Dreams Still Come True: Babalakin and Co Honours Tola Oshobi SAN

 

Tola Oshobi SAN.

Tola Oshobi (SAN), partner, Babalakin and Co. (B & C), and Head, Litigation and Dispute Resolution Group was recently conferred with the prestigious rank of the Senior Advocate of Nigeria on Monday, 18th September, 2017. The latest Silk in town joins his two other Seniors in the Firm in the inner bar – Dr. Bolanle Olawale Babalakin (SAN) and Mr. Wale Akoni (SAN).

Tola Oshobi SAN

On Friday, 17th November, 2017, B & C organised a glorious dinner in honour of the Learned Silk for his diligence, dedication and impeccable loyalty at Civic Centre, Victoria Island, Lagos. Many dignitaries from all works of life were present to honour this amiable gentleman and his Firm for achieving this great feat.

Dr Layonu Oshobi and Stephen

Dr. Abiodun Layonu SAN, Tola Oshobi SAN and Stephen Azubuike at the dinner.

Dr Babalakin and Stephen

Dr. Babalakin SAN and Stephen Azubuike at the dinner.

Mr. Oshobi is an embodiment of all the qualities of a legal practitioner deserving of the elevation. In this Special Feature of Stephen Legal Blog, we bring you Mr. Oshobi’s outstanding pedigree.


Brief Profile

Education and Qualifications

  • LL.B (Hons.) University of Ibadan
  • BL, Nigerian Law School.

Practice Areas

  • Litigation and Dispute Resolution
  • Real Estate
  • Infrastructure and Construction
  • Taxation

Major Achievements

The Learned Silk has been involved in several notable cases and projects. Among these are:

  • He advised a major multinational oil company in an extra-jurisdictional suit over a dispute with host communities involving a multi-billion dollar claim.
  • Currently representing an integrated Oil and Gas company in respect of a multi-million dollar multi-jurisdictional matter, which arose from the construction of a crude oil export terminal.
  • Acted as Counsel in a US$33 million claim arising from an engineering, procurement and construction contract for the construction of a petroleum products depot and the associated infrastructure.
  • Acted as Counsel in a US$54 million claim arising from an engineering, procurement and construction contract for the dredging and upgrading of navigational facilities along a river channel to facilitate marine transportation of petroleum products.
  • Advised and acted as senior counsel to a Special Presidential Committee set up by the Federal Government of Nigeria to investigate and recover lost revenue on import duties arising from under-invoicing of imported goods. This work led to the recovery of over US$250 million by the Federal Government of Nigeria.
  • Worked with a team of solicitors in the Firm, to extract a 95% reduction in the assessed tax liability of a major American Multi-National Corporation after a leading international audit and tax consultant had advised that the corporation was liable for the Best of Judgment assessment due to its failure to challenge the assessment promptly. The team’s intervention led to parties executing terms of settlement.
  • Led the team responsible for advisory, documentation, perfection of title and litigation in respect of the largest and most successful private residential/commercial real estate development project in Nigeria.
  • Heads the group acting as Lead Legal Consultants to the Federal Government of Nigeria on the sale of Federal Landed Property throughout Nigeria. The project has so far, involved the sale of over US$300 million worth of real property.
  • The Learned Silk was responsible for designing a process that radically reduced the time for perfecting title to land in Lagos State by cutting out much of the red-tape. The Lagos State Government adopted the process for the perfection of title of some allottees in a residential estate developed by one of the Firm’s client as a pilot scheme and following its success extended the scheme to the whole State.
  • In 2008, he represented the Nigerian Electricity Regulatory Commission before the House of Representatives Committee on Finance on their fiscal obligations to the Federal Government of Nigeria.
  • Advised one of the major International Oil Companies at a hearing before the National Assembly on a petition submitted by some of the oil producing communities in the Niger-Delta.
  • Since 2008, he advised the concessionaire of a road concession transaction with the Federal Government of Nigeria. He negotiated the concession agreement of what is notably the first concession agreement of a Federal Highway in Nigeria and is currently advising the concessionaire on the financing of the project.
  • Between 2009 and 2010, the Learned Silk advised the Joint Committee of the House of Representatives on the Petroleum Industry Bill. In this capacity, he reviewed all existing laws and regulations in the Nigerian energy sector, the Nigerian Energy Policy and the Nigerian Oil and Gas Policy. He is also a member of the team of legal consultants to the Federal Government on the implementation of aspects of the Gas Master Plan.
  • Currently, he is advising a client that won a multi-million dollars concession from a State Government to develop a major international market with an integrated commercial, industrial and residential complex.
  • The Learned Senior Advocate is also currently advising the Nigerian partner in an International Joint Venture for the development of major solid mineral mining project in Nigeria, on all aspects of the prospecting, development and financing of the project.

Click here for more.

Oshobi dinner

Big Congratulations to him.

#Beinspired

A debtor can validly transfer, by novation, his debt obligations without the written consent of the creditor.

 

Crushing Dragon (Nig.) Ltd & Anor. v. Skye Bank Plc & Anor. Suit No. LD/ADR/534/2013, page 9, per Animahun J.:

“In Pat Onegbedan, Esq. v. Unity Bank Plc (2014) LPELR-22186 (CA), novation was described thus: “Contract by novation is a form of assignment in which by consent of all parties thereto, a new contract is made and substituted for an existing contract. Hence one of the essentials of the new contract, that is, novation, is that the consent of all the parties must be obtained. However, such consent need not be in writing; it may be inferred from the conduct of the parties, without express words…” See also African Continental Bank Ltd & Anor v. Ifeanyi Ajugwo (2011) LPELR – 3637 (CA). So, the issue is not (as argued by Counsel for the 1st Defendant) that the novation is invalid because the 1st Defendant did not consent to it. Rather, it is whether the 1st Defendant can be heard to deny the validity of the novation having taken benefit thereunder. The additional benefit gotten by the 1st Defendant is the property of the deceased used as a collateral for the debt.”

Blogger’s Note:

The facts of the above case are quite interesting. The 2nd Claimant (The Chairman of the 1st Claimant) and one Engr. Banasko (now deceased) were the foundation directors of the 1st Claimant under a form of partnership arrangement. The said partnership arrangement was later dissolved vide a Dissolution of Partnership Agreement. Upon the said dissolution, both parties to the arrangement were assigned specific obligations and one of such obligations was that the deceased Engr. Banasko would take over the indebtedness of the 1st Claimant to its creditors including the N30 Million which the 1st Claimant owed the 1st Defendant (Skye Bank Plc) and secure a Deed of Release from the 1st Defendant in favour of the 1st Claimant. This was what the trial Court rightly referred to as a NOVATION. The 1st Defendant was informed of the novation and in furtherance of same, the deceased, began the repayment of the N30 Million by making an initial payment of N15 Million to the 1st Defendant. He also used his property as security for the balance. The Court found that the deceased made this payment and entered into the new arrangement with the 1st Defendant in his personal capacity and not as a director of the 1st Claimant. The deceased and the 1st Defendant exchanged correspondences in this regard. In one of the letters written by the 1st Defendant, the 1st Defendant acknowledged the novation and confirmed receipt of payment of the N15 Million by the deceased. The 1st Defendant also expressly stated that in view of the novation, the 1st Claimant was free of every obligation to the Bank. Everything went fine.

Novation agreement is binding

However, crisis began when the deceased died, while leaving the balance of N15 Million unpaid. The 1st Defendant now smartly reverted to the 1st Claimant to pay this balance. The 1st Defendant continued to file a negative credit report at the Credit Registry of the Credit Bureau against the 1st Claimant. The 1st Claimant became aware when it tried to access credit facility from another bank to undertake a capital intensive project. It approached the 1st Defendant but all efforts to get the 1st Defendant to issue a valid Deed of Release to the Claimants in view of the novation proved abortive. The 1st Defendant insisted that the only condition to be fulfilled for the issuance of a Deed of Release which will enable the 1st Claimant access the said facility from another bank was that the 1st Claimant should execute a contract whereupon the 1st Claimant would undertake to repay the outstanding indebtedness left unpaid by the deceased, inclusive of interests. A new contract was drawn but cleverly, the 1st Defendant never referred to the novation. It treated it like it never existed and recited facts showing that the 1st Claimant had been and remained the debtor at all material times. Faced with the predicament of losing the huge facility it wanted to access from another bank, the Claimants signed the new contract, undertaking to repay the balance in question. Upon signing, the 1st Defendant then issued the Claimants with a Deed of Release. The Claimants proceeded with its business. Of course, aggrieved, the Claimants thereafter filed this action. The 1st Defendant counter-claimed based on the new contract.

Novation of debt

At the trial, the 1st Defendant argued that it was not a party to the novation arrangement between the Claimants and the deceased and that it never consented to the novation. Counsel to the Claimants, Stephen Azubuike Esq., argued that the Claimants did not receive any benefits whatsoever for executing the new contract other than that the Claimants were issued with a Deed of Release, being an instrument the Claimants were ordinarily and originally entitled to, but which the 1st Defendant dishonourably and in abuse of banking ethics, unlawfully withheld just to hold the Claimants to ransom.

The learned trial Judge was persuaded by the arguments of learned Counsel to the Claimants. Upon considering the facts and surrounding circumstances, he held that:

“The issue is not (as argued by Counsel for the 1st Defendant) that the novation is invalid because the 1st Defendant did not consent to it. Rather, it is whether the 1st Defendant can be heard to deny the validity of the novation having taken benefit thereunder. The additional benefit gotten by the 1st Defendant is the property of the deceased used as a collateral for the debt… My view based on reasonable inference is that the exhibits show that the debt was negotiated by the deceased in his personal capacity and not as a Director of the 1st Claimant.”

See page 9 to 10 of the Judgment.

The Court further held that:

“The effect of Exhibit 9 (one of the letters written by the 1st Defendant to the deceased acknowledging the novation and discharging the Claimants) in law is that the 1st Defendant acquiesced to the novation between the 2nd Claimant and the deceased; it is therefore estopped from contending otherwise.”

The trial Court concluded that the new contract which the Claimants signed, undertaking to repay what was otherwise the debts of the deceased, was invalid and unenforceable for failure of consideration.

The trial Court is highly commended for its sound reasoning in this case.

A counsel whose fees have not been settled can lawfully refuse service of a process on him.

 

Darlington Eze v. Federal Republic of Nigeria [2017] 15 NWLR (Pt. 1589) 433 at 477, paras. F-G, per I. T. Muhammad, JSC:

“…The settled practice is that a counsel whose fees have not been settled can lawfully refuse service of a process on him, and in that case, the litigant must personally be served with the process in question before a decision is taken against him, failing which would amount to a breach of the right of fair hearing…”

Blogger’s Note:

The Supreme Court has by the above position made it clear that solicitor’s professional fees should ordinarily be taken seriously to avoid needless risks. For instance, where a counsel refuses to accept a process served on him for failure of his client to perfect his brief and the process is accordingly served on the litigant himself and proof of the said service is supplied, the court can validly proceed with the case and will not wait for the litigant to brief another counsel. Thus, it is a huge risk for a litigant to treat his solicitor’s fees as a trivial matter.

lawyers fees

More so, aside the fact that refusal to accept a process by a counsel whose fees have not been paid has been declared lawful, it is important to equally note that such a counsel can take other lawful steps such as refusal to even attend further proceedings, all to the detriment of the ungrateful client who jokes with his solicitor’s fees.

Having said that, it is important to note that parties to a suit and their respective counsel should be properly guided by the above stated position and therefore, should not always be in a hurry. Hence, where and when necessary, the litigant should be contacted in abundance of caution. This is without prejudice to the fact that it has been held that a litigant has a duty to monitor his case and that each party to a pending suit must be vigilant.

His Lordship also restated further principles which are worthy of being noted: “If a party changes his counsel but service of a court process is nevertheless effected on his former counsel, the consequent proceedings based on that process are null and void for breach of the fair hearing rule, the fact that no formal notice of change of counsel has been filed notwithstanding. See F.B.N. Plc v. TSA Industries Ltd. (2010) All FWLR (Pt. 537) 633; (2010) 15 NWLR (Pt. 1216) 247. However, if counsel is aware of a date of adjournment but takes ill before or on that date, he should either write a letter to the court or ask another counsel in his chambers, (where he has some) to attend court, failing which he shall not be heard to complain in breach of fair hearing if a decision is taken in his absence. See Governor of Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462 at 479.”

See pages 477-478 of the report.

The pain and hardship of young lawyers in the hands of senior colleagues has been judicially noticed.

 

Ifeanyi Okeke Esq. v. Wale Ogunade Esq. Suit No. NICN/LA/432/2014, per Amadi J:

“This case once again shows the pain, hardship and difficulty which some young lawyers undergo in the hand of some senior colleagues, who ordinarily should encourage them. I commend the tenacity and dexterity of the Claimant in pursuing justice in this matter since 2012 up to this stage. In the same vein, I condemn the conduct of the Defendant in trying to wish away the earned salary of the Claimant in this suit.”

Blogger’s Note:

Sadly, the hardship young lawyers face in Nigeria in the hands of senior colleagues is now judicially noticed. This pain and hardship manifest in various forms ranging from incredibly and ridiculously low earnings to massive exploitation of human skills, time and energy. Thus, even some firms who pay fairly good salaries more or less ask for the ‘blood’ of the associates working for them, in a manner clearly suggestive of acute ‘noble’ slavery. This runs against all internationally recognised labour standards and best practices. Taken that the practice of law is largely rigorous and that young lawyers must pay their ‘dues’ (whatever that means) in the course of being trained on the job, this should not be a general excuse for subjecting young lawyers to a working condition that totally rob them of reasonably fair and decent living.

The situation has become critical and deserves serious attention. The Nigerian Bar Association should have this on the priority list.

Law firm

There are few lessons to learn from the case at hand. The facts are that on 15/4/2012, the Claimant was employed as a legal practitioner by the Defendant under some form of oral agreement, on a monthly salary of N30,000 (Thirty Thousand Naira). The case of the Claimant was that the Defendant never paid his salaries as at when due and that this continued until the end of September, 2012. Consequently, on 8/10/2012, the Claimant informed the Defendant of his intention to stop work on 12/10/2012. The Claimant stopped work as indicated. However, the Defendant refused to pay the Claimant his September, 2012 salary in spite of repeated oral and written demands. The Claimant wrote a letter to the then Chairman of the Nigerian Bar Association, Ikeja Branch to intervene but the Defendant remained adamant, leading to the filing of this suit.

The case of the Defendant is that he is a legal practitioner and human rights activist whose practice is basically in litigation and mostly pro bono services. He claimed he was reluctant to employ the Claimant because of the type of practice he runs but that the Claimant persuaded him to employ him and that he was ready to bear whatever inconveniences in order to be able to learn under him, including possible irregularity in the payment of salaries. The Defendant argued that the Claimant was bound by this understanding and is therefore not entitled to complain. The Defendant further contended that since there was no pre-agreed length of notice, the Claimant was bound to give 1 week notice (instead of the 4 days notice given) by virtue of Section 11(2)(b) of the Labour Act. As a result, since the Claimant was in default, he cannot claim rights.

Never lose heart

The learned trial Judge, Hon. Justice K. I. Amadi, took time to consider the facts and circumstances as well as the arguments. On the issue of whether or not the Claimant accepted, as part of the arrangement, irregularity in the payment of salaries, Amadi J. held:

“…The Claimant neither confirmed nor acknowledged irregular payment of his salary as part of his contract of employment with the Defendant. Even at that, such an agreement will certainly amount to an unfair labour practice in which case this court will not enforce it. In view of that, I hold that this defence is a ruse and it has failed.”

See page 9 of the Judgment.

On the issue of length of notice of termination, the learned trial Judge held:

“…The Claimant was employed in his professional capacity as a legal practitioner to perform professional legal services; he is consequently clearly excluded by the definition of a worker by Section 91 of the Labour Act. The said Section 11 of the Labour Act heavily relied upon by the Defendant are therefore inapplicable to the Claimant as he was not employed in the category of workers covered by the Labour Act which are limited to workers engaged in manual and clerical work, see the case of Evans Brothers (Nig.) Publishing Ltd v. Falaiye (2003) 13 NWLR (Pt. 838) 564. In view of the foregoing, this ground which is the foundation of the defence of the Defendant is bound to collapse and it has collapsed. In cases where the Labour Act is inapplicable and the contract of service is silent on the requisite notice of termination, the law is settled that a reasonable notice will be implied. See the cases of Maiduguri Flour Mills Ltd v. Abba (1996) 9 NWLR (Pt. 437) 506 at 511 and Alraine (Nig.) Ltd. v. M. A. Eshiet (1977) 1 SC.”

See page 9-10 of the Judgment.

The Court therefore held that the forfeited prorated salary for the month of October, 2012 was waived by the Claimant in lieu of notice and that coupled with the 4 days notice which was given, the Claimant gave adequate and reasonable notice.

Upon rightly upholding the case of the Claimant, the Court granted his claim for the September, 2012 salary (N30,000) and awarded the cost of N80,000 against the Defendant.

Heads of court must prevent politicians from abuse of court process.

 

PDP v. Sen. Ali Modu Sheriff & Ors. [2017] 15 NWLR (Pt. 1588) 219 at 279-280, paras. F-B, per Rhodes-Vivour, JSC:

“The 1st respondent and his allies filed over ten suits. The Court of Appeal had this to say. The 1st appellant (i.e. 1st respondent) I agree displayed an infantile desperation to cling to office at all costs. I agree with the observation of the Court of Appeal. The 1st respondent was always driven by the implacable desire to remain in office as chairman at all cost. That desire was explored relentlessly by filing over ten suits within one year to perpetrate himself in office. Most of those suits have been abandoned. They shall forever gather dust in judicial archives and remain dusty reminders of how not to seek judicial remedy. The stakes are very high in political matters. So, if allowed, political office seekers would not hesitate to file multiplicity of suits on the same subject matter, hoping to get a favourable judgment from one court or the other. Their quest for this includes forum shopping. Heads of court must by now be aware of this trend and stop this annoying practice of assigning cases on the same subject matter to different judges, who very likely would render conflicting decisions, ending up making the judiciary a laughing stock. Trial judges must also be on the lookout, and refrain from proceeding with any case when aware that his brother judge is handling a similar matter.”

Ali Modu Sheriff

Blogger’s Note:

The facts of the above case touching on the tussle for the leadership position (National Chairman) of the Appellant party, PDP, are very much in the public domain. We will not bother with that here save to mention that after much controversy, the Supreme Court ousted the 1st Respondent from the position of the National Chairman.

Our major concern here is that during the period of the battle, the 1st Respondent caused several “abusive actions” to be instituted on his behalf which the apex Court found to be up to ten, in “an infantile desperation to cling to office at all costs” and perpetually too. How was that possible? While we continue to wonder, the Supreme Court has a made a policy statement to guide lower courts, especially Heads of court, having the responsibility to assign cases. The apex Court has directed that Heads of court must “stop this annoying practice of assigning cases on the same subject matter to different judges”. Conscious effort must therefore be made especially in political cases. Even trial Judges have been advised to always be on the lookout in order to avoid conflicting decisions.

Supreme Court of Nigeria

Most importantly, many Nigerian politicians who seek leadership positions have constantly failed to display any character worthy of emulation. The saddest part is that through abuse of court process (by multiplicity of suits), some politicians like the 1st Respondent have really brought the judiciary to a state of ridicule. I. T. Muhammad, JSC, in delivering his opinion emphasised the need for the interests of citizens to be first and foremost in the minds of politicians. He said:

“…It is time in this country those in politics realised that Nigeria is greater than anybody. The larger interests of the citizen should be first and foremost in the mind of anyone who stands out in the name of fellow countrymen, rather than advancing the glory of self aggrandisement. It will be a disservice to the society or community who sponsored one for one to fire the embers of hatred, disunity and self-centredness…”

See page 291-292 of the report.

Photo credit: dailypost.ng

Judges must refrain from wearing their pride on their sleeves.

 

P.J.N. Azubuike Esq. v. The State, (2017) LPELR-42485(CA) p. 17, per Agbo, JCA:

“Judges must refrain from wearing their pride on their sleeves. They must show self-restraint even when they are uncomfortable with the language deployed by counsel or litigants appearing before them. It is however incumbent on them to uphold the dignity and authority of the court. In the instant case, there was nothing before the court to activate its jurisdiction to summarily convict for contempt.”

Blogger’s Note:

The facts of the above case are quite interesting. They present us with one of those unfortunate instances where a Judge like Hon. Justice A.O.H. Ukachukwu (Rtd.) is found abusing judicial powers thoughtlessly, bearing in mind that there would hardly be any consequence other than perhaps, a criticism by an appellate court.

The Appellant was a legal practitioner representing the Plaintiff in a suit (Suit No. HOW/78/02 – Anthony Opara v. Morecab Finance Co. Ltd & Anor) which at the time was pending before Ukachukwu J. of the Imo State High Court, Owerri Division, prior to his Lordship’s subsequent retirement. The Appellant had, on the instruction of the Plaintiff to his Law Firm, Messrs. Tony Momoh & Co., taken over the case from the Plaintiff’s former Counsel. The Appellant stated that before he took over the case, the Plaintiff had expressed doubts as to the impartiality of the trial Judge but he allayed the Plaintiff’s doubts so as to allow him go into the case proper. Upon coming into the matter, the Appellant stated that the trial Judge continued to descend into the arena of conflict. As a result, the Plaintiff instructed the Appellant to seek a transfer of the case. The Appellant therefore wrote a letter dated 10/1/2006 to the Chief Judge seeking a transfer of the suit and subsequently filed an application for stay of proceedings dated 20/1/2006 pending the outcome of the application for transfer.

The application for stay of proceedings which was duly served came up on 24/1/2006. The trial Judge asked the Appellant for the whereabouts of the deponent to the affidavit in support of the Motion (which deponent happened to be the wife of the Plaintiff). The Court was informed that the deponent was not in Court. The trial Judge then ordered the Appellant to remove his wig and gown and enter into the witness box. The Appellant replied the trial Judge noting that as Plaintiff’s Counsel, he was not supposed to enter into the witness box to serve as witness in the case. Enraged, the trial Judge made a ruling, ordering the remand of the Appellant, to the utter dismay of the lawyers present. The trial Judge swiftly signed the remand warrant and the Appellant was remanded. He was eventually bailed on 25/1/2006.

Contempt proceedings

The Appellant filed an appeal against the order of the trial Judge contending that the Appellant did not commit any act of contempt and that the trial Judge failed to comply with the rules and procedure in dealing with the alleged contempt. The Court of Appeal took time to consider the entire circumstances and after stating the trite principles governing contempt proceedings, unanimously agreed with the Appellant that the Appellant never committed any act of contempt and that the trial Judge did not only disregard the relevant rules and procedure, but also was in arrogant abuse of his powers. (See the above quotation).

In delivering the leading Judgment, giving his opinion on the conduct of the trial Judge, Ita G. Mbaba, JCA did not mince words:

“In my view, that was indeed a very bizarre and frightful way to apply the power of contempt by a court of law. It showed the trial Judge as a very intemperate person, acting impulsively, without regards to rules and procedure. If the trial Judge wanted to commit Appellant for contempt of his Court, he completely missed the procedure and was, in my opinion, rather abusing his powers with regards to contempt of court, which, in my opinion, cannot even be contemplated in circumstances of the case.”

See page 11 of the report.

With the greatest respect, the trial Judge disgracefully failed to allow his judicial mind function at the time so as to allow him see the sound reasoning of the Appellant when the Appellant submitted that based on the authorities, he cannot go into the witness box. Unfortunately, to the trial Judge, reference to authorities on the state of the law is contemptuous.  Mbaba, JCA captured it thus:

“Sadly, the learned trial Judge failed to consider and to heed the wise submission of the Appellant that he could not serve as witness in a case he was Counsel. The trial Judge viewed that submission as an affront, and summarily ordered the remand of the Appellant, without following the rules.”

See page 14 of the report.

One important lesson to learn from the conduct of the Appellant, one of the finest trial lawyers I have seen, is that as lawyers, we must always be firm, fearless and respectful.

I highly commend the Court of Appeal for this Judgment.

NSE Training Seminar: Legal and Risk Aspects of Derivatives and Central Counterparty Clearing (CCP) Transactions.

 

The Nigerian Stock Exchange (NSE) proudly presents a Training Seminar on:

Legal and Risk Aspects of Derivatives and Central Counterparty Clearing (CCP) Transactions.


Date: Monday 20th to Tuesday 21st of November 2017.​

Time: 8:00 am – 5:00 pm daily.

Venue: Civic Centre, Ozumba Mbadiwe, Victoria Island, Lagos.


FACILITATORS

  • Mich​ael Voisin and Mark Drury, Partners, Linklaters LLP, UK;​
  • Prof. Fidelis Oditah QC, SAN, Principal Partner Fidelis Oditah & Co;
  • Marilyn Ramplin, Hedge Fund Academy (Specialist, Derivatives Training Providers of the Johnannesbourg Stock Exchange)​​;
  • Terence Saayman, Head, Risk, Johannesburg Stock Exchange;
  • John Oriogun, Oriogun PLLC, NY, USA.

TOPICS

  • Understanding the concepts of Derivatives (exchange-traded derivates (ETDs) & over-the-counter derivatives (OTCs));
  • Understanding the concept of a central counterparty (CCP) and the use/ application of same in Derivatives transactions;
  • Fundamentals and mechanics of Derivatives and CCP transactions (in-depth and complex nature of both transactions);
  • The legal framework and legal documentation for Derivatives and CCP transactions;
  • The role of the respective lawyers of the different participants in Derivatives and CCP transactions;
  • The various risks associated with Derivatives and CCP transactions (including counterparty risk, market risk, legal and regulatory risks, leverage risk and volatility, etc.) and the appropriate risk management measures; and
  • Dispute resolution mechanism for Derivatives and CCP transactions.

TRAINING OBJECTIVES​

  • Educate participants on the concept of Derivatives (ETDs and OTCs) and CCPs in preparation for the imminent launch of the ETDs by The Exchange and the CCP market wide infrastructure by the relevant stakeholders in the Nigerian capital market.
  • Equip participants with the requisite knowledge of the legal framework, legal documentation and transactional skills necessary for the success of Derivatives and CCP transactions.
  • Explain the dispute resolution mechanism for Derivatives and CCP transactions.
  • Expound on the role of lawyers and in-house counsel in Derivatives and CCP transactions from the perspective of the regulators, the Exchange, the trading members, the clearing members, the CCP entity, the transaction advisors, or the investing public as a whole.

OTHER BENEFITS

  • The Course is certified by The Nigerian Bar Association (NBA): Continuing Professional Development (CPD) credits/points will be awarded by the NBA to participants (Lawyers only) upon conclusion of the training.​
  • The Course is endorsed by The Risk Managers Association of Nigeria (RIMAN), and will generate Mandatory Continuing Professional Development (MCPD) points upon conclusion of the training.​​​

WHO SHOULD ATTEND?

  • All risk management officers in relevant organizations;
  • All lawyers in law firms who advise on capital market transactions;
  • Lawyers who will be involved in dispute resolutions for Derivatives and CCP Transactions;
  • In-house counsel/compliance officers of Dealing Member firms, Banks, Investment Banks, Issuing Houses, Exchanges, PFAs, Regulatory Bodies, Listed Companies, Oil Companies, Telecommunications Companies, Insurance Companies, etc.

NSE Training


REGISTRATION FEE

N150,000.00 (One Hundred and Fifty Thousand Naira) only.

Early Bird Registration Fee: N120,000 (Closes November 1, 2017).

Payments should be made using the following Account Details:

  • A/C Name: Nigerian Stock Exchange
  • A/C No.: 2000920988
  • Bank: First Bank.

REGISTRATION

Click here to register now and for more information.

If you need any assistance from Stephen Legal Blog, kindly contact us.

YOU DON’T WANT TO MISS THIS!

A letter meant for the court to take note and act upon must be properly filed.

 

The Registered Trustees of the Presbyterian Church of Nigeria v. Etim [2017] 13 NWLR (Pt 1581) 1 at 41 , paras. E-H, per I. T. Muhammad, JSC:

“It is important to point out as well, that if a document is meant for the court to take note and act thereon, rules of court have made provisions for formal filing of such a document or documents with the registry of the court, for which a nominal fee is payable upon assessment by the registry staff, who authenticate the filing of that document and proceed to file same for the court’s attention. All other ways or methods such as writing letters or petitions informing the Chief Judge/Chief Justice/Head of Court and or Chief Registrar (including his subordinate registrars) are purely administrative and have no force of law…”

Blogger’s Note:

A few things need to be clarified as it relates to the above statement of the law. Firstly, it is not every document presented for filing that requires the payment of any fee, nominal or otherwise. The process of filing a document for the purpose of making it a court process properly so called begins with the initialling or endorsement of such document by the authorised staff in the court registry. Initialling or endorsement simply involves making a mark or signature (including sometimes the name or initials of the initialling officer) and importantly, date. Some documents like a letter (e.g. for adjournment) addressed to the registrar of a court for the court’s attention need only to be initialled. No fee is usually required to be paid. Therefore, in order to meet the minimum requirement of filing, the letter must be presented to the registry for initialling without more and then presented to the court registrar. There are however other letters (such as application for payment of default fees or for search) which, like originating processes, motions, etc, require not only to be initialled, but the initialling officer may minute upon it and nominal fee subsequently paid based on assessment. Secondly, letters or petitions informing the Chief Judge/Chief Justice/Head of Court and or Chief Registrar (including his subordinate registrars) of certain issues may be purely administrative but can have the force of law in certain circumstances such as where copies of such letters duly acknowledged are subsequently filed along other processes in a court action. In that case, they enjoy the force of law. In other words, at the point of delivering the said letters or petitions, no formal filing is required before the receiving office can act on same administratively.

Letter must be properly filedWhat happened in the case at hand was that the Appellant filed a suit and also filed a Motion ex parte for interlocutory injunction. The trial Court refused to hear the Motion ex parte but directed that the Respondent be put on notice. The Appellant complied. The Respondent filed a Memorandum of Appearance only without filing any response to the application for injunction. On the date slated for hearing, i.e., 19/12/2000, the Respondent was absent. The trial Court proceeded with the hearing and granted the application. The Respondent appealed contending that he had written a letter for adjournment dated 19/12/2000, the day the application was heard. Although there was no proof that the letter was brought to the attention of the trial Court or that same was served on the Appellant, the Court of Appeal reversed the decision of the trial Court. The Appellant’s appeal to the Supreme Court was rightly allowed. The apex Court held that the purported letter ought to be discountenanced even if placed before the trial Court as same was not properly filed. (See page 42 of the report). The Court also frowned at the fact that the letter was not served on the Appellant and same was written the same date the case came up for hearing of the application. The Court further held that the Respondent ought to have filed a counter-affidavit to the Motion as a mere Memorandum of Appearance did not suffice. (See page 33 of the report).  The apex Court was not persuaded by the holding of the Court of Appeal to the effect that the trial Court ought to adjourn the matter since the application came up for the first time for hearing. (See page 37 of the report).

The Court further took the position that, the Respondent, having been duly served with the application, the trial Court was right to proceed with the hearing. In rendering the opinion of the Supreme Court on this, I. T. Muhammad, JSC said: “My Lords, service of process in a trial, is what the spinal cord is, to a human being.” (See page 31 of the report). This stresses the significance of service. Above all, the Supreme Court emphasised the trite principle that the grant of an application for adjournment is purely discretionary.

Lack of electricity delays judgment.

 

Dike v. Kay-Kay Construction Ltd [2017] 14 NWLR (Pt. 1584) 1 at 74, paras. A-B, per Tur, JCA:

“Many a times there would be no power supply in Enugu Division in my house. Even if there was, the generator would often become dysfunctional, hence the delay in rendering my opinion in this appeal.”

Blogger’s Note:

The experience of the learned Justice of the Court of Appeal is the experience of many of our Judges today in Nigeria. The President has often decried the slow judicial process. (Although recent reform appears to be more targeted at speedy conclusion of criminal cases, especially corruption cases, we must however note that slow judicial process is affecting cases touching on businesses and investment in Nigeria generally). The Federal Government must now see that lack of constant power is a huge factor clogging the wheel of the judiciary.

Nigeria needs light

Aside the judiciary, lack of constant power supply has crippled several sectors and is constantly making life difficult. Many are dying on daily basis at our hospitals. I have always wondered why the resolution of the electricity problems in Nigeria has remained a mystery. I had questioned why we are yet to begin to witness the tremendous change promised by the Minister of Power, Mr. B. R. Fashola, SAN, but I was told to neglect his promises as same was a pure political propaganda. I am particularly troubled because I have enormous respect for the learned Silk and I believe he is one man always ready to make a significant change. The kind of change Nigerians desire in the power sector is not the type well-articulated in written form or written analyses. The desired change is like the one in the telecommunication sector where, today, you find beggars on the streets owning GSM handsets and making wireless calls (notwithstanding the poor service delivery).

Nigeria needs constant light to move forward, away from darkness…

A Newspaper that makes libellous publication for profit deserves to be punished. However…

Western Publishing Co. Ltd v. Dr. Kayode Fayemi [2017] 13 NWLR (Pt. 1582) 218 at 292, paras. B-C, per Ugo, JCA:

“…They (punitive damages) can be awarded, especially where it is pleaded and proved that the defendant intended to make a profit from the false publication which he believed  would far outweigh whatever damages that would be awarded against him in a libel action…”

Newspapers and libel

Blogger’s Note:

What we have learnt from the above statement of the law is that although a person guilty of defaming the character of another is ordinarily liable in damages, where such defamation (in the form of libel for instance) was done for the purpose of making profit, the courts would be inclined to award punitive or exemplary damages. The interesting reasoning of the court is that such a person deserves to be punished because some form of ‘economic or business decision’ might have been made by the offending party in that the person might have acted on the belief that the profit that would accrue from the defamatory publication would outweigh whatever damages that would be awarded by the court.

Notably, the foregoing applies not only to newspaper outfits. Any person who defames the character of another can suffer punitive damages in deserving cases.

In the instant case, the trial court awarded a whopping 2 Billion Naira aggravated (compensatory) damages against the Appellants having found the Appellants liable for libel, while refusing the exemplary damages sought.  The Appellant had alleged that the Respondent, who at the time was the Governor of Ekiti State, had corruptly enriched himself and also had bribed some Justices of the Supreme Court who were then hearing the appeal of his predecessor, for Governor Segun On, against the Respondent’s election. The Appellant was held liable for libel and same finding was upheld by the Court of Appeal who held that none of the defences put up by the Appellants availed them.

The Appellants also argued that the 2 Billion Naira awarded as aggravated damages was excessive and punitive. The Court of Appeal of course had no difficulty in holding that punitive damages can be awarded in deserving circumstances like in the instant case. However, the Court of Appeal was absolutely dissatisfied with the award made by the trial court and emphatically criticized same thus:

“Two Billion Naira damages in the circumstances is quite on the very high, if not even outrageous, side. It is not only outrageously excessive as aggravated damages but even excessively punitive as exemplary damages, assuming that was what the lower court meant to do even as it refused to award the exemplary damages claimed. In reality the lower court seems to have given (and extremely generous too) with the left hand what it had purported to have denied the claimant with the right hand. With this award the respondent may well decide to go into immediate retirement and live the life of a billionaire (at least in Naira terms) for the rest of his life, all because of a libel published against him which the same court has incidentally even ordered that the defendants/appellants publicly apologise to him and even retract in three prominent newspapers. Even if the respondent were to be rendered paraplegic in an accident case, it is doubtful if he would get this huge sum the court awarded him for defamation of character. I know that damages in defamation actions are ‘at large’ and involves the exercise of discretion, like all exercises of discretion, must be judiciously and judicially exercised. The competing cases of the parties to justice (including the issue of award of damages) must be put in the imaginary scales of justice and weighed in exercising the discretion society entrusts the judge with. The instant award does not seem at all to have been so scaled. In fact it has more of the feel of a jackpot and/or windfall than an award by a court of justice in a libel case.”

(See pages 290-291, paras. D-B of the report).

To add, with the award made by the trial court, the 1st Appellant might as well fold up!

On a lighter note, even if the 2 Billion Naira was allowed to stand, as a politician (of typically Nigerian breed), it is extremely doubtful if that is enough to make the Respondent proceed to immediate retirement.

After a review of previous authorities on the point, the Court of Appeal reduced the award to 13 Million Naira. This is more sensible.

You may read: “How Punitive can Damages be in Nigeria?”

*I do not agree with the author of the referenced article that there is need for legislative intervention regarding award of punitive damages. We simply need our judges to ensure that discretion in awarding damages (just as in all other cases) is exercised judiciously and judicially.

World of recent and rare Nigerian judicial authorities…