vanguardngr.com/2014/04/ll-
review-plea-bargain-delegates/ (last last visited on the 2nd of June, 2014)

76
 guilty. I want to save the time of the court. I don’t want to waste the
resources of the state. Any Judge would want to be lenient but the problem
in our own system is that when a big guy in town steals billions of Naira,
he is charged for money laundering by the EFCC. Meanwhile, before you
launder the money, you would have stolen it. So if you committed stealing,
which attracts seven years imprisonment, you simply brush that aside and
charge him with money laundering which sentence is two years. In the
same environment, a man who has stolen a goat is charged with stealing,
he is not entitled to plea bargain and if convicted, he is sentenced to seven
years imprisonment. No society can allow that for too long.”

In another view, Honourable Justice Abdulahi Mustapha (retired)56 was also reported to have
said, “It is the abuse that we should abolish. I am not in support of the idea of abolishing plea
bargain. It has been in the United States for years.”

Former Chief Justice of Nigeria, Honourable Justice M.L. Uwais57 argued similarly that

“The practice of plea bargain is not new in Nigeria. Hence, it will not be
out of depth for me to make a point which may shape the discussion along
the line of law and judicial reform. The point is that in theory, and I
believe this is safe, plea bargain is designed to maximize scarce jud icial
resources thereby enhancing the fair administration of justice. The debate
should therefore, in my view, focus more on how best the judiciary can
adapt to the use of plea bargain in a manner that does not compromise
fair administration of justice.”

On the converse, Benue State delegate, Dr Duni Magdalene58 argued that she would keep on
pushing for the abolition of the concept of plea bargain. She argued that plea bargaining is more
than armed robbery because the people who have stolen billions may have killed many people.

Following the conviction of John Yakubu Yusuf via plea bargaining, the Punch Newspaper of

56
Ibid
57
Ogunleye Supra Note 22
58
Supra Note 50

77
Thursday, 31st of January, 201359 reported that protesters stormed Supreme Court over pension
thief. It was stated that a group of anti-corruption organizations who were protesting the verdict
of Justice Abubarka Talba of the Abuja High Court on John Yakubu petitioned the CJN
demanding for the eradication of plea bargain, and advocating for “The China option of capital
punishment for corruption, in which the family of the convicted and executed persons pay the bill
for execution.”

From the arguments of pro-plea bargaining, it is apparent that one of the factors for desiring plea
bargain is to reduce the cost of prosecution. The question to be asked therefore is, what cost of
prosecution? Is it the salary of judicial workers, or that of the prosecutors, or the cost of
maintaining the law courts or securing the attendance of accused persons to court from prison?
These are, reasonably the main expenditure the government makes towards criminal litigation
and the answers to these rhetoric questions is best left for the stakeholders to decide.

One other reason that has been adduced for the adoption of plea bargain process in Nigeria is that
it is in keeping with the international best practices, especially as it is being applied in the United
States of America. It is also argued that the recognition that the process is being given in the
States is quite different from what is obtained in Nigeria. The Supreme Court in the United
States have approved the practice of plea bargain as an essential component of the administration
of justice as seen in Santabello v. New York60, Brady v. United States61, and McCarthy v. United
States62, the Nigerian Courts on the other hand have not made any pronouncement on plea
bargaining in our criminal justice system. The argument therefore leaves much to be considered
as far as the level of development and appreciation of the core values of plea bargain is
concerned. It is argued however that once the courts begin to give judicial blessings to cases on
plea bargain, one can lay a claim to its entrenchment in our administration of criminal justice.

There is also the argument of plea bargain fostering the eradication of undue delay of justice in

59
Ogunleye Supra Note 22
60
404 U. S 257 (1971)
Abdulqadir, Supra Note 21.
61
397 U. S 742 (1970)
Plea bargain | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute at
http://www.law.cornell.edu/wex/plea_bargain (last visited on 2nd June, 2014)
62
394 U. S 459 (1969)
Plea bargain | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute at
http://www.law.cornell.edu/wex/plea_bargain (last visited on 2nd June, 2014)

78
prosecuting criminal cases. The troubling question then is: who is responsible for the undue
delay? Section 19 (2)(b) of the EFCC Act provides that the courts shall have power to adopt all
legal measures necessary to avoid unnecessary delays and abuse in the conduct of matters
brought by the Commission before it or against any person, body or authority. It was reputed that
this provision was religiously complied with by the Judge that convicted and sentenced Olabode
George, former Chairman, Nigerian Ports Authority in a corruption trial in Lagos State. Human
Right Watch63 stated it this way:

“The EFCC Act grants jurisdiction to both federal and state courts to try
EFCC cases. According to the EFCC Act, special judges or courts should
be designated to hear corruption cases and these proceedings should be
‘conducted with dispatch and given accelerated hearing’. Despite these
provisions, many of the EFCC’s cases have made little progress in the
courts. Of the EFCC’s 12 ongoing prosecutions of former st ate governors,
eight have already been dragged out for more than three years. Some have
gone more than four years without a single witness being called at trial.
With the exception of the Lagos State court system, no other state courts
or judges in the federal system are designated to hear the corruption
cases—and even in Lagos State the designated judges still have to hear
cases involving other matters on their docket. Most Nigerian courts are
burdened with an antiquated physical and legal infrastructure that
renders them extremely slow and inefficient. With the notable exception of
the Lagos State court system, rules of evidence and procedure have for the
most part been left practically untouched since colonial rule, with absurd
results—most state courts, for example, still lack a formal mechanism to
admit electronic documents into evidence. Many judges must take their
own notes in longhand while, in the words of one judge, they ‘sweat and
choke’ in stiflingly hot courtrooms —hobbling the speed of any
proceedings. The judiciary, including appellate courts, also strains under
the burdens of an excessive caseload. These and other factors conspire to
create extraordinary delays. As one lawyer told Human Rights Watch,
‘Overworked judges want the opportunity to put off their work, so you get
adjournments for the asking—and it always then takes about one to three
months at least[to return to court] because the court’s calendar is always
full’. But the most extreme delays come from the court system’s backlog of
appeal cases. Many judges halt trials while interlocutory appeals are
decided by higher courts, and skilled defense lawyers can exploit this to
generate months or even years of delays in any given case.”
In an attempt towards improving the time taken to solve cases of financial crimes, especially
those initiated by the EFCC, the Supreme Court of Nigeria as well as the Court of Appeal have
63
Corruption on Trial: by Human Rights Watch

79
made practice directions towards accelerating such cases on appeal. 64 These provisions are
targeted towards having fast-track procedures instead of the normal appellate procedures which
may unreasonably consume time. It is therefore hoped that the efforts of the judiciary will bear
fruit in this regard.

The point is worth stating at this juncture that in other jurisdictions where plea bargaining is
recognized and practiced, it is rooted in applicable laws and rules. These laws and rules contain
elaborate provisions regulating plea bargaining. In Nigeria, apart from Lagos state as explained
above, there is no express law or regulation which gives legal backing to plea bargaining.
Regardless of the opinion that might have been expressed about the inherent attractions in plea
bargaining and its observance in other jurisdictions, it will appear there is a legitimacy issue
about the whole process in Nigeria. Until there is an enabling legislation, especially at the
Federal Level, the whole idea of plea bargaining may be wanting in legality.

One cannot overlook the effect that deterrence has in our criminal justice system. It seeks to
refrain otherwise criminally-prone members of our societies from committing crimes; a sort of
warning or caution. Plea bargain for all intents and purposes is inconsistent with this notion. The
position of equality before the law is greatly under scrutiny if offences could be compounded and
those who have the means can escape the wrath of the law by merely forfeiting their properties
instead of serving jail terms or paying the appropriate fines. The message that is purportedly sent
to the minds of the common man is that once a poor man steals, he gets imprisonment but when
elite steals, it is called embezzlement or money laundering and by plea bargain, he is let off the
hook. One is only left to wonder whether the idea of plea bargain, if abused to this extend would
serve the end of justice. The conviction of Olabode George, a PDP chieftain and former Nigerian
Ports Authority Chairman for contract related offences dating back to his time at the NPA by the
Lagos State High Court and affirmed by the Court of App eal before being set aside by the
Supreme Court (on further appeal) had sent a message of equality before the law as enshrined in
the 1999 Constitution of the Federal Republic of Nigeria to both the masses and the elites. He
was sentenced to two and a half years in prison after a surprisingly swift and efficient trial by the
High Court. This was a notable conviction but how could that have been achieved if he had been
handed down a plea bargain?
64
See the Supreme Court Practice Directions and Court of Appeal Practice Directions respectively

80
Even if a cursory look is fixed on the essence of every criminal law, it will be discovered that it
is the deterrent effect and getting the offender of the law remorseful as well as making the law
serve as a correctional mechanism that is the foundation. All of these cannot survive under plea
bargaining. Plea bargain results in unwarranted leniency for offenders and it promotes a cynical
view of legal process. The victim of the crime at the end of the day is denied justice because
more often than not, the crime outweighs the sentence. Hence, the victim is at the receiving
end.65 It is argued that, any criminal law that loses its strength of deterrence is no criminal law at
all and this is what plea bargaining has disguisedly introduced into the criminal justice system.

CONCLUSION

The foregoing has been an attempt to have a holistic view of the concept and idea of plea
bargaining in Nigeria. It has been argued that the essence of our various laws of crime is to
prevent future occurrences and punish the offenders. Much emphasis has been laid on deterrence
as preventive tool in Nigeria, owing to our socio-cultural background. The applicability of plea
bargain in Nigeria would therefore seek to challenge this view, especially as it touches the
perception of the common man who feels the idea of plea bargaining is simply to create an
escape route for high profile criminals, while the petty thieves those convicted for minor
offences are made to face the wrath of the law.

The idea of plea bargaining has been viewed to have potentials of solving some of our problems
in the criminal justice administration. The problem of delay in our adversary court systems and
the expenses incurred towards securing convictions and the heavy burden of proving a case
beyond reasonable doubt would all be done with when the concept of plea bargain is properly
introduced to the country. These however, as argued in the paper could also be solved in a
number of ways if the issue of plea bargain would eventually be fully adopted in our criminal
justice system. It is also suggested that instead the uncertainty involved in its definition and
scope as far as our laws are concerned, it is perhaps high time the legislators go to work and
bring out a workable procedure for its entrenchment in our criminal justice system. The efforts of

65
Abdulqadri, Supra Note 21

81
the Lagos State House of Assembly should be lauded here and other states of the federation,
including the Federal Capital territory are enjoined to follow suit.

Overall, the idea of sanction being an inherent part of criminal law should be protected.
Precautionary means should be employed in the application of the plea bargain process in
Nigeria in order to avoid the misconceptions and abuse of the proces

82
DEBT RECOVERY IN MICRO FINANCE: CHALLENGES AND PROSPECTS

Dr. J. O. Olatoke* (SAN)

INTRODUCTION

A cursory analysis of the evolution and role(s) of microfinance banks in Nigeria would reveal
beyond doubt that its importance to the Nigerian economy cannot be over-emphasized. Micro
Finance banks are designed to provide financial services to micro entrepreneurs as well as the
poor, grassroots and low income population in a sustainable basis. Perhaps it is in concession of
the important roles played by Micro Finance banks that Muktar described it as ‘a supply of
loans, savings and other financial services to the poor.’1

However, an impediment to the sustainability and longevity of the success of the practice of
microfinance in Nigeria is arguably the recovery of debt. This is beyond controversy to anyone
who has a minimum acquiescence of microfinance in Nigeria.

These debts if not recovered and managed effectively can lead to the microfinance bank’s
insolvency and liquidation. It is upon realisation of this fact that I hold the view that debt
recovery has become a knotty issue which all stakeholders in the banking industry must contend
with.

This paper thus seeks albeit briefly to evaluate in perspectives microfinance banking in Nigeria
vis a vis debts and the recovery of such debts. This paper also seeks to evaluate the criminal
sanctions if any that attend the non-payment of debts to microfinance banks.

MICROFINANCE BANKING IN NIGERIA

Microfinance banks were founded to cater for deficiencies perceived in the existing financial
schemes for grassroots and small businesses. It plays an essential role in small and medium scale
enterprises development. According to Jamil , it recognises poor and micro entrepreneurs who

⃰ J.O. Olatoke Ph.D, Lecturer, Faculty of Law, University of Ilorin.

1
See Mustapha Muktar: The Role of Microfinance Banks in the Promotion and Development of Entrepreneurship in
Semi Urban and Rural Areas.

83
are denied access to financial services on account of their inability to provide collateral for
tangible loans.2 Micro finance banks can thus be said to be catalysts for economic growth.

The evolution of micro financing in Nigeria would be better understood and appreciated if an
analysis of the hitherto existent system is evaluated. The Central Bank of Nigeria in 2005 3 noted
that the hitherto existing institutions could not provide adequate micro finance services due to
paucity of loanable funds. It was in concession of this problem that bedevilled the hitherto
existing banking system that necessitated the introduction of the new microfinance framework in
Nigeria.4

It is pertinent to note that the plausibility or otherwise of the establishment and existence of
micro-finance banks in Nigeria is not the focus of this paper but the issue of Debt recovery in
microfinance which has bedevilled the system. Be is as it may, I hope I would not be guilty of
repetition to say that the roles of the microfinance banks cannot be overridden.

MICROFINANCE BANKS, DEBTS AND THEIR RECOVERY: CHALLENGES

The failure of the prior existing banking schemes which necessitated the birth of microfinance
banking in Nigeria was predicated on the challenges they faced. Chief among the problems they
faced was the recovery of debts from people they loaned money to. It is shameful to note that
this problem of recovery of debt has reared its ugly head to serve as a clog in the wheels of
progress of the system.

What therefore is debt recovery?

Debt according to the Oxford Advanced Learner’s Dictionary (7 th Edition), a debt is a sum of
money that someone owes. While recovery is the action or process of getting something back. It
is thus commonsensical to define debt recovery as the action or process of getting the sum of
money owed one.

2
Microfinance as a tool for poverty alleviation in Nigeria, a paper presented at Sensitization Workshop on
Microfinance Banking in Kano State.
3
Microfinance Policy Regularity and Supervisory Framework for Nigeria, 2005.
4
See Acha I.A 2008b, Borrowing Cycle: Alternative Microfinancing Model for Nigeria. African Journal of
Entrepreneurship, 1(3), 46-52.

84
It has been pontificated that the law relating to debts is hinged on the law of contracts, that is the
parties have a pre-existing contract that the party indebted is obliged to pay over a particular
amount to the other party on a particular date or upon the occurrence of an event. It is only when
the said party fails to pay this money after the due date or the occurrence of the agreed event that
a debt is deemed to have arisen.5

As easy as the definition of debt recovery might suggest, the difficulty that characterizes it
cannot be over-emphasized. The reality of debt recovery in Nigeria has become a farce that one
would be tempted to say that recovery of debt in Nigeria by microfinance banks is practically not
existent. Before delving into the crux of the matter, that is the practicability or otherwise of debt
recovery by microfinance banks in Nigeria, a pertinent question must be asked which is: when
does the right to recovery of debt arise?

As held in the case of UNION BANK OF NIGERIA LTD V OKI 6, a debt does not become
immediately payable the day it arises. In the words of Court, ‘it is unheard of in Banking
transactions that a borrower will be liable or expected to pay back a loan on the very day
he receives the loan. The time for payment is either stipulated in an agreement or upon
demand by the creditor.’

It is thus safe to conclude that the action of debt recovery only arises at the time fixed in the
agreement or upon demand by the creditor (in this case, the microfinance banks).

While it is conceded that there is a lot of ease in getting short term loans from micro banks, the
attendant difficulties in recovering these loans is a far cry from the reason for its establishment.

While it must be noted that debts arise out of a whole lot of transactions, two main points by
which debts arise in Nigeria are debts arising from loans and debts arising as a result of failure to
pay for goods.7 The main crux of this study however seeks to analyse the recovery of debts
arising from non-payment of loans. At this juncture, it is imperative to note that the prevalent law
for recovery of debts in Kwara State is the MONEY LENDERS LAW OF KWARA STATE
(Cap M3 Laws of Kwara State 2006). However, this law is not applicable to recovery of debts

5
See Emeka Anthony Odikpo: Practice and Law of Debt Recovery in Nigeria, 2011
6
(1999) 8 NWLR (PT 614) 244 AT 252 PARA D
7
See Odikpo Ibid

85
(loans) by microfinance banks and banks in general. This is not unconnected to the provisions of
Section 2 of the law which provides thus:

“ ‘Money Lender’ includes every person whose business is that of

money lending or who carries on or advertises or announces himself or
holds himself out in any way as carrying on that business, whether or
not he also possesses or owns property or money derived from sources
other than the lending of money and whether or not he carries on the
business as a principal or as an agent; but shall not include-
(a) ...........
(b) ..........
(c) Any person bona fide carrying on the business of banking or insurance
or bona fide carrying on any business, not having for its primary object
the lending of money, in the course of which and for the purposes
whereof he lends money; or
(d) ...........
(e) ............
This above provision is ancillary to the classification of Banks and banking under the Exclusive
legislative list of the 1999 Constitution (as amended).8

The facts that debts owed must be paid is beyond doubt to all and sundry. The Courts have given
approval to the idea of debt recovery in AFRIBANK V ALADE 9 where Salami JCA as he then
was held:

‘The taking of the loan from the bank prima facie implied an obligation to repay.’

It is in realisation of the imperativeness of paying debts (recovery of debts) that this paper
becomes quite essential.

In Nigeria today, it is not uncommon to have people resort to the local ways of recovering debts.
Such modes include the use of police, touts, threats and even laughably spiritual means. In MC
CLAREN V JENNINGS10, the Court of Appeal per Salami JCA was emphatic about the non-
inclusion of debt collection in the roles of the Police in Section 4 of the Police Act. In his words:

‘I have scrutinised the provisions of the section and I am unable to see a provision
providing for or empowering police to enforce contract or to collect debts... In short, the

8
See Item No. 6
9
(2000) 13 NWLR (PT 685) 591 AT 604 PARA B
10
(2003) FWLR (PT 154) 528 AT 532 PARA C

86
appellants and the policemen they took to Kano were there to collect debt which is not one
of the several duties assigned to the police.’

How do these microfinance banks recover debts? The recovery of debts is somewhat difficult in
Nigeria that one might be forgiven to say it is impossible. The following to say a few are the
challenges which micro finance banks face in recovering debts.

Nigerian mentality of seeing bank loans as pieces of national cakes is a factor that begs to be
considered. It is a deplorable state of thinking, yet existent to believe that the taking and non-
payment of banking loans is a means of getting national benefits. These unpaid loans which
become debts do not help for economic growth.

The possibility of malpractices by microfinance bank operators is also a challenge to

microfinance banks in their bid to recover debts. It is no gainsaying that most micro finance
banks are poorly structured due to the pitiable sacrifice of quality at the altar of cheap and
inexperienced staff and operational facilities. The dearth of quality in microfinance banks
especially in the appointment of non-qualified people in the recovery of debts is also a major
factor that hinders the growth of microfinance banks.

A major feature of microfinance banks is the absence of asset -based collateral.11 The lack of
collateral by micro finance banks makes it practically difficult if not impossible for the banks to
recover debts. Commercial banks who give out loans hold assets of the borrowers in their
custody which they can realise in the event of the borrowers defaulting in paying the loans. This
is somewhat impossible for micro finance banks hence the consequent difficulties in recoveri ng
these loans.

There is also insufficient or lack of support for microfinance banks in the recovery of debts.
Perhaps, what could have been the most potent force for the recovery of debts in Nigeria by
microfinance banks, being the police has been held in a plethora of authorities not to be a debt
collecting agency.12

11
Anthonine Khehita (2005) Micro finance Banks: Development in Asia
12
See Mc Claren v Jennings (ibid). However the roles of the CBN, AMCON and NDIC cannot be overridden in this
regard.

87
In general, other challenges which microfinance banks face in the recovery of debts are bad
network of roads, communication problems, lack of/insufficient data base for banks containing
list and particulars of debtors, amongst others. It cannot be over-emphasized that these
challenges, if not managed would hinder debt recovery of microfinance banks in Nigeria and
consequently truncate their life span.

PROSPECTS

It is not all gloom for debt recovery procedures for microfinance banks in Nigeria. It all depends
on adopting the right procedures and steps13. Be it as it may, the activities of Commissions like
the Central Bank of Nigeria, the Nigeria Deposit Insurance Corporation, Asset Management
Corporation of Nigeria, etc must be considered.

For instance the NDIC which was established by Decree No. 22 of 1998 is an autonomous body
that wields supervisory authority over licensed banks (inclusive of microfinance banks). The
NDIC has taken huge laudable steps in recovery of debts albeit closed banks. According to the
NDIC Annual Report and Statement of Account, 2011 by Umaru Ibrahim,14 the sum of
N13.48 million was recovered as at December, 2011. As a matter of fact, 13 debt recovery agents
were appointed for the year 2010 alone.

The Central Bank of Nigeria should also take more proactive steps in helping micro finance
banks recover debts. This is imperative when one considers the seemingly important role
microfinance banks play in the Nigerian economy vis a vis the supervisory roles of the Central
Bank of Nigeria. By virtues of Sections 2 and 42 of the CBN Act,15 the CBN is responsible for
promoting a sound financial system, acting directly or in collaboration with Nigerian banks. By
virtue of the Banks and Other Financial Institutions Act16, section 61(1) thereof, the Central
Bank can supervise and regulate the activities of Nigerian banks and financial institutions
(inclusive of microfinance banks) as well as ordering routine or special examinations of those
banks to assess their financial health. 17

13
Adopting the right steps in Nigeria can however be said to be a mirage.
14
MD/CEO of NDIC
15
Cap C4 LFN 2004
16
Cap B3 LFN 2004
17
See also Section 61(2)(3)of BOFIA

88
Another prospect in debt recovery by microfinance banks in the criminalisation of such acts of
failure to pay debts. Legislations like the Banks and Other Financial Institutions Act,18 Failed
Banks (Recovery of Debts) and Financial Malpractices in Banks Act,19 the EFCC
(Establishment) Act 2004, the Money Laundering (Prohibition) Act, 2004, the Investments
and Securities Act, 2007 and the Criminal Code. However, it can be argued on the authority of
FRN V IFEGWU 20, that criminal charges cannot be brought under a statute such as the
Investments and Securities Act, 2007, et al as it is not a penal statute properly so-called.

It is however laudable to note that the EFCC has served as a veritable tool for recovery of debts.
Opinions have it that most people pay up debts quicker and elect to do so rather than face
prosecution which EFCC threatens.21 The EFCC however has not been free from its own legal
inhibitions in its recovery of debts procedure as the Court of Appeal in NWAIGWE V EFCC 22
held Section 29 of the EFCC Act which allows for the exparte forfeiture of assets to be
unconstitutional.

Microfinance banks across the country are faced with the challenge of bad debt, otherwise called
toxic assets, which requires urgent attention to ensure key objectives of the scheme are not taken
for granted. Bad debt is inevitable in any business, especially in microfinance banking that serves
greater number of the uninformed populace. Microfinance banks across the country are faced
with the challenge of bad debt which calls for urgent attention stakeholders.

In this regard, putting in place risk management measures that will ensure that bad debts do not
disrupt business operations is very important.

Stakeholders fear that the figure put in excess of N16 billion poses endemic danger to customer
service, availability of facilities and micro economic stability. It is thus important to put in place
risk management measures that will ensure that bad debts do not disrupt business operations,
stakeholders warn. A ready example can be seen in the call by the South West Zone of the Micro
Finance Bank Operators on the Central Bank of Nigeria (CBN) to set up an outfit that can

18
Cap B3 LFN 2004.
19
Section 15(2) and 16 of the Act penalizes individuals or corporate customers which in anyway provide misleading
information to a bank in the course of applying for the loan.
20
(2003) 15 NWLR (PT 842) 113
21
www.internationallawoffice.com
22
(2009) 16 NWLR (PT 1166) 169

89
refinance the toxic assets.
The bad debt, which stood at N11billion in 2011, grew by 45.5percent to N16 billion at present
and this is posing some challenges for operators.
According to Olufemi Babajide, chairman, the National Association of Microfinance (NAMB)
South West zone, the CBN should help microfinance banks set up something like Asset
Management Corporation of Nigeria (AMCON) that will buy their bad debt, and subsequently
they will repair over a period of time.23
The Federal Government, through the CBN last year, set up AMCON, as a special purpose
vehicle to manage bank toxic assets or bad and nonperforming loans of the rescued commercial
banks. Operators of microfinance banks also want the regulatory authorities to replicate this in
the sub-sector. I also subscribe to this view that it be replicated in the microfinance banking
sector. This is not unconnected to the highly important position it occupies in national economic
development.
Furthermore, a range of factors need be considered when giving out loans to customers. This
would no doubt reduce the number of bad debts the microfinance banks have to contend with.
Such factors include amongst others the ability of the debtor to pay, the willingness of the debtor
to pay and ‘not giving as loan more than you can afford to give as a gift’. It is my humble
opinion that if these factors and such other factors as may be reasoned are adhered to, the
incidence of bad debts which flows directly from not being able to recover debts is reduced to
the barest minimum.
A major medium by which debts can be recovered is the institution of actions in Court. By the
provisions of Section 6 (6) (b) of the Constitution, every citizen has a right to seek redress for
any breach of his right. As a matter of fact, every person has a right to approach the Court for the
breach of any legal right. See RE: YAR’ADUA 24
However, a clog in the wheel of trial of these cases is the issue of admissibility of banker’s
books. It is beyond doubt that this is the evidence upon which the bank would want to rely to
prove indebtedness. However, there are stringent technical requirements for the admissibility of a
statement of account. This is governed by sections 88 and 89 of the Evidence Act, 2011. While
Section 88 provides that primary evidence of a document shall be the recognised way of proving

23
www.businessdayonline.com assessed on 13th May 2013 at 2.23pm
24
(2011) 17 NWLR (PT 1277) 567 at 582 PARAS C-H.; THOMAS V OLUFOSOYE (1986) 1 NWLR (PT 18) 669

90
its contents, section 89 (h) provides that an entry in a banker’s book can however be proved by
secondary evidence. Section 90 provides that:
“The secondary evidence admissible in respect of the original
document referred to in several paragraphs of section 89 is as
follows:
(a) .........
(b) .........
(c) .........
(d) .........
(e) In paragraph (h), the copies cannot be received as evidence unless it
is first be proved that-
(i) The book in which the entries copied were made was at the time of
making one of the ordinary books of the bank,
(ii) The entry was made in the usual and ordinary course of business.
(iii) The book is in the control and custody of the bank, which proof may
be given orally or by affidavit by an officer of the bank, and
(iv) The copy has been examined with the original entry and is correct,
which proof must be given by some person who has examined the
copy with the original entry, and may be given orally or by
affidavit.
This procedure of tendering secondary evidence of banker’s books is strenuous as the bank
which seeks to recover its debt has the bounden/enormous duty to prove the indebtedness. This
absurdity came to the fore in NBA PLC V ABACHA (2002) 50 WRN 137 where the witness
through which the banker’s book was to be tendered said:
‘we prepared statement of account of Aisami by getting computer print
out. We caused statement today through our network system. I
recognise by (sic) account number and I am aware of (it) through my
investigation. I see this and say it is.

The Court of Appeal per Muntaka Coomasie JCA in reflecting this had this to say:
‘This is far short of the requirements of Section 97(2) of the
Evidence Act 1990 for the document to be admissible. While I agree
with the appellant’s counsel that the document is relevant under
sections 38 and 39 of the Evidence Act, but it did not satisfy the
conditions necessary for its admissibility as evidence under section
97 (1) (c) and 2 (e) of the Evidence Act. Though the appellant’s
counsel made reference to the modern day practice of using
computers in the day to day business of the bank, it is my opinion
that the law remains as it is. It has not been amended by an Act of
the National Assembly, although it is high time they did not that,
and I am bound to apply the law as it is.’

91
Perhaps, it is important to note that this case has been overtaken by events because the Evidence
Act has been amended to provide for computer-generated evidence by the provision of Section
84 of the Evidence Act. See KUBOR V DICKSON (2013) 4 NWLR (PT 1345) 534 to 577-
578 paras D-E where the Supreme Court stipulated the conditions for tendering computer
evidence as:
(a) that the document containing the statement was produced by a computer during the
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 the 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.
We submit that this computer generated evidence would only apply to banker’s books that are
computer-related. Where however it is not computer related, the admissibility of such documents
becomes strenuous as stressed earlier.
In the course of trial, the bank may elect to sue via the General Cause List or the undefended list
procedure. If however he elects to sue through the undefended list procedure, the money being
recovered must be a liquidated sum. As held in OGBONNA V UKAEGBU,25 a liquidated
money demand is a claim which is determined with exactness. Consequently, if the sum claimed
is not ex facie determined without more, it cannot be said to be liquidated.
As held in NMCB NIG LTD V OBI,26 it was held that the claim for interest or damages cannot
be said to be within the contemplation of the undefended list procedure. In the words of the
Court:

25
(2005) 17 NWLR (PT 954) 432 AT 442-443
26
(2010) 14 NWLR (PT 1213) 169 AT 188-189 PARA H-C

92
 “The undefended list procedure is adopted when it is perceived that that the
defendant could not possibly have any defence to the claim. A suit is
maintainable under the procedure of it relates to a claim for a debt or
liquidated money demand. In the instant case, while the appellant’s claim
for the total amounts or sums constituting the principal loan granted to
the respondent could be termed as a liquidated claim within the
requirement of the undefended list procedure, the claim for interest
accruing on the loans granted which must be arrived at upon calculation
on the agreed rates of interest having regard to the period covered did
not qualify as a liquidated claim under the Rules.’

See also S.B.N Plc v Kyentu27

In a nutshell, while the undefended list is a viable method, once a claim for damages and
unagreed upon interest arises, such has to be transferred to the General Cause List. The bank is
entitled to damages for breach of contract because once the date fixed for the loan passes and it is
not repaid, a breach of contract exists whether or not demand had been made. See also A.I.B
LTD V I.D.S LTD28
The microfinance banks can also elect to proceed against the Guarantor of such a debt if the
debtor defaults in paying the loan. A Guarantor has been defined in TRADE BANK PLC V
KHALID BARAKAT CHAMI 29 ‘technically a debtor because where the principal debtor
fails to repay, the guarantor will be called upon to pay the loan so guaranteed. The
guarantor can however be absolved from this liability if he can show that the principal
debtor had paid the loan.’
As a matter of fact, a guarantor can be sued without recourse to the principal debtor. See A.I.B
LTD V I.D.S30. See also AFRICAN INSURANCE DEV. CORPORATION V NIGERIA
(LGN) LIQUIDATED NATURAL GAS LTD 31 where it was held that:
‘The fact that the obligation of the guarantor arises only when the principal
has defaulted in his obligation to the creditor does not mean the creditor has
demand payment from the principal or from the surety, or give notice to the
surety before the creditor can proceed against the surety. Nor does he have
to commence proceedings against the principal whether criminal or civil
unless there is an express term in the contract requiring him to do so. See

27
(1998) 2 NWLR (PT 536) 41
28
(2012) 17 NWLR (PT 1328) 1 AT 43-44
29
(2002) 13 NWLR (PT 836) 158 AT 211-212 PARA F-A
30
(Supra)
31
(2000) 4 NWLR (PT 653) 494 AT 506 PARAS G-A

93
 also AUTO IMPORT V ADEBAYO & ORS 32

In the same vein, the bank can also sue for compensation as it was held in the Supreme Court
decision of A.I.B LTD V I.D.S LTD33 that a party who holds on to the money of another and
keeps it for long without any justification should pay compensation.
Furthermore, there is urgent need to institute a special court that will try loan defaulters in
microfinance banks. Opinions have it that the creation of these special courts will aid in a long
way debt recovery in microfinance banks. As noted by Babajide:
“We have legal issues. We need special court to try debtors of microfinance
banks and staff of microfinance banks involve in fraud. These are our major
challenges.”34

Though the CBN has promised to establish the special courts, to the dismay of followers and
stakeholders of microfinance banks, these special courts have not been created. The delay in
setting up the special court has raised concern among operators of microfinance as it is seen to be
affecting their activities negatively. Some loans that would have been recovered if the special
court had been established are already going bad.
Operators however, are desperately looking forward to instituting such special court because it
will send a signal to loan defaulters to pay.
The existence of good roads and communication networks would also be a factor that would help
in the recovery of debts. In the same vein, qualified people in debt recovery and management
skills should be appointed or contracted to recover debts for the micro finance banks as
experience has shown that debt recovery demands expertise.

CONCLUSION
Loan repayment has been a major problem in microfinance banking in the banks have closed
shop because they were not able to recover the loans given to their customers. The consequence
of them closing shop is the non development of people at the grassroots level which micro
finance banks aims at achieving hence the need for effective debt recovery mechanisms to
maintain the sustenance of micro finance banks in Nigeria.

32
(2006) 2 COM. AC 33 AT 95, PARAS B, C-G
33
(supra) at 50 PARAS A-C
34
Olufemi Babajide, chairman, the National Association of Microfinance (NAMB) South West zone

94
This paper has sought to evaluate the concepts of micro finance banks in Nigeria, challenges and
prospects of debt recovery in micro finance banks. While it is conceded that the issue of debt
recovery in micro finance banks has become a knotty domestic and global issue, one must not
still give up in solving this problem for want of trying.

95
EXCLUSIVE RIGHTS AND LIMITATIONS OF LEGAL PRACTITIONERS IN
NIGERIA
1
UGOCHUKWU CHARLES KANU⃰

ABSTRACT

This article is set to highlight and examine the exclusive rights and limitations of Legal
Practitioners in Nigeria. Upon call to the Nigerian Bar and after enrolment at the Supreme Court
of Nigeria a legal practitioner in Nigeria whether or not he is a Nigerian citizen to the exclusion
of any other profession/professional are automatically vested with certain categories of rights and
privileges. These rights and privileges exercisable by legal practitioners depend on the category
the legal practitioner belongs to. The three categories of legal practitioners who can practice in
Nigeria are; legal practitioners formerly called to the Nigerian Bar; legal practitioners entitled to
practice for the purpose of a particular proceeding, and legal practitioners entitled to practice for
the purpose of a particular office;

The writer postulates that the rights and privileges notwithstanding, there are certain restrictions
and/or limitations on the rights of a legal practitioner to practice law in Nigeria. To activate and
enjoy such rights and privileges, the legal practitioner must continuously and consciously
perform certain acts and obligations in order to maintain his status as a legal practitioner qua
legal practitioner in Nigeria. The writer concludes by positing that the practitioner must
continuously and consciously perform certain acts or obligation as a condition precedent towards
an undisturbed and quiet enjoyment of such rights and privileges. The first part of the work
covers the brief history of the development of legal profession in Nigeria. The second part of the
work discusses the exclusive rights and privileges of legal practitioners in Nigeria, whilst the last
part of this work discusses the restrictions and limitations of the rights and privileges of legal
practitioners in Nigeria.

1
* Ugochukwu Charles Kanu LL.M (Northumbria), Lecturer in Law. Li ga on Department(Criminal Li ga on)
Nigerian Law School, Lagos Campus) E-Mail: kanu@lawschool.lagos.org; ochalloh@yahoo.com.

96
BRIEF HISTORY OF THE LEGAL PROFESSION IN NIGERIA
History of the legal profession in Nigeria is traceable to the era of the advent of colonial
administration in our communities in 1860s in what later metamorphosed into Nigeria. The pre-
colonial communities were founded on simple social, economic and political structures and
therefore the need for legal education and/or legal profession did not arise. It was the advent of
colonial administration with its socio-political and commercial/economic dimensions that led to
the need for the establishment of an English styled court or dispute resolution mechanism instead
of our traditional method of community based dispute resolution. The legal profession in Nigeria
is modelled from the English legal system and legal profession2 and it was as a result of these
developments which led to the need for lawyers.

There are however three major phases of the history of legal profession in Nigeria viz;

1. The period between 1876-1914

2. The period between 1914-1962
3. The period between 1962-date

PERIOD BETWEEN 1876-1914

It was at this period that the Supreme Court Ordinance was made in 1876 which sought to
regularise the mechanism for administration of justice in parts of Nigeria. It was also the
Ordinance that fused the Nigerian legal profession into one, that is, Barrister and Solicitor and
provided for the qualifications of legal practitioners in Nigeria. 3 The Ordinance provided for
three categories of legal practitioners who may practice law in Nigeria viz;

a. Professionally qualified legal practitioners in Britain. 4

b. Persons who have served articles in the law firm of professionally qualified lawyers. 5
c. The local attorneys.6
The professionally qualified legal practitioners in Britain are those already admitted as barristers

2
See Orojo J.O. Professional Conduct of Legal Practitioners in Nigeria. 3rd edn. (Lagos: Mafix Books,
2008). P. 1-7.
3
Section 76 Supreme Court Ordinance 1876
4
Section 71 Supreme Court Ordinance 1876
5
Section 73 Supreme Court Ordinance 1876
6
Section 74 Supreme Court Ordinance 1876

97
to any of the Inns7 of Court in Britain or as solicitors with no knowledge of Indigenous
Customary Law and Land Law, but were however licenced to practice in the Colony due to the
dearth of indigenous attorneys.

The second category categories of legal practitioners are persons who have served articles for a
duration not less than five years in the law firm of the professionally qualified practitioners in
Nigeria or in the Gold Coast and deemed to be educated and knowledgeable in English law and
practice were appointed by the Chief Justice and granted licence to practice for a period of six
months renewable after six months subject to maintenance of good conduct.8

The third category of legal practitioners in this era is the local attorneys 9 with sufficient
academic qualification who have successfully passed the examination set by the Chief Justice.
The local attorneys licenced to practice were only (30) thirty in number and the last licence
issued was in September 1908.10

THE PERIOD BETWEEN 1914-1962

The historical perspective of this era of legal practice in Nigeria is the amalgamation of the
Southern and Northern Protectorate to form the country Nigeria. The only two categories of legal
practitioners who practiced in this era are the professionally qualified practitioners and local
attorneys already licenced. However, the Supreme Court Ordinance of 1876 was repealed by
Supreme Court Ordinance of 1943 and pursuant to this Ordinance the Supreme Court (Civil
Procedure) Rules 194511 ended the era of self-taught attorneys. Henceforth, the practice of law in
Nigeria was for persons entitled to practice as a barrister or solicitor in England, Ireland, and
Scotland.

THE PERIOD BETWEEN 1962 TILL DATE

From 1913 until 1963, legal practitioners who wanted to practice law in Nigeria undertook their
training overseas to qualify as barristers and solicitors and upon return to Nigeria enrol at the

7
The four Inns were Middle Temple; Inner Temple; Lincoln’s Inn; Gray’s Inn.
8
See section 73 & 74 Supreme Court Ordinance 1876
9
These category of attorney’s were also called self-taught attorney’s; Colonial Attorney’s.
10
See Obi Okoye A. Law In Practice in Nigeria. 1st edn. (Enugu: Snaap Press, 2011).P. 5 -6.
11
Order 16 Rule 1 of the Supreme Court Ordinance No. 43 of 1943.

98
Supreme Court but they did not possess any law degree as no British University did offer a law
degree which ultimately resulted to unsatisfactory and deficient services rendered as they lack
adequate understanding customary laws and land law. These deficiencies and more culminated to
the reform of the legal profession in Nigeria which actually started from April 1959 by the
setting up of the Unsworth Committee12 to consider and make recommendations for the future of
legal education in Nigeria especially with regard to legal education, admission to practice and the
right of audience before the Courts.13 It was the recommendations of this Committee that ushered
in a new phase in the Nigerian Legal Profession by the promulgation of the Legal Education Act
and the Legal Practitioners Act in 1962 respectively.14 These Acts enabled the setting up of the
Council of Legal Education in 1962 and the establishment of Nigerian Law School same year.
The school ran its maiden vocational course for three months from January to March 1962 with
only eight students.15

WHO IS A LEGAL PRACTITIONER IN NIGERIA

The rights and privileges under reference in this work are only accruable to a legal practitioner in
good standing in Nigeria. The Legal Practitioners Act16 defines a legal practitioner as “A person
entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister
and solicitor either generally or for the purposes of any particular office or proceedings.” The
inevitable question arising from the above definition is who is the person entitled to practice law
in Nigeria as a barrister or barrister and solicitor? The answer is not far-fetched. The Act
provides17 “Subject to the provisions of this Act, a person shall be entitled to practice as a
barrister and solicitor if, his name is on the roll.” Upon being called to the Nigerian Bar, a legal
practitioner is mandated to have his name enrolled in the register of legal practitioners kept by

12
Committee members were The Attorney General of the Federation (E.I.G Unsworth), Solicitor-General of
the Federation, Legal Secretary of Southern Cameroons, Attorneys-General of the Regions, and six
distinguished legal practitioners.
13
See the Committees Report on the Future of the Nigerian Legal Profession (Lagos: Federal Government
Press, 1959) para. 1 p.1
14
Legal Practitioners Act Cap L.11 L.F.N 2004; Legal Education (Consolidation, etc.) Act Cap L. 10 L.F.N 2004
15
The First Campus of the Nigerian Law School was Igbosere, Lagos
16
Section 24 Legal Practitioners Act Cap L.11 L.F.N 2004
17
Ibid section 2 (1).

99
the Registrar of Supreme Court at the Supreme Court complex. The Act 18 stipulates the condition
precedent for enrolment where it provides “(1) subject to the provisions of this section, a person
shall be entitled to have his name enrolled if, and only if- (a) he has been called to the Bar by
the Benchers; and (b) he produces a certificate of his call to the Bar to the Registrar.”

In Bikey Engineering Ltd v Governor Ondo State & ors19 the court held as to who is a legal
practitioner that “the person must be a natural person whose name must be on the roll of legal
practitioners authorized by law to practice as advocates in the Supreme Court of Nigeria. A firm
of legal practitioners is in my humble view outside the contemplation and intendment of section
24 of Legal Practitioners Act.” Therefore, the combined effect of the statutory and case law
definition as to who is a legal practitioner in Nigeria is such legal practitioners name must be in
the roll of legal practitioners kept by the Registrar of the Supreme Court of Nigeria.

It should be noted that there are three categories of persons entitled to practice as legal
practitioners in Nigeria by virtue of section 24 of Legal Practitioners Act 20 viz;

1. Legal Practitioners entitled to practice generally

2. Legal Practitioners or persons entitled to practice for purposes of a particular office, and
3. Legal Practitioners entitled to practice for the purpose of particular proceedings.

LEGAL PRACTITIONERS ENTITLED TO PRACTICE GENERALLY

There are two categories of legal practitioners who are entitled to practice generally. These are;
(a) Those called to the Nigerian Bar and have their name enrolled in the Supreme Court after
presenting their qualifying certificates to the Registrar of Supreme Court.
(b) Those enrolled by virtue of regulation made by the Attorney General of the Federation.
In a nutshell, under the arrangement in (b) above, the Attorney General of the Federation after
due consultation with the General Council of the Bar and the Body of Benchers may if satisfied
provide for the enrolment of the name of such practitioner pursuant to section 7 (2) of the

18
Ibid section 7 (1).
19
2010 LPELR-CA/B/87/2009 per Ngwuta J.C.A at p. 8-9 (paras. F-B); See also Okafor v Nweke (2007)
All F.W.L.R (Pt. 368) 1016; First Bank Plc V Maiwado (2003) F.W.L.R (Pt. 151) 2001 at 2003.
20
Legal Practitioners Act Cap L.11 L.F.N 2004

100
Act21upon being satisfied that such person is a legal practitioner in his country and that such
country have a reciprocal arrangement with Nigerian as it relates to practice of the legal
profession. Upon fulfilment of the conditions hereinbefore stated, the applicant before enrolment
must satisfy the Chief Justice of Nigeria of the following;

(i) That he is in possession of a certificate signed by the Attorney General of the

Federation showing that he is a citizen of a reciprocal country.
(ii) Evidence showing that he is entitled to practice in his own country.
(iii) That he has passed a proficiency exam set by the Council of Legal Education in
Nigeria to ascertain his knowledge of Nigerian Law or has satisfied the Attorney
General of the Federation of adequate knowledge of Nigerian law.
(iv) He must also prove to the Chief Justice of Nigeria that he is a person of good
character22.
It follows that an applicant who is to benefit under this arrangement must not be a Nigerian
citizen and that the reciprocal law between the country of the applicant and Nigeria providing
similar facilities must not be altered, else the Attorney General of the Federation is empowered
to cancel his enrolment23

LEGAL PRACTITIONERS OR PERSONS ENTITLED TO PRACTICE FOR

PURPOSES OF A PARTICULAR OFFICE

Under this arrangement there are two categories of legal practitioners envisaged and they are;

a. Legal Practitioners employed by the Government as legal officers.

It is submitted that under this category by virtue of section 2 (3) (a) of the Act,24 the Attorney
General of the Federation, Attorney General of the State, Solicitor General of the Federation,
Solicitor General of the State, Director of Public Prosecution of the Federation and of the State

21
Ibid
22
See Regulation 2 (1) of Legal Practitioners (Special facilities to practice in Nigeria) Regulations 1968; see
Obi Okoye A. Law In Practice in Nigeria. 1st edn. (Enugu: Snaap Press, 2011).P. 9-15.
23
Section 7 (2) (b) Legal Practitioners Act Cap L.11 L.F.N 2004.
24
Legal Practitioners Act Cap L.11 L.F.N 2004.

101
are entitled as of right to practice as barristers and solicitors for the purpose of such office.

b. Persons who are not legal practitioners but occupy such offices and are allowed to
represent such offices o nly in legal matters including judicial proceedings.

These are non-qualified legal practitioners occupying offices in the civil service of the
Federation or the State relating to a judicial functions and are allowed to practice by virtue of
that office not as a result of their qualification as a legal practitioner properly so called as the
Attorney General may specify by Order. 25 It is our submission that this category and the
provision is no longer tenable in our legal system today as there are more than enough legal
practitioners to attend to the legal needs of any Government Agency in Nigeria.

LEGAL PRACTITIONERS ENTITLED TO PRACTICE FOR THE PURPOSE OF

PARTICULAR PROCEEDINGS.
A legal practitioner who is not called to the Nigerian Bar may be allowed to practice in Nigeria
upon his application subject to the approval of the Chief Justice of Nigeria for the purpose of
representing his client in a particular proceeding and thereafter the permit expires. Such
proceeding includes any incidental appeal arising therefrom. However such legal practitioner
before the application is approved must fulfil certain conditions viz;
a. He must show that he is an advocate in the country where his practice is based.
b. That such country operates a similar legal system to that of Nigeria,
c. The Chief Justice of Nigeria considers it expedient that he be allowed to appear in such
proceedings, and
d. Payment of prescribed fee.26
The position of the Act accords with the spirit of constitution. Chapter four of the constitution on
fundamental rights permits every citizen of Nigeria to be entitled to defend himself in person or
by legal practitioner of his choice. 27 The fulfilment of the condition precedents for the grant of
the permit to practice in Nigeria for the purpose of a particular proceeding must be divorced from
immigration requirement for immigrants seeking entry to Nigeria. 28 Therefore a legal practitioner

25
Ibid section 2 (3) (b)
26
Section 2 (2) (a) & (b) Legal Practitioners Act Cap L.11 L.F.N 2004.
27
Section 36 (6) (c) 1999 Constitution of the Federal Republic of Nigeria; see R v Enahoro (1965) NMLR 265.
28
Awolowo v Minister of Internal Affairs (1966) NSCC 209.

102
in Nigeria who is not covered within the contemplation of section 2 of Legal Practitioners Act
from all intent and purposes is not a legal practitioner in Nigeria.

EXCLUSIVE RIGHTS OF LEGAL PRACTITIONERS IN NIGERIA

1. RIGHT OF AUDIENCE IN COURT

The ultimate fulfilment of being a legal practitioner is the joy of advocating a client course in
court. The legal practitioner’s right of audience in court seeks to establish this belief. It is
submitted that the extent to which a legal practitioner enjoys this right will depend largely on
which of the three categories of legal practitioners he belong to and other limitations at any given
time. Consideration will be based on his status either as a legal practitioner who is entitled to
practice generally; legal practitioner who is entitled to practice for the purpose of a particular
office; and legal practitioner entitled to practice for the purpose of a particular proceeding.
Section 8 (1) of the Act29 provides “…A legal practitioner shall have the right of audience in
all courts of law sitting in Nigeria.” In support of this provision is the constitutional provision
which empowers any person to either elect to defend himself in person or through a legal
practitioner of his choice.30
Thus, any law which erodes the right of audience of a legal practitioner employed to represent
the interest of a client in court shall to the extent of its inconsistency be void. The Supreme Court
in the case of Uzodinma v Commissioner of Police31 declared void the entire provision of
sections 390 of Criminal Procedure Code32 applicable in the Northern States and section 28 of
Area Court Edict33 which provides inter alia that no legal practitioner shall be permitted to
appear or have a right of audience in an Area Court for being inconsistent with the constitutional
provision.34

29
Section 8 (2) Legal Practitioners Act Cap L.11 L.F.N 2004.
30
Section 36 (6) (c ) 1999 Constitution
31
(1982) I NCR 27.
32
Cap 30 Laws of Northern Nigeria, 1963.
33
Section 28 Area Court Edict of Northern Nigeria 1967
34
See Hambali Y.D.U. Practice and Procedure of Criminal Litigation in Nigeria. 1st edn. (Lagos: Feat Print, 2012)
P. 399-400.

103
 2. RIGHT TO PREPARE DOCUMENTS RELATING TO PROCEEDINGS IN
COURT

It is only a legal practitioner that can prepare on behalf of his client in expectation of reward
court processes for the purpose of any proceedings in any Court of record in Nigeria. 35 The
processes under consideration here are all such processes with which a Claimant/Plaintiff and/or
Defendant/Accused will rely on in court to establish his case. The processes usually have a
column where the name and signature of the practitioner will be franked. Where such column is
not provided the registrar of the Court is mandated to refuse to accept such process for filing.
However, this does not derogate from the right of a litigant as provided in the constitution to
elect to represent himself in person.36 In such a case whatever process he filed in Court does not
come within the purview of the section under reference. Again from the wording of the section, it
is submitted that where the court documents was prepared by a person (not in expectation of
reward) who is not a legal practitioner for the use of a litigant in any court proceedings, the
provisions of the section has not been breached. The provision can only be breached where such
services was rendered in expectation of reward or gain.

3. RIGHT TO PREPARE DOCUMENTS FOR PROBATE OR LETTERS OF

ADMINISTRATION

The law is that the estate of a deceased person may be administered by his personal
representatives who may either be referred to as administrators/administratrix 37 of his estate or
executors/executrix38 of his estate depending on whether the deceased died testate or intestate.
The personal representatives of the deceased will definitely have to apply for the grant of probate
or letters of administration to enable them take charge of the estate. It is only a legal practitioner
that may prepare for fees or reward the documents to be filed at the probate registry of the High
Court for grant of probate or letters of administration.39 A non-legal practitioner may also
prepare the necessary documents for application provided he did not do so in expectation of

35
Section 22 (1) (d) Legal Practitioners Act Cap L.11 L.F.N 2004.
36
Section 36 (6) (c ) 1999 Constitution of Federal Republic of Nigeria.
37
These are persons who administer the estate of a deceased who died intestate (without a Will).
38
These are persons who administer the estate of a deceased who died testate (leaving a Will)
39
See section 22 (1) (d) Legal Practitioners Act Cap L.11 L.F.N 2004.

104
reward or gain, else he is guilty of an offence. 40

4. RIGHT TO COMPLETE STATUTORY DECLARATION OF COMPLIANCE

FORM FOR COMPANY REGISTRATION

One of the basic requirements for the registration of a company by the Corporate Affairs
Commission under “Part A” of Companies and Allied Matters Act is the production of “Form
CAC 4” titled Declaration of Compliance with the Requirements of CAMA. 41 The Act requires a
legal practitioner to attest to the fact in form of a statutory declaration before a Commissioner for
Oaths or a Notary Public that the basic requirements for registration of a company have been
complied with.42 Where Form CAC 4 does not accompany any application for registration of a
company to Corporate Affairs Commission, the Commission cannot accept such application.
However, the production of Form CAC 4 duly signed by the legal practitioner is not a conclusive
proof for registration as applicant will also comply with other requirements for registration.

5. RIGHT TO BE APPOINTED THE ATTORNEY GENERAL OF THE

FEDERATION AND ATTORNEY GENERAL OF THE STATE

The position and/or office of the Attorney General of the Federation and Minister of Justice and
Attorney General of the State and Commissioner for Justice are a constitutional provision and
shall only be occupied by a Legal Practitioner. The constitution provides in section 150 (1) 43 as
follows “there shall be an Attorney-General of the Federation who shall be the Chief Law
Officer of the Federation and a Minister of the Government of the Federation.” This is the
only position with a constitutional backing in any Administration/Government in Nigeria which
underscores the importance and pre-eminence of the legal profession over and above other
profession. The legal practitioner who will occupy such position must have been qualified to
practice law in Nigeria for a period not less than ten years.44

40
Section 22 (1) proviso Ibid.
41
Section 35 (2) Companies and Allied Matters Act Cap C 20 L.F.N 2004.
42
Ibid section (3).
43
1999 Constitution of the Federal Republic of Nigeria; see Section 195 (1) for equivalent provision for States.
44
Ibid section 150 (2) and 195 (2).

105
 6. RIGHT TO BE APPOINTED A NOTARY PUBLIC

It is only a legal practitioner that may be appointed a Notary Public by the Chief Justice of
Nigeria provided he is adjudged to be a fit and proper person in character and has paid his annual
practicing fee consecutively for a period of seven years. 45 The continuous enjoyment of the
rights and privileges of a Notary Public after being appointed is dependent on continuous
maintenance of good character and conduct. Where subsequently he is adjudged guilty of
misconduct or convicted of an offence, his appointment to act as a Notary shall be revoked and
his certificate withdrawn. 46Where a legal practitioner who is a Notary Public is interested in any
proceedings or matter, the law enjoins him not to use any of his powers in such matter.47 The
powers, duties and functions of a Notary Public in England are the same powers accruable to a
Notary Public in Nigeria48 after being administered with his oath of office. 49

7. RIGHT TO BE APPOINTED A JUDGE OF SUPERIOR COURT OF RECORD IN

NIGERIA

The superior Courts of record in Nigeria are the appellate Courts. Any court in which litigants
may likely bring an application for appeal is considered a superior Court. The presiding officers
in these courts are referred to as judicial officers. Judicial office is as defined in the
Constitution.50 It is only a legal practitioner who is qualified to practice law in Nigeria for certain
number of years that may be appointed a judge or justice of any of these courts with the
exception of Sharia Court of Appeal or Customary Court of Appeal. 51 For a legal practitioner to
be appointed a justice of the Supreme Court, he must have been called to the Nigerian Bar and
qualified to practice law for a period of not less than fifteen years; for Court of Appeal such a
person must have been called to the Nigerian Bar and qualified to practice law for a period not
less than twelve years, while for Federal High Court and State High Courts the qualification is

45
Section 2 Notaries Public Act Cap N141 L.F.N 2004.
46
Ibid Section 7.
47
Ibid Section 19.
48
Ibid Section 2 (2).
49
Ibid Section 3.
50
Section 318 1999 Constitution as amended.
51
See Section 231 (3); S. 238 (3) and Section 250 (3) of 1999 Constitution

106
not less than ten years post call.

8. RIGHT TO BE APPOINTED A SENIOR ADVOCATE OF NIGERIA

It is only a legal practitioner in Nigeria that can be conferred with the rank of a Senior Advocate
of Nigeria. A legal practitioner who has distinguished himself in the practice of law may be
conferred with the rank of a Senior Advocate of Nigeria by the Legal Practitioners Privileges
Committee.52 Such legal practitioner must have been in practice for a period not less than ten
years and must have achieved distinction in the legal profession.53 The members of the
committee are appointed by the Chief Justice of Nigeria in consultation with the Attorney
General of the Federation for proper constitution of the Committee and shall hold office for two
years.54

9. RIGHT TO PREPARE INSTRUMENT RELATING TO LAND

It is only a legal practitioner that can prepare any documents or instruments relating to
immovable property in expectation of a fee in Nigeria. 55 Such instruments may include deed of
assignment, deed of lease, and legal mortgage. The legal practitioner is expected to state his
name and office address on the prepared document which is referred to as franking. Where such
instrument conferring interest or title on the property is not franked, it may not be accepted for
registration at the Lands Registry.56

LIMITATIONS AND RESTRICTIONS OF LEGAL PRACTITIONERS RIGHT TO

PRACTICE IN NIGERIA

1. LIMITATIONS TO THE RIGHT OF AUDIENCE IN COURT

A. NON-PAYMENT OF PRACTICING FEE: Payment of practicing fee is an annual

exercise. The Attorney General of the Federation in conjunction with the Nigerian Bar

52
Section 5 (1) Legal Practitioners Act.
53
Ibid section 5 (2)
54
Ibid section 5 (3) (4) & (5).
55
Section 22 (1) (d) Legal Practitioners Act L. 11 L.F.N 2004: See ss. 2 & 4 Land Instruments Registration
Law 1959 (W.N)
56
See the Land Instrument Preparation and Registration Law of the various States.

107
 Association prescribes fees payable by various categories of legal practitioners in Nigeria
depending on each legal practitioner age at the Bar and/or status at the Bar. 57 A legal
practitioner shall not be accorded the right of audience in any court in Nigeria where he
has failed to pay his annual practicing fee for the year. 58 The fees are payable on/or
before the 31st day of March each year, but newly enrolled practitioners are to pay their
fees within one month from enrolment.59 Furthermore, the legal practitioner is also
prohibited from any form of solicitors practice whatsoever including the signing or
preparation of any document, instrument and processes for use in any matter.60 The right
of audience may however be granted to law officers in breach of payment of practicing
fees which does not include signing of any legal documents.61

B. LEGAL PRACTITIONER APPEARING AS A LITIGANT IN COU RT: Where a

legal practitioner is also a litigant in a matter, his right of audience as a legal practitioner
qua legal practitioner before the court is in abeyance. However by virtue of section 36 (6)
(c) of the Constitution62 he may elect to defend himself in person or by legal practitioner
of his choice to plead his case. The right of audience of a legal practitioner litigant in a
criminal case who elects to defend himself in person is in abeyance as he cannot be robed
and/or conduct his case from the Bar, he must be in the Dock. In Fawehinmi v N.B.A63
the Supreme Court held "In the case of a barrister who is standing trial for an offence,
he is a party in the comprehensive sense of the term and unless the Criminal Procedure
Law, Code' or Act in Nigeria otherwise provides his proper place during trial is in the
dock and he cannot stay at the Bar fully robed to stand his trial and or address the
court whether he is conducting his case in person or is represented by counsel.
Similarly, a barrister who conducts criminal prosecution on his own behalf is entitled
to no other privileges than as an ordinary person. This has been declared so since the

57
The fees payable are as follows: 1-4yrs post call N5,000.00; 5-9yrs post call N10,000.00; 10-14yrs post call
N17,500.00; 15yrs-above N25,000.00; Senior Advocate of Nigeria-Benchers N50,000.00.
58
Section 8 (2) Legal Practitioners Act Cap L. 11 L.F.N 20 04
59
Rules 9 (1) Rules of Professional Conduct for Legal Practitioners 2007.
60
Ibid Rule 9 (2)
61
Section 8 (2) Legal Practitioners Act
62
1999 Constitution of the Federal Republic of Nigeria
63
(1989) 4 S.C (Pt. 1) 1 at 43 Paras. B-E per Obaseki , J.S.C (as he then was); see also Newton v. Chaplin (1850)
19 L.J. C.P. 374 per Wilde, C.J

108
 case of Queen v. Phillips (1843-1846) 1 Cox Criminal Cases 17."

On the other hand, the law lords held in relation to a legal practitioner litigant who opts to
represent himself as follows "I therefore agree with the submission of Kehinde Sofola
that there is authority for holding that a legal practitioner is entitled to speak from the
Bar wearing his robes in civil actions by or against him in person. I do not think a
legal practitioner should lose his status because he is a litigant in person. If the
privilege arises as a result of litigation, it does not appear to make any difference
whether the litigation is conducted in person or on behalf of another." 64

Curiously, Rule 45 (2) (b) & (c)65 provides:

“A lawyer shall not wear the Barrister’s or Senior Advocates robe when conducting his
own case as a party to a legal proceeding in court or giving evidence in a legal
proceeding in Court”. It is reasonable to submit based on this provision, and it is so
submitted that a legal practitioner who opts to represent himself in a proceeding is
absolutely barred from robing in court irrespective of the nature of the proceedings
whether civil or criminal. The implication of this is that such legal practitioner cannot
speak or conduct his case from the Bar. Thus, by reasonable inference a legal practitioner
representing himself in court is considered a litigant and not a legal practitioner as he
cannot be seen operating dual status in a particular proceeding in court. Therefore, the
position of the law now is as stated in Rule 45 (2) (b) Rules of Professional Conduct and
not the judicial decision in Fawehinmi v N.B.A66

C. LEGAL PRACTITIONER APPEARING FOR ANOTHER LITIGANT IN A

PROCEEDING WHERE HE IS A PARTY: The right of audience of a legal
practitioner who is a party in a matter and who has elected to represent himself and at the
same time represent other parties in the matter is in abeyance. In Atake v Afejuku67 the

64
Ibid P.71 paras. A-B Per Karibi-Whyte, J.S.C (as he then was).
65
Rule 45 (1) (b) & (c) Rules of Professional Conduct 2007.
66
Supra note 61.
67
(1994) 9 NWLR (Pt. 368) 379 at 401-402.

109
 court held “…Accordingly, a litigant who is also a legal practitioner in a cause or
matter ceases to be a legal practitioner in so far as such a cause or matter is concerned
and is therefore not competent to represent or conduct the case of any other party in
the proceedings. In such a case he appears in person as a litigant and not as a legal
practitioner and may therefore only speak on his own behalf...” Furthermore, in
Fawehinmi v N.B.A68 the Supreme Court held “The third issue for determination, that
is whether a legal practitioner who is a party to an action can represent a co-
Defendant, is solved by the holding that a litigant legal practitioner ceases to be a
legal practitioner qua that matter, and is therefore not competent under the
provisions of the Legal Practitioners Act, 1975 to represent a co-Defendant. He is
appearing in the action not as legal practitioner, but in person as a litigant…” it is
submitted that unlike the first scenario where distinction could be drawn between legal
practitioner litigants appearing in a civil or criminal matter, in this scenario however,
there is no such distinction and the position is that the legal practitioner cannot represent
another party in a proceeding in which he is a party as he is not competent to represent or
conduct the case of any other party in the proceedings. Statutorily, the Rules of
Professional Conduct69 further nails the coffin on the undesirability of a legal practitioner
representing another party in a suit in which he is a party.

D. A LEGAL PRACTITIONER WHO PRACTICES IN NIGERIA THROUGH THE

WARRANT OF CHI EF JUSTICE OF NIGERIA FOR THE PURPOSE OF A
PARTICULAR PROCEEDINGS: The right of audience of a legal practitioner who
practices in Nigeria by virtue of the warrant of the Chief Justice of Nigeria is
circumscribed within the proceedings he is involved in. the life span of his right of
audience before any court in Nigeria terminates at the end of such proceedings or any
appeal emanating therefrom. The right of audience in such proceedings automatically
terminates if the reciprocal understanding between the legal practitioners country and
Nigeria is abolished.70

68
Supra note 61.
69
Rule 17 (5) Rules of Professional Conduct for Legal Practitioners 2007.
70
Section 2 (a) (b) of Legal Practitioners Act.

110
 E. RETIRED JUDICIAL OFFICERS: A judicial officer whether or not retired does not
have a right of audience before any court in Nigeria. Upon taking the oath of office as a
judicial officer, he ceases to be a member of the Bar. The definition of a judicial officer is
as contained in section 318 (1) of the Constitution71 which is restrictive in nature.
Statutorily, the right of audience of a retired judicial officer is curtailed. The Constitution
provides to the effect that provides that any person who has held office as a judicial
officer shall not after retirement from such position appear to represent any body as a
legal practitioner before any court of law or tribunal in Nigeria72 and is not permitted to
sign any pleading in any court.73

It is submitted that this does not however extend to any proceedings where the retired
judicial officer is a party because of his constitutional right to defend himself in person or
through legal practitioner of his choice.74 Where he elects to defend himself in person, he
does so in his capacity as a litigant and not as a legal practitioner. In the Celebrated case
of Justice F.O.M ATEKE V CHIEF N.A AFEJUKU 75 the Supreme Court held on the
eligibility of a retired judicial officer to conduct in person a case in which he is a party
“Although a retired judicial officer who is a party or litigant in a case has a
constitutional right of defending himself and prosecute his case whether in civil or
criminal matter, however that retired judicial officer is not a legal practitioner before
that court or tribunal. He is a party simpliciter. He does not wear wig and robe, he does
not sit in the well of the court reserved for legal practitioner, id est, the bar, and to all
intents and purposes he remains a litigant simpliciter…”

F. SENIOR ADVOCATE OF NIGERIA: The conferment of the rank of Senior Advocate

of Nigeria comes with certain privileges and restrictions. The Act 76 provides “The Legal
Practitioners Privileges Committee may, with the approval of the Body of Benchers,

71
1999 Constitution of the Federal Republic of Nigeria.
72
Ibid Section 292 (2).
73
Rule 6 (4) Rules of Professional Conduct for Legal Practitioners 2007.
74
Section 36 (6) (c ) 1999 Constitution of Federal Republic of Nigeria.
75
(1994) 9 N.W.L.R (Pt. 368) 379 at 404, paras. B-D.
76
Section 5 (7) Legal Practitioners Act.

111
 make rules as to privileges to be accorded to Senior Advocates of Nigeria, as to the
functions of a legal practitioner, which are not to be performed by a Senior Advocate of
Nigeria, as to the mode of appearance before courts by a Senior Advocate of Nigeria,
and generally, but without prejudice to the foregoing, for ensuring the dignity of the
rank of Senior Advocate of Nigeria”.

In accordance with the power conferred on the Committee, the Committee have made
Rules77 which prescribes the privileges and restrictions placed on the holder of a rank of
Senior Advocate of Nigeria. The first restriction is that a Senior Advocate of Nigeria
shall not appear and/or have the right of audience before any superior court in Nigeria in
any civil case alone except with another Senior Advocate of Nigeria or a junior legal
practitioner. 78 It is submitted that a Senior Advocate of Nigeria may however appear
alone in any civil matter to conduct a motion or other civil matters in Judge’s chambers
or elsewhere provided it is not in open court.79 But in Criminal Cases before court of
superior records he may appear Alone.80 The Rules provides that a superior Court of
record means a court or tribunal having the powers not less than those of a High Court.81

Furthermore, a Senior Advocate of Nigeria shall not accept to draft any Instrument for
which fee is below the sum of N400.00 (Four Hundred Naira) only, except if the draft of
such instrument is pro bono or the instrument is connected with Parliamentary process.82
In this regard Instrument is as defined in Rule 6 to include agreements, mortgage, lease
charge, Will, Power of Attorney, settlement, or any other document having or intended to
have legal consequences or effect. 83 Also, a Senior Advocate of Nigeria is not permitted
to appear or settle documents before an inferior court in Nigeria. an inferior court it is
submitted going by our description of a superior court is any court which power is below
the powers of a High Court. In ECWA v Ijesha 84 an objection was raised against the
appearance of a Senior Advocate of Nigeria who appeared in an Area Court for a client

77
The Senior Advocates of Nigeria (Privileges and Functions) Rules 1979.
78
Ibid Rule 2 (1).
79
Ibid Rule 2 (2)
80
Ibid Rule 3.
81
Ibid Rule 6.
82
Ibid Rule 5
83
Rule 6 Senior Advocates of Nigeria (Privileges and Functions) Rules 1979.
84
(1999) 13 NWLR (Pt. 653) 368 CA.

112
 and the Court of Appeal upheld the objection holding he was not entitled to appear before
an inferior court and accordingly does not have the right of audience in inferior courts.

2. LIMITATIONS AND RESTRICTION ON THE RIGHT OF A LEGAL

PRACTITIONER TO ENGAGE IN BUSINESS: There are two limbs to this
restriction according to the Rules viz;

A. PRACTICE OF LAW SIMULTANEOUSLY WITH OTHER PROFESSIO N

A legal practitioner in Nigeria is prohibited from practicing at the Bar at the same time
as he practices other profession except with the permission of the General Council of the
Bar. Rule 7 (1)85 provides “Unless permitted by the General Council of the Bar, a
lawyer shall not practice as a legal practitioner at the same time as he practices any
other profession.”

The first limb is to the effect that combination of legal practice with the practice of
other profession is a serious misconduct. He is not allowed to practice as a legal
practitioner and at the same time practice as an estate valuer/architect even if he
qualified first and in fact has been practicing the other profession before he was called
to the Bar. He may however engage in the simultaneous practice of the two
professions with permission from the Bar Council first sought and obtained.

B. COMBINING THE PRACTICE OF LAW WITH OTHER BUSINESS

A legal practitioner in Nigeria involved in active legal practice is not permitted to engage
in other business personally. This is the second limb of the Rule which is to the effect that
a legal practitioner practicing at the Bar shall not combine the practice of law with buying
and selling commodities personally or act as a commission agent. Explicitly, Rule 7 (2)86
provides “A lawyer shall not practice as a legal practitioner while personally engaged
in-
(a) The business of buying and selling commodities;
85
Rules 7 (1) & (2) Rules of Professional Conduct for Legal Practitioners.
86
Rules of Professional Conduct 2007.

113
 (b) The business of a commission agent;
(c) Such other trade or business which the Bar Council may from time to time declare
to be incompatible with practice as a lawyer or as tending to undermine the high
standing of the profession.”
The commodities in question is unspecified, therefore it is immaterial that the commodity
is related to the profession of law like the importation of law text books or purchase and
sale of wig & gown. The rationale behind these restrictions is that such simultaneous
practice will tend to undermine the high standing of the profession. This particular
restriction does not mean that a legal practitioner shall not engage in any form of business
or trade. It means however that the practitioner shall not engage in such business or trade
personally provided it is managed by his employees or agents. On the other hand, a legal
practitioner who does not practice at the Bar is not captured within the purview of this
rule and may therefore engage in any form of business of his choice provided it is legal. 87
The rule does not prohibit a legal practitioner in active practice from being a company
secretary, a shareholder in a company or being appointed as a member of Board of
Directors of a company provided such position does not involve executive, administrative
or clerical functions.88

3. LIMITATIONS AND RESTRICTION ON LAWYERS IN SALARIED

EMPLOYMENT
A member of the Bar in a salaried employment or employed as a servant in a company or
organisation does not have right of audience in any court or tribunal in Nigeria on behalf
of his employers. The Rules89 provides “A lawyer, whilst a servant or in a salaried
employment of any kind, shall not appear as advocate in court or judicial tribunal for
his employer except where the lawyer is employed as a legal officer in a Government
department”. It follows as an inexorable inference that such a lawyer is barred from
preparing, signing, or franking of any pleadings, instruments, deeds, letters, and
processes among others on behalf of his employer. 90 Also where a lawyer is a Director in

87
See Obi Okoye A. Law In Practice in Nigeria. 1st edn. (Enugu: Snap Press, 2011). P. 30 -32.
88
Rule 7 (3) Rules of Professional Conduct.
89
Ibid Rule 8 (1)
90
Rule 8 (2) Rules of Professional Conduct 2007.

114
 a registered company, he is forbidden from appearing as an advocate in any court or
tribunal on behalf of hi company.91
It is submitted that a lawyer in a salaried employment is permitted to represent his
employer as an agent of the company in any proceeding in any court or tribunal without
being robbed in Nigeria as this does not involve advocacy. 92 The right of audience of
such lawyer is not withdrawn when he appears as an advocate in court or in any tribunal
in Nigeria for persons who are not his employers and by extension his right to prepare
and frank any instrument or process.

However, where the legal practitioner is employed in Government department or

agencies his right of audience is not in abeyance.93 Also a legal practitioner who is an
officer in the Armed Forces94 may act as an advocate in a Court Martial as an officer and
not as a legal practitioner.95

CONCLUSION
The exclusive rights and privileges accorded a legal practitioner in Nigeria and indeed the world
over stems from the fact that a legal practitioner is seen as an apostle of change and development
in every society. He is seen as an embodiment of integrity and honesty, hence the high pedestal
and reserved position he occupies in every Government.
However, the continuous maintenance of this position and expectation must be fuelled by a daily
consistent and conscious act by the legal practitioner qualified to practice law in Nigeria. The
provisions of the Rules of Professional Conduct for Legal Practitioners 2007 and the Legal
Practitioners Act are the legal frame work within which the operating standards of every member
of the Bar in Nigeria are measured. The quiet and undisturbed enjoyment of the rights and
privileges available to all legal practitioners in Nigeria is circumscribed within the strict
observance of the rules. The golden rule seems to be “the payment of annual practicing fee and
maintenance of a fit and proper status” as a member of the Bar which are the condition sine qua

91
Ibid Rule 8 (3).
92
Ibid Rule 8 (4).
93
Ibid Rule 8 (1); such Government department may include E.F.C.C; I.C.P.C; Ministry of Justice etc.
94
Includes Army, Navy, and Air Force.
95
Ibid Rule 8 (5).

115
non. In his famous quote, Alexander Hamilton Stephens said “No pursuit in life is more
honourable or useful than that of the law when followed as it should be. None requires more
rigidity, a stout adherence to all the precepts and principles of morality or the possession and
practice of the highest and noblelest virtues that elevate and adorn human nature. Not even
the office of the holy minister opens up such a wild field for simply doing good to one’s fellow
men…”
The fundamental basic right of a legal practitioner is the right of audience in any court of law and
tribunals in Nigeria and by extension the right to prepare necessary processes, and instruments.
Therefore any act which will destroy the exercise of these basic rights must be avoided. The
exercise of the right of audience is limited where the legal practitioner is a litigant in any
proceedings, and it is suggested that the independent service of another legal practitioner be
employed.

116
ISSUES ON JURISDICTION, CHIEFTAINCY MATTERS AND JUSTIC E HALAN
LEGAL CALCULUS

PROF. A. TORIOLA OYEWO*

INTRODUCTION

Jurisdiction deals with the power of a Court or judge to entertain an action. The issue of
jurisdiction is fundamental to the question of the competence of the Court adjudicating upon any
matter in issue.Therefore the essential elements which a Court should bear in mind in order to
exercise jurisdiction in a particular case are that:-

The subject of the case is within its jurisdiction and there is no feature in the case which prevents
the Court from exercising its jurisdiction.

The case conies before the Court initiated by due process of law and upon fulfillment of any
condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal and the proceedings however well conducted without
competence are nullity. See A. G. Federation V. Socle (19 Q0) XWLR (pt. 128) 500 Madu Kalu V
Nkemdilin -1952. 2 S;. 3-1. Osafiie V Odi (no. I: ' 1990) 3 NWLR (pt 137).

Therefore counsel must ensure that appropriate steps are taken to bring their cases within the
jurisdiction of the Court; otherwise such cases will suffer the defeat of striking them out. Hence a
Court of law should deal timeously with any objection made on jurisdiction. See such cases like
Barclays Bank (Nigo Ltd. Y CBN (1976) 6 Sc. 175, Okafor V. A. G. Anambra State (1991) 1
NWLR ;p: 159) 659, Olaniyi V Arogehun (1991) 5 NWLR (pt 194) 625 Brunik Motors V Wema
Bank (1983) 1 Sc 296 to mention a few. As a matter of fact the question of jurisdiction can be
raised at any time even on appeal. In state V. Onagaruwa (1992) NWLR (pt. 221) 33 Uwais JSC
(rtd.) had this to say -

"It has been said time without number that the issue of jurisdiction of a Court is fundamental. It's
being raised in the Course of proceedings can neither be too early on premature, nor be late. For
if there is want of jurisdiction, it would be a nullity however well conducted the proceedings

117
might otherwise be"

Buttressing this stance, Karibi White JSC (rtd) also confirmed that the question of jurisdiction
can be raised at any time and even on appeal when he said as follows:

"In my own opinion, it is neither too early nor toe Late for a party to litigation to raise the issue
of lack of jurisdiction in the Court. As soon as the parties and the subject matter of the Issue (the
issues in dispute) are clear and have been identified, the issue of lack of jurisdiction can be
raised. So also can the point be raised on appeal".

The issue of jurisdiction is so fundamental that the Court may raise it himself Suo motu. If they
are apparent in the record notwithstanding the fact that the counsel to the parties failed to advert
their minds to it. However the issue of jurisdiction must be tackled first before any matter is
looked into. If raised see Oyemn V Oputa (1987) 3 NWLR (pt 60) 259. where it was graphically
stated as follows:

"The red light to a court to be cautious is the issue of jurisdiction and it "must be settled by
proper hearing of the parties before further "proceedings in the matter can be embarked upon.
Similarly there are occasions after a matter has been before the Court for long before the "issue
of jurisdiction arises; some in the middle of the entire proceedings or "towards its tail end, in
that case the jurisdiction of the court must first "be settled before proceeding further".

All these have been summarized briefly by Nnameka Agu JSC (rtd.) when he held that:

"Once an issue of jurisdiction is raised at any stage in the proceedings in "a matter, it ought to be
looked into first as failure to do so may mean "that all exercise of adjudication may turn out to be
a useless waste of "time".

For more authorities on this please see Tukur V Government of Gongola (1989) 4 NWLR (pt
117) Management Enterprises Ltd V Otusanya (1987) 2 NWLR (pt 55) 179, Oloba V Akereja
(1988) 3 NWLR (pt 84) 508.

To conclude therefore, it is now a settled law and practice that whenever an issue of jurisdiction
is raised, a Court should deal with it "first" or promptly or expeditiously as it has jurisdiction to

118
decide whether or not it has jurisdiction. See such cases like Nalsa Team Association V NNPC
(1996) 3 NWLR (pt 439) 621 at 637, Chief Ukwa x 3 ors Vs Chief Bunze 8 NWLR (pt 518) 527
at 541, 542, 544 Shitta - Bay V A.G. Federation (1998) 10 NWLR (pt 570) 392 at 416 Onuoha V
the State (1998) 12 SCNJ 1 at 27 Mills V Renner (1960) 6 WACA.14

It is therefore the binding duty of a Court to strike out a case over which there is no jurisdiction
on its parts to try it. See such cases like Okoye x 7 others V Nigerian Construction and Furniture
Co. Ltd. (1991) 6 NW1R (pt 199) 501 at 531 and Chief Eleke V Oko (1995i 5 NWLR (pt 395)
100 at 109 CA.

One fact to be noted is that although after a court has decided a case, he is functus officio but it
has been shown that if a court has decided a case without jurisdiction, it is a nullity and the Court
that gave the decision or judgment has an inherent power to set it aside no matter how well
conducted or sound the judgment may be. See such cases like Wimpey ltd Ys Balogun (1986) 3
NWLR (pt 26) 324, Matars V Dangaladima (1993) 3 NWLR (pt 281) 226. Okoye V Nigerian
Construction and Furniture Co. Ltd. (1991) 6 NWLR (pt 199) 501, ACB Pic V Losadu Nig. Ltd.
(1995) 7 NWLR (pt 406) 26.

Therefore by way of summary and as decided in the case of Western Steel Works Ltd. V Iron
Steel Workers Union (1986) 3 NWLR (pt 30) 617 that "A court can only be competent if among
other things, all the conditions to its jurisdiction as here below itemized are fulfilled:

It is properly constituted as regards numbers and qualification of the members of the Bench and
no member is disqualified for one reason or another, and

The subject matter of the case is within its jurisdiction while there is no feature of the case which
prevents the Court from exercising its jurisdiction; and

The case comes before the Court initiated by due process of law and upon fulfillment of any
condition precedent to exercise jurisdiction. See Kalio V Daniel.

Statutory Incursions on Jurisdiction

By section 272 (1) of the 1999 Constitution it is provided as follows:

119
"Subject to the provisions of section 251 and other provisions of this Constitution, the High
Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the
existence or extent of a legal right, power, duty, liability, privilege, interest, obligation, or claim
is in issue or to hear and determine any criminal proceedings involving or relating to any penalty,
forfeiture, punishment or other liability in respect of an offence committed by any person".

And by section 36 (1) of the same Constitution it is provided that:

"In the determination of his civil rights and obligations, including any question or determination
by or against any government or authority a person shall be entitled to a fair hearing within a
reasonable time by a court or other tribunal established by law and constituted in such manner as
to secure its independence and impartiality."

Because of these two provisions many people hurry to the path of error by thinking that a High
Court should be the first call of port to institute an action timeously without any delay. This
should not be, because one of the prerequisite conditions to confer jurisdiction on a court is that
the case should come before the Court initiated by due process of law and upon the fulfillment of
any condition precedent to exercise jurisdiction.

Therefore it is trite law to say that where a statute has charted the course of a litigation, that is
where a statute has given or conferred jurisdiction on an administrative body or an authority or
even a person the power or jurisdiction to decide on any matter that jurisdiction of the High court
or any Court to grant a declaration on that matter has been put on hold and, ceased or ousted in
the mean time. In other words, where jurisdiction is firstly granted to an administrative tribunal,
body or a authority or even a person, the court is weary and reluctant to be seized of the matter to
assume jurisdiction unless and until such a body, authority or person has taken a decision on the
matter.

It is therefore only when the authority exercises its power wrongly that any aggrieved party can
approach the court to exercise its supervisory power of review on the said matter. See Olawoyin
V A.G. of Northern Nigeria (1961) 2 SCNLR 5 (1961) 1 All NLR. 269, Nwankwo V Nwanko
(1992) - NWLR (pt 238) 693 at p. 710, Elguamwense V Amaghizewen (1993) 9 NWLR (pt 315)
1 at page 20 and Kusamotu V Shitth-Bay (2006) 17 NWLR. (pt 1008) 372 at 418.

120
This is otherwise known as the doctrine of RIPPENESS in law or justice Halan's legal Calculus.
Thus, the provision of a statute must be obeyed and complied with Pro tanto.

Therefore until these avenues or remedies directed by statutes are complied with and exhausted,
actions taken straight away to a high court in deviance of the statutory pre-conditional
regulations will be struck out as being procedural ultra-vires. As a matter of fact the Supreme
Court in the case of Eguamwnse V Amaghizen (supra) at pages 25 and 30 per Belgore JSC (rtd)
had this to say:

"Where a statue prescribes a legal line of action for determination of an "issue, be that an
administrative matter, chieftaincy mater or a matter of "taxation, the aggrieved party must
exhaust all the remedies in that law "before going to court."

The provision of section 236 of the 1999 Constitution is not an open "gate for all High Courts to
assume jurisdiction in all subjects. All the "local remedies in the statute on even.- subject must
be exhausted before "embarking on actual litigation in Court/' See such cases like Adigun V.
A.G. Oyo State (1987) 4 SC 2 (1987) 1 XWLR (pt 53) 678, Ibeneweka V Egbunam 1964) 1
NWLR 219. and Mafimisebi V Ehuwa (200) All FWLR (pt 355) 562 at page 602. Thus the case
of Sunday Equanwense has decided that if a plaintiff has not challenged the validity of any
decision of the prescribed authority as demanded by the Bendel State Chie's law either by appeal
to the Executive Council for review, or by Certiorari removing it to the High Court to be
quashed, it is inappropriate to do so by Declaration.

Similarly in O.A. Akintemi x 2 others V Professor C. A. Onwumechili (1985) All NLR 85, it is
graphically stated that when a matter is for the domestic domain of any body, institution or
authority as enshrined in the statute, it is not permitted to come to Court until all avenues have
been exhausted. Such issues are not justiciable. This view was equally adopted in the case of
Thorne V University of London, R V. Dunsheat, Ex parte Meredith. (1951). 1 K B. 129.

Chieftaincy matters and the High court Jurisdiction

Chieftaincy matters in the South-Western part of Nigeria are given attention in this paper
because of the pre-conditions stipulated in different states laws before any aggrieved person can

121
take an action in the High Court.

For instance, section 22 of the Oyo State Law 1978 as amended by the Chiefs law of 2000
stipulates that it is the prescribed authority that has powers to appoint a person to fill a vacancy
in the office of a minor chief and to determine a dispute on whether a person has been appointed
in accordance with the customary law to a minor chieftaincy; while such a decision to approve or
not Definitely there must have been some representations made to the Governor before he can
act under section 12(1) of the law. See Obas and Chiefs Law of Lagos State 1981. However it is
pertinent to note the decision of the Supreme Court in Mafimisebi V Ehuwa (2007) All NWLR
pt 359) 562 at 602 which states that a chieftaincy declaration is the customary law in force in the
area in which it covers such declaration continues to have effect until amended and the amended
declaration is registered.

Thus the making of a chieftaincy declaration is purely an administrative Act not a function
exercisable by the Court, and where there is a registered chieftaincy declaration in relation to a
particular chieftaincy, the production of the declaration would suffice and the court does not
interfere with the process of its making except where it is shown that the administrative body in
charge of it failed to observe the rules of fair hearing. See the case of Afolabi V Governor of Oyo
State (1985) 9 SC 117, (1985) 2 NWLR (pt 9) 754). It therefore means that until the functions of
a prescribed authority are completed, a party aggrieved cannot rush to the Court in order to
vindicate his rights.

He could only approach the High Court after such decisions for a review or for the remedy under
the High Court supervisory jurisdiction. See Oladoye V. Administrators of Oshun State (19960
10 NWLR (pt 426) 38 at pp 53 - 54 Lipede V Shonekan (1995) 1 SCNJ 184, (1995) 1 XWLR (pt
374) 668.

Please note that although the responsibility for making or codification of a chieftaincy declaring
lies with the executive arm of the state government concerned but it is usually exercised by or
through the Chieftaincy Committee appointed by the said government for the purpose. See
Oladele V Aromolaran (196) 6 NWLR (pt 453) 180, Matimi Sebi V Ehuwa (2007) supra, Olowu
V Olosu (1989) 3 NWLR (pt 3) 372, Agbal V Okogbue (1991) 7 NWLR (pt 204) 391, Afolabi V

122
Governor of Oyo State (1985) 2 NWLR (pt9) 734, Adigun VA.G. Oyo State (1987) 4 SC 2,
(1987) 1 NWLR (pt 53) 678 (1983) 3 SC 250

Please note finally that it is not the original function of a court of law to make a chieftaincy
declaration.

The Unlimited powers of the High Court and Jurisdictional Limitation

As we said earlier on in this work, some people are of the opinion that a high court has unlimited
jurisdiction in all matters to hear and determine any civil proceedings in which the existence or
extent of a legal right, power, duty liability, privilege, interest, obligation, or claim is in issue or
to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture,
punishment or other liability in respect of an offence committed by any person.

This is a misconception of the provisions of the Constitution: See section 236 of 1979 and 272 of
the 199 Constitutions of Nigeria which make the whole provisions subject to the provisions of
these constitutions and in addition to such other jurisdiction as may be conferred upon it by law.
The section for clarification and authenticity reads as follows:

S. 272 (1) Subject to the provisions of section 251 and other provisions of
this Constitution, the High Court of a state shall have jurisdiction to hear
and determine any civil proceedings

At a glance the provision is subject to other factors. It means section 272 of the 199 or 236 of
1979 does not apply where one may find specific provisions to the contrary elsewhere in the
Constitution. In other words, where exclusive jurisdiction in relating to certain matters has been
conferred by a provision of the constitution on another Court or tribunal, the provision of section
236 of 1979 Constitution or that of section 272 of the 1999 Constitution conferring jurisdiction
on the High Court of a state does not extend to such matters. This stance is reached because
those courts and tribunals are offshoots of the Constitution. By section 6(4) of the 1999
Constitution of Nigeria those courts have been empowered to be established by either the
National Assembly or any house of assembly of a State. The section provides as follows:

" Nothing in the foregoing provisions of this section shall be construed as precluding -

123
the National Assembly or any House of Assembly from establishing Courts, other than those to
which this section relates, with subordinate jurisdiction to that of a High Court.

the National Assembly or any House of Assembly, which does not require it, from abolishing
any Court which it has power to establish or which it has brought into being".

Therefore where original jurisdiction is conferred on any court or tribunal and or bodv to deal
with a matter by either House of Assembly or the National Assembly, a high court cannot have
the same original jurisdiction which the Assembly has aptly thus excluded.

As a matter of fact section 6(5) (Kl is more explicit on this when it stated that any other court
may be authorized by law to exercise jurisdiction at firs: instance or on Appeal on matters with
respect t: which a House of Assembly may make laws.

Please note that under this category a high court is only prevented from exercising the original
jurisdiction and thus it is not prevented from its powers of Appeal or Review and Supervisory
jurisdiction in appropriate cases. We may as at this junction give examples of such laws and
Courts made by some states.

Firstly section 10 part 3 of the 1978 Oyo State laws as amended by the 2000 laws of the state
dealing with Jurisdiction reads as follows:

"Provided that, except in so far as the Governor may by order in Council otherwise direct and
except in suits relating to the administration of Intestate estates, transferred to the High Court
under the provisions of section 30 of the Customary Courts law. the High Court shall not
exercise original jurisdiction in any matter which is subject to the jurisdiction of a customary
court relating to marriage, family status, guardianship of children and inheritance or disposition
of property on death".

It is instructive to note that similar provisions are contained in other state's laws like section 14
(formerly section 13) of the High Court Law. cap 61 c:" the laws of the former Eastern Nigeria
1962. See such cases like Nwafia V Utuba (1966) NWLR 219 and Iyanda Vs Ishola (1975) 6
WSCA 231 (1975) 6 WSCA 231.

124
Also to be noted is the Residential Accommodation (Rent Control) laws of mam-states on
jurisdiction of the Rent Tribunals where for instance section 7 of cap 113 Laws 1978 of Oyo
State, and section 7 of cap 146 (2000) of the same state read as follows:-

"Subject to the provisions of this law, a tribunal shall have and exercise original and general
jurisdiction over all proceedings which may arise under this law".

Thus the original jurisdiction of the high court is excluded; and by section 11 of the same law a
party to any proceeding before such a tribunal is given permission to appeal from a decision that
does not favour him if he so wishes. As a matter of fact section 12(1) of the law is very emphatic
when it states:

"In so far as jurisdiction is conferred on a tribunal in respect of any cause or mater specified in
this law, no court shall have or exercise original jurisdiction in respect of such cause or matter".

Thus counsel should note that it is not in all cases that a high court has an Original jurisdiction to
determine or hear a case. To say otherwise may lead to a strong apostasy to the provisions of the
Constitution and law.

Conclusion

This work has shown that jurisdiction is fundamental to the question of the competence of the
court in adjudicating upon matters placed or filed before it. A court therefore must ensure that he
has jurisdiction, before adjudicating on any dispute before him; and should a court do otherwise
without jurisdiction, the proceedings however well conducted will be set aside, for being a
nullity and thus a useless waste of time. Ancillarily the work considers whether or not a High
Court has an absolute and unlimited jurisdiction to determine all cases as of first instance, and
concluded that the unlimited jurisdiction of a high ccurt are sometimes put :r. hold bv Statuttry
?r: visi-r.s or Incursions and that when any mater :s ::r the a: mesne domain el c.ay '::: dy.
institution or authority as enshrined in the statute, it is not permitted to come to court until all
avenues have been exhausted. In other words, it shows that where a statute has prescribed a legal
line of action for determination of an issue as one finds on chieftaincy affairs, any aggrieved
party must exhaust all the remedies in that law before going to Court.
This is called the doctrine of RIPENESS otherwise known as Mr. Justice Halan Legal Calculus.

125
 MARITAL RAPE: THE NON-CRIMINALIZED CRIME IN NIGERIA*

1.0 Introduction

Marital rape is a serious societal issue and public health problem that has received
limited attention in Nigeria. The Nigerian Criminal Code in Section 357 states that, "Any
person who has unlawful carnal knowledge of a woman or girl, without her consent, or
with her consent, if the consent is obtained by force or by means of threats or
intimidation of any kind, or by fear of harm, or by means of false and fraudulent
representation as to the nature of the act, or, in the case of a married woman, by
personating her husband, is guilty of an offence which is called rape." Section 6 of the
said Criminal Code defines unlawful carnal knowledge as that which takes place
otherwise than between husband and wife; and the offence is complete upon penetration.
Section 281(1) Penal Code provides that: "A man is said to commit rape who... has
sexual intercourse with a woman in any of the following circumstances - (a) against her
will; (b) without her consent; (c) with her consent, when her consent has been obtained
by putting her in fear of death or of hurt; (d) with her consent, when the man knows that
he is not her husband and that her consent is given because she believes that he is another
man to whom she is or believes herself to be lawfully married; (e) with or without her
consent, when she is under 14 years of age or of unsound mind." Similarly, under the
Penal Code, there is no offence of marital rape, provided the wife has attained the age of
puberty.1

Also, the Violence against Persons (Prohibition) Act, 2015 provides greater protection
from violence and provides progressive changes to many of the existing laws on sexual
and other kinds of violence against women and children, but despite the laudable
improvements to sexual violence laws, it has no provisions for the crime of marital rape.
This may be so because of conjugal right that exists in statutory marriage. These are the
totality of rights that a husband and wife enjoy from each other by virtue of marriage.
They include such rights as cohabitation, sexual intercourse, home keeping, maintenance,
protection, comfort, love and affection etc. These rights must be rendered by both parties
to each other unless there is a good reason to withhold the rights. If a spouse wilfully and

*Family Law Class 2019/2020: Akande P.A., Isreal V. A (Class Rep.), Bamigboye M.P, Ayodele V.A, Adewale
O. J., Ayodele T. O., Babarinde A. G., Olayiwola M. O., Lawal B. O., Yusuff G. A., Odedele F. O., Ojo B. O.,
Apoeso A. O., Adekunle O. T., Yusuf K. E., Aladeojebi G. E., Adenle B. M., Onyia P. C., Ajewole O. J.,
Akindele O. O., Adeigbe S. T., Timothy J. M., Falade A. O., Omiranti V. A. , Agbola O. P. , Olaoye A. S.,
Oyewole D. E., Babalola S. A., Edema V. O. Akeem R. O., Owolabi M. T., Adebayo J. O., Adedokun O. A.,
Barovbe B. E., Oyewole D. E. and Oluwanisola A. E.
1
Section 282(2) Penal Code.
126
 persistently refused to consummate the marriage the court can dissolve such marriage.2
The parties to a marriage owe each other a duty to consummate it.3 It is assumed that the
parties to a marriage give implied general consent to sexual intercourse upon entering the
marriage contract which they cannot retract. In other words, spousal rape is not an
offence in Nigeria. A husband cannot rape his wife as the marriage contract is deemed to
imply consent to sexual intercourse which can only be revocable by an order of the court.
Even where husband is shielded by virtue of the marital rape exemption, where he uses
violence on the wife during intercourse, he can be guilty of assaulting his wife. 4 The
question is, what is the essence of S. 34 of the 1999 Constitution of the Federal Republic
of Nigeria (as amended) which guarantees the right to dignity. Should a party suffer
inhuman or degrading treatment of which the act of marital rape inflicts? Marital rape
should be a crime to criminalize in Nigeria.

2.0 Definition of Marital Rape

Marital rape can be defined as “a husband’s sexual intercourse with his wife by force or
without her consent.”5 This definition implies that only the wife in a marriage can be
raped, but the husband too is stated can be rape in California Penal Code,6 which defines
marital rape as:

a. Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse
accomplished under any of the following circumstances:

1. Where it is accomplished against a person’s will by means of force, violence,

duress, menace, or fear of immediate and unlawful bodily injury on the person or
another.

2. Where a person is prevented from resisting by any intoxicating or anesthetic

substance, or any controlled substance, and this condition was known, or
reasonably should have been known, by the accused.

3. Where a person is at the time unconscious of the nature of the act, and this is
known to the accused. As used in this paragraph, “unconscious of the nature of
the act” means incapable of resisting because the victim meets one of the
following conditions:

2
Section 15 (1) and (2) Matrimonial Causes Act
3
Nwogugu in "Family Law in Nigeria",
4
See the case of Alausa v. Odusote (1941) 7 WACA 140
5
Garner B. A. (EiC), Black’s Law Dictionary (10th edn, Thomson West, 2014)
6
California Penal Code, 1872
127
 a. Was unconscious or asleep.

b. Was not aware, knowing, perceiving, or cognizant that the act occurred.

c. Was not aware, knowing, perceiving, or cognizant of the essential

characteristics of the act due to the perpetrators fraud in fact.

4. Where the act is accomplished against the victim’s will by threatening to retaliate
in the future against the victim or any other person, and there is a reasonable
possibility that the perpetrator will execute the threat. As used in this paragraph,
“threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict
extreme pain, serious bodily injury, or death.

5. Where the act is accomplished against the victim’s will by threatening to use the
authority of a public official to incarcerate, arrest or depo rt the victim or another,
and the victim has a reasonable belief that the perpetrator is a public official. As
used in this paragraph, “public official” means a person employed by a
governmental agency who has the authority, as part of that position, to
incarcerate, arrest, or deport another. The perpetrator does not actually have to be
a public official.

This definition is more comprehensive by covering sufficient ground on what

scenarios amount to marital rape and party to rape.

3.0 Legal History

The marital rape exemption found its ancestry in 17th century English common law
with Sir William Hale, an English Chief Justice, who laid the ground work for the
marital rape exemption by stating that “the husband cannot be guilty of a rape
committed by himself upon his lawful wife, for by their mutual matrimonial consent
and contract the wife hath given up herself in this kind unto her husband, which she
cannot retract.”7 This statement known as the Hale doctrine, essentially declared that
married women could not be raped and was officially accepted into the American legal
system in 1857 under the Commonwealth v. Fogarty decision. 8 In line with the Hale
doctrine, Blackstone developed the “unities theory” that man and wife become one
entity when married and that “the legal existence of the wife is suspended during

7
Hale, M. 1736. Historia placitorum coronae: The history of the pleas of the crown. London: Gyles, Woodward,
and Davis.
8
Bennice, J. A., & Resick, P. A. 2003. Marital rape: History, research, and practice. Trauma, Violence, and
Abuse, 4:229 (Cited)
128
 marriage.”9 That the wife becomes the property of the husband during marriage and
husband could not steal his own property or commit a crime against himself. 10 In 70s,
feminists advocated for changes to marital rape,11 and today, marital rape exemption no
longer exists in the United States and most of the countries of the world.12

4.0 Myths Surrounding Marital Rape

The first of which is non refusal of consent. This translates to the belief that once the
other partner says yes at the point of marriage, they can never say No to sex. It is the
believe that women in marriages are the weaker partner; so therefore, all decisions need
to be made for them, or with the forever consent of their partners. Sexual relations are
one of those decisions. What this translates to is the belief that if a woman says yes
once, then she can never again say no and that an initial agreement at marriage
subsequently makes a woman 'unrapeable'. The societal belief is that the husband
cannot rape his wife since she is legally married to the man. 13 There are a list of
institutions and people who have made this claim long which once ruled that it is not
illegal for a man to sexually assault his wife. The thinking of people goes thus “I don’t
know how on earth you could validly get a conviction in a husband-wife rape when
they are living together, sleeping in the same bed, she is in a nightie of course" 14 and so
forth. It does not mean that in marriages there are no cases of rape, however, the
Nigerian law has made Marital Rape non prosecutable.

Another myth of Marital Rape is based on the belief that there is total absence of male
rape victims.15 This cannot be true, although men are the majority of perpetrators of
marital rape. It is generally believed that a wife cannot rape her husband because it is
believed that the husband is stronger than his female companion so he cannot be a
victim of rape or physical violence in marriage. Some would even make fun of the
husband being a victim of rape and mock him to make him feel less of "a man”. More
often than not, husbands have been sexually abused by their wives. 16 While rape crisis
focuses particularly on women as survivors, the impacts of sexual violence and abuse

9
Blackstone, W. (1765). Commentaries on the law of England. Oxford: Clarendon Press.
10
Ibid.
11
Basile, K. C. 1999. Rape by acquiescence: The ways in which women “give in” to unwanted sex with their
husbands. Violence Against Women, 5, 1036−1058.
12
National Clearing House for Marital and Date Rape (2005). State law chart.
13
Kolade-Faseyi, I. 2018. Spousal rape in a globalized world. NAUJILJ 9.1:107-115
14
Paquette, D. 2016. Five myths about rape. The Washington Post. Retrieved June 23, 2020 from
https://www.washingtonpost.com/opinions/five-myths-about-rape/2016/06/10/668e0fb4-2e7c-11e6-9de3-
6e6e7a14000c_story.html
15
See the case of Rabiu v. State (2005) 7 NWLR (pt 925) 491 at p. 511. See also section 282(1)
16
Swan, S. C ed al. 2008. A review of research on women’s use of violence with male intimate partners.
Violence and Victim 23.3:301 -314
129
 on men are no less devastating. Husbands can be, and are, sexually assaulted. Sexual
assault of men is thought to be greatly underreported. Any man can be sexually
assaulted regardless of size, strength, sexual orientation, or appearance.

Another misconception about marital rape is based on withdrawal of initial consent.

This translates to the belief that once a married couple are having sex neither of the
partners are entitled to withdraw their consent to continue during that sexual
intercourse.17 Meanwhile, personal liberty has made it clear that an individual
especially an adult can make decisions for themselves, so choosing to withdraw
consent should be seen as an exercise of personal liberty.18

Another common misconception is that the marital rape cannot occur if the partner, the
person committing the rape, is under the influence of alcohol. However, Alcohol
cannot exonerate a man from committing a heinous crime such as rape. Why should a
man be excused from an extremely damaging crime such as rape because of the
decision he made to go under the influence without any form of duress.

Another misconception that is also popular is that marital rape can only occur if the
other partner puts up a fight and tries to resist. This particular idea is a very common
one and it’s mostly how the society makes a societal judgement on rape. The ignorant
idea resonates from the idea that no fight means consent. When the absolute truth is
that the refusal to be touched, the repetition or the once stance of No, the no response
of the victim; should all be taken as NO!

Also there is the concept of the property theory.19 This position is maintained by those
who believe that by marriage, a woman becomes the property of her husband and sadly,
this idea comes from the controversial, yet old time tradition called the Bride Price.
Under this proposition, sexual intercourse cannot be recognized as rape because the
husband is merely making good use of what he has paid for. In a lot of cases that are
very popular in every part of the country, the man pays the bride price in form of
school fees, lands for the bride’s parents and more material things. The idea of the man
owning a woman can be said to resonate mostly from this idea. Society may not be
ready to have this conversation, but it sure is already being whispered.

5.0 Why People Do Not Believe Marital Rape Exists

17
Roffee, J. A. 2015. When Yes Actually Means Yes Confu sing Messages and Criminalising Consent. Rape
Justice: Beyond the Criminal Law eds. Powell A., Henry N., and Flynn A., Palgrave, 72–91.
18
Personal liberty is an essential rudiment of an individual’s freedom.
19
Blackstone, W. 1765. Commentaries on the law of England. Oxford: Clarendon Press.
130
 Historically, men who rape their wives have been exempt from legal punishment.20 For
many cultures in Nigeria, the idea of marital rape is foreign, something imposed and that
which contradicts the belief that such matters should be dealt with privately rather than
by the government. Traditionally, women were required to submit and obey their
husbands which also extend to submission to all acts of intercourse within marriage. It is
assumed that the wife gives implied general consent to sexual intercourse with her
husband upon entering the marriage contract, which she cannot retract. It is therefore not
surprising that in Nigeria today, there is no known case of a husband who is charged to
court for marital or spousal rape. According to Nwogugu in "Family Law in Nigeria",
"The parties to a marriage owe each other a duty to consummate it". One of the grounds
for dissolution of marriage under Section 15(1) of the Matrimonial Causes Act states: "A
petition under this Act by a party to a marriage for a decree of dissolution of the marriage
may be presented to the court by either party to the marriage upon the ground that the
marriage has broken down irretrievably". Section 15(2)(a) of the above law provides one
of the conditions that will prove this fact as it states: "that the respondent has wilfully and
persistently refused to consummate the marriage". Therefore, the fact that a spouse has
wilfully and persistently refused to consummate the marriage is enough for the court to
dissolve it. So, the main reason why people do not believe in marital rape is that since
they have gotten married that he/she has consented to whatever will happen in future.

6.0 Making a Case for the Criminalization of Marital Rape in Nigeria.

As human beings evolve and societies follow suit, laws must keep up with the changes
and define the interactions in the context of new societies. There are many areas of the
laws in Nigeria that have not kept up with the times. And there are areas of modern
Nigerian society that need the guiding hands of legislature or pronouncements from the
courts. The Nigerian Criminal Code in Section 357 states that, “Any person who has
unlawful carnal knowledge of a woman or girl, without her consent, or with her
consent, if the consent is obtained by force or by means of threats or intimidation of
any kind, or by fear of harm, or by means of false and fraudulent representation as to
the nature of the act, or, in the case of a married woman, by personating her husband, is
guilty of an offence which is called rape.” Section 6 defines unlawful carnal knowledge
as that which takes place otherwise than between husband and wife; and the offence is
complete upon penetration.21 In other words, marital rape is not an offence in Nigeria.
A husband cannot rape his wife. It is assumed that the wife gives implied general

20
Russell, D. 1990. Rape in marriage. Bloomington: Indiana University Press.
21
Criminal Code
131
consent to sexual intercourse with her husband upon entering the marriage contract.
This implied consent is revocable either by an order of a court or a separation
agreement. Under the Penal Code, there is no offence of marital rape, provided the wife
has attained the age of puberty. The reluctance to criminalize and prosecute marital
rape has been attributed to traditional views of marriage, interpretations of religious
doctrines, ideas about male and female sexuality, and to cultural expectations of
subordination of a wife to her husband—views which continue to be common in many
parts of the world.

Criticism of the provisions on rape under both codes raises at least three issues: (1) the
offence of rape is gender specific, only men can commit the offence of rape; (2) the act
amounting to rape is limited to penile penetration of the vagina – anal or oral sex or
penetration using objects or other parts of the body such as the tongue or finger, do not
constitute sexual intercourse for the offence of rape; and (3) marital rape – both codes
provide (with certain exceptions) that sexual intercourse between a husband and wife
cannot constitute the offence of rape.

None of these laws stated above talked about marital rape being a crime. So is it safe to
say that if a man is a carrier of a contagious disease, or the woman is sick or not willing
and the man still insist on having sex with her without her consent, does that not
amount to rape?, which of course definitely amounts to sexual violence. Should the
Nigerian government not take legal proceedings to prosecute men who abuse their
women sexually in several states? These questions are hoped to be answered one day
and it is hoped that the court and the government will have an opportunity in future to
look at decisions on the issues.

The Sexual Offences Bill 2013, which was passed by the National Assembly but was
never assented to by the President. The National Assembly has also chosen not to force
the Bill into law by overriding the need for the President’s assent. The bill expanded
the definition of rape to cover both genders; in other words, under the bill a woman is
capable of committing the offence of rape. It also provided for a sexual assault offence
for non-genital penetration, i.e., penetration with mechanical objects or other parts of
the body like the finger or tongue. There was some controversy surrounding the bill
particularly over the age of sexual consent. The provisions in section 7 of the bill were
misinterpreted as reducing the age of sexual consent to age 11 and the entire bill was
resisted. This may have informed the President’s reluctance to give his assent and sign
it into law.
132
There is also the Violence against Persons (Prohibition) Act (VAPPA) of 2015, which,
unfortunately, applies only to the Federal Capital Territory, Abuja. VAPPA also
expands the definition of rape to include both genders as capable of committing the
offence of rape. Neither the Sexual Offences Bill nor VAPPA addresses concerns about
marital rape.

The widespread cultural belief that marital rape is not "real" rape has invalidated
victims' traumatic experiences and limited the identification of these crimes and the
provision of services to victims. Marital rape is as prevalent as other forms of rape.
Marital rape victims often experience multiple traumatic experiences, putting them at
greater risk for severe post trauma distress. It results in serious medical, emotional, and
mental health consequences for its victims. Still, marital rape victims are reluctant to
report their victimization to the authorities and seek help because the typical victim has
been exposed to lengthy abuse and control within her intimate relationship, which
places her in a mental state of helplessness. Marital rape carries the same weight as
other forms of rape. It includes all other element in other forms of rape the only
difference is the fact that it occurs between a husband and his wife. Marital rape
victims are subjected to violence, traumatic experience etc. There should be legal
implication for marital rape just as there is for other forms of rape because RAPE is
RAPE. It is the emotional and psychological crime that has the same effect on the
victims, married or not. Marital rape should be included into the Nigerian
laws together with its penalties.

In 2003, the first government survey, Nigerian Demographic and Health Survey,
collected data on violence against women and found that 16% of married and divorced
or separated women experienced sexual violence from their husbands, and reported
instances women of being slapped, pushed/shaken/thrown, punched or forced to have
intercourse with their husbands. In the 2008-2009 Nigeria Demographic and Health
Survey, it was reported that 17% of ‘ever-married’ women experienced sexual violence
by a husband, with 14% of the cases experienced within the twelve months of the
survey. In the latter report, 14% of the women interviewed reported that they were
forced to have sex with their husbands when they did not want to.

Despite all these statistics, it is right to say that the government is blind to the pleas of
these women. The concept of implied consent is an infringement of an individual's
right to choose whether he/she is in the mood for sex or not. I mean is it right to assume
that saying “I do" at the marriage ceremony means that you have no choice regarding
133
 your sex life, you just have to put up with it when your partner wants it, regardless of
whether or not you're sick, tired or simply not in the mood. Also, the government has
given several definitions of sexual abuse, and yet they still leave out marital rape even
though it is no different from normal rape and also has different traumatized vict ims.
So, is it safe to assume that saying yes to marriage means saying yes to being sexually
abused, and yes to throwing all your rights to decide whether you want to have sex or
not away. In the words of Kolade-Faseyi I,

It cannot be said that by virtue of marriage, the wife submits herself

irrevocably to sexual intercourse in all circumstances and at all times.
The question that comes to mind is: is she a slave? Even slaves are not
subjugated to such demeaning position. If a raped victim wants to
complain should she be shut out simply because she is married?
Should she keep quiet because the alleged assailant is her intimate
partner? It is needs to be stated that the laws are meant to meet the
society’s changing needs and protect people irrespective of age, marital
status or gender. Spousal rape can be the most terrifying event in a
woman’s life, it is the most traumatic invasion one person can inflict
on another. It has long been misconceived as a sex act but as stated
earlier, it is not erotic, not sensual, not pleasurable, as it is violence and
terror masquerading as passion.22

The absence of laws criminalizing marital rape in Nigeria does not give the victim any
recourse to justice and this further emboldens those inclined to commit such crimes due
to lack of legal retribution. The United Nations has recognized marital rape as a form of
violence against women but the lack of extant marital rape laws in Nigeria hampers the
struggle for the liberation of women against the shackles of violence. Based on this, it
is recommended that the Criminal Code and Penal Code of Nigeria as well as other
laws prohibiting sexual violence be amended in order to accommodate marital rape as a
criminal offence in Nigeria. For this to be effective, marital rape must be prohib ited
without exceptions. This means that the mere absence of consent by any of the spouses
would suffice as proof of marital rape. It does not matter if the act of marital rape is
committed by either the husband or the wife.

Similarly, sensitization should be carried out in order to inform the public about the
fact that sexual intercourse without consent from one's spouse is marital rape. The
victims can also be informed on how they can get help and justice. This is imperative in
order to get rid of the notion that a wife owes her husband sex anytime he deems fit

22
Ibid. Kolade-Faseyi
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 without reasonable consideration of the right of the woman to protect her body against
any form of violence.

7.0 Conclusion

It is important to mention that laws should also be enacted in order to put an end to
practices that may lead to circumstances of marital rape such as child marriage,
trafficking and forced marriage. The society has to make sure to educate minds, to get
rid of values and ideologies that do more harm than good. Humans came up with these
unspoken laws, so we should not be afraid to take it out, when they cause more damage
than good. In view of the above propositions, the need to criminalize marital rape in
Nigeria does not require much debate as it is not only a means of ensuring that violence
in marriage is brought to a minimum but also ensure a safer and peaceful society where
the rule of law is evident for all to see. This is further supported by the Latin Maxim
"Fiat Justitia Ruat Caelum."

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