Esq mag vol5 3 final02 by Lere Fashola

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September 18th, 2015 Lagos, Nigeria www.esqnigerialegalaward.com · Entries/Nominations & Sponsorship Enquiries 0701.671.4842, 0803.526.9055 or awards@esqlaw.net · Event Enquiries & Table Bookings 0701.671.4842, 0803.526.9055 or awards@esqlaw.net

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ESQ LEGAL PRACTICE

Inside

CHIEF H.O. DAVIES, THE IDOL VOICE ECHOES ON 10 MASDAR: CITY 28-30 OF THE FUTURE

WHO FUNDS NIGERIA’S INFRASTRUCTURE? – Ayuli Jemide 39-40

32-34

JEROME FINNIS: ON DOING DEALS IN AFRICA

LAGOS AS 50-52 STRENGTHENING THE HUB OF INTERNATIONAL ARBRITATION IN AFRICA

– LAURIE COLEMAN, DIRECTOR LACIAC

4 ESQ LEGAL PRACTICE

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ESQ LEGAL PRACTICE

Inside ANNUAL BOA FOOTBALL TOURNAMENT 46-47 Call for Nominations: NIGERIAN LEGAL AWARDS 54-60

FROM LEGAL

COUNSEL TO BUSINESS COUNSEL –JUSTINA LEWA

42-45

GBOLAHAN ELIAS, SAN: A CHIP OFF THE OLD BLOCK

80-84

NIGERIAN LAWYERS WHO ROCK THE ENTERTAINMENT WORLD

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76-78

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Â ESQ LEGAL PRACTICE

Nikita

Lalla

Nikita Lalla is a director at ENSafrica in the litigation/dispute resolution department with 12 years’ experience. She specialises in the construction and engineering sector and has a cradle to grave practice. She has acted for employers/developers, contractors, sub-contractors, engineers, project managers, banks, project companies and mining companies. Nikita’s experience includes drafting contracts and providing dispute resolution expertise in construction and engineering projects, amongst others, in energy, infrastructure and mining. Her experience further extends to due diligence investigations on target construction and engineering companies and on behalf of lenders on construction projects.

LEG AL PR ACT ICE

Publisher Lere Fashola Business Director Funmi Ekibolaji Advisory Board Olurotimi Akeredolu SAN Gbenga Oyebode MFR Kayode Sofola SAN Prof Mrs Yinka Omorogbe Kofo Dosekun Soji Awogbade Dr. Bayo Adaralegbe Editorial Consultant Seun Abimbola

contributors

Head of Legal Services Adekemi Edema

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Funke

Agbor

Mrs. Funke Agbor is a former President of Women’s International Shipping and Trading Association (WISTA) Nigeria. A member of the Nigerian Bar Association (NBA) and the International Bar Association (IBA,) Agbor holds an LLB from the University of Lagos, BL and LLM from the University College, London. She is the head of Shipping and International Trade Unit at Adepetun, Caxton-Martins, Agbor & Segun Law Firm ACAS-LAW Agbor acts primarily for ship owners, P&I Clubs and their agents or correspondents, insurers, charterers, receivers and government agencies. She is the General Editor, Nigerian Journal of Maritime Law and Committee Member of the Maritime Seminar for Judges. She is also a member of the Chartered Institute of Arbitration (CIA).

Asst Editors Toju Falere Ben Oritsemisan Umuteme James Alabi Finance Officer Oyindamola Olaosebikan Subscription Manager Tayo Gabriel IT Hassan Maude Graphics ESQ Creative Studio Photography ESQ Studio Programme Officer Funmi Ekibolaji Advert & Subscription Enquiries 08035269055 advert@esqlaw.net subscription@esqlaw.net

Nwabueze

Anachebe Nwabueze has being practicing Law since 2005 and has vast experience in commercial transactions, legal documentation and litigation particularly relating to maritime cargo claims and the real estate transactions in Nigeria. He has represented and advised private and public institutions in Nigeria on maritime related and real estate transactions. He was part of the team that consulted for the Nigerian Maritime Administration and Safety Agency (NIMASA) in the drafting of the Nigerian Ship Detention Regulation. Nwabueze has a passionate interest in Alternative Dispute Resolution (ADR) as a viable mechanism for dispute resolution in commercial transactions.

Website esqlaw.net esqseminars.net Published by Legal Blitz Plot 2, Ayodele Fanoiki Magodo GRA Phase 1 Isheri, Lagos Nigeria Comments, advice and other enquiries to editor@esqlaw.net

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Editorial

Awakening the Sleeping Giant W

elcome to another edition of the ESQ Legal Practice Magazine, the magazine that keeps you abreast of happenings in the Legal and Business sector in Nigeria, the continent of Africa and beyond. In the last edition of The ESQ Legal Magazine, our focus was on investing in Africa, in the course of the eighty eight paged magazine, we x-rayed the prospects, opportunities and advantages of setting up shop in the continent of Africa, the new romance by the International Law Firms and the fears of the local players. As a follow up on this, in this edition we are considering the issues of Infrastructure Financing in Africa and the impact on both the international players and the local economy. According to Africa Infrastructure Diagnostic (AICD) (2009), the estimated financing requirement to close Africa’s infrastructure deficit amounts to USD 93 billion annually until 2020. Around $100 billion investment is needed every year to eliminate that deficit and bring African infrastructure to a level comparable with other developing regions. .Africa’s largest infrastructure deficits are found in: Power and roads. According to research from The World Bank Group (WBG), the 48 countries of

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sub-Saharan Africa (with a combined population of 800 million) generate roughly the same amount of power as Spain (with a population of 45 million). Also Only one-third of Africans living in rural areas are within two kilometers of an all-season road, compared with two-thirds of the population in other developing regions. It is therefore important for stakeholders in the Nigerian economy (the public sector, private corporations, regulatory bodies and well-meaning Nigerians) to work together. In recent years, the continent has witnessed rapid economic growth and a steady increase in business activities. Growth on the continent has been on an average of 5.5% in the last 10 years and this figure is expected to rise by an average of 6% over the next decade according to the United Nations Conference on Trade and Development (UNCTAD), Some financial experts are even more positive about Africa’s prospects. In the past, international players have been cautious about investing in Africa, issues like corruption, political instability and poor state of infrastructure has always been a major concern amongst international businessmen. This however may have dwindled due to the massive potentials in sight. As the eye of the international community focuses on Africa, we as a people and a govern-

ya marketed infrastructure bonds ment must have a responsibilto retail investors, including from ity to ensure that we create an the Diaspora. Islamic financial enabling environment for these instruments such as sukuk have international players. Even As been used to finance infrastrucinvestments in Africa increase, ture projects in countries such as another important area for Malaysia, Indonesia; Middle East government will be ensuring and most recently in Nigeria’s that legal mechanisms are as fair State of Osun. Also, in project fias possible. Nigeria and other nance, solutions to mitigate credit African countries have to find a risk could involve multilateral way of encouraging a movement partners. Statistics has shown that away from debt financing to medium and long-term credit more equity and risk investment. guarantees in Africa reached $9.1 As the eye of the global business billion in 2012. community business turns to this In this edition, we have feasleeping Giant, we must take it tured some of the brightest legal upon ourselves to create a level minds on some of these issues. playing ground for these interOne of Nigeria’s leading Infranational players. This will spur structure lawyer, Ayuli Jemide the foreign investors currently in takes us through the challenges the country to tell other potential and prospects of infrastructure investors about their positive financing in Nigeria. James experience engaging in projects Alabi who was recently on our in Africa. A very good examteam who accompanied other ple of this is The China-Africa delegates ona study tour of AbuDevelopment Fund, a subsidiDhabi during our Dubai Legal ary of the China Development and Business School recounts Bank; this is an initiative that has his memorable experience of already financed projects in more Masdar city, a place described by than 30 African countries. The many as the world’s greenest city. projects are estimated to bring We take a look at the origin, the further Chinese investments in master plan and the lessons AfAfrica. Some experts believe that rican nations can learn from this this must have contributed to multi- billion dollar city in terms the President Obama’s recent of funding and infrastructural initiative, “Power Africa” which development aims to double electricity access The magazine also pays a in sub Saharan Africa (SSA) and the recently introduced bipartisan glowing tribute to an African hero, the late H.O Davis QC while legislation: the Electrify Africa also presenting ESQ Role Model Act of 2013 which is expected to Award recipient, Gbolahan Elias champion a strategic approach to SAN as our African Star. support affordable and reliable With Jerome Finnis, Of Counelectricity in Sub-Sahara Africa sel at Hogan Lovells LLP UK, (SSA). One of the goal of this looking at the prospects of deal project is to provide access to lawyers in Africa and Justina more than 50 million people by Lewa, General Counsel and installing at least 20,000MW of Company Secretary of Sterling additional generation capacity Bank Plc taking us into the world by 2020. The act would require of In-house Legal Counsels while action from a number of U.S. giving us insights into the role institutions, including the U.S. and the complexity of risk manAgency for International Develagement. This edition will surely opment, the Overseas Private make an interesting read for you. Investment Corporation, and the So why not sit back relax as Trade and Development Agency, we take you on a legal journey and would encourage the World through Africa’s biggest econoBank to increase electrification my, looking at its bright future investments in SSA. and possibilities, general counsels Untapped sources of fundand how they seek to add value ing are also relevant. The use to businesses, a quick adventure of Diaspora bonds like those into the entertainment world and issued in Ethiopia as well as the placement of infrastruc- not forgetting incisive interviews ture bonds to the Diaspora with some of the brightest minds in the legal profession around the like those in Kenya that continent. are being explored by Once again, Welcome to other African counedition tries. For instance, Ken- E Sanother Q LEG A L Pof R ESQ A C TLegal ICE 9

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Article

Synopsis Of The Nigerian Oil And Gas Industry Content Development (Amendment) Bill 2015 Introduction Between June 2 and June 5, 2015, employing an unprecedented process of concurrence, the Senate fast tracked the passage of forty-six (46) bills (covering a wide range of subjects), already considered and passed by the House of Representatives. One of the major bills passed by the 7th Assembly of the National Assembly by the above mentioned novel process, was the Nigerian Oil and Gas Industry Content Development (Amendment) Bill, referred to as the House of Representatives Bill, HB 452, (“HB 452” or the “Bill”). w w w.esqlaw.net

HB 452 was introduced in 2013, into the House of Representatives by Hon. Asita Hounorable, then Chairman of the Local Content Committee of the House of Representatives. The said Bill had undergone a first reading in the House of Representatives at the end of February 2013 and a second reading in March 2013. Thereafter, in July 2013, the Bill was subjected to public hearings, after which stakeholders’ perspectives and contributions to the Bill were collated. The Bill then remained under consideration by the Local Content Committee of the House of Representatives, until June 2, 2015, when it underwent

third reading and passage by the House of Representatives. Thereafter it was transmitted to the Senate where, together with forty-five (45) other bills it was passed without any deliberation. The Bill is currently awaiting presidential assent. Objective The enactment of the Nigerian Oil and Gas Industry Content Development Act, No. 2 of 2010 (the “NCA”) in April 2010 has been praised as one of the most significant achievements of the Jonathan administration and there are countless reports of gains realized in terms of

local content since the enactment of the NCA. However, both operators and practitioners have continually expressed their discontent with numerous challenges encountered during the implementation and enforcement of the NCA. The main challenges include, on the one hand, time limits for waivers and thresholds for Nigerian content in certain sectors which now appear unachievable based on existing commercial and economic realities; and on the other hand, ambiguous and seemingly conflicting provisions in the NCA which have created loopholes and compelled the Nigerian Content Development Monitoring Board (“NCDMB”) to expend significant effort in issuing clarifying regulations. Notwithstanding the foregoing challenges, the explanatory memorandum of the Bill however identifies its main purposes as, extending the waiver window, removing difficulties of access to funding and correcting an obvious heading error. We have presented a brief synopsis of the key amendments sought to be introduced by the Bill. ESQ LEGAL PRACTICE 11

Article The Bill On a preliminary note, it would appear, from our review of the Bill that although the header of the Bill suggests that it is an amendment bill, same will best qualify as a “restatement” bill. Strictly speaking, a restatement bill should repeal its predecessor but this one doesn’t. Where this Bill is assented to in its present form, there exists the risk of inconsistency between the provisions in the extant Act and those of the restated Act, which will then trigger the application of the doctrine of implied repeal of provisions of the extant Act that are inconsistent with those of the restated Act. Alteration of Limited Waiver Provisions The extant NCA grants the Minister1 the discretion to grant a waiver to an entity to import relevant items2 for a maximum period of three years from the commencement of the NCA within which time, local capacity is expected to have been built in the relevant area. However, the Bill has introduced a welcome change by deleting a specific timeframe within which a waiver for continued importation of relevant items can subsists. Indeed, Section 11(4) of the Bill charges the Board with the responsibility of making a recommendation to the Minister for approval in instances where the Board is convinced that an entity lacks adequate capacity to meet any of the minimum Nigerian/local content benchmarks in relation to any of the items set out in the Schedule to the Act. In order to guide against arbitrary abuse of the powers granted to the Board to make recommendations and/or to the Minister to grant waivers, under the said section, the Bill further seeks to introduce a Capacity Development Initiative (‘CDI’), which every entity seeking authorization to import certain relevant items must submit and get approval for before they can import the items3. The CDI must contain an intention of the applicant entity to develop the relevant capacity in Nigeria. Approval for continued importation of relevant items is not granted as a matter of course but is predicated on the satisfaction of certain requirements which include: (i) Advertisement of the need for such goods and services, the

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description of same, relevant category in the Schedule to the Act, the quantity required and when it is required must have been made on the Joint Qualification System (JQS) not less than 30 days before submission of the application to the Board4; (ii) Evidence of lack of capacity in-country within the duration of the project for which the goods and services are required5; (iii) Submission of a detailed CDI or collaboration plan with an existing CDI indicating the CDI Sponsors, existing in-country capacity, list of stakeholders including technical partners and their roles, expected outcomes, timing of the project, indicative cost and other relevant information as may be required by the Board which relates to the item to be imported6; and 1 Minister for Petroleum Resources. 2 The NCA does not specifically define what “relevant items” are but a community reading of the NCA suggests that it relates to goods and services which might be required by operators, contractors, subcontractors and other entities in the Industry 3 Section 11(4) of the Act. 4 Section 11(4)(a) 5 Section 11(4)(b) 6 Section 11(4)(c) (iv) any other conditions as may be prescribed in the guidelines to be issued by the Board7. By virtue of the provisions of Section 11(5), the Bill seeks to charge the Board with the responsibility of convening a stakeholder’s meeting before January 31st of each year with a view to determining areas of inadequate capacity within the Industry and agreeing on CDIs to upgrade existing capacity or develop new capacity in specific areas of demand for the Industry. Clearly, this provision constitutes one of the additions to the Act, which would help to facilitate the implementation of the CDIs, fortify and expand the capacity found within the industry amongst Nigeria indigenous companies.

provisions for the screening and ranking of qualifying capacity development initiatives from indigenous Nigerian Companies for financing support by the Nigerian Content Development Fund8. This is however contained in the Bill and same would help in determining which indigenous Nigerian CDI is most suitable for financial support in order to develop and or increase capacity in certain areas of need or demand in the Industry. The Bill seeks to establish a standing committee of the NCCF, provide for the membership constitution of the committee and charge the committee with the functions set out in Section 104(4)(a). Procedure and Criteria for disbursement of Funds from the ‘Fund’ Another proposed amendment to the NCA is an introduction of a proviso to Section 104(3), which delimits and prescribes the percentage of the Fund which the Board can: (i) appropriate to discharge its functions (a maximum 10% of the Fund in any year for the operations of the Board (inclusive of General and Administrative expenses whether as operating or capital expenditure))9; and (ii) disburse to Nigerian Indigenous Companies for incountry capacity development, (a minimum of 70% of the Fund to be used for long-term, low cost asset acquisition, infrastructure or facilities development support, equity investment, direct grants for in-country Research and Development (R& D), technology acquisition and in-country manufacturing10). Additionally, the Bill in Section 104(4) provides modalities and criteria, which will govern

application for funding support, evaluation and disbursements of funds11. The Bill also provides that the NCCF Standing Committee shall evaluate all proposals for capacity development funding support from Nigerian Indigenous Companies12 while in each quarter, the qualifying proposals shall be forwarded to the Executive Secretary of the Board for processing and disbursement.13 7 Section 11(4)(e) 8 Section 57 of the Act. 9 Section 104(3)(a) of the Act. 10 Section 104(3)(b) of the Act. 11 Section 104(4) of the Act. 12 Section 104(4)(a). The proposals are to be evaluated based on established selection and ranking criteria and then the NCCF will recommend qualifying CDI applications for funding on a quarterly basis. 13 Section 104(4)(b) of the Act. The Proposals are selected from the screened and ranked list of Proposal. Furthermore, the Bill provides that a half yearly disbursement report specifying beneficiary companies, amounts disbursed, recovery-to-date, assets acquired and infrastructure/facility developed shall be published in the JQS and at least two national newspapers14; and any of funds, which are not spent in any one year may be allocated and disbursed in the succeeding years 15 Definition of ‘Nigerian Indigenous Company and ‘Operator’ Another important addition, which the Bill seeks to introduce into the NCA is the definition of the phrase “Nigerian Indigenous Company”. Though the “Nigerian Indigenous Company”, as mentioned in the preceding section, was used in the Act, it was not defined anywhere throughout the NCA

Scanning and ranking of qualifying CDIs/Standing Committee of NCCF Although the NCA set up the Nigerian Content Consultative Forum (NCCF) for information sharing and collaboration in the Industry, same made no w w w.esqlaw.net

Article

and thus became a subject of many interpretations. “Nigerian Indigenous Company” is defined in the Bill as a company which: (a) Entire issued share capital is owned by Nigerians; (b) Board of Directors comprises only Nigerians. (c) Own all its assets. The Bill retained the definition of “Nigerian Company” as “a company formed and registered in Nigeria in accordance with the Companies and Allied Matters Act, with not less than 51% equity shares by Nigerian”. Clearly, the Bill seeks to provide a distinction between a ‘Nigerian Indigenous Company’ and a ‘Nigerian Company’, probably in an attempt to provide better guidance and perspective to the specific category of companies that Sections 3(2), 16, 41 and 49 (amongst others), of the NCA apply to. However, the Bill still contains inconsistent versions of this term as the substantive provisions of the Bill still contain terms like “Nigerian indigenous service companies” and “Indigenous companies”. The term Nigerian Company is still not used in the substantive provisions of the Act even though it is defined. More importantly, it will appear from the definition of ‘Nigerian Indigenous Company’, that corporate entities which have hitherto benefitted from the interpretation of Section 3(2), 16 and 41 of the NCA to mean ‘Nigerian Company” (which had a lower qualifying threshold than what is specified in the Bill), will now be precluded from benefitting from the provisions of the above sections w w w.esqlaw.net

in relation to their consideration for contracts and/or their bids. Also, under the NCA, an ‘Operator’ was defined as: “Nigerian National Petroleum Company (NNPC), its subsidiaries and joint venture partners and any Nigerian, foreign or international oil and gas company operating in the Nigerian Oil and gas industry under any petroleum arrangement”; whilst the Bill defines “Operator” as “Nigerian National Petroleum Company (NNPC), its subsidiaries and joint venture partners and any Nigerian, foreign or international oil and gas company operating in the Nigerian Oil and gas industry or using hydrocarbon as main input under any petroleum arrangement, contract or business venture”. 14 Section 104()4(c) of the Act. 15 Section 104(4)(d) The additions to the definition of the term “Operator” appear to clarify speculations, which had hitherto hovered around the interpretation of the phrase “petroleum arrangement”. This new definition is now clearly wide enough to accommodate virtually every company whether foreign or Nigerian that is operating in the Nigerian Industry. Conclusion The amendments proposed to the NCA are very minimal and only relate to a few sections of the NCA as already observed above. We are of the opinion that a holistic review of the extant Act in order to address several challenges identified by operators and practitioners would have been more useful. In summary, though the

Bill (if assented by the President) confirms the resolve of the Nigerian government to increase and enforce involvement, utilization and participation of Nigerians and Nigerian indigenous companies in the Nigerian oil and gas industry, it still retains most of the ambiguity occasioned by the inelegant drafting of the NCA and we are certain, as the participation of Nigerians in the sector matures, there will be more and more amendments to the NCA. Finally, it is noteworthy that by Section 58(5) of the Constitution, where a bill is passed by both Houses in the National Assembly, the President must, no later than 30 days from the passing by the latter of both houses, either assent to the relevant bill or withhold his

assent from same. Where the President withholds his assent, the bill must then go back to each House. Where the relevant bill is again passed by twothirds majority of each House in the National Assembly, the bill shall become law and the assent of the President shall not be required. Thus, where 30 days expires before the President can assent to the Bill, there is likelihood that same will have to be re-considered afresh by the newly constituted members of the House of Representatives and Senators, since the Bill was passed during the last dispensation. Where this is the case, hopefully, some of these persisting grey areas can now be finally put to rest.

Banwo & Ighodalo Banwo & Ighodalo (“B&I”) is a full service commercial law firm known for providing innovative, competent, cost-effective and well-timed solutions. B&I is frequently ranked as one of the leading law practices in Nigeria and the Firm has advised, and continues to provide legal advisory support in its chosen areas of practice. Contact Persons

Stella Duru, sduru@banwoighodalo.com

Toyosi Alasi, talasi@banwoighodalo.com ESQ LEGAL PRACTICE 13

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News

MIRIAN KENE KACHIKWU takes up more challenging role as General Counsel of an Oil and Gas Company listed on the NSE and LSE

eplat Petroleum Development Company Plc, a company listed on the Nigeria Stock Exchange and the London Stock Exchange, has appointed Dr. Mirian Kene Kachikwu as its new General Counsel and Company Secretary. Mirian is an entrepreneurial, results-oriented General Counsel and Business Executive with extensive experience analysing structuring, negotiating and closing sophisticated commercial transactions. She is versatile with a 14 year career as a top-tier senior legal counsel at Shell in the UK where she was involved in several high value strategic matters including joint operating agreements, production sharing contracts, joint venture agreements, renewable energy projects, electricity and gas marketing in the UK, global procurement, multi-billion dollar multi-jurisdictional corporate restructuring projects, multimillion pound construction projects, global insurance and reinsurance programmes and regulatory compliance issues. In May 2013, she became the General Counsel for West and Central Africa at ABB in Nigeria, responsible for Legal and Integrity matters and

commercial risk management forNigeria, Cote d’Ivoire, Senegal, Cameroon and Ghana. As part of the Management Team and Company Secretary of ABBNG Limited, she was a key contributor to the development and implementation of the Company’s business strategy & vision and provides day-to-day guidance on issues relating to legal, integrity, legislative/regulatory adherence & compliance, and commercial risk management to the ABBNG Management and the Regional Leadership Team. She played this role till September 2014 before she took up her new role from November 1 2014. As a Chevening scholar, she obtained a Ph.D. in International Investment and Natural Resources Law and Policy and has published, from a multidisciplinary perspective, numerous papers in reputable international journals and books. Mirian is a strategic and analytical problem solver who focuses on the overall picture to ascertain strategic business direction. She proactively formulates risk mitigation strategies that protect corporate capital and profitability. Her greatest strengths & achievements lie in her

ability to apply strong analytical skills to the most complex issues while proposing innovative & strategic solutions. She is highly motivated and passionate about the development & empowerment of people and enthusiastic about being a mentor & coach. With an effervescent personality, she

has a natural ability to bring people together, developing good & trusting relationships with people at all levels Mirian took over the role of Company Secretary at SEPLAT from Mr. Isaiah Odeleye who remains the General Manager, Legal of the company.

MS. ADEFUNKE ADEYEYE steps in as Senior Commercial Legal Manager

uinness Nigeria Plc (a Diageo Company) has added another intellectual to its staff strength as Adefunke Adeyeye, the former Company Secretary and Head of Legal of the Silverbird Group, became its Senior Commercial Legal Manager. Adefunke started her legal career as associate at the Adepetun, Caxton-Martins, Agbor and Segun before

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proceeding to George Etomi & Partners, where she had a robust practice for two years and five months before she moved to Silverbird Group in 2009 to set up its Legal Department. She took up the position at Guinness Nigeria Plc in November 2014 following the former legal adviser, Tony Bassey’s move to start up his own practice in September 2014.

ESQ LEGAL PRACTICE 15

News

TONY BASSEY bows out of GUINNESS NIGERIA PLC to set up private practice

ony was, until September 2014, the Legal Adviser of Guinness Nigeria Plc and Diageo Brands Nigeria Limited. Prior to his elevation to the position of Legal Adviser, he was the Commercial Legal Counsel of the Company from 2010-2011. Tony joined Guinness Nigeria after two stints at Equity Assurance Plc, where he held the position of Assistant Company Secretary, Controller Legal Services (Head of department) & Chief Compliance Officer (Feb. 2008 – Dec 2009) during the second stint and held the position of Assistant Manager, Legal/ Personal Assistant to the Managing Director from 2004 to 2005 during the first stint where he also acted as the Company Secretary for Energy & Special Risks Insurance Company Plc. His law career started in 2000 as an Associate in the law firm of G. A. Ikott & Co. in Eket, Akwa Ibom State, after which he undertook

the mandatory National Youth Service Corps scheme as a Legal/ Administrative Assistant in the Joint Interest department of Mobil Producing Nigeria Unlimited (ExxonMobil) between 2001 and 2002. He worked as an Associate in the firm of Iniedu & Associate from 2002 to 2004 before joining Honeywell Group Limited as Manager, Legal Services where he worked from 2005 to 2008. Tony Bassey obtained his Bachelor of Laws degree (LLB) from the University of Uyo in 1998 and was admitted to practice law as a solicitor and advocate of the Supreme Court of Nigeria after successfully passing the Nigerian Bar examinations in the year 2000. He is an Associate of the Institute of Chartered Secretaries and Administrators (ICSA) and holds a joint Certificate on Negotiation and Leadership from Harvard Law School and Massachusetts Institute of Technology (MIT).

AIICO INSURANCE PLC’s legal department thrives under MR. DONALD KANU

IICO Insurance has since January 2014 had a new Company Secretary and Legal Adviser. Donald Kanu, the new head of the legal team, is an alumnus of the University of Calabar having bagged his LLB and MBA from the University and an LLM from the University of Lagos. With experience that has spanned through banking sector, telecommunication sector and nine years in the insurance sector, Donald has been described as highly focused and results driven, hardworking, diligent, dependable and has indepth knowledge in ‘Life Underwriting’ and Claims Process. ESQ wishes him the best in this new feat.

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News

TAMARA EGBEDI moves on to new Corporate Counsel role with Multinational Company, SPECTRUM GEO

pectrum Geo, an established key player in the seismic services market with headquarters in the United Kingdom, has recently appointed former Legal and Contracts Advisor of Subsea 7 in Nigeria, Tamara Egbedi, as its Legal Counsel/Contract Manager, Europe, Africa, Mediterranean and the Middle East (EAME). An experienced lawyer with international exposure and expertise in Commercial Contracts, Compliance, Risk Management, Corporate, Upstream, Maritime, Energy, Corporate Social Responsibility (CSR), Offshore Resources and Local Content Laws in the Oil and Gas industry gained in global Groups (in Nigeria, Angola, Mozambique, Ghana and UK) and AELEX, one of West Africa’s leading law firms, Tamara’s years of experience since she was called to the Nigerian Bar in 2006 makes her fit for this new position. Her new position requires

that she provides continuing support and guidance on company legal matters, including the analysis of legal implications relating to new projects, contracts and other strategic initiatives; support the regions in the various contracts negotiations, mediation and implementations with various governments officials, government agencies, IOC’s, NOC’s, oil and gas operators and contractors in frontier countries in particular; identify and manage all risks (political, regulatory, compliance) associated with Spectrum business; develop and assist on compliance initiatives((Anticorruption, Anti-bribery, Ethics and Corporate Compliance etc) related to business partners, suppliers, consultants, agents etc. and ensure compliance with respective in-country regulations; Develop and maintain relationships with law firms and any relevant third parties/ stakeholders involved in legal and operational activities in all the regions.

NNPC Company Secretary Returns to ADVISORY LEGAL

rom a leave of absence from the Firm during which he served as the Coordinator, Legal Services (General Counsel) and Company Secretary at the Nigerian National Petroleum Corporation (NNPC). His experience overseeing the legal affairs of one the largest national oil companies in the world and advising on a multiplicity of complex projects, transactions and disputes involving NNPC will definitely bring a unique perspective to the firm’s specialism. Ike Oguine has more than 25 years of experience in the oil and gas industry having spent over 20 years as inhouse counsel with Chevron, rising in January 2008 to General Counsel for Chevron’s Nigeria and Mid-Africa Business Unit (covering Nigeria, Benin, Chad, Cameroun, Ghana, Liberia and Togo), and director of Chevron’s 16 w w w.esqlaw.net

companies operating in the Business Unit. For 4 years, Ike served as a member of the leadership team for the Business Unit dealing with a host of management and strategic matters. Armed with LLB and LLM from University of Nigeria, Nsukka and University of Jos respectively and many years of experience, Ike advised on Chevron’s entire spectrum of oil and gas transactions and operations. He was Chevron’s Lead Counsel for the West African Gas Pipeline (“WAGP”) Project – the first and only gas pipeline in West Africa constructed across 4 countries, the Escravos Gas to Liquids (“EGTL”) Plant, the Brass LNG Project and the OKLNG Project. He also advised on several acquisitions and disposals of assets, including the transfer of Chevron’s interest in Brass LNG to Total, and was counsel to Chevron

in the Chevron-Texaco merger in Nigeria. Notably, he was Chevron’s representative on the working group composed of industry representatives and external consultants that developed the framework for domestic gas aggregation in Nigeria and a model Gas Sales and Purchase Agreement for use by the industry. During his tenure as chair of the legal committee of the Oil Producers Trade Section (“OPTS”) of the Lagos Chamber of Commerce, Ike worked closely with all the petroleum majors in Nigeria as well as several independents. He participated in legislative policy formulation and led advocacy efforts with executive and legislative officials in Nigeria and government officials in various agencies across the West African sub-region from Ghana to Chad to Cameroun as well as with regional bodies such as ECOWAS and the

West African Gas Pipeline Authority. He led several negotiations with communities close to the petroleum producing areas of Chevron and worked closely with government officials on security, community issues, labour disputes, land acquisition and compensation. In recognition of the depth of his experience in oil and gas matters, Ike was appointed in April 2014 by the President of Nigeria to serve as the Company Secretary/Legal Adviser to the Nigerian National Petroleum Corporation (NNPC). He held this position till May 2015. ESQ congratulates Ike on his accomplishments at the NNPC and look forward to his several accomplishments in this new phase

ESQ LEGAL PRACTICE 17

News

Templars advises Eroton on its US$1.2 billion acquisition of 45 percent interest in oil mining lease Templars has advised Eroton Exploration & Production Company Limited (“Eroton”) in connection with their acquisition of a 45 percent participating interest in Nigerian oil mining lease (OML) 18 and related facilities in the Eastern Niger Delta from joint venture partners Shell Petroleum Development Company (30%), Total E&P Nigeria Limited (10%) and Nigerian Agip Oil Company Limited (5%).

ML 18 covers an area of 1,035 square kilometres and includes the Alakiri, Cawthorne Channel, Krakama, and Buguma Creek fields and related facilities. The fields produced on average around 14,000 barrels of oil equivalent per day in 2014, and the related facilities include flow stations together with associated gas infra-

structure plus oil and gas pipelines within the OML. The US$1.2 billion acquisition was part of a series of similar divestments by Shell, Total and Agip following their strategic review of their respective onshore portfolios in Nigeria. The transaction was also in line with the Nigerian Government’s initiative to increase and

Director at DDKK Attorneys wins LexisNexis prize

the benefits of a marriage in community of property, or alternatively, the right to share in the accrual. Substantial misconduct on the part of a spouse is, however, only one of the factors that the court may take into consideration in this regard,” she wrote.

Magdeleen de Klerk, Director at DDKK Attorneys

agdeleen de Klerk, a director at DDKK Attorneys Incorporated in Polokwane, has won the 2014 LexisNexis Prize for Legal Practitioners. Magdeleen de Klerk, director at DDKK Attorneys The award recognises the best article by a practising attorney published in De Rebus, the Law Society of South Africa’s official journal of the attorneys’ profession. Her article, entitled ‘Fair Divorce: Misconduct Does Not Play a Role in Forfeiture Claims’, challenges the misconception that misconduct in a marriage justifies the forfeiture of benefits. “There is a general misconception in divorce litigation that a finding of ‘substantial misconduct’ on the part of a spouse who, for example, had extra marital affairs, justifies an order for forfeiture of 1 8 E S Q L E G A L P R A C T I C E

Substantial misconduct “I have noticed that the concept was misunderstood by some of my colleagues and even judicial officers. I wanted to share this knowledge in this regard with my colleagues and if possible shed some light on the subject,” De Klerk said. “Even if substantial misconduct is proved, forfeiture will not be granted (against the alleged ‘guilty’ party) if he/she has contributed.” The winner of the 2015 LexisNexis prize for the best article contributed to De Rebus by a practicing attorney will receive a Lenovo Tablet, as well as 12 months free access to LexisMobile, the electronic loose-leaf solution which was a runner-up in the 2014 MTN Business App of the Year Awards. Interested attorneys are encouraged to send in an article not exceeding 2,000 words in length and should comply with the general De Rebus publication guidelines. The article must be published between 1 January 2015 and 31 December 2015.

develop the active participation of Nigerian companies in the country’s upstream oil and gas business. The acquisition was financed in part by equity and in part by an inspired trade-backed US$663m seven-year syndicated reserve-based lending (SRBL) arranged by Afreximbank, with Shell Western Supply & Trading, the Africa Finance Corporation and five Nigerian banks as lenders. The financing for the acquisition has won multiple awards including the Trade and Forfaiting Review Deal of the Year 2014 and the Trade and Export Finance journal’s “Most Innovative Commodities Finance Deal of the Year 2014”. Although the financing was completed in the second half of 2014, the transaction only received final regulatory approvals in 2015. The financing was innovative in a

number of ways including the use of letters of credit rather than cash balances to satisfy escrow requirements pending regulatory approvals, and the use of a bespoke insurance tool to cover the risk of non-renewal of the OML for the last two years of the seven-year facility. The transaction also involved a hedge mechanism put in place through an embedded pricing structure in the off-take arrangements. The Templars teams on the acquisition and financing work streams were led by Energy partner Oghogho Akpata and Finance partner Chike Obianwu, assisted by senior associates Oladiran Ajayi (Energy) and Temple Uchegbune (Finance), and associatesMojisola Fashola, Frances Emembolu, Osayi Ogbeta, Zion Adeoye, Alex Ezenagu, Ivie Omoregie and Modupe Dabiri

Immigration Bill signed into Law by the President

he Immigration Bill 2014 was passed into law recently, further to the issuance of the Presidential assent. The new law called the Immigration Act 2015 (‘the Act’), seeks to incorporate various changes in the functions and activities of the Nigerian Immigration Service that have evolved over time and it repeals the Immigration Act 1963. The Act contains new provisions affecting the practice and procedure of the issuance of passports, visas, work and residence permits. The Act also addresses matters relating to: • Migration to Nigeria; • Provision of remedies to issues arising from the smuggling of persons across bor-

ders and the proper penalisation of illegal migrants; • Domestication of the United Nations Protocol Against Smuggling of Migrants, supplementing the United Nations Convention on Organized Crime (the Palermo Convention), which Nigeria has ratified, to enable the Nigerian Immigration Service effectively combat the menace of illegal migration, along with other attendant trans-border crimes; It is expected that the Act will lead to the adoption of more modern processes by the Nigerian Immigration Service. A detailed analysis of the Act shall be circulated at the earliest. w w w.esqlaw.net

News

ZIRCON MARINE LIMITED appoints DAYO OKUSAMI as Executive Director and General Counsel

r. Dayo Okusami resigned from his position in May 2015 as General Counsel and Company Secretary of Atlantic Energy Drilling Concept Limited to take up a more challenging role as Executive Director and General Counsel of Zircon Marine Limited. Dayo began his legal career at the law firm of F.O. Akinrele in 2001and moved to theEnergy and Project Practice Group at Templars, a leading commercial law firm inNigeria as Senior Associate, where he rose to become the youngest partner in 2009. He became Group General Counsel and Company Secretary of Atlantic Energy in 2011, a position he held till May this year when

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he moved to Zircon Marine Limited. Recognised as one of Nigeria’s leading oil and gas lawyers by the premierinternational directories ranking oil and gas lawyers including the “Legal 500” -The Clients Guide to the World’s Leading Law Firms and Lawyers (2009 - 2012); the”International Who’s Who of Oil & Gas Lawyers” (2010 & 2011) and the “IFLR 1000” -The Guide to the World’s Leading Financial Law Firms (2012), Dayo speaks and facilitates on Nigerian Oil and Gas law at both domestic and international conferences and trainings. He is also one of the judges in upcoming ESQ Nigerian Legal Awards.

ESQ LEGAL PRACTICE 19

Article

Developments In Nigerian Immigration Law D

ue to its economic potential, Nigeria has over the years been regarded as an investment hot spot for foreign investors and this investment interest has increased with the recent rebasing of Nigeria’s economy and its current ranking as the largest economy in Africa. It is therefore only natural that with the increase in investment by foreign multinationals, the number of expatriates living and working in Nigeria has also increased placing a regulatory burden on the Nigerian Immigration Services (NIS) the body tasked with regulating the movement of aliens in Nigeria. The NIS has over the years been accused of producing ambiguous regulations which lengthen visa processing times for expatriates thereby creating a clog in the wheel of doing business in Nigeria. In a bid to ddress the ambiguities and adopt global best practices with respect to visa applications and issuance, the NIS has recently introduced reforms which are expected to enhance operational performance for the issuance of visas

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to expatriates and ensure compliance by both expatriates and Multinational corporations (MNCs). Of the several operational reforms introduced by the NIS, we shall in this article discuss three of the said reforms which we believe have a direct impact on MNCs and their foreign employees wishing to reside and work in Nigeria. The operational reforms are as follows: Abolition of Re-Entry Visas Prior to the reforms, the Reentry visa was a pre-requisite for all expatriates intending to reside and work in Nigeria under valid expatriate quotas and it enabled such expatriates to freely exit and re-enter the country at any time during the validity of the Combined Expatriate Residence Permit and Aliens Card (CERPAC) granted to the expatriate. By virtue of the recent reforms announced by the NIS owever, from the 6th of April 2015 ReEntry visas will no longer be required for the purposes of an expatriate’s re-admittance into Nigeria. The only requirement for readmittance would be the possession of a valid CERPAC in addition to other valid travel

documents where applicable. The directive issued by the NIS states that expatriates holding valid temporary CERPAC receipts purchased prior to the 6th April, 2015 deadline would be permitted to enter the country without a re-entry visa for a period of 90 days within which they are expected to process and obtain their CERPAC cards. Likewise, expatriates who apply for and obtain temporary CERPAC receipts after the 6th of April, 2015 deadline will be permitted to enter the country without a re-entry visa for a period of 90 days within which they are expected to process and obtain their CERPAC cards. However, as with all rules, there are exceptions and this particular reform guideline does not apply to persons deemed as “Special Categories Residents”; this group includes Diplomats, Government officials and Minors. The guidelines applicable to this category of residents are as ollows: • Accredited Diplomats: Accredited Diplomats serving in foreign missions in Nigeria are not

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required to hold CERPACs consequently; they will continue to enjoy issuance of Re-Entry Visas during the pendency of their accreditation. Note however, that such Re-Entry visas are to be validated by a specially designed security stamp issued by the NIS. Furthermore, Re-Entry Visas will be issued to the dependants of accredited Diplomats in appropriate circumstances. In instances where dependants’ names do not appear on the diplomatic list, such dependants would be required to purchase CERPACs. Government Officials: Foreigners who are employees of educational institutions, Federal, State or Local Governments and who possess verifiable contracts of employment will be required, after due regularization to have the word “GO” endorsed on their passports indicating the validity period of their contracts. This endorsement shall suffice for the purposes of exiting and w w w.esqlaw.net

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re-entering the country, thereby negating the need for the application and or issuance of Re-Entry Visas. Please note that the applicability of this provision does not extend to spouses of Government officials and their dependants who are aged sixteen and above, as they would still be required to purchase CERPACs. Niger Wives/Persons on Special Immigrant Status: Foreign women who are married to Nigerian men or vice versa are no longer required to obtain Re-Entry Visas for the purposes of entering the country. The endorsement of “Niger Wife” or “Special Immigrant Status” on their passports will suffice for the purposes of re-entering the country. Minors: Minors, for the purposes of Nigerian Immigration laws are children between the ages of 0 to 16 years. For the re-entry of minors into the country, the endorsement “MINOR” on the passport of the child will suffice for the purposes of

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their re-entering the country, provided that the principal immigrant taking immigration responsibility for such minors has provided their names and other passport details during the processing of their (principal immigrants) CERPAC. Expatriate Staff of International Non-Governmental Organizations: Expatriates who are staff of International Non-Governmental Organisations (INGOs) will continue to use Re-Entry Visas for the purposes of re-entry into Nigeria. Such expatriates will continue to be issued with Re-Entry Visas within the validity period of their contracts. Crew Members: Crew members of aircrafts seeking permission to land in Nigeria or vessels seeking permission to berth in Nigeria for the purposes of carrying out specialized tasks within the aircrafts or vessels will continue with the usual practice, that is, they will be issued with Temporary Work Permits or Visas through the Visa on Arrival procedure at the NIS headquarters subject to the approval of Comptroller General of the NIS. Special Circumstances: There may be circumstances whereby an expatriate visiting Nigeria on a Business Visa or Temporary Work Permit intends to travel out of Nigeria prior to his final departure from Nigeria. Such departure from Nigeria may be on an emergency; to return with spare parts, medical evacuation or to visit a neighboring country with a view to returning before the expiration of his visa or permit to legally be in Nigeria. In these circumstances, the expatriate needs only procure prior approval from the office of the Comptroller General of NIS for Visa on Arrival Facility and consequently would not require Re-Entry Visa to re-enter Nigeria.

VISA ON ARRIVAL FOR BUSINESS TRAVLERS AND

INVESTORS In a bid to streamline and improve on its operational efficiencies, the NIS has also introduced Visas on Arrival (VOA) for business visitors and investors. Whilst the VOA is not a totally new concept to Nigerian immigration laws, it was previously only granted crew members of aircrafts and vessels. Under these new reforms however, business travellers and investors will now be able to obtain VOA into the country as opposed to applying for visas from their respective countries of residence. Whilst the procedure for the grant of a VOA in Nigeria does not differ much from the consular based business application process, there are a few additional requirements that business travellers who hope to receive these visas will have to fulfill such as obtaining prior approval from the NIS. In order to obtain such approval, the intended traveller is expected to forward the standard business visa documentation including an invitation letter from a company registered in Nigeria, a support letter from the inviting company indicating acceptance of immigration responsibility for the visitor, a copy of the visitor’s passport biography page, the certificate of incorporation of the inviting company and evidence of payment of the visa fee, to the NIS in Abuja. Upon approval of the application, the NIS will issue an approval letter to the inviting company who will in turn send the letter to the business traveller ahead of his/her arrival to the Nigerian port of entry. The processing time for the NIS to issue such an approval is 5 business days. Upon entry into the country, the traveller will be granted the business visa which is valid for a 90 day period with the possibility of being extended for another 90 days. MNCs and business travellers intending to take advantage of this new VOA policy are however advised to note the following: • As with the business visa obtained from a consular office, the VOA does not entitle the traveller to work or take up employment in Nigeria.

The allowable business activities remain the same and are limited to attending trainings, business meetings or discussions, attending seminars/conferences or “fact-finding” meetings. • The VOA still requires approval from the NIS just as how a consular application requires approval from its head of visa services. As such, the process is not that more expedited than a consularapplication as it is still subject to an approval process whichaccording to the guidelines takes 5 working days. Business travellers may still be subjected to a further interview at the port of entry into Nigeria and it is possible that some travellers may be denied entry into the country. INTRODUCTION OF A NEW CERPAC DESIGN In February, 2014 the NIS issued regulations with respect to its issuance of a new Combined Expatriate Residence Permit and Alien Card (CERPAC). The new CERPAC was released by the NIS in order to address the issues with the old CERPAC as well as introduce a new enhanced embedded security feature which enables the NIS to easily identify and track foreign residents in Nigeria. Another feature of the new CERPAC is the fact that it is now valid for 2 years and can be renewed for another 2 years as opposed to the validity period of the old CERPAC which is just 1 year. The NIS had set April 31st 2014 as the deadline for all holders of the old CERPAC to change to the new, failing which any defaulting expatriate could be deported from the country. We believe that the old CERPAC would have been completely phased out and all expatriates residing and working in Nigeria would be in possession of the new CERPAC. In conclusion, we are hopeful that these reforms will bring about greater efficacy to the processing of immigration related applications, the monitoring of expatriates and reduce the bureaucratic bottlenecks governing the residence of expatriates in Nigeria. ESQ LEGAL PRACTICE 21

Article

Air carrier liability: A Nigerian perspective

he aviation industry has evolved from a means of transportation into a vehicle of commerce with great benefits to economic growth. In view of this pivotal role, ensuring aviation safety is paramount. The need to provide adequate compensation for air travellers in the event of damage to their person or luggage – while also preventing excessive or spurious claims against aviation operators – has led to the development of an international regime regulating the quantum of liability borne by air carriers in the event of accidents and the consequent harm to passengers and their luggage. This update outlines Nigeria’s compliance with international regulations regarding air carrier liability. Air carrier liability The Warsaw Convention was the first attempt to determine specific limits on the liability of an air carrier; however, the limits set by the

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convention were perceived as insufficient and incompatible with prevalent realities. A series of protocols, policies and conventions followed, with the Montreal Convention of 1999 resolving many of the concerns that had plagued the Warsaw system. Nigeria ratified the Montreal Convention and adopted its provisions into national law by virtue of Section 48 of the Civil Aviation Act 2006. Thus the convention, to the extent of its ratification through the act, governs the rights and liabilities of carriers, passengers, consignors, consignees and other persons, and applies to both international and domestic carriage. The liability of a carrier for damage sustained in cases of death or bodily injury of a passenger is based on the condition that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking

or disembarking. The compensation payable by an air carrier in the case of death or injury of a passenger is limited to $100,000; the compensation payable for the destruction, loss, damage or delay of an item of baggage is limited to $1,000; and the compensation payable for the destruction, loss, damage or delay of cargo is limited to $20 per kilogram. Section 48(3) of the act prescribes an advance payment of $30,000 to the relative of a deceased passenger within 30 days of the accident at cause. Limitation period The limitation period for pursuing any right of action is two years. This position was affirmed in Ibidapo v Lufthansa Airlines, where it was advised that an action should first be instituted in order to avoid exceeding the limitation period, and that recourse may subsequently be had to negotiations.(1) The proper forum for adjudication is the Federal High Court, in accordance with Section 251 of the Constitution of the Federal Republic of Nigeria, as amended in 1999. Liabilities to third parties Section 49(2) of the act imposes a strict liability requirement on air carriers with respect to harm caused to third parties. It provides that where injury, loss or damage is caused to any person or property on land or water by an article or person in or falling from an aircraft while in flight, taking off or landing, then – without prejudice to the law relating to contributory negligence – damages in respect of the injury, loss or damage shall be recoverable without proof of negligence or intention or any other cause of action (ie, as if the injury, loss or damage had been caused

by the wilful act, neglect or default of the owner of the aircraft). Insurance The act requires airlines to undertake insurance cover for crew, passengers, third parties and baggage. The requirement is strict and non-compliance can lead to revocation of the air carrier’s licence. Part 18.11.4 of the Civil Aviation Regulations 2012 provides that the minimum third-party liability insurance limit for aircraft engaged in aircraft operations in Nigeria is based on the maximum take-off weight of the aircraft, while the minimum insurance cover for aircraft engaged in the carriage of passengers, mail and cargo in Nigeria is based on the aircraft’s available seat capacity.(2) Comment The regulations provided by the Civil Aviation Act aim to ensure that local aviation practice is in line with international best practices. However, recent reports reveal that some relatives of victims of the 2012 Dana Airline crash have not been paid the mandatory advance stipulated by the law.(3) This casts aspersions on both the compliance attitude of regulated airlines and the effectiveness of the regulations. Efforts to ensure compliance must be intensified.

For further information on this topic please contact Opemipo Omoyeni at George Etomi & Partners by telephone (+234 1 462 1660) or email (opemipo.omoyeni@geplaw. com). The George Etomi & Partners website can be accessed at www.geplaw.com. Endnotes (1) (1997) 4 NWLR (Pt498) 124. (2) The regulations provide a tabular representation for each category of minimum take-off weight of aircraft and prescribe minimum insurance covers for each category. (3) See www.vanguardngr. com/2014/06/dana-crash-two-years-relatives-wail-await-compensation/.

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Article

Kubor v Dickson: Admissibility of electronic evidence

oday, everyday transactions are conducted on electronic platforms. In 2014 Nigeria recorded over $2 million-worth of online transactions per week. Further, the e-commerce market in Nigeria is developing rapidly, with an estimated annual growth rate of 25%.(1) The advent of technological development and the consequent evolution of paperless transactions have permeated every sphere of life, and the legal system is no exception: in the event of disputes involving transactions conducted through electronic means, parties are bound to rely on electronic evidence of such transactions. The recent amendment of the Evidence Act in 2011 was intended to provide for the use of such electronic evidence in court proceedings. (2) Before the amendment, the admissibility of electronic evidence in court proceedings had been controversial due to the absence of specific provisions in the previous act, even in light of Supreme Court decisions in Esso WA v Oyegbola and similar cases in w w w.esqlaw.net

which it held that computer printouts were admissible.(3) In Kubor v Dickson the Supreme Court examined the provisions of Sections 84, 34(1)(b) and 258 of the Evidence Act 2011 regarding the concept of a ‘document’ and the admissibility of electronic evidence.(4) Facts The appellants challenged the election and return of the first respondent as the governor of Bayelsa State in the February 11 2012 governorship election. The documents tendered by the appellants included a computer printout of the online version of The Punch newspaper and another document from the website of the Independent National Electoral Commission (INEC), the third respondent in the appeal. The electronic version of The Punch was admitted and marked as Exhibit D and the document from INEC’s website was admitted and marked Exhibit L. However, the appellants did not satisfy the conditions provided in Section 84(2) of the Evidence

Act with respect to the admissibility of electronic evidence. The matter went to appeal. The respondents claimed that, since Exhibits D and L were public documents, only certified copies thereof were admissible in evidence; the documents were inadmissible as evidence as they had been tendered from the bar without satisfying the conditions set out in Section 84(2) of the Evidence Act. Decision The Supreme Court agreed with the respondents. In the leading judgment, the court stated the following: “There is no evidence on record to show that the ap-

pellants in tendering exhibits “D” and “L” satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under section 84 of the Evidence Act, 2011. No wonder therefore that the lower court held at page 838 of the record thus:‘A party that seeks to tender in evidence computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under section 84(2) of the Evidence Act 2011.’ I agree entirely with the above conclusion. Since the appellants never fulfilled the pre-condition laid down by law, Exhibits “D” and “L” were inadmissible as computer generated evidence.” The appellants’ appeal was accordingly dismissed. Concurring with the leading judgment, Justice Ogunbiyi further reasoned that the electronically generated documents were in the nature of secondary evidence and that both documents, being public documents, required certification before tender as evidence. Admissibility of electronic evidence The Supreme Court deci-

ESQ LEGAL PRACTICE 23

Article sion underscores two key points. First, it recognises and endorses the use of electronic evidence in Nigeria. Second, it reiterates the conditions for the admissibility of electronic evidence. In determining the admissibility of electronic evidence in Kubor v Dickson, the court looked beyond the general conditions for admissibility of evidence in civil and criminal trials, referring to Section 84 of the Evidence Act. Section 84(1) provides that in any proceedings, a statement contained in a document produced by a computer is admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Section 84(2) are satisfied. Stated more simply, the four conditions for admissibility of computer-generated evidence under Section 84(2) are that: • the statement sought to be tendered was produced by the computer during a period when it was in regular use; • during that period of regular use, information of the kind contained in the document or statement was supplied to the computer; • the computer was operating properly during that period of regular use; and • the information contained in the statement was supplied to the computer in the ordinary course of its normal use. Further, Section 84(4) requires that the party which seeks to tender a computergenerated statement or document shall file a certificate: • identifying the document or statement; • describing the manner of its production; • stating the specifications of the device used in the production of the document; and • signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities.

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The definition of ‘document’ in Section 258(1)(d) includes “any device by means of which information is recorded, stored or retrievable including computer output”. Section 258 also defines a computer to mean “any device for storing and processing information”. This definition appears to be wide enough to cover all handheld phones, tablets, portable music devices, automatic teller machines (ATMs) and other electronic devices that store, process and retrieve information. Under these provisions, the following forms of evidence should no longer present difficulty when tendered in court once the stipulated conditions are met: • statements from telecommunications companies showing records of call logs and text messages; • receipts of cash withdrawals and other transactions from ATMs; • internet banking records; and • records of online product purchases and bill payments (eg, utility bills and flight bookings). It should be fairly easy under the provisions to deal with admissibility of evidence in cases involving libel, plagiarism and piracy committed on the Internet.

However, it remains to be seen whether the provisions are sufficient to deal with issues such as authorship of online defamatory material – and specifically the question of whether the printout of the alleged defamatory material or the computer-saved file copy constitutes the original evidence. Nonetheless, with these extensive provisions, controversies about the admissibility of computer-generated evidence will be largely reduced. Comment The Supreme Court decision will doubtless increase the confidence of the international business community in the ability of the Nigerian legal system to deal with legal issues arising from commercial transactions conducted via electronic technology. However, more must still be done to develop the practice of the courts in respect of these provisions. There is a wealth of judicial decisions from foreign jurisdictions on various aspects of electronic evidence which will persuasively assist Nigerian courts, given the novelty of these provisions in Nigerian law. However, advances in computer technology have also created greater opportunities for fraud and forgery (eg, email hacking, identity theft and photograph

manipulation), so the courts must be cautious in admitting electronic evidence. Notwithstanding the laudable provisions of the law therefore, extreme circumspection and acute vigilance must still be the keywords for courts in this area of evidence. A laudable provision which will help courts greatly is to be found in Sections 34(1)(b)(i) and (ii), prescribing guidelines for the courts to follow in estimating the weight to be attached to computer-generated statements, even when they have been admitted. For further information on this subject please contact Funke Agbor or Olushola Abiloye at ACAS - Law by Telephone (+234 1 462 2094) or email (fagbor@acaslaw.com or oabiloye@acas-law.com). The ACAS - LAW website can be accessed at www.acas-law.com. Endnotes (1) Daily Independent, January 17 2015. (2) Cap E14, LFN 2011. (3) (1969) NMLR 194. See also Yesufu v ACB (1976) 4 SC 1 at 9-14; Anyaebosi v RT Brisco (1987) 3 NWLR (Pt 59) 84; Oguma Associates Co v IBWA (1988) 1 NSCC 395; Trade Bank v Chami (2003) 13 NWLR (Pt 836) 158; Oghoyone v Oghoyone (2010) 3 NWLR (Pt 1182) 564; FRN v Fani-Kayode (2010) 14 NWLR (Pt 1214) 481; Continental v R Shipping [2013] 4 NWLR (Pt 1343) 67; and Lufthansa v William Ballnyne (2012). (4) (2014) 4 NWLR Pt 1345, pages 534-594.

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CHIEF H.O. DAVIES, THE IDOL VOICE ECHOES ON

Although I discredit education as an end in itself, I appreciate its great significance as an important means to the greatest of all ends-a free, independent Africa, well organized and self-realizing. So your education must now be conceived with end in view, and you allow the glamour of the profession to attract you or the lack of prospect in you, you are a traitor to our ideal. It is not logical to agitate for better appointments for the African in the service, or for the protection of the African in the business world, if no African is equipped to be put forward. We must have men, ready among us, to relieve foreigners of our tasks. If the tasks are not handed over, then we shall demand to know the reason why. It is necessary that the youths of this country, in preparation for the arduous task ahead, learn all they can about the economic, political and cultural conditions of their own society. They should study all they can about Nigeria, West African, and Africa. They should not only see and understand themselves, but they should endeavor to see themselves as others see them. The connection between their country and the world must be studied. Now nothing must be taken for granted in that study. Every step must be questioned. Intelligence does not consist in accepting without examination of new facts before they are accepted or rejected. It means more than that. It means also that you will pause at every stage to reconsider those values which you have already accepted. That is our third task. It is only thus that we can know the undercurrent of events which have been shaping our lives, and which is necessary for us to control. Happy is the man who knows the cause of things.

hese are words excerpted from the lecture “Opportunities for African Youths”, delivered by one of the iconic lawyers of Nigeria and indeed Africa, at CMS Grammar School Hall and reported in the Monday, December 1937 edition of the West African Pilot. He was late Chief H. O. Davies QC, KT. Describing the person of Davies is paradoxically a herculean task, for the hand of Davies was literally multifunctional and his mind multidimensional: he was an astute and charismatic leader; a staunch Wesleyan Christian and soft-hearted martinet; a refined and trusted politician, vibrant trade unionist, nationalist, and resolute left-wing social reformer; a successful and renowned man both in gown and in town, and ipso facto a reputable wig by all standard. Born April 5 1905 to an extended home where love defined w w w.esqlaw.net

togetherness and the necessity of living and existence was not only cherished but also uncompromised. Discipline, honesty and virtuous training characterized the environment in which Davies first realized his consciousness of existence as a growing child. His enrolment in 1910 at the Elementary Wesleyan School baptized his formal educational training. He moved from here to Methodist Boys High School between 1917 and 1920 and from there to King’s College from 1921 to 1923, all in Lagos. This seemingly little start was later to metamorphose into a gigantic edifice the legacy of which traversed continents and had an imposing character both from the historian perspective as well as from the legal professional’s. His contact and experience with very strict disciplinarians, guardians and teachers such as Pa Ogundebode, Mr Pratt (the disciplined headmaster of the

Baptist School, Broad Street, Lagos), and later Dr M.N.Q. Sagoe were to be the shaping trainings that drove Davies subsequent educational and professional life. It is important, however, to state here that Davies’ admiration of art and art-related lifestyle was a function of natural proclivity and interest rather than any accidental or artificial fallout. This fact was attested to in the manner, passion and attitude with which Davies cherished art, sports, nature, poetry and aesthetics, and his love for valued writing. H.O. Davies was one of the earliest Nigerians to use the University of London’s distance learning program where he made friends with the likes of Lord Denning, passing the London Matriculation Examination in 1925 along with Eyo Ita. He also attended the London School of

Economics in 1935 where he was a pupil of Harold Laski, graduating with a BComm (Hons). In the same year, he was elected President of the Cosmopolitan Club of the School. While in the United Kingdom, he was President of the West African Student Union and was also a representative of the University of London on the Executive Committee on British Universities. He later returned to London in 1944 where he studied Law and was called to the English Bar at the Middle Temple Inns of Court, London in 1946. In 1959, Davies spent a year as a Fellow of the Center for International Studies at Harvard University. Davies was a founding member of the Lagos Youth Movement in 1934 along with James Churchill Vaughan, Kofo Abayomi, Ernest Sissei Ikoli, and Samuel Akisanya. ESQ LEGAL PRACTICE 25

Legal Icon He was made Secretary-General. The Youth Movement was one of the earliest political associations to encourage active participation by Nigerians in the political and socio-economic development of the country. After returning from studies abroad along with Nnamdi Azikiwe, Davies spearheaded the efforts that led to renaming the Lagos Youth Movement to Nigerian Youth Movement (NYM) when both individuals became prominent members, contributors and national leaders with large followings. Davies was the founding Secretary-General of the NYM. Davies left the movement in 1951 and founded his own party, the Nigerian People’s Congress. He later joined the National Council of Nigeria and the Cameroons (NCNC) after negotiations for a formidable alliance with Nnamdi Azikiwe was unsuccessful. Davies was a Federal Minister of State in the Ministry of Industries from 1963–1966 during the Nigerian First Republic. Davies was a very successful lawyer, being one of the first two Nigerians (along with Chief Frederick Rotimi Williams) that were honoured with the distinction of Queen’s Counsel in 1959. Among his many legal accomplishments, he was the only African lawyer among the legal team that helped defend Jomo Kenyatta who later became the President of Kenya during the famous Mau Mau Uprising case along with Mr. DN Pritt, QC from Britain, Mr. Diwan Chawaanlal from India; and De Sousa and Kapilla, both Indians resident in Kenya. That same year he left for the United States where he attended the Research Center for International Affairs at Harvard University and wrote the visionary book “Prospects for Democracy”. During his time at Harvard, he met with and became friends of future US Secretary of State Henry Kissinger and future US National Security Advisor Zbigniew Brzeszinki. He led a Nigerian delegation to the Economic Council at the United Nations in 1964, and in September 1974 Chief H.O. Davies was knighted by the French Government Chevelier de l’ Ordre national du Mérite (Industrial) for his significant contributions in energizing Total Fina Oil and the Elf Petroleum companies of which he was a Director and for promoting French-Nigerian relations. In 1937, Davies became the Manager of a leading daily news-

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paper, the Daily Service and in 1960 he was made the founding chairman and managing director of the then Nigerian National Press, Printers of the Nigerian Morning Post and Sunday Post by the Prime Minister, Sir Abubakar Tafawa Balewa. Davies A National President of the World Peace Through Law, President of the United Nations Organization in Nigeria, Chairman of the Rotary Club of Nigeria, and Founder and Inaugural President of the Nigerian-France Friendship Association. IDOL IN THE GOWN AND WIG Emphasizing a categorical imperative about the legal practice, Davies drew from experience to submit that “however academically sound a lawyer may be, he needs to be up to date in his knowledge of court procedure and Rules of Court. Otherwise, a good case may be lost by your adversary raising a technical point, for example, that you have not complied with the Rules of Court.” Similarly, Davies was also of the conviction that in the court of law, law is and should be the concern and not politics, and any attempt to invent the latter into legal profession is a compromise and crime. These submissions would later come to be the underpinning which motivated Davies in excelling in the legal profession. He handled several litigations, prominent among which are Animashaun versus Animashaun (his judicial trail blazer), Rex v. Taylor, the Kalabaris and Okrikas, Awogboro v Nigerian Railway, Akinola v. Lynch, and the trial of Davies’ friend Jomo Kenyatta which the former co-litigated. Of these litigations, Davies’ most admirably remarkable and memorable case was that involving the Kalabaris and the Okrikas in which the latter accused over a hundred sailors of the former of murder over the killing of about thirty of their men. Davies’ overwhelming success in the case which came in the form of eventual acquittal of the accused and subsequent withdrawal and abandonment of remaining trials by the claimant lent credence to his opening imperative about the need for the lawyer to be adequately prepared and up-to-date in his job. His consistent display of professionalism, astuteness, and personal acumen at various cases earned him not only fame but also credibility,

name and influence. A police officer who watched Davies’ admirable professional performance once remarked ‘…that if ever I am in trouble, this is the man to whom I would go.’ And indeed Davies was there to defend the man when issue broke out. Again, when the Western Region of Nigeria was in near political black-out following the conflicts that ensued between Awolowo and Akintola, the leaders of the Action Group, Davies was consulted to stand as a defense counsel to Awolowo. But Davies rebuffed the service based on alleged political stance taken by Awolowo which for him would be a professional compromise. IDOL AND NATION’S ASSIGNMENT The axiom that victory is of pen and not of sword was for Davies incontrovertible. And he employed this conviction to fight the ills of the emerging Nigeria society. Davies was incontestably a bastion of national unity. Hence, it would be regrettable injustice and sheer neglect of historical detail if Davies’ name is omitted in the chronology of Nigerian nationalists. Fifteen years or more of national struggle are not child’s play. His words speak for him in his Memoirs in which he emphasizes that promotion of national unity is a necessary undertaking of every citizen and a project that all as a matter of obligation should embrace. Davies plays down any attempt by anyone regardless of his origin, status, creed, ideology, religious or political affiliation, to truncate the Nigerian project. He eulogizes the unflinching pioneering efforts, the excruciating toils and inflexible sacrifice of Nigerian forebears to found the nation Nigeria and build it up from mere geographical expression. His humble though uncompromising principles saw him view his differences with dissenting opinions both in the Nigerian Youth Movement and in the Nigeria project plausibly reconcilable and the pressing need to move the project forward unbending. These two agenda set a background upon which he engaged his pen to combat the evils inherent in the Nigeria political system. He with Azikiwe and some other Western and Eastern leaders waged a verbal war against an imminent civil war that could have drowned the long strong relationship between the Igbos and Yorubas in Lagos.

The Iva Valley coal mine tragedy was also another turning point in the life of Davies. IDOL IN THE ‘DIRTY GAME’ Politics was for Davies both a service and a vocation. Any attempt, however, for politics to encroach into his noble legal profession would have the former thrown into a trash can. Consequently, his involvement in politics was in view of shaping the polity towards the realization of a unified society as against the commercialized and monetized form of politics as viewed, idealized and practiced then and now. Thus, he began his politics with a deep-rooted involvement in Nigerian Youth Movement. Having realized the Nigerian understanding of politics and law as two hostile territories with divergent ends, he developed a kind of political lifestyle and ideology that was centred on growing humanity to its full potentials. He believed and was involved in ‘purifying’ the dangerous political landscape of Nigeria operational during his period. According to him, politicians and leaders must work to serve and serve to work. His political ideology is one that values action over rhetorics and praxis over theory. IDOL AND MORAL HUMANITY Besides building a politics of humanity and social cohesion, Davies saw the unity of humanity as fundamental to his ideals. He could not withstand the orgy of racism, especially as manifested in the in the ‘defunct apartheid’ South Africa. His hatred for man inhumanity against man spread beyond white against black. He vehemently condemned the unpopular war of man against man expressed in racial discrimination, dehumanization, depersonalization and subjugation of human dignity. If Davies were to be physically alive, fully aware though that his spiritual voice can never be silenced, he would interrogate and condemn the xenophobic attacks on fellow Africans by the seemingly ‘resurrected apartheid’ South Africa. Besides, he was an altruistic servant whose agenda was to give to society without counting the cost. In his words: …we must work hard and study hard looking for no praise for our efforts. Hence, everyone must not only see themselves as individuals but as a people. w w w.esqlaw.net

ESQ Law Report SPA Ajibade & Co.

Court confirms company bylaws must be observed when calling a meeting Legal Practitioners, Arbitrators & Notaries Public

In National Palm Produce Association of Nigeria Ltd/GTE v Udom(1) the Court of Appeal recently ruled that compliance with a company’s memorandum and articles of association is mandatory in order to validate the company’s meetings. Actions taken at a convened meeting that fails to comply with these will be declared void and set aside by the court.

he first appellant was a company limited by guarantee, while the second appellant was the substantive chairman of the company’s Akwa Ibom State branch, elected in May 2009 for a three-year term. The first, second and third respondents were elected officers of the same branch. The respondents convened emergency meetings on January 18 and 25 and February 1 2010, at which they allegedly suspended the second appellant as chairman and replaced him with the second respondent. The second appellant contested his removal before the High Court on the grounds that the company’s memorandum and articles of association were not complied with in convening the meeting at which his removal was agreed. He also claimed noncompliance with Sections 217, 218, 219 and 220 of the Companies w w w.esqlaw.net

and Allied Matters Act.(2) The relevant provision of the memorandum and articles of association of the company provided that the executive council of the company should meet at least once every three months, while a special meeting of the council could be convened at the request of 20 members of the council, with the national secretary giving at least 21 days’ written notice of the meeting and its agenda. Decision The court found that in convening the meeting at which the appellant was removed as chariman, the respondents had failed to comply with the memorandum and articles of association. The court noted that the emergency meeting at which the appellant was removed was convened by members of the executive council, and that at least 20 members of

the council had to request that the meeting be convened. The secretary had to give at least 21 days’ written notice of a special meeting, as well as the agenda of such meeting. In the case at hand the notice calling for the meeting included no agenda and was issued without the required 21 days’ notice. The court stated that: “For the meeting of 1st February to be authentic, the convener of the meeting must have sought the signature of at least 20 members as stated in the memorandum and articles of association. After getting the mandatory members’ signatures, the invitation must give 21 clear days to the date with an agenda of the meeting. This procedure was not adopted and, therefore, breached the requirements of the Memorandum and Articles of Association.”(3) Thus, the court held that the meeting was illegal and the decision reached at the meeting was null and void.

Comment Rules should not be observed in the breach, and the same principle should apply to companies. When a company is formed the stakeholders usually reach a consensus on how the company should be managed and how decisions will be reached. Such consensus is formally set out in writing to form the company’s memorandum and articles of association. These rules should continue to apply unless they are altered in line with the amendment procedure set out in the company rules. Thus, the Court of Appeal’s decision in this case is laudable, as the provisions for convening meetings in the company rules were substantially breached. Another salient reason why the court declared the meeting

invalid was the principle of fair hearing. The court observed that the suspension letter contained allegations against the second appellant without giving him an opportunity to answer them. Thus, the principle of ‘audi alteram partem’(hear the other side) was breached. The court quoted from Ceekay Trading Ltd v General Motors Co Ltd(4) as follows: “No man should be condemned unheard where a person’s rights and obligations are affected, there is a duty on the relevant authority to accord him the opportunity to be heard before taking any adverse decisions against him.” The appellants’ argument that the meeting contravened Sections 217, 218, 219 and 220 of the Companies and Allied Matters Act was not considered by the court in arriving at its decision. Nevertheless, the provisions of the memorandum and articles of the company which were breached were similar to the cited sections of the act. The respondents failed to comply with either the memorandum and articles of association or the Companies and Allied Matters Act. Thus, the court was right to nullify the outcome of the meeting. Corporate actors must always ensure that the company’s memorandum and articles of association and the act are strictly complied with when convening meetings to avoid exercises in futility. For further information on this topic please contact Frederick Adefarati at SPA Ajibade & Co by telephone (+234 1 472 9890), fax (+234 1 4605092) or email (fadefarati@spaajibade.com). The SPA Ajibade & Co website can be accessed at www. spaajibade.com. Endnotes (1) [2014] 8 NWLR (Part 1410) p479. (2) The Companies and Allied Matters Act Cap C20 Laws of the Federation of Nigeria, 2004. (3) [2014] 8 NWLR (Part 1410) p494. (4) (1992) 2 NWLR (Part 222) p132.

ESQ LEGAL PRACTICE 27

Masdar: City of the Future OVERVIEW OF THE UNITED ARAB EMIRATE The Arab World, particularly the United Arab Emirate, is without doubt largely defined not only in terms of its natural charm, finesse and comeliness but also in terms of many physical features expressed in the appreciation of art, aesthetics and architecture. In terms of physical beauty, the region harbours some of the world’s finest cities, uses best technologies, constructs buildings, mostly skyscrapers, with excellent and quality architectures, explores various means of generating energy, and supplies constant power to its population. Besides all of these uniqueness, the United Arab Emirate is involved in planning, creating and developing new cities intended to become hubs of domestic and international tourism, trade and investment. It is not surprising therefore to see the overwhelming increase in the domestic investment and astronomical exodus of foreign investors into the country at an almost uncontrollable rate. Correspondingly, to sustain this investment interests, and perhaps attract more, the government of the UAE makes power supply atop all

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priorities, thus, emerging cities are built on a very strong and reliable energy. Its emergence in the appreciation of nature and exploration of renewable energy can be traced to its decision for self-reliance, especially to maximally utilize available resources, either natural or artificial with a view to further improving its infrastructural growth and development. The dream of making itself the world’s most habitable territory and centre of world’s tourism, investment, trade and holiday resorts is fast approaching reality with the conception, creation and beautification of its major cities. THE EMERGING MASDAR CITY Masdar City, located in Abu Dhabi, an emirate ruled by a monarch, is being built by the Abu Dhabi Future Energy company, a subsidiary of Mubadala Development. Abu Dhabi city controls 92 billion barrels of oil reserves, and produces 2.7 million barrels per day of oil, which is around 85% of the UAE’s total output. This amounts to $1.5 billion-a-week revenue stream, and the reason why Abu Dhabi has the world’s richest sovereign wealth

fund, worth over $700 billion. Thus, the city has personally committed as much as $14 billion, with another $8 billion expected from outside investors, to building Masdar City as part of a 20-30 year effort to transform itself into a high-tech industrial and knowledge economy. It is important to note that this emerging city is projected to have a high technological capacity that is capable of a comprehensive

experiment in integrating the whole spectrum of green technologies at a city scale, the results will be invaluably instructive to the reengineering of the rest of the world. The rationale behind this development is a conceptual diversification and practical move-away from the traditional dependence on non-renewable energy which has for far too long hampered w w w.esqlaw.net

technological freedom and ingenuity to delve into other areas. In a metaphorical description, Masdar is seen as a phoenix, a city that would rise from the soot of the fossil fuel age and move into an almost oil-independent state, relying solely on solar energy and other renewable energy sources. Although critics have argued that the city may collapse in terms of economic viability based on the recent fall in real estate investment and high risk of technology failure. Hence, they conclude that it could turn out to be a supersized 21st century equivalent of the failed Biosphere project — mankind’s last serious attempt at maintaining an artificial, zerofootprint environment. THE MASDAR CITY IN ITS WEBBED TECHNOLOGICAL LAYOUT In 2006, the government of Abu Dhabi, a Middle Eastern emirate that controls 8% of the world’s oil reserves, under the leadership of King Sheik Mohamed bin Zayed Al Nahyan, the Crown Prince, announced that it planned to build the world’s first hydrocarbon-free city, a custom-designed settlement called Masdar: the word w w w.esqlaw.net

“Masdar” means ‘source’ in Arabic. The city as planned, is designed to be powered entirely by renewable energy, mostly solar, and would produce zero waste. Similarly, it would be home to a university dedicated to the study of sustainability, as well as attract the best companies in clean tech. There would be no traditional cars inside the city — all transportation was to be via Personal Rapid Transit vehicles or podcars — and it would use half the energy of a settlement of the same size. The urban master plan or layout designed by the green-minded British architect Norman Foster, would combine classic Arab design with 21st century technology. Masdar would be a living lab for a greener, cleaner future and a bridge for Abu Dhabi, whose economic mainstay was oil, to prepare itself for the day when oil would reach its low ebb of production and demand. The Chief Executive Officer of Masdar, Sultan Ahmed Al Jaber in one of his recent remarks, re-emphasizes the commitment of the project team to position Abu Dhabi as the centre of future energy, that is, as an energy generator and distributor.

MASDAR NEW TECHNOLOGY Masdar City aspires to be the world’s first carbon-neutral, zero-waste city, a happy oasis six kilometres square with its own micro-climate, supporting 50,000 people in renewably powered harmony with nature. Built from the ground up with sustainable living in mind, Masdar is in view of bringing together the best-of-breed clean technologies: building-integrated solar photovoltaic and solar glass, solar hot water systems, smart grid technology, electric transportation, power storage, sustainable agriculture and vertical farming, water recycling and desalination, low-energy heat ventilation and air conditioning (HVAC), green building materials, waste-to-energy systems. Masdar is powered by a 22-hectare, that is about 54-acre field of 87, 777 solar panels with additional

panels on building roofs. There are no light switches or water taps in the city. Transportation of electricity water is controlled by movement sensors which help in reducing water and electricity consumption by 55 and 51 percent respectively. In addition to this technology, photovoltaics, concentrated solar power (CSP) plants are in place which intend to offset the inevitable burning of diesel and baking of cement in construction. More so, the design of building walls, that is, cushions of air limit heat-radiation, is such that demands for air conditioning will drop by more than 50 percent. Masdar is energy efficient and almost car-free, and the project aims to prove that cities can be sustainable, even in environments as harsh as this. For the most part, cars have been replaced by a series of driverless electric vehicles that ferry ESQ LEGAL PRACTICE 29

residents around beneath the site. This fast emerging Masdar City, an arcology project, which is powered uniquely by its characteristic novel clean technologies such as recycling, renewable energy, solar power, information technology, electric motors, green transportation, cutting across all principal sectors of the country’s economy: transport, infrastructure, power and energy, education, agriculture, Information Technology, among others. The transportation technology is unique with its mechanism of driverless vehicles, that is, the podcars. At street level, it is all pedestrianized and the planners have done their best to keep the city compact and foot-friendly. These driverless vehicles are guided by magnetic sensors, powered by solar electricity, and they stop automatically if an obstacle appears. According to Kaled Awad, Director of the Masdar project, the quality of air dissipated will be better than any other street in the Gulf and in the world, and again pose little health hazards. MASDAR EXAMPLE AND THE CHALLENGE BEFORE NIGERIAN GOVERNMENT The challenge before the Buhari-led government is the translation into and actualization of the age long desires of Nigerian forebears and the high expectations of the teeming population.

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Incidentally, part of the electioneering prospects of the government was a complete overhaul of the power sector. In the post-inauguration presidential remarks, president Buhari has consistently said that his government is looking at the fastest, safest and cost-effective means of getting constant power supply to the Nigerian people. Besides the privatization programme, which the last administration embarked upon in this sector, there is need for much to be done, especially at it concerns diversification of power generation source. The Abu Dhabi government example sets not only moral standards as it sets to reduce health hazards imposed by ecological challenge on the people through harnessing technological and architectural resources. This project though may pose some financial strain at the start but it has a long term benefits with a futuristic economic effectiveness for Nigeria, which, unfortunately, has maximally depended over the years on the hydroelectric source of generating power, save for the fluctuating and erratic solar power system that was introduced some years ago. For example, it is disturbing and inexcusable to watch the North─a hot and sunny region like the United Arab Emirate─still languish in and suffer power outage, a territory that as a matter of fact should be enjoying independent power generation and constant power supply if other sources of power could be explored. President Buhari

and his cabinet should look beyond the conventional way of generating power by completely deregulating the power sector. The constitutional bottleneck in the Exclusive Legislative List of the 1999 Constitution of the Federal of

Nigeria which confers on the federal government exclusive and sole authority on energy distribution should be reviewed to the effect that states are empowered to generate and distribute their own power without having to get order from the central government. The Masdar project is an example worth emulating. Nigeria cannot continue to rely on hydrocarbons and other non-renewable energy sources to generate power for a teeming population of over 150 million people. States should be encouraged financially and given moral support by the federal government to explore their natural resources that are useful and relevant to energy generation. Indeed, it is not impossible for Nigeria, like Masdar, to generate power from renewable energy source. This can only be achieved if the political will and the readiness to bring about transformation in this sector are there.

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Interview

WHO FUNDS NIGERIA’S INFRASTRUCTURE? – Ayuli Jemide 3 2 EESSQQ LLEEGGAALL PPRRAACCTTI ICCEE

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Interview

hat are the current challenges to infrastructure financing in Nigeria? There are several traditional challenges; the biggest elephant in the room is that Nigerians do not think long term. For most of us, an investment that will take 10 to 15 years to get a favorable equity IRR is not palatable. We want to collect a piece of paper and sell it at the gate and go home. The banks too for a long time have developed the mentality of financing mostly lucrative LPOâ&#x20AC;&#x2122;s (and we should not blame them) because that is a faster way to guarantee a return for their shareholders. Beyond the mental block, there are still issues with a legal and regulatory framework not being in place at the federal level and in many states. For example, the Infrastrucw w w.esqlaw.net

ture Concession Regulatory Commission has been in place for almost 8 years and we still do not have robust regulations governing PPP transactions. Many transactions are still dealt with on a case by case basis an subjectivity (the regulators devil) creeps in daily. Detail Commercial Solicitors has established itself as one of the leading law firms in the current power reform regime in Nigeria. What do you foresee in that Industry? I think the industry is going through its required changes (without producing the results as quick as Nigerians would have wanted) and we have to realise that anywhere in the world where the state owned power sector monopoly has been unbundled, it has taken years to accomplish.

The relevant enabling legislation that governs the unbundling is being followed to the letter, with the creation of the successor companies, the review of the tariffs to be more cost reflective, the declaration of TEM etc. etc. The key issue is not the regulatory side, the major problem is the infrastructure and the feedstock. We need to generate enough electricity before we can transmit and then distribute. Our generation capacity is just not there yet and is taking too long. The key areas are the Gas to Power mechanics which deals with how we convert our readily available gas to feedstock for our power stations. There is also a need to find alternate sources of power, and renewables like solar should be explored. Another thing is to decentralize our power sector a

little bit. States and local governments should get more involved in generating power for their constituents. If constitutional changes needs to be made to the exclusive legislative list to achieve this, then we need to do what we need to do. Does Nigeriaâ&#x20AC;&#x2122;s current economic, legal and regulatory regime create an environment that encourages or inhibits investment? What more can be done to encourage the participation of more investors? Which sectors are poised to grow the most rapidly in the near and medium-term in Nigeria? Given the drop in the price of oil, the diversification of our economy will be on the top burner. Agriculture is the lowest hanging fruit as an alternate source Â ESQ LEGAL PRACTICE 33

Interview of income, and other low hanging fruits include; solid minerals, manufacturing (if government gets the import ban and tax gearings right to encourage local maufacturers). The Entertainment industry will definitely grow and E-Payments is the next big business for the near future. On the back of this will grow a strong Media & Technology base as- support . I think that as Nigerians get more sophisticated the Services industry (lawyers, accountants, consultants, bankers etc) will generally grow to meet that demand. I personally see Governments using more professional services over the next few years to meet the demands of governance in these times. To meet the infrastructural deficits there is a need for a massive financial investment. Where is this money likely to come from? The school of thought that Government does not have enough money to fix our infrastructure has been making the rounds for years. It is however no longer a school of thought. It has become reality that Government is broke. So where will the money come from? We will see more PPP’s? We will see more Chinese and Japanese Investments because they have perfected the art of funding their projects in emerging markets with ‘’soft’’ loans and in return for all kinds of swaps and waivers. We will see the DFI’s like the Worldbank and their regional cousins in Europe (E International law firms continue to eye Africa with a couple of them actually present in some countries. How is this affecting law practice in Africa? I think we should firstly realize that International law firms cannot practice in Nigeria unless they team up with suitably qualified Nigerians who have been to the law school and are called to the Nigerian Bar. If you see it from that perspective, then international law firms are not a threat but

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an opportunity. First is an opportunity to show that our clients that the Nigerian law firms are just as good, if not better, in handling their transactions. Second is an opportunity to learn from them in many areas where we still need to get our act together: knowledge management, technology, outsourcing, human resourcing etc. Third is the opportunity to get even better – if the competition gets more savvy, then the Nigerian law firms have no choice to improve their efficiency all round. I remember the first time many years ago when I saw a word document with changes tracked sent to me by an international law firm. Wow! I had to learn how to track changes that same day. That is the type of learning we are talking about. Fourth and most important opportunity is the opportunity for collaboration, and we must admit that a lot of these firms have been around for 50 years or more and have institutional knowledge in many sectors that we are still garnering.

As Lead Partner of Detail Commercial Solicitors, your job already appears demanding, not to mention your SBL activities and the Boards you sit on. Knowing that these positions have their demands, what do you do outside your professional life and all these busy schedules to enhance your life? I try not to have a busy social calendar unless it is a social event that would help me unwind – a music concert or the like. I try to keep my weekends as free as possible to unwind. I also delegate as much as I can and keep a high level view on many things. We have to learn to teach people, and then bring them to a point where you can trust them with many things and have them come back to you only on the top level items. I find time to play tennis 3 times a week, I love swimming against the currents in Tarkwa bay – when you have done so on a Sunday you come into the office on Monday ready to face the work currents. I sleep a lot at weekends and just lounge

with a ‘’no rush’’ mentality. I see that this year’s SBL conference is a total departure from what it used to be. It is something new and laudable. What significant take away should lawyers look out for and how will this affect legal practice in Nigeria? I will suggest that lawyers at this conference should keep their ears open and eyes peeled for strategic information from the sessions that will help their professional planning. This conference will bring you a lot of information that can help you channel your legal knowledge to better use. What are you currently working on? Not much. Old transactions from last year! I don’t think I want to tell you. What advice do you have for young lawyers? The worst thing anyone can be is a clone. You need to discover yourself, stay there and keep at it!

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ESQ LEGAL PRACTICE 35

3 6Â E S Q L E G A L P R A C T I C E

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Technology

‘W

hy will I not be part of this novel and unique experience? I can’t wait to have it.’ This was the profound remark and thinking of every user and admirer of Microsoft since the company announced in 2014 to upgrade from the current Windows 7 and 8.1 to Windows 10. Having run series of Technical Preview for months on its latest development, Microsoft appears to be fully cluedup and ready not only to launch the digital world into a new experience but also to catch its numerous users by puzzling surprise: making itself come closer to PC and Mobile users. Back in September 2014, the Microsoft Company explained the science, thinking and mechanism behind this advanced Windows 10. The staple changes to the current Windows XP, 7 and 8/8.1 come in the form of a revitalized desktop experience─ one that hybridizes the properties and features of Windows 7 and 8.1 into a single platform. It comes with a consistent and compatible User Interface (UI) across all packages. FEATURES Windows 10 comes with w w w.esqlaw.net

Windows 10: Miscrosoft Goes More Intimate With ‘Youser’ and operates, among others, on the following features: • Windows 10 goes a long way to fixing the fragmented Control Panel and Settings menus currently in Windows 8.1. A unified settings menu is coming, with a clean design and simple options, and there’s also the new Action Center (pictured above), which provides more toggles for switching on or off WiFi and other settings. Notifications will also pop up in this space, which will be synced across devices -- if you dismiss a notification on your phone, you won’t see it when you next look at your PC, and vice versa. • As early reports suggested, Project Spartan is a new browser for Windows 10, entirely distinct from Internet Explorer. Sure there’s a very clean, almost Chrome-like design, and a brand-new rendering engine, but the focus here is on social sharing. You can

highlight and annotate websites before sharing them with friends, kind of like having Skitch built right into your browser. There is also Cortana integration and a reading view that, much like Pocket, allows user read pages offline. • Windows 10 Operating System is also designed to pioneer a Windows-as-a-service model, offer some interesting Xbox Live cross-play opportunities, and features like DirectX 12. • Windows 10 applications will, unlike the current Windows, now be universal and run across all platforms: PC, tablet, phone, and other Xbox One. Interestingly, PC users are, however, not blocked from downloading other apps but have opportunities to access new applications. Microsoft also packages in the new Windows a load of new applications. Most are refreshes of existing

offerings, although there’s an entirely new Office suite that includes a new version of Outlook, which uses the Word engine for composing or displaying emails, and a refreshed Photos app. • Windows 10 allows anyone to steam any Xbox One game. It also includes a new Xbox application for PC and tablet which allows users to access their activity feed, messages and friends list. It is designed also to even display information on games in third-party clients like Steam. • The Windows 10 time frame is expected at some point after its launch to be included among its applications Microsoft HoloLens, a wearable, wire-free computer which will enable Windows Holographic. Undoubtedly, Bill Gates Microsoft has rolled out many limitless benefits in the yet-to-launched software. There is no There is no doubt that this new de ESQ LEGAL PRACTICE 37

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Jerome Finnis

Interview

on doing deals in Africa With a rapid growth rate averaged 5 per cent/ year or more, driven by domestic demand, foreign investment , strong commodity prices and improved economic governance, Africa is outpacing global growth. Over the past few years, there has been a growing focus on Africa as international investors increasingly see the opportunities in resources- rich consumer-driven economies of the second largest continent in the world as well as seeing Africa as a diversification away from other emerging markets. However, The potential opportunities in Africa are matched only by the complexities of investing there, including dealing with legal and political risks, regulators, and unfamiliar business practices. Jerome Finnis, of Counsel, Hogan Lovells LLP takes a look at some of the opportunities and challenges of doing deals in Africa.

oing Deals in Africa today: How is the landscape changing? The landscape is becoming increasingly stable and attractive for foreign investors, as evidenced by the continuing increases in Foreign Direct Investment inflows to Africa and in the number of Bilateral Investment Treaties between African and non-African countries (in 2014 alone, seven such Bilateral Investment Treaties were signed, as well as a new Trade and Investment Framework Agreement between the Economic Community of West African States and the USA). At Hogan Lovells, we are seeing a greater variety and sophistication of African deal structures than in the past, across a broader range of industry sectors. The African oil and gas sector continues to be a key source of transactional (and dispute resolution) work for local and international law firms, across an increasingly large number of African countries. We are also seeing increases in deal flows in the African banking and infrastructure sectors. Recent trends w w w . include e s q l a wthe . n erise t of hotel

and retail mall construction projects. Intra-African deals are also on the rise. We expect to see significant levels of Africa-related M&A activity in 2015. Oil price volatility is likely to be a key driver for new transactions, as well as providing a crop of new disputes. Local legal and regulatory requirements (for example, in relation to local content) are becoming increasingly complex and require ever-closer levels of cooperation between local and international law firms. With the rising tide of African Arbitral Venues and looking into the Future – what are the opportunities and Challenges for Arbitration in Africa? Mauritius is a good example of the opportunities available where a coordinated approach is taken to ensuring that: 1. A state-of-the-art arbitration law is enacted; 2. Local courts adopt a noninterventionist, pro-arbitration approach; and 3. A strong institutional setup is put in place.

Key challenges include: the need to bring outdated arbitration laws up to date (e.g. in South Africa); • realising the time and costs savings that arbitration offers, in particular by encouraging counsel and arbitrators not to attempt to conduct arbitrations in the same way as they would conduct litigation in their local courts; • training judges to avoid court interference in the arbitration process; • increasing the number and diversity of arbitrators; and • increasing the number of easily accessible and appropriately equipped hearing venues that are specifically tailored to international arbitrations. •

What regions are your clients most active in, and why? Our clients remain active across the African continent. In East Africa, Mozambique, Kenya, Tanzania and Uganda

are becoming increasingly important business hubs, in part due to the new oil and gas opportunities in those countries. Nigeria, South Africa, Angola, Ghana, Namibia and the DRC (to name a few) also continue to be key jurisdictions for our clients. What are the key differences between your work in African countries and your work in more developed couAntries? There is still a large degree of variation as between different African countries. However, on the whole, differences between our work in African countries and our work in other regions are becoming less and less pronounced. Improved transport, infrastructure and telecommunications are key factors, as are the increasing number and quality of local law firms. In some African countries, we continue to see higher levels of bureaucracy and political instability than in other regions. However, we are also seeing positive signs that local

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judiciaries are becoming more attuned to the fundamental importance of freedom of contract and non-interference with agreed arbitration procedures (a key purpose of which is to avoid the delays inherent in court proceedings in many African countries). What about the differences between African economies and emerging economies in other geographic regions? One key differentiating factor is the harmonisation of business law in Africa through OHADA and the Uniform Acts. It is difficult to point to anything comparable in emerging economies in other geographic regions. What are the most common transactions/issues that you see in your work? In the African oil and gas sector, I have seen a significant number of high-value disputes regarding the interpretation of Production Sharing Contracts and Joint Operating Agreements. Disputes relating to sales of participating interests in oil and gas blocks, and back-in rights, are also common. Economic equilibrium and stabilisation clauses are gaining prominence as ways of mitigating risks arising from local legal, regulatory and other changes. Other issues that I commonly see in my work include: • questions regarding consolidation of disputes arising under related agreements; • claims andattempted interventions by third parties; and • applications for interim and conservatory measures. Also, what challenges are unique to investing in Africa, and how do you mitigate the risks for your clients? None of the challenges I have identified are necessarily unique to Africa – the same challenges can apply equally to investments in other regions as well. Key ways of mitigating local risks in African investments include: • finding the best local lawyers and involving them

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from the outset; using arbitration clauses wherever possible, preferably providing for any arbitration to be seated outside the country in which the investment is being made; using economic equilibrium/stabilisation clauses to protect against and deal with the consequences of local changes; and structuring investments to take advantage of the protections offered by Bilateral Investment Treaties.

When drawing up an investment agreement, what should lawyers consider in selecting the law to govern contracts, or do you rely on litigation or arbitration venues in the investor’s home country? The choice of law to govern the substantive rights and obligations of the parties under the investment agreement is key, but consideration should also be given to (1) the law governing any non-contractual claims that may arise in connection with the investment and (2) the law governing the arbitration agreement, if arbitration is the chosen method of dispute resolution. International investors will typically want their investment agreements to be governed by English or New York law, but where State entities are involved it is common for agreements to be governed by the laws of the host country (unless the State entity concerned is trying to raise finance from the international

capital markets). Clauses providing for disputes to be referred to the local courts will rarely be acceptable to sophisticated foreign investors and, depending on the country in question, should usually be avoided. Options for cross-border enforcement of court judgments are limited, whereas the New York Convention allows for easy cross-border enforcement of arbitral awards in around 150 countries worldwide. For this and other reasons, international arbitration is usually preferable to court litigation. The seat of arbitration should, wherever possible, be outside the country in which the investment is being made. Commonly, the seat of arbitration will be in a “neutral”

country, rather than in the home country of any of the parties to the contract (as investors and their counterparties typically want to avoid any perceived “home advantage”). What are the common ways that African business transactions end up in litigation or arbitration? In what venues are business disputes most commonly adjudicated? Common ways include: • disagreements as to the meaning of specific contractual provisions; • new Governments raising issues regarding the authority of prior Governments to enter into the relevant contract(s);

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expropriations of investments; • allegations of corruption; and • changes in fiscal regimes. Where (as will often be the case) international arbitration is the agreed method of dispute resolution, the seat of arbitration will commonly be in London, Paris or New York (or one of the other popular seats for international arbitrations). In future, we can expect to see African seats of arbitration becoming increasingly popular. Recent African sovereign bond issues have, for the most part, been governed by English law and provided for disputes to be resolved by the English courts, but some provide for arbitration in London whilst reserving for the note holders a unilateral option to require disputes to be resolved by the English courts instead. How do national and regional legal structures (including the existence of laws and their enforcement) impact investors’ willingness and ability to invest in Africa? Legal due diligence is a key component of any investment decision (for example, where security is being taken over in-country assets). Foreign investors need to understand not only what the relevant local laws require and prohibit, but also how those laws are applied and enforced in practice (and what developments are on the horizon e.g. in terms of draft legislation, such as the Petroleum Industry Bill in Nigeria). For example, it is usually not sufficient merely to know that the country in which the investment is being made has enacted legislation to give effect to its obligations as a signatory to the New York Convention; a well-advised foreign investor will also want to know how the local courts interpret and apply that legislation in practice. How is your firm assisting small African legal practices to grow? Hogan Lovells is a sponsoring law firm in the International Lawyers for Africa programme (ILFA) and also offers Commonwealth Professional Fellowships. In August 2015, our London office will be hosting a two week programme for African LLM students.

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GBOLAHAN ELIAS, SAN: A CHIP OFF THE OLD BLOCK 4 2 E S Q L E G A L P R A C T I C E

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African Star

Gbolahan Elias, SAN A Chip Off the Old Block

r. Gbolahan Elias (SAN), is currently the Principal Partner at G. Elias and Co, a Lagos Law Firm. Often described as a humble individual that belies the greatness of his acheivements and intellect. Gbolahan Elias, son of a legendary father late Honourable Justice Taslim O. Elias of the World Court, Haig, was born on October 26, 1960, an Independence Child. Needless to say like Nigeria, he had great responsibility thrust upon him; he had giant shoes to wear and great footsteps to follow. Gbolahan Elias has recorded a string of successes and achievements that could pale any other Role-model into insignificance. In Igbobi College, Gbolahan Elias was quiet, respectful and well-behaved. He lived up to the expectation of his father’s resounding exploits it seemed, effortlessly. Not for him the wet-towel-around-the-head-and-feet-soaked-in-water “jacking” of some of his classmates. Gbolahan led his class without seeming to really study hard. He made a Grade One with Distinction in his West African School Certificate. He went on to study at the famous Oxford University in England where he obtained a Bachelor of Arts, First class Honours in Law, a rare feat, from the Magdalen College, in 1980, aged 20. The following year he passed the Nigerian Law School Bar exams in the Second Class Upper category, winning the prize for the best result in the examination’s General Paper. In 1983 he obtained a Bachelor of Civil Laws Degree with First Class Honours from the Oxford University, setting an unprecedented record in the process. In 1987, he obtained his Master of Arts Degree from the same University. This was followed closely by his Doctor of Philosophy Degree from the University of Oxford in 1989. In a span of nine years, (Law School and NYSC inclusive) Gbolahan Elias had obtained two first Class Degrees in Law, a Masters Degree and a Ph D in Law all from the University of Oxford, oldest University (Founded 1117AD) in the English speaking world! Not content with conquering England, Gbolahan was admitted to both the New York State and New York Federal Bars in 1990. Having worked briefly as an Assistant State Counsel at the Federal Ministry of Justice between 1981 and 1982, Dr. Gbolahan Elias next employment was abroad. He worked as a Junior Research Fellow of Merton College Oxford from 1986 to 1989. He

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African Star was also Junior Dean at the Merton College, Oxford University from 1988 to 1989. From 1989, he was an Associate at a private Law firm in New York, Cravath, Swaine and Moore up to 1993. Returning to Nigeria to contribute his quota to his fatherland, Dr. Gbolahan Elias took up appointment as Counsel with the Law firm of Kehinde Sofola (SAN) and Co., a Lagos Law firm from 1993 to 1994. In 1994 Dr. Elias left to set up his own thriving practice which has become noteworthy amongst leading Nigerian Law practices. In recognition of his contribution to the practice of Law, Gbolahan Elias was elected member, Chartered Institute of Administrators in Nigeria, (MCIA). He has also been a member of Organizing Committee of the Maritime Seminar for Judges, Chairman of the Nigerian-German Business Council Ways and Means Committee, Member National Council on Privatization, Oil and Gas Law Reform Implementation Committee. Member, national Committee on Private Pension Fund Management Law Reform, member Lagos State Law Review Commission, Member Lagos State Governing Council, Vice, Chairman, Nigerian-Netherlands Chamber of Commerce, Member, Ministerial Sub-Committee to Reform Law on Foreclosure and Securitization law among others. G. Elias led a team that provided legal advice to several corporations including Transcorp Energy Ltd on its US$220m acquisition financing for the Ugheli Power Company, Prudential registrars Plc. on its acquisition of 100% equity stake in UAC Registrars Plc. The merger created Nigeria’s 2nd largest registrar, it is the largest registrar M&A, Transactional Corporation of Nigeria on its bid to acquire 45% participating interest in an oil block, OML 29 from SPDC, Total and Agip. We conducted extensive “due diligence” enquiries on OML 29 (perhaps the largest oil block ever sold Plc. by IOCs) and advised on a wide range of topical issues (e.g. unitization, renewal, decommissioning) and industry contracts (JOA, crude handling agreements). the vastly experienced legal practitioner also advised Integrated Energy and Marketing Ltd. on the acquisition of majority shareholding in both Ibadan Electricity Distribution Plc (USD$169,000,000) and Yola Electricity Distribution Plc (USD$59,000,000). Dr. Gbolahan Elias has published many papers in the areas of Energy, Property, Maritime and Shipping, Telecommunications, Issues and Stocks Laws among others. He has also lectured at the Institute of Advanced Legal Studies as well as the Lagos Business School in various disciplines of Law. In the year 2005, in recognition of his sterling and outstanding contributions to the field of Law, Dr. Gbolahan Elias was appointed Senior Advocate of Nigeria. He is happily married with children.

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African Star

our firm is relatively small in terms of number of employees or partners yet it leads the pack in most of the highly sophisticated finance transactions.Is there a deliberate decision to keep it small? No, we have no decision to be any particular size in absolute terms. The decision is to have enough lawyers to be able to service our clients superlatively in the practices and sectors that we choose to practise at any given time. We have always had enough lawyers for that. Size is perhaps also relative. With more than 30 lawyers today, there are observers who would say that we are not small. You got ISO certification about three years ago and you are the only Nigerian law firm with such certification. How did you come about this and what is its significance? About 5 years ago, we thought that it was important to have consistency in the quality of our service as we were increasing in number. We explored options to address the issue. ISO 9001:2008 quality management system certification seemed to us both then and now to be a good way to achieve this. An independent, reputable and proficient observer has rightly confirmed that we have a quality management system in place with standardized procedures and processes that ensure that we deliver quality service to our clients consistently. You played an active role in the recent Power Privatisation programme. How will you assess the process and what are some of the challenges that may likely arise from the exercise? The exercise was a big step forward, but much work still needs to be done. Nigeria is the first country to have privatized its state-owned electricity assets fairly and comprehensively all at once rather than in stages spread over several years. The challenges are obvious. Many of the privatized businesses are still struggling to get a hold of themselves. They still experience gas shortages, there are issues with w w w.esqlaw.net

losses (both technical and commercial), the grid is still weak and a number of investors are very highly leveraged. After nearly two years, the average consumer still does not get much electric power. I have also seen your contributions in some of the most celebrated Merggers and Acquisition (M&A) deals in Nigeria. What trend can you identify in this area and how are you helping your clients to mitigate risks? M&A activities will continue to grow as more opportunities emerge and the stock of competent managers available becomes deeper and broader. As the Nigerian economy expands, M&A deal sizes will increase. We help our clients to mitigate the risks by working with them and their counterparts creatively and with speed to develop viable deal structures, regulatory support and bespoke documentation, and do thorough “due diligence” investigations. You recently joined the Africa Legal Network (ALN) which is a network of lawyers in East Africa. Why the link with EA. The ALN is not “a network of lawyers in East Africa”. It started in East Africa but has always been pan-African in outlook. It is a network of independent top-tier African business law firms. Its core features of independence, business and Africanness resonate very loudly with us. Business across African countries has been growing and has a huge future. Considering the growth and vision of the ALN organization, lawyers should be part it. Can you give us some general information about your practice in Nigeria? Our main practices are corporate: banking, capital markets, intellectual property, tax, employment and disputes. We engage in these practices across sectors of the economy such as electricity, oil-and-gas, financial institutions, logistics, consumer products, telecommunications, media and technology, and real estate. Who are your clients, and

what type of issues do you help them with? We have leading global multinationals, continental giants, state-owned enterprises, leading indigenous groups and start-ups. We do not have a special preference for either public sector, established or foreign clients. We are comfortable with anyone who is decent, whose economics appeals to us from a fee-charging standpoint and whose work involves our practices, sectors and issues. We advise and represent our clients on business law deals, fights and questions of all kinds and sizes, and, if we may say so, revel in the ones that are creative, complex or critical – ideally, the ones that are at once creative, complex and critical. We certainly cannot do every kind of work we wish to. What are some of the entrypoints for businesses who have not worked in Nigeria before but would like to? Businesses that can ride on Nigeria’s demographics – most obviously food and other “fastmoving consumer goods” -are perhaps the most promising. In the long-run they are likely to do well regardless of

what the political situation may be. Businesses in regulated industries – for example, financial services, telecommunications, oil and gas and electricity – are also likely to do well because the regulators have been working hard to impose discipline on them. What are some of the key considerations for such a move? Fortitude and creativity are important to business generally. Doing business in Nigerian, one can easily get discouraged by early failures and there are often no pre-set practices or rules. One has to be resilient and often has to make the practices and rules up as one goes along. To what extent has the involvement of foreign business investors led to the strengthening of legal institutions in Nigeria? Only to a very limited extent; legal institutions are to a significant degree also wielders of political power. Their destiny has therefore understandably always been far more in the hands of Africans than in the hands of foreign investors.

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Healthy Living

Avocado: Could This Be The Solution To Cancer?

ersea Americana popularly known as Avocado Pear is a greenish, fleshy fruit body that may appear pear-shaped, egg-shaped or oval like, this delicious fruit is either taken with groundnut, bread (in Africa) or cut up in salads, it is rich, creamy and nutritious. Little wonder nutritionist all over the world have long told us avocado pear are a healthy form of fats. Beyond the nutritional benefits that comes with this rich fruit, Scientists now believe that avocado pear could help in the fight against cancer. A recent research study in Canada has revealed that avocado can combat acute myeloid leukemia (AML), a disease that has been responsible for the death of over 245,000 people, leukemia is cancer of the white blood cells and it is a form of cancer in which the myeloid cells are affected. This devastating disease proves fatal within five

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years for 90 per cent of people over the age of 65. In healthy people, stem cells in the bone marrow divide and grow to form fully developed mature red blood cells, platelets and white blood cells. In patients with AML, this process goes awry. Rather than forming into healthy red blood cells, many abnormal leukaemia cells are made. These are immature cells that aren’t able to develop into normal functioning blood cells. If the research developed by scientists is anything to go by, then this is good news for people suffering from this deadly disease, researchers have discovered the fat molecule from avocados, called Avocatin B can be used to cure the disease, targeting stem cells so healthy blood cells are able to grow. Professor Paul Spagnuolo, from the University of Waterloo, said: “The stem cell is really the cell that drives the disease. The stem cell is largely responsible

for the development of the disease and it’s the reason why so many patients with leukemia relapse. “We’ve performed many rounds of testing to determine how this new drug works at a molecular level and confirmed that it targets stem cells selectively, leaving healthy cells unharmed. “Not only does avocatin B eliminate the source of AML, but its targeted, selective effects make it less toxic to the body, too.” There are multiple potential applications for Avocatin B beyond oncology, and the drug is just one of several promising compounds that Spagnuolo and his team have isolated from a library of nutraceuticals. Most labs would use food or plant extracts, but the researcher prefers the precision of using nutraceuticals with defined structures. The contents of an extract can vary from plant to plant and year to year, depending on a lot of factors

like the soil, the location, the amount of sunlight or rain.” Evaluating a nutraceutical as a potential clinical drug requires in-depth evaluation at the molecular level. This approach provides a clearer understanding of how the nutraceutical works, and it means we can reproduce the effects more accurately and consistently. This is critical to safely translating lab work into a reliable drug that could be used in oncology clinics.” Another independent research published in the Journal of Nutritional Biochemistry has also proven that avocados can offer significant protection against cancer because it contains a concentrated amount of carotenoids. It also helps the body absorb carotenoids from carotenoidrich vegetables due to its fat content. The publication goes further to say that an extract of avocado containing these carotenoids and tocopherols inhibited the growth of both androgen-dependent and androgen-independent prostate cancer cells. The researchers from the Journal of Nutriritional Biochemistry believe that consuming carotenoidrich foods along with monounsaturated fat-rich avocados can enhance the bioavailability of these nutrients. Not only did adding avocado to a salad or to salsa greatly increase study participants’ absorption of carotenoids from these foods, but the improvement in carotenoid availability occurred even when a very small amount was used, as little as 2 ounces per serving. Eventhough the drug is still years away from becoming approved for use in cancer clinics, reseachers are already performing experiments to prepare the drug for a Phase I clinical trial. This is the first round of trials where people diagnosed with AML could have access to the drug. ESQ LEGAL PRACTICE 47

A O B l a u n n a e h t t a s e Fac t n e m a n r u o T l l a b t o o Lawyers’ F o & Oyebode k lu A y b d e is n Orga

rawing the Curtains on the BOA Football Tournament 2015 The Bankole Olumide Aluko (BOA) Football Tournament 2015 was a huge success. The closing ceremony started with the third place playoff match between Aluko & Oyebode and Tayo Oyetibo & Co./Bayo Osipitan & Co.

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Although the Aluko & Oyebode team played valiantly, the scoreline did not reflect the team’s fighting spirit as it conceded 3 goals to Tayo Oyetibo & Co/Bayo Osipitan & Co. The tournament ended with Olisa Agbakoba Legal winning this year’s tournament after a very competitive match with Probitas Partners/B. Ayorinde & Co. Olisa Agbakoba

Legal won the BOA Football Tournament 2015 and was presented with the Champions Trophy, while Probitas Partners/B. Ayorinde & Co was the 1st runner-up and Tayo Oyetibo & Co./Bayo Osipitan & Co. was the 2nd runner-up. The closing ceremony ended on a high note with singing, dancing and many exciting moments, which included a raffle draw and the presentation of

BOA Scholarship Awards in honour of our late founding partner, Bankole Olumide Aluko (SAN). The BOA Scholarship Awards were presented to the Best Graduating Law Students for the 2013/2014 Academic Session in the following Universities: Chidinma Onyebuchi (University of Lagos), Chizaram Oparaji (University of Nigeria) and Usman Sotunde (Ahmadu Bello University). w w w.esqlaw.net

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STRENGTHENING LAGOS AS THE HUB OF INTERNATIONAL ARBRITATION IN AFRICA – LAURIE COLEMAN, DIRECTOR LACIAC

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or some time now, Lagos has been positioning itself as the a hub of for international arbitration in Africa, How is the Lagos Chamber of Commerce International Arbitration Centre (“LACIAC”) contributing to this? We believe it’s important for businesses to have options, andLACIAC, together with the Lagos Court of Arbitration, and the Regional Centre for Commercial Arbitration provide businesses and individuals with just this. LACIAC has a clear vision of how the arbitral landscape in Nigeria should look, and together with LCA we are working to ensure Lagos strengthens its position as an international arbitration hub and that businesses in West Africa are made aware of the benefits of selecting Lagos as their dispute resolution centre. When fully inaugurated, what will the Lagos Chamber of Commerce Arbitration Centre LACIAC do differently? What will make this centre so special? LACIAC’s Rules of International Arbitration aim to ensure the sanctity of the arbitral process. We have incorporated the most up to date trends in international practice and our long-term goal is to ensure any dispute resolution process conducted by LACIAC is done so in an efficient, expeditious and equitable manner. I actually hope this won’t make us special per se as it should be the norm but this and reliability is what we want to be known for. You have assembled a seasoned group of executives at LCCIACLACIAC. How critical will this be to the growth and success of the Centre? It’s absolutely central. We are very fortunate to have on our team a selection of highly experienced practitioners but more than that,I believe we all share the same vision for the future of LACIAC. Do you anticipate increasing your service offerings later in the future and are there natural extensions for the Centre? I’d be lying if I said we didn’t have some ideas in the treasure trove but first things first we need to launch and ensure we perfect the foundations before w w w.esqlaw.net

Interview we effect any additional service offerings. Where do you anticipate growth will come from? LACIAC is intended as a centre for dispute managementas well as resolution so that’s where we’ll look to develop our services. Although disputes are often inevitable we believe there is a gap in services offered to companies in a pre-dispute situation. In addition, mediation and conciliation are often under-used so we look to promote the use by businesses of the full range of ADR services. How much of a focus have international opportunities been for the centre? Especially in the early days we will actively seek feedback from a cross-section of members and parties act upon it.We have set ourselves very high quality benchmarks so we have to be honest with ourselves on an ongoing basis as to whether we are meeting these.

how should disputes in relation to these investments be dealt with. Should disputes be treated any differently in Africa? Every dispute has its nuances, and investment disputes in Africa are no different – when dealing with investor state disputes for example, practitioners need to be aware of political and cultural sensitivities.Credible and efficient ADR centres will contribute to Nigeria’s attractiveness as an investment destination, as companies – domestic and foreign – will feel more confident to invest here in the knowledge of fair treatment in the event of a dispute. Despite there being individualswith the relevant knowledge, skill and experience needed for international dispute resolution and the institutions, which specialize in, or are devoted to, facilitating

alternative dispute resolution (ADR), there has been a general tendency by parties to a dispute doing business in Africa to go back to their home turfs to appointarbitrators. This is further complicated by the fact that most disputantsprefer to appoint their non-nationals as arbitrators in international disputes, thus resulting in instances where even some Africans go for non-Africans to be arbitrators. How critical is it to find local talent in these markets? Firstly, I should say that there is a big local talent pool. Often parties are drawn to arbitrators who have a deep specialisation, and I imagine the number of specialized practitioners will increase in line with the development of the institutions. It is unfortunate but it’s a bit of a case of ‘chicken and egg’. The reality is that we need a strong

Why should companies resolve their disputes through the LCCIACLACIAC? Where businesses choose to resolve their disputes should be an informed decision. LACIAC is the dispute resolution arm of the Lagos Chamber of Commerce and as such is created by businesses for businesses. We strive to conduct all dispute resolution services in an effective, efficient and transparent manner. Amongst other things, our arbitration rules contain emergency arbitrator provisions, updated interim measures, and make reference to the IBA Guideline on Conflict and Party Representation. What are the key priorities for LCCIAC LACIAC as you look to the future? It’s a case of building our brand, providing a good service and promoting alternative dispute resolution in Nigeria. Beyond that we’ll see. We have a few ideas, a number of projects we may wish to embark upon but it’s still early days. Africa today is witnessing increasing global attention and investments. But with the various conflicts here and there, there is arebound to be disputes. The question is ESQ LEGAL PRACTICE 51

and trustworthy ADR framework in order to encourage ADR specialisation. Lack of or Inadequate Legal and Institutional Framework/ Capacity on Arbitration has been identified as some of the key challenges to the growth of Arbitration in Africa. How will your centre contribute to deepening capacity among African Arbitrators? The talent already exists, the problem has been that good quality arbitrators have in the past pledged their services to the well-established international arbitration centres. We already have a number of excellent individuals working with us and as the profile of local arbitration centres gathers strength this will increase. Arbitration is meant to be a standalone process but unfortunately until arbitrators are confident that the work put in to the arbitral process won’t be unraveled in later court proceedings, international arbitration centres will have a stronger appeal. The trend is definitely changing and as it does we’ll see a growing pool of African arbitrators committing their skills and expertise to centres such as LACIAC and the LCA. Another key challenge facing African Arbitration centres is the lack of or Inadequate Marketing. Are there plans to drive global publicity for the centre? We want the international community to be aware of the great progress being made in Nigeria, and eventually, yes, we’ll actively promote LACIAC. For now however our focus is on Nigeria and the African continent so that’s where we’ll focus our energies. How cost effective will it be to resolve disputes at the centre? Cost effectiveness has to be measured against the service you receive and we aim to provide a top class service. Maybe we’ll add this question to our feedback forms as I think it is subjective. There is a big bias against Africa generally across the world much less coming to Africa to resolve disputes. What effect will this have on the growth of African Arbitration Centres? I’m not sure I entirely agree with this position. Looking at the number of international law firms developing or with established Africa practices

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I would say that the bias is something swiftly becoming a thing of the past. Of course, that’s not to say there aren’t lingering concerns, and the resolution of disputes is one. The main concerns parties have are corruption and delay. Not to sound corny, but ‘the future is bright’and I’m confident that the work that LACIAC and the LCA are doing, together with other new institutions like the Kigali International Arbitration Centre will definitely help in slowly ridding the continent of this bias. What else is keeping you busy at work at the moment? As you can imagine LACIAC takes up a lot of my time but I’m also working with Aluko & Oyebode so my plate is pretty full. This is an interest-

ing time to be doing business in Nigeria so the busier the better. What has been your career highlight? Amongst other things, I count myself very lucky to have worked on the longest running case in the commercial court in England. My career is still young and there are many more highlights to come, starting with the launch of LACIAC in autumn 2015. Let’s keep in touch and maybe ask me this question again in 10 years…? Who has been your greatest mentor and why? A few people come to mind but who stands out is a certain Mr. Chris Gooding. For those fortunate to know or have worked with him they will understand why. Chris was one of

my supervising partners when I worked in London and it was working with him that led me down the path of becoming a disputes resolution lawyer. He taught me, not so much about law, but how to be strategic, how to be a good lawyer by operating outside the realms of conventional thinking. I don’t think I ever thanked him so this is my thank you! What do you do in your spare time? Since moving to Lagos I’ve discovered a new interest in African art and sculpture so I relish any opportunity to deepen that knowledge. I love to travel so together with my better half we have a list of places we slowly plan on ticking off. I’ve actually never been to Ghana so I think that’s next! w w w.esqlaw.net

FULL SERVICE ALTERNATIVE DISPUTE RESOLUTION CENTRE EFFECTIVE AND EFFICIENT PRAGMATIC APPROACH TO DISPUTE MANAGEMENT MODEL SHORT FORM AND LONG FORM DISPUTE RESOLUTION CLAUSES NEW RULES ON INTERNATIONAL ARBITRATION LAUNCHING AUTUMN 2015

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ESQ LEGAL PRACTICE 53

NOMINATIONS OPEN FOR NIGERIAN LEGAL AWARDS

NIGERIAN

LEGAL AWARDS 5 4 E S Q L E G A L P R A C T I C E

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ABOUT THE ESQ NIGERIAN LEGAL AWARDS

NIGERIAN

LEGAL AWARDS

The ESQ Nigerian Legal Awards sets out to recognise the important contribution the legal business community makes to the development of the Nigerian economy. The award will honour outstanding law firms and legal professionals in Nigeria and in the diaspora. The Award reflects pre-eminence in key transactions, practice areas, and achieve¬ments over the last eighteen (18) months, including notable work, strategic growth, excellence in client service, and contribution to the legal profession. The award is based on the legal deals or unique contribution to legal business in Nigeria within a period of twelve to eighteen months. The 2014 edition of the award enjoyed the sponsorship of Forte Oil Plc, MTN, Grace InfoTech Limited (Publishers of Law Pavilion), CleanBubble Drycleaners and Asiri Ewa. Over seventy deals were reviewed by the judges last year and the law firms, Templars, Banwo & Ighodalo, Odun¬jinrin & Adefulu, Sefton Fross, Alliance Law Firm, Paul Usoro & Co, Aluko & Oyebode and Kola Awodehin won different categories of the Deal based awards, with Aluko and Oye¬bode winning the much coveted Law Firm of the Year Award. His Excellency, Governor Babatunde Raji Fashola, Aare Afe Babalola, Mrs. Funke Adekoya SAN, Mr. Wale Tinubu, Chief J.K Gadzama SAN, Mrs. Funke Aboyade and the Coun¬cil Members of the Section on Business Law also won the Editor’s Merit Award Categories for their achievements and contributions to legal practice. The awards will be presented at a formal glittering and memorable ceremony holding in Lagos on 18th Septem¬ber 2015. The ceremony will be hosted by some leading entertainers in Nigeria.

ENDORSEMENT The ESQ Nigerian Legal Awards repre¬sent the most esteemed category of Legal Awards in the history of the Nigerian Legal business. It is organised by Legal Blitz Limited; Publishers of Esq Legal Practice Magazine, and has been endorsed by the Nigerian Bar Association, the British Nigerian Law Forum, and the Nigerian Lawyers Association (US).

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ESQ LEGAL PRACTICE 55

NOMINATIONS, SELECTION AND CRITERIA WHO CAN BE NOMINATED AND WHO CAN NOMINATE? Any Nigerian lawyer may be nominated for the Award. An interstate lawyer can be nominated if he or she has sufficient nexus with the Nigerian Legal System. All Nigerian Lawyers or Lawyers of Nigerian Descent practicing outside Nigeria may also be nominated as well as International Law Firms with significant nexus with Nigeria. See categories of the Awards for details. On the other hand, the Corporate Counsel Award Categories are open only to General Counsel and in-house legal teams of organisations registered in Nigeria, under the Companies and Allied Matters Act (CAMA). See categories of the Awards for details. TIME COVERED BY THE AWARD The time period covered by entries should be the past 12-18 months. Law firms and in-house legal departments can only submit one entry for each category. All enquiries about the award can be sent to awards@ esqlaw.net HOW WILL NOMINATIONS BE MADE? All submissions must be sent electronically to awards@ esqlaw.net. HOW WILL NOMINATIONS AND DATA BE GATHERED. Law firms will be requested to www.nigerianlegalawards. Com, fill nomination forms and submit same with

WHO ARE THE

their deal sheets for a period not exceeding 12 - 18 months. This document will be submitted electronically Interested in-house teams must visit www.nigerianlegalawards. com, complete an entry form and submit it online. Submissions from in-house teams should chart the teamâ&#x20AC;&#x2122;s progress over the course of the year (January 2014- June 2015) There is a mandatory requirement of a 500-word covering statement, which indicates reasons they should win any specific category. This 500-word document is the most important document, as the judges will use it to assess the law firms being nominated. This year, while the award will consider a particular landmark transaction, the judges will take cognisance of the track record of the firm in the particular practice area for a period of not less than 5 years. The 500 word document represents the entry and it must reflect on how the firm/organisation meets all the criteria set for the particular category of the award.

JUDGES

To shore up the credibility of this award, we have carefully appointed seasoned General Counsel and Business Leaders with vast experience in their chosen sectors who will be appraising the various nominations and select the winners. The Panel of Judges for the Practice Based Deals Category will be chaired by Dr Adesegun Akin-Olugbade, OON, Executive Director/General Counsel, Africa Finance Corporation. Other members of this panel include; Mr Dapo Otunla, General Counsel, Notore Chemicals and Industries Ltd; Mrs Ngozi Okonkwo, Chief Legal Officer, OANDO Plc; Ms Tinuade Awe, Head of Legal and Regulatory Division, Nigerian Stock Exchange; Ms. Nankunda Katangaza, Former Head of International Policy, Law Society of England and Wales; Mrs Toyin Sanni, MD/CEO, UBA Capital and Chairperson of the Capital Market Operators; Mrs Nike Laoye, Chief Legal Counsel, Eco Bank Plc and winner of the Legal Team (Financial Services) at the maiden edition ; Prof (Mrs) Yinka Omorogbe, Former General Counsel of NNPC; Mr Dayo Okusami, Executive Director/General Counsel, Zircon Nigeria Limited; Mrs. Helen Anatogu, Former Corporate Attorney West Africa, Microsoft Corporation Mrs. Chioma Madubuko, General Counsel, DANGOTE Industries; Dr. Mark Ighiehon, Fellow, Aberdeen University Centre for Energy Law; Ms Nike Olafimihan, General Counsel/ Company Secretary, Shell E & P, Nigeria; Ms Rotimi Oghenerume, General Manager, Commercial Legal, 5 6Â E S Q L E G A L P R A C T I C E

MTN; Mrs Kemi Shaba, Legal Manager, Multichoice Nigeria; Mr Babatunde Akinyanju, Former Chairman, British Nigerian Law Forum, UK; Ms Remi Aiyela, Publisher, NOG Intelligence Mr. Ned Mojuetan; Mrs Abimbola Izu, Legal Adviser/ Company Secretary, Skye Bank Plc; Dr. Mirian Kachikwu, General Counsel, Seplat Petroleum Development Company Plc; Dr. Jumoke Oduwole, Legal Consultant and Lecturer, Commercial Law, University of Lagos; Mrs. Fola Akande, Company Secretary/Chief Counsel (West Africa), Cadbury Nig. Plc; Mr. Adeyemi Johnson, CEO Open Spaces Compliance, UK Mr. Osilama M. Otu, Company Secretary/Legal Adviser, Zenith Bank Plc. Ms. Ibiyemi Solanke, Legal Counsel, Orange UK. JUDGES FOR CORPORATE COUNSEL AWARDS The Panel of Judges for the Corporate Counsel Awards Category is chaired by Mr. Gbenga Oyebode MFR of Aluko and Oyebode. Other judges include Senator Udoma Udo Udoma of Udo Udoma and Belo-Osagie, Dr. Nechi Ezeakor of El-Value Advisory (Former General Counsel of Fin Bank Plc), Mr. Asue Ighodalo of Banwo and Ighodalo, Dr. Gbolahan Elias SAN of G. Elias (Barristers and Solicitors), Dr. Konyinsola Ajayi SAN of Olaniwun Ajayi LP and Mr. George Utomi of George Utomi and Partners, among others.

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Meet the Judges for the practice Based Award for Law Firms

Adesegun Akin-Olugbade OON, Executive Director & General Counsel, African Finance Corporation

Adenike Laoye, Chief Legal Counsel, Eco Bank Limited

Abimbola Izu, Executive Director/Legal Adviser &

Michael Otu, General

Company Secretary, Skye Bank Plc

Counsel, Zenith Bank Plc

Akinleye Olagbende,

Babatunde Akinyanju,

Chioma Madubuko,

Nankunda Katangaza, Former

Marian Kachikwu, Company

Dayo Okusami, Executive Direc-

Ngozi Okonkwo, Chief

Yinka Omorogbe, Former

Adeyemi Johnson, CEO,

Remi Aiyela, Editor-in-Chief,

General Counsel Forte Oil

Secretary /General Counsel, SEPLAT Petroleum Development Company Plc

Open Spaces Compliance

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Former Chairman, BritishNigeria Law Forum

tor/ General Counsel, Zircon Marine Services Ltd

NOG Intelligence

Company Secretary & Legal Adviser, Dangote Industries

Legal Officer, Oando Plc

Jumoke Oduwole, Legal Consultant and Lecturer, University of Lagos

Head International Policy, Law Society of England and Wales

General Counsel, NNPC

Toyin Sanni, CEO, UBA Capital

Eyitemi Ned Mojuetan

Stephen Blundell, Redstone Consultants

Dapo Otunla, General

Counsel, Notore Chemical Industries Limited

Â ESQ LEGAL PRACTICE 57

Judges For Corporate In-House Counsel Award

Gbenga Oyebode MFR,

Managing Partner, Aluko Oyebode

Koyinsola Ajayi SAN, Managing Partner, Olaniwun Ajayi LP

Senator Udoma Udo Udoma, Partner, Udo Udoma &

Olasupo Shasore SAN,

Yinka Omorogbe, Former

Adeyemi Johnson, CEO, Open

Belo- Osagie

General Counsel, NNPC

Partner, Ajumogobia & Okeke

Spaces Compliance

WHAT WILL THE JUDGES DO?

Gbolahan Elias SAN, Principal

Asue Ighodalo, Partner, Banwo

George Etomi, Principal Partner,

Jumoke Oduwole, Legal

Babatunde Akinyanju, British-Nigeria Law Forum

Toyin Sanni, CEO, UBA Capital

Partner, G. Elias (Barristers & Associates)

Consultant and Lecturer, University of Lagos

Nechi Ezeako, Principal

Consultant, El-Value Consultants

Remi Aiyela, Editor-in-Chief, NOG Intelligence

and Ighodalo

Nankunda Katangaza, Former Head International Policy, Law Society of England and Wales

Funke Adekoya SAN, Partner AELEX

George Etomi & Partners

Stephen Blundell, Redstone Consultants

Israel Aye, Managing Partner, Sterling Partnership

• Judges will be given a score sheet that lists the criteria and invites them to mark each entry against them. • There will also be a day conference where judges are expected to meet and debate who should win and why. • This panel will shortlist three deals under each category. • The shortlisted contenders in each category will be announced on the award website. • The final decision is made by the judges when they meet, and their decision will be final. • We believe this exercise will help to ensure all the judges approach the process in a consistent manner. 5 8 E S Q L E G A L P R A C T I C E

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WHAT WILL THE JUDGES LOOK FOR? The panel of judges will be looking for entries which showcase the firm’s distinction in each category and consistency in providing excellent service in that category, while focusing on a single deal that sets new standards in the delivery of legal services under the various categories and demonstrates the market-leading position and considerable value to the needs of commerce, good governance and economic well-being of the nation. Key factors in selecting the winners for the Practiced Based Awards will be evidence of: - Market Context - History of the Client Relationship - Technical Innovation - Innovation in Client Service - Innovation in pricing - Measurable Outcomes - Any Additional Relevant Information Nominees should stand out from their colleagues and should have made significant impact in relating to the category. Particular note will be made of the nominees’ impact in Nigeria and for Nigeria - ‘Putting Nigeria on the map’. For all awards, achievements outside of the category will be taken into account, including non-legal work, contributions to the community and pro-bono work.

Key factors in selecting the winners for the Corporate Counsel Awards will be evidence of: 1. A case, deal or internal project which demonstrates: a. Excellence in leadership b. Innovation, either in transactional work or regulatory or compliance issues c. Efficient management of external advisers (please detail outside counsel and recent history of panel reviews) d. How the legal function underpins the organisation’s strategy e. How the team has made the legal function integral both to the decision making process of the company and also to the overall company strategy 2. Full details of: a. Who the team reports to b. Organisational structure c. Yearly spend and how it is managed including use of procurement 3. Details of the unique challenges faced by the particular sector in which the team operates, and how these are overcome

PRIZES & BENEFITS WHAT ARE THE BENEFITS OF BEING NOMINATED? - Recognition in front of peers and industry leaders - An endorsement of personal/firm achievements - A competitive and marketable edge that can generate new business - A way to boost team morale - An opportunity to take pride in personal/firm achievements. WHAT HAPPENS AFTER NOMINATIONS HAVE BEEN MADE? We will take steps to verify the authenticity of the various nominations. Please note that during this exercise, clients or their in-house counsel may be contacted. We therefore advise all entrants to kindly ensure the details they are sending are true and verifiable in order to avoid any embarrassment this exercise may cause. Timetable for the Award will be announced later. 1. June 29th, 2015: Opening of nominations for the Legal Awards. 2. July 31st, 2015: Deadline for submission of entries for the w w w.esqlaw.net

Legal Awards 3. August 3rd 2015: Judges Evaluation Begins 4. Between September 1st - 11th, 2015: Judges Conference 5. September 18th, 2015: Awards nite (Awards Presentation, dinner & entertainment) PLEASE NOTE: That there is no payment attached to nominations for any of the categories. The decision of the judges are final and no discussion will be entered into. Only nominations received before the deadline will be reviewed. WHEN WILL THE SHORTLIST BE ANNOUNCED? Short-listed nominees will be informed in writing after the votes by the judges have been collated. WHEN IS THE AWARD TAKING PLACE? The Awards ceremony will take place on Friday 18th of September, 2015 in Lagos. ESQ LEGAL PRACTICE 59

GENERAL POINTS TO NOTE 1. All nominations will be submitted online. 2. Nominators will be asked to provide supporting documentation: 3. Which must be in the form of a 500 word profile encapsulating why the nominee should win the award? 4. Nominees are also expected to list other law firms that worked on the deals enetered. Please e-mail your submission to awards@esqlaw.net Please send only one submission per category per e-mail (multiple e-mails are allowed) Please mark the subject line of your e-mail as follows: ESQ Awards/Category/Firm Name e.g. ESQ Legal Awards /real estate/Lere Fashola & Co LLP

AWARD CATEGORIES PRACTICE BASED PRACTICE BASED AWARD Section: Deals - Banking &Finance Team of the Year - Capital Market Team of the Year - Mergers &Acquisition Team of the Year - Corporate Restructuring Team of the Year - Intellectual Property Team of the Year - Oil and Gas Team of the Year - Private Equity Team of the Year - Power Team of the Year - Project Finance Team of the Year - Telecommunication Team of the Year - Dispute Resolution Team of the Year - Real Estate Team of the Year SECTION: GENERAL AWARD - Young Lawyer of the Year - CSR Law Firm of the Year - Deal Maker of the Year - Law Firm of the Year - Diaspora Lawyer Award CORPORATE COUNSEL AWARDS 1 General Counsel of the Year 2. In- House Team of the Year i. Oil and Gas sector ii. Power sector iii. Investments Banking Sector iv. Banking Sector v. Capital Market Sector vi. Manufacturing Sector vii. Telecommunication sector viii. Infrastructure and Construction Sector ix. Information Technology x. Pharmaceuticals Sector xi. Insurance Sector xii. Maritime/Shipping Sector

6 0Â E S Q L E G A L P R A C T I C E

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ESQ LEGAL PRACTICE 61

Article

The aerotropolis: Is Nigeria ready?

he ‘aerotropolis’ is a relatively new concept, consisting of an urban layout containing all major components of a city, centred around an airport. The concept, which was developed by US academic John Karsada, suggests that airports are fast becoming the hubs of self-sustaining economies – a natural result of the increasing pressures of globalisation and a growing need to keep workers, suppliers, executives and goods in touch with the global market. Today’s busiest airports are expected to become the great urban centres of tomorrow. As Nigeria proceeds with an ambitious aviation development programme– described by former US Secretary of Transportation Ray LaHood as one of the most promising agendas globally – is the country now ready for its own aerotropolis? The Nigerian aerotropolis project was proposed by former Minister of Aviation Princess Stella Oduah and aims to create airport cities in Lagos, Abuja, Port Harcourt and Kano. Oduah has stated that the project will create more than 10 million jobs and generate N100 billion annually, transforming the economy and living standards of rural farmers through cargo exports and manufacturing free trade zones. The aerotropolis project is an attractive idea that will significantly increase gross domestic product, diversify economic growth and create opportunities for foreigners and locals alike. Having already attracted investments worth $400 million, Lagos, Abuja, Port Harcourt and Kano are one day expected to rank alongside existing hubs such as Kuala Lumpur, Dubai and Hong Kong. The privatisation of the project aims to ensure that it is

6 2 E S Q L E G A L P R A C T I C E

developed without government bureaucracy. Criticisms While the idea of a Nigerian aerotropolis is visionary, there are concerns that the country is not ready for such a major leap in technology. To some extent these are due in part to existing security and power supply concerns. For example, terrorist group Boko Haram reportedly controls 20,000 square miles of territory in northern Nigeria (an area roughly the size of Belgium). So far, its activities have been confined to the northern states; however, clashes with the Nigerian army may hinder any plans for the Abuja aerotropolis. Despite being Africa’s top energy producer, Nigeria is also among the countries with the lowest electricity coverage. The recent privatisation of the power sector (a $2.5 billion transaction that saw the Power Holding Company of Nigeria split

into 11 distribution companies and six generation companies) demonstrates that power supply issues are being addressed and theoretically should no longer be a concern. Meanwhile, others are asking whether the existing laws and regulations are sufficient to support an airport city. For example, immigration laws may need to be reworked to support the huge influx of people expected after completion of the projects. The Immigration Act 1990 (Cap 171, Laws of the Federation of Nigeria) provides for different types of visa and entry permit. If Nigeria anticipates becoming a hub of sub-Saharan Africa, the Economic Community of West African States may need to take inspiration from the European Union and establish something similar to the Schengen visa, which allows for the free movement of goods, information, money and people through-

out the Schengen area. It would be more productive to have a visa that encompasses as much of Africa as possible, as opposed to a passport that is applicable to only 15 countries, as at present. Comment The aerotropolis concept has undeniable benefits for financial growth. However, its implementation may be hindered by certain issues unique to Nigeria. Some would argue that Nigeria will not be ready for such a major technological step until it has the necessary infrastructure to build upon. However, infrastructure development is a work in progress and the aerotropolis project may be just the catalyst that it needs. Contributed by George Etomi & Partners For further information on this topic please contact Eniola Williams at George Etomi & Partners by telephone (+234 1 462 1660) or email (eniola@ geplaw.com). The George Etomi & Partners website can be accessed at www. geplaw.com.

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ESQ Law Report

UK decision - Important lessons for employers

Nikita Lalla

construction and engineering | director nlalla@ENSafrica.com

he recent UK Court of Appeal decision in the case of MT Holgaard A/S v E.ON Climate and Renewables (2015) EWCA Civ 407 illustrates the ultimate catastrophe if there isn’t sufficient interface between legal and technical teams. The case involved the interpretation of a contract for the construction of the foundations for an offshore wind farm known as Robin Rigg on Solway Firth in Scotland. An offshore wind farm is basically a cluster of turbines standing on monopiles that are driven into the seabed. A steel cylinder known as a transition piece sits on top of each monopile, and the tower that supports the electricity generator fits on to the transition piece. The gap between the transition piece and the monopile is filled with grout, although shear keys can be inserted into the grouted connections to increase the shear strength. Such shear keys can, however, also have the effect of creating stress lines that cause failure of the grout. There is an International Standard for offshore wind farms called J101. This says that if the service life is not specified in the contract, 20 years should be used. It goes w w w.esqlaw.net

on to say that a “grouted connection can be established with or without shears.” It provides parametric equations to be used in the design. But unfortunately, as we now know, one of these equations is wrong, and relying on it can cause serious problems. In this case, E.ON (“the employer”) appointed MT Holgaard (“the contractor”) to construct the foundations for Robin Rigg following a tender process. There was a written contract, but, as always, there was a great deal of other documentation that was attached to it. The contract, however, made it clear that there was a hierarchy, with the contract being at the top of the pile, and the tender return submitted by the contractor at the bottom. The contract said that the contractor’s work would be “in accordance with internationally recognised standards”. The expression “Fit for Purpose” appeared in the contract, and this was linked to the “Employer’s Requirements”. The Employer’s Requirement’s spoke of a “design life” of 20 years, and said that “the design of the foundations shall ensure a lifetime of 20 years.” It also referred to a “minimum service life” of 20 years. The document required the contractor to determine if shear keys should be used and said that, if the contractor decided against them, it needed to demonstrate with test data that the grouted connection was sufficient. The contractor decided against shear keys. Not long after construction, the transition pieces started slipping down the monopiles. This was not due to any negligence on the part of the contractor, but rather the error in the J101 standard. The remedial work was done at a cost of €26-million. But who was liable for the cost? The judge got to the nub of the issue when he said this: “The court is confronted in this case with contractual documents of multiple authorship, which contain much loose wording… The problem arises because MTH was required to comply with

J101 which contained a significant error.” He made the point that the standard legal textbook, Hudson’s Building and Engineering Contracts (1959), says that “generally the express obligation to construct a work capable of carrying out the duty in question overrides the obligation to comply with the plans and specifications, and the contractor will be liable for the failure of the work notwithstanding that it is carried out in accordance with the plans and specifications.” The judge went on to say this: “It is not unknown for construction contracts to require the contractor a) to comply with particular specifications and standards and b) to achieve a particular result. Such a contract, if worded with sufficient clarity, may impose a double obligation upon the contractor…The question I must address is whether the agreement negotiated between E.ON and MTH is a contract of that character. This involves applying the rules of contractual interpretation to the somewhat diffuse contract documents in the present case.” The issue essentially was whether a reasonable man would interpret this contract to mean that the contractor had to both comply with J101, and achieve foundations with a service life of 20 years. The judge drew a distinction between “design life” and “service life” and said this: “If a structure has a design life of 20 years that does not mean that inevitably it will function for 20 years, although it probably will.” The judge said that the written agreement, which was at the top of the hierarchy, made it clear that there had to be compliance with internationally recognised standards, which in this case was J101. Although J101 is a standard that is intended to lead to a design life of 20 years, it isn’t a guaranteed life. The judge went on to say that, although the written agreement also required the work to be “Fit for Purpose”, this was qualified by reference to “specifications using good industry practice” and the Employer’s Requirements.

The judge said that there were inconsistencies between the documents. He said that the Employer’s Requirements was “too slender a thread upon which to hang a finding that the contractor gave a warranty of 20 years for the foundations.” If there was to be an absolute warranty of 20 years’ operational life, this should have been in the contract itself, not “tucked away in the technical requirements.” The judge concluded as follows: “A reasonable person … would know that the normal standard required in the construction of offshore wind farms was compliance with J101 and that such compliance was expected, but not absolutely guaranteed, to produce a life of 20 years.” He held that the contractor was not liable for any breach of a warranty that the foundation structures for the wind farm would have a 20-year service life. There was one further issue: Had the contractor been in breach of its obligation to provide “test data” to explain why shear keys were not used? The judge said that it had been in breach, making the point that “the contractor is required to do more than a desk exercise.” But the judge went on to say that the evidence suggested that such testing would not have made any difference, and that it “would not have revealed potential weaknesses”. So the employer was entitled to no more than nominal damages for this breach. And nominal they were – he awarded the employer £10 – against the contractor’s €26-million odd! So, a clear warning that contractual terms must be clear, and that there shouldn’t be inconsistencies between the written agreement and the technical requirements attached to it. The judge made it clear that problems of this sort arise because of “diffuse contract documents” and “multiple authorship”. One commentator has suggested that these problems can be avoided if employers invest a little extra in order to have a “consistency check” done. Good advice indeed!

ESQ LEGAL PRACTICE 63

Article

Constitutional amendment alters jurisdiction over maritime labour claims The amendment of the Nigerian Constitution in 2010 has recently presented some important practical issues relating to maritime labour. The relevant amendment is the establishment and jurisdiction of the National Industrial Court by virtue of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010. The act conferred exclusive jurisdiction in respect of all labour-related matters on the National Industrial Court, to the exclusion of all other courts of coordinate jurisdiction (the state and federal high courts) in Nigeria. This has raised pertinent legal issues in relation to admiralty proceedings, which are exclusive to the Federal High Court in Nigeria. Jurisdiction of National Industrial Court Section 5 of the act introduced a new Section 254A of the Constitution, which created the National Industrial Court(1) and elevated its status as a constitutionally recognised federal court with coordinate jurisdiction with the federal and state high courts. Section 254C(1) conferred exclusive jurisdiction on the National Industrial Court

6 4 E S Q L E G A L P R A C T I C E

over all labour-related matters listed under Sections 254C(1)(a) to (m) of that section. Section 254C(1) provides: “Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have

and exercise jurisdiction to the exclusion of any other courts in civil causes and matters. (a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employees, workers and matters incidental thereto or connected therewith.” Sections 254C(1)(a) to (m) made sweeping provisions as regards the National Industrial Court’s jurisdiction over all labour-related matters and divested all courts of coordinate jurisdiction over any labour-related matters over which they had previously exercised jurisdiction. Extant admiralty jurisdiction of Federal High Court Prior to this constitutional amendment, the Federal High Court, in the exercise of its exclusive admiralty jurisdiction, had jurisdiction over labour-related issues

affecting the master or crew members of a ship, which were viewed as part of the admiralty jurisdiction of the Federal High Court. Section 251 provides, among other things, that: “Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters….. (g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea.” The Admiralty Jurisdiction Act (Cap A5, Laws of

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Article the Federation 2004) also recognised and clearly delineated the admiralty jurisdiction of the Federal High Court,(2) and issues relating to claims by the master or crew members of a ship(3) were broadly recognised as one of the heads of maritime claims over which the Federal High Court had exclusive jurisdiction. This position has only recently changed by reason of the constitutional provisions of Section 254C(1)(a), as such matters are now within the exclusive jurisdiction of the National Industrial Court. Jurisdictional implications It is trite law that the Constitution is supreme,(4) and that any other law that is inconsistent with its provisions shall, to the extent of the inconsistency, be null and void.(5) By virtue of the new constitutional provision (Sec-

tions 254C(1)(a) to (m)), the provisions of the Admiralty Jurisdiction Act are null and void(6) to the extent that they vest jurisdiction over any labour-related issues in the Federal High Court.(7) This has far-reaching implications for admiralty proceedings in Nigeria, due primarily to the legislature’s failure to take cognisance of the technical nature of such proceedings. It follows that: • the enforcement of maritime labour conventions applicable in Nigeria under the admiralty jurisdiction of the Federal High Court can now be exercised only by the National Industrial Court; and • Section 5(3)(b) of the Admiralty Jurisdiction Act 1991 empowers the master or crew member of a ship to bring an action in rem against the

ship in cases of unpaid wages. In rem proceedings remain under the exclusive jurisdiction of the Federal High Court. This has seemingly created a legal quagmire which essentially means that the right of a master or crew member to institute an action in rem for unpaid wages has been extinguished, because in rem proceedings cannot be instituted at the National Industrial Court, but only at the Federal High Court. Comment The recent amendment to the Constitution has spelled out the jurisdictional competence of all constitutionally recognised courts in Nigeria, including the National Industrial Court. Where any party intends to institute an action on any labour-related maritime claim, the appropriate court will be the National

Industrial Court. If such an action is commenced at the Federal High Court, which previously had jurisdiction, the jurisdictional competence of such a claim will be question. For further information on this topic please contact Nwabueze Anachebe at Akabogu & Associates by telephone (+23 41 790 5831) or email (nwabueze@akabogulaw. com). The Akabogu & Associates website can be accessed at www.akabogulaw.com. Endnotes (1) Section 254A (1) of the 1999 Constitution, as amended. (2) Section 2 of the Admiralty Jurisdiction Act 1991. (3) Section 2(3)(r) of the Admiralty Jurisdiction Act 1991. (4) Section 1(1) of the 1999 Constitution, as amended. (5) Section 1(3) of the 1999 Constitution, as amended. (6) Alhaji Abdulkadir Balarabe Musa v Independent National Electoral Commission (2002) lpelr-11119(ca). (7) Section 2(3)(r) of the Admiralty Jurisdiction Act. (8) The Daily Times of Nigeria v DSV Limited (2013) LPELR-20369 (CA).

Phase-out date for single-hull tankers extended

he Nigerian Maritime Administration and Safety Agency (NIMASA) recently revised the schedule for the phase-out of single-hull tankers operating in Nigeria. Under the International Maritime Organisation (IMO) Revised Regulation 13G (now Regulation 20) of Annex 1 to the International Convention for the Prevention of Pollution from Ships (MARPOL), flag administrations were required to phase out Category 2 and 3 single-hull tankers by 2015. In view of the difficulty in achieving wholesale fleet renewal, the IMO extended the deadline for certain categories of tanker not engaged in international trade. NIMASA has now taken advantage of this window to push back the final phase-out date for single-hull oil tankers to December 31 2020. According to the agency, this decision is intended to “sustain the development of the Nigerian maritime industry and enhance the gains of the Cabotage Laws and Local Content Act”. Despite the extension, w w w.esqlaw.net

there will be no new registration of single-hull tankers, whether newly built or secondhand. However, the certificates of registered and operating single-hull vessels will be renewable for two years at first instance and subsequently for another two years, compared to the existing practice of renewal within five years. In addition, valid classification and statutory certificates issued by the administration must be in force in favour of the

tanker. From a risk assessment viewpoint, operators of single-hull tankers that wish to take advantage of the extension should ensure that such tankers are limited at all times within Nigerian territory. This is because the further provisions of Regulation 20 give port states which are party to MARPOL the right to deny such oil tankers entry to ports or offshore terminals under their jurisdiction. If this is not taken into

consideration, legal issues and liabilities may arise against such ships, charterers and committed cargo interests. In addition, the question of the seaworthiness of such vessels in the event of an incident may become a moot point where otherwise it would not. For further information on this topic please contact Emeka Akabogu at Akabogu & Associates by telephone (+23 41 790 5831) or email (emeka@akabogulaw. com). The Akabogu & Associates website can be accessed at www.akabogulaw.com.

ESQ LEGAL PRACTICE 65

Article

Africa, International Law Firms And The Way Foward O

ver the past 3 years, the continent of Africa has witnessed continuous economic growth and steady increase in economic activities, with growth rate in excess of 25%, Foreign Direct Investment (FDI) increase at 4.8% in 2014 and 19.5% since 2007. FDI projects and job creation has reached an all-time high. To this end, optimism amongst observers is quite high as the continent has developed into the most promising part of the world for companies, investors and their advisers. The region has witnessed positive economic reports and forecast and the value of African inward investment has tripled in the last ten years reaching more than $182bn while deal volumes have doubled now standing at a total of 2,417. With this statistics in mind, it is no surprise that Africa is the focus of the international business community, this development has also led to a boost in the regions business activities and influx of foreign investors scouting the continent for opportunities and business openings. Money managers on Wall Street, London Business men and some of the biggest law firms in the world are taking crash courses in Swahili and

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are learning to find cities like Lagos on the map. FOREIGN INTREST Global Law Firms have recognized this prospect and are expanding into Africa, a good example of this trend is the official tie-up between Norton Rose & Fulbright and Fulbright & Jarowski to form Norton Fulbright. The organization is a new global firm employing 3, 800 lawyers. The strategy behind this merger is to place the firm at the forefront of developing Africa’s business ties with the rest of the world. Even though this looks like a promising prospects for African Law Firms and businesses alike, Legal practitioners on the continent (excluding South Africa) see such moves by international Firms as a threat to their practice and sovereignty. This is an idea, which has been labeled ill-conceived in some quarters, due to poor relationship between local firms and these global giants. Legal Scholars on the continent believe that the increased involvement of these global giants are often not matched with a good understanding of the realities of doing business on the continent, which results in poor relationship

with firms and clients In Africa. North American, Australian and Chinese firms are singled out for being poor in their understanding. African firms are rather more interested in developing or joining network of firms in Africa. Another area which has posed a big challenge for international law firms is how to really beat the locals to their game, in India a recent survey shows that clients have emotional attachment with their lawyers and they still prefer to brief their locals. While this controversy continues in other parts of the continent South Africa seem to be in love with the idea of foreign law investors, International players have done business there for longer and a growing number of global firms have a presence on the ground for both African and South African firms, a lack of market knowledge can present opportunities for firms there to act as informed advisers on more than the Law itself. South African firms like Norton Fulbright see the need to expand from a local organization into a continental giant that can attract some of the biggest corporation in the continent and beyond. Certain Legal

analysts share this belief, they explain that African firms need the international law firms to help build a bigger and stronger brand. African firms get between 10-15% but could do more work at home, but if they partner foreign firms they get more of the fees. According to Mr Gbolahan Elias the lack of acceptance by local firms is due to a number of factors including the fact that western law firms are not clear on who will be the members and African law firms don’t know who will be the long term partner. The clearer the future, the easier to find the focus. Also both local and international firms are disloyal and are looking for multiple source of revenue. By and large, African lawyers are now getting more active in areas they weren’t focusing on before. HISTORICAL BACKGROUND UK & US In the 1980’s, a small number of firms based in the city of London also known as the magic circle due to their influence and power became integrally involved in in facilitating the construction of financial and capital market processes and products and aiding in their legal constituw w w.esqlaw.net

Article tion. Although this came at a cost following the jurisdictional disputes with merchant bank. The relationship between the city and these firms was highly effective in providing a conducive legal environment in which financial institutions could experiment and develop new product through this means. This also led to a distinct direction to the further development of the British legal system. Both in the US and Britain private service intermediaries from an early stage of industrialization played a prominent role in bridging information gaps and fragmented societal spheres typical of the Anglo-Saxon type of business environment. The financial rewards for law firms and for individual lawyers from linking in this way, particularly with the City of London, were high and further encouraged this process. In terms of commercial law, this created a pyramid effect with the City lawyers at the top linked into the city markets and other provincial law partnerships beneath linked into their own local elite. Thus other professionals could benefit from this linkage though some benefited more than others. When restrictions on the size of partnership were lifted in the 1967, the size of corporate law firms dealing with the City of London began to increase. Similar to that which had occurred in the US in the early part of the 20th century, firms sought to increase their level of specialization in particular areas of corporate law and develop stronger and more frequent relationships with their emerging multinational clients using the opportunity to expand significantly. By 1988, the largest firm in England (Clifford Chance) had 168 partners and the 20th largest (Berwin Leighton) had 40. A number of large firms also arose from mergers between law practices in large provincial cities in England. These firms in turn established offices in the City and although that in itself did not give them entry into the ‘Magic Circle’, it did provide a base for competing in London and overseas with w w w.esqlaw.net

the Magic Circle firms. Across the Atlantic the U.S., law firms were modeled as the standard for success by the 1960’s. Its core clients were business organizations and “captains of industry” who needed experienced specialists for sophisticated legal services requiring a high level of learning, skill and judgment for which they were prepared to pay top rates. Profits were shared by a small number of owners; and qualified, but inexperienced juniors competed for positions at the end of a long apprenticeship. The model is easily recognizable in Canada, Britain and other common law jurisdictions. The “golden age” of the elite firm, starting around 1970, was a time of rapid expansion, Burk and McGowan point out. In the U.S., the size of law firms grew, branches proliferated and revenues and profitability exploded. In 1968, the largest U.S. law firm had 169 lawyers. In 1988, the largest firm had 962 lawyers and there were 149 firms larger than the biggest shop on the block in 1968. By 2008, the average size of the 250 largest U.S. firms was 535 lawyers and 23 firms employed more than 1,000 lawyers. Firms started to expand across the country. In 1960, most firms were associated with one city. By 1980, 87 per cent of the 100 largest firms had a branch office and by 2003, the average Am Law 200 law firm had nine branch offices. Furthermore, the share of the market for legal services held by the largest firms doubled between 1972 and 1986. By 2007, profits per partner at the 100 most profitable U.S. firms averaged $1.3-million, 68 per cent more than in 2000. Starting in the 1970’s, lateral mobility picked up as law firms competed for partners whose expertise was in demand by the growing ranks of corporate counsel charged with finding the best lawyers to handle specialized matters. This eventually sparked competition within firms for money and power as the rewards trickled down to smaller numbers of partners. Partnership tenure became more precarious, and firms started

to introduce a lower tier of non-equity partners into the mix. To support the pyramid structure that was evolving, the demand for associates expanded, pushing associate pay higher. By 2007, base associate salaries at elite firms had hit $160,000. Leverage also soared as the number of associates and non-partnership-track lawyers proliferated: Burk and McGowan note that by 2003 “mean leverage among the Am Law 200 firms was over 3.5, with the 75th percentile boasting over four non-partner attorneys per equity partner.” REASON FOR GLOBALISATION Law firms traditionally did most of their business within their home markets. The right to practice was governed by national regulations and the law which was practiced was ‘national’, i.e. the outcome of the specific legislative and judicial practices of nation states. However, as has been suggested, not all legal activity could be circumscribed in this manner. For centuries, there have been corporate and private clients of law firms with interests in countries other than that in which they are legally domiciled. Buying and selling property, the protection of patents and intellectual property rights, debt recovery and commercial arbitration, the establishment of corporate forms and involvement in capital markets are just a few of the activities which have traditionally crossed borders The traditional basis of this work up to the last two decades has been through referrals, i.e. a law practice in one country refers their client to a practice in another country. These referrals were generally based on bilateral relationships between the two firms involved and worked on the basis of personal knowledge and reciprocity. The basis of these referral systems historically has been a sense of reciprocity in terms of feeearning potential. Generally it appears that no money changed hands between the two law practices involved in the referral. To have done

otherwise it would have been necessary to establish bureaucratic procedures that neither firm wished to enter into. What took the place of this was the establishment of obligations to reciprocate. If the stream of referrals flowed steadily in one direction but not in the other, it would be likely that the firm sending the referrals would look to find another partner more willing to reciprocate. Generally referral work was a small part of a firm’s overall turnover in this period, often undertaken on a grace and favor basis rather than with any great hopes for revenue and profitability. Only when this changed and the scale and scope of referrals grew did a competitive market emerge, at which point the structural solution which had been sufficient for this previous phase, began to be supplanted by other models. TIMES ARE CHANGING Law is changing and the fragmenting faster than ever before and across borders businesses is becoming more lucrative and inviting. Technology helps make collaboration very easy with the emergence of the internet and other hi-tech gadgets to facilitate business deals and there are new forms of competition and external investments in the global market place 25years ago law firms were restricted to practicing law to one jurisdiction, firms had one main office “overseas offices were small and only practised the law of the home office, overseas offices were staffed by junior personnel from the the home office, but things changed when clients in the market went global, financial markets and capital flows also went global. Technology also became a global phenomenom, brand became bigger and appeared in more than three continents. It therefore became imperative for law firms to expand their horizon and explore developing markets like Africa The trending globalization has further increased awareness of legal pratitioners areound the world as more lawyers get better jobs and training without leaving ESQ LEGAL PRACTICE 67

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the country. Domestic and international firms are a lot more profitable and the most interesting part is that most of the profits stay at home. This also has a positive impact on domestic bar associations , boosts the confidence of investors in the market. CLIENTS REACTION In a recent research conducted by A&O commission it was reported that general counsel do not speak with a single voice in relation to global law firms, the belong to 2 different school of thoughts, some clients favor the one-stop shop and another school of thought like to “Cherry pick” and often have no interest I whether firms have no international capabilities. AFRICA CALLING A number of English and American law firms have been heavily invested in the continent for years, but the majority have not. Many of these firms have recently introduced focus teams or management groups, reporting to the board with the remit to defend and grow

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the firms work in Africa. The English are far more interested and engaged, this time though, the gap is closing. These corporations have recognized this opportunity and also spotted the opening to capitalize on their capabilities couple with finance sector muscle to make a pitch for Africa. Some firms are content with achieving greater co-ordination of their “fly-in fly-out” approach. Others are applying more energy to their relationships with local firms. Another group is looking actively at setting up offices and working in collaboration with indigenous Law Firms. Although, there are few English firms who take a different approach, already believing that a greater level of partnering is in their best interest. For the most part they continue to take the relationship lead, but there is much more transparency over work and fee sharing and there is much more inclination to facilitate direct liaison and contact with the client. EXISTING NETWORKS The 1990s were a period in

which international network relationships become more formalized some of the first formal network associations of independent law firms were established in the early 1990s. These included typically medium-sized and small law firms form different countries which wished to present themselves as possessing an international capacity for their clients. Multilaw for instance was founded in London in 1990 and in 2004 consists of 4500 lawyers in 130 commercial centers. Lex Mundi which now claims 15,000 lawyers in 161 member firms, with more than 560 offices in 99 countries, was founded in 1989. MSI Network, which is unusual in that it has accounting firms as members as well as law firms, was also established in 1990. It now has a membership of 115 Law Firms and 120 Accounting Firms. Towards the end of the 1990s, a different type of formalized network emerged out of combinations of corporate law firms from different European countries. It typically involved smaller numbers of firms which

though not ranging among the top firms in their home country nevertheless could draw on a high domestic reputation. CMS is an example of this type of network. Established in 1999 by the UK firm Cameron and McKenna, the German firm Hasche Sigle Eschellohr Peltzer and firms from Austria, Belgium, Switzerland, France and Italy, CMS is now a tighly integrated network. Member firms retain independence in their home jurisdiction but are coordinated through an European Economic Interest Grouping (EEIG) registered in Brussels, Belgium. Another example of such a network is DLA headquartered in the UK and networked with firms in a considerable number of European cities. Last but not least, some of the top UK and US firms intensified their linkages with the emergent large German law firms towards the end of the 1990s. The UK firm Freshfields made their relationship with the largest German firm, Bruckhaus Westrick Heller Löber more explicit, Linklaters (again UK) cooperated w w w.esqlaw.net

Article more closely with Oppenhoff & Rädler (Germany) and the US firm Polk & Wardwell linked up more closely with Slaughter & May (UK) and Hengeler Müller (Germany). In some of these cases, the formalization of referral networks became the precursor for later mergers. Even though mergers like this seem relatively alien to countries in Sub Sahara Africa and the north of the continent, this is an idea which has been fully operational in South Africa, Norton Rose & Fulbright …… law firm acquired the south African firm Fulbright & Jarowski to form Norton Fulbright. The organization is a new global firm employing 3, 800 lawyers. The strategy behind this merger is to place the firm at the forefront of developing Africa’s business ties with the rest of the world. WHERE IS BEST? The Nigerian economy has enjoyed sustained economic growth for a decade, with annual real GDP increasing by around 7%; it was 6.3% in 2014. The non-oil sector has been the main driver of growth, with services contributing about 57%, while manufacturing and agriculture, respectively contributed about 9% and 21%. The economy is thus diversifying and is becoming more services-oriented, in particular through retail and wholesale trade, real estate, information and communication. Also with the emergence of a new Government which has the backing of the international community. It’s an administration that has vowed to tackle corruption on all fronts. Legal analyst Gbenga Oyebode believes with a rebased outlook and the largest economy in Africa, Nigeria has positioned itself to be the next focal point for international law firms, he goes on to say that “We are less of instructors in Nigeria. We are now equal with South Africa. COMPETITION The competition African establishments are experiencing is not only from international firms, but also from local competitors upping w w w.esqlaw.net

their game and. However, there are disparities between the views of most global firms that they don’t compete with local firms for work with the African firms, who are seeing a growing number of instructions from international clients that would formerly have gone to local firms. Projects in such areas as privatizations, investment funds, project finance and issuances are all being handled locally. For both parties there are more opportunities than challenges and both parties need to develop ideas to fully maximize these potentials. HOGGERS OR HUGGERS Some global firms (Hoggers) strongly adhere to the notion that international clients want only to instruct global firms. They are doubtful that African firms will have much success in attracting work directly from such clients. They see the client relationship as “theirs” and would be very averse to exposing the client directly to African lawyers. Such global firms see it as their role to select the African firm as a subcontractor only. Unsurprisingly, the African counterparts suspect these firms of hogging not just the relationship, but the fees as well. . At the other end of the scale are the “Huggers”, these Huggers believe that building relationships with African firms is a long term game that requires a long term plan. They have spotted the opportunities from growing numbers of international clients are instructing African firms directly. At the moment, the proportion of work this accounts for is small, but it seems certain to grow. Huggers nevertheless know that there will remain distinct roles for global firms and African ones, where each adds value to the international client. Rather than wait until the clients figure this out, Huggers are taking the initiative, bringing African firms into the client relationship and, in some cases, sitting down with the client to negotiate who does what and for what fee. Beyond Hogers and Huggers, The big challenge of in-

ternational law firms is how to really beat the locals to their game. A recent survey shows that African clients like their Indian counterparts have emotional attachments with their lawyers and they still prefer to brief their locals who sometimes might even be their family members. LACK OF BRANDING It is difficult building brands when people see more of family and friends rather than law firms. Over the years African firms have witnessed jobs going to international player in the UK and US and these are jobs that they perceive as justiably theirs. Experts have listed areas such as poor cross-border management skills, depth of resources and branding as some of the reasons why African firms will continue to be overlooked by the Global heavyweights. Nigerian firms have expressed frustration due to regulatory imoediments to advertising, for such firms advertising will never be their most potent communication tool. Global firms haven’t built their brands through advertising: rather they have worked and continue to work to ensure that the service they deliver to clients are reliable and productive. They work to ensure that people take pride in constantly referring to them. This is an area African firms need to improve on rather than whining over their inability to advertise. The focus should be on building a brand based on the quality of their services and delivery. WHO BENEFITS MORE? For African law firms and their colleagues on the other side of the atlantic, the big question is who gets the lion share of deals, profits and clients. Currently African firms get between 10-15% but do more and could do more work at home. But if they partner, they get more of the fees. African firms also recognise that global firms wield a much greater brand clout. This is an avenue to promote their brands both with international firms and international institutions.

Parameters have shifted, clients are in charge, delivery of legal services is going to be very different and there are staggering implications for how lawyers are trained and compensated. Globalization, for example, is creating new economic pressures and ramping up competition for talent, said David Wilkins, vice-dean for global initiatives on the legal profession at Harvard Law School. “If you want to understand what is happening to law, you have to understand what is happening to the economy,” he said.“Lawyers should be looking for places where money is changing hands”. At the moment Africa seem is the place to be for these international players, given these fast economic growth the big question is “If Africa law firms would be able to hold their own when the Global community focuses on the continent. Even though there is constant concern amongst locals on the continent, whether these international players should be regarded as friends to partner and invest with or competitors, who will take the best work and leave Africans with slim pickings. We also must not forget that this is an opportunity for local firms to build a brand capable of attracting the biggest clients in the business world, this move will also help put the continent’s law firms on the international market. As businesses around the world turn their attention to the continent of Africa one cannot over-emphasize the importance of African firms building a stronger and healthier relationship with global law firms. They need each other to harness the raw potentials of the continent of Africa. Future of legal practice on the continent is quite promising and Nigeria will get better. A level playing field. For both parties, the expertise of international law firms combined with the intellectual aggression of African lawyers the future is promising potentials of a market that will deepen. The sky will be the limit for the law practice in Africa.

IN CONCLUSION ESQ LEGAL PRACTICE 69

ESQ Law Report Dorothy Ufot & Co

Court rules on commencement of enforcement of arbitral award In Stabilini Visinoni Ltd v Mallinson & Partners Ltd(1) the Court of Appeal considered whether it was required to comply with the Lagos State Arbitration Law 2009 regarding the commencement of enforcement of an arbitral award, rather than the Arbitration and Conciliation Act 2004 (CAP A18, LFN).

he respondent dealt with the import and sale of building materials, including iron rods of different sizes, while the appellant was a civil works and construction company. By two local purchase orders (LPOs) dated May 14 and 15 2009, the appellant ordered iron rods worth N33.6 million and N9.6 million, respectively, from the respondent. Both LPOs contained the following arbitration clause: “All disputes which may arise out of the order shall be referred to an Arbitrator nominate by the President at the time being of the Lagos State Chamber of Commerce. This clause should be deemed a submission to the arbitration within the meaning of the law from time to time enforced in Nigeria.” The LPOs also stated that payment for the iron rods supplied should be made “30 days after the last delivery”. When the appellant failed to make the payments, the respondent sent several demand letters to the appellant; when that yielded no results, the respondent’s lawyers sent a demand letter to the appellant. The appellant still failed to pay and on January 21 2010 the respondent filed suit at the Lagos State High Court claiming, among other things, N43.2 million, which was the sum owed to the respondent for the supplied iron rods. On being served, the appellant entered a conditional appearance and filed a motion on notice

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seeking an order to stay further proceedings until the parties had complied with the LPO arbitration clause, which required referral to arbitration before the commencement of court action. The respondent conceded and a sole arbitrator was appointed in accordance with the parties’ agreement. The arbitrator informed the parties of her appointment and set a preliminary meeting. The appellant failed to attend that meeting and later proposed settlement subject to the respondent withdrawing or discontinuing all claims, suits and arbitration against the appellant. The respondent made a counteroffer, but the appellant failed to respond. The arbitrator fixed another hearing subject to the settlement report and a notice of hearing was sent to the parties. The appellant again failed to attend. The arbitrator concluded the proceedings based on the respondent’s evidence and set a date for rendering of the award. On being notified, the appellant returned to the court and, by ex parte motion, sought to restrain the arbitrator from rendering the award. The court issued the restraining order and ordered that the arbitrator be served within 48 hours. However, the arbitrator was not served within that time and by the time the order reached the arbitral tribunal, it was already dead on arrival. The arbitrator went ahead and rendered the award in favour

of the respondent. The respondent filed a motion on notice for an order for enforcement of the arbitral award. At the same time, the appellant filed suit at the Lagos State High Court to set aside the award, and also filed a notice of preliminary objection to strike out the respondent’s application to enforce the arbitral award on the grounds that the respondent sought to enforce an arbitral award by a motion on notice instead of complying with the Lagos State Arbitration Law, which prescribes that enforcement must be by originating motion. In a December 21 2011 judgment the trial court dismissed the appellant’s application to set aside the award and the notice of preliminary objection, but granted the respondent’s application to enforce the award. The appellant appealed to the Court of Appeal, contending that the respondent should comply with the Lagos State Arbitration Law as the law in force when the respondent filed its application to enforce the arbitral award. Relevant legislation The Court of Appeal considered: • Sections 21(c) and 31(1) of the Arbitration and Conciliation Act (CAP A18, Laws of the Federation of Nigeria, 2004); • Order 39, Rule 4(1) of the Lagos State High Court (Civil Procedure) Rules 2004; • Section 2 of the Lagos State Arbitration Law, 2009; and • Rule 7(1) of the Lagos State Arbitration Applications Rules 2009 (Schedule of the Lagos State Arbitration Law, 2009). Section 21(c) of the Arbitra-

tion Act provides that: “Unless otherwise agreed parties if without showing sufficient cause; any party fails to appear at the hearing or to produce document by evidence, the arbitral tribunal may continue the proceedings and make the award.” Section 31(1) of the Arbitration Act provides as follows: “An arbitral award shall be recognized as binding and subject to this section and section 32 of this Act, shall upon application in writing to the court, be enforced by the court.” Order 39, Rule 4(1) of the Lagos State High Court (Civil Procedure) Rules provides that: “Every motion on notice to set aside, remit or enforce an arbitral award shall state in general terms the grounds of the application and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be with served with the notice of motion.” Section 2 of the Lagos State Arbitration Law provides that: “From the Commencement of this Law, all arbitration within the State shall be governed by the provisions of this Law except where the parties have expressly agreed that another Arbitration Law shall apply.” Rule 7(1) of the Lagos State Arbitration Rules provides that: “An application to enforce an award or an interim measure of protection in the same manner as a judgment or order shall be made by originating motion.” Decision In a unanimous decision the Court of Appeal dismissed the appeal and held as follows: • In the case at hand the parties were at liberty to choose the applicable law and the w w w.esqlaw.net

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arbitration clause, provided that the applicable law was the law enforced in Nigeria. The Arbitration and Conciliation Act is a federal act that governs arbitration in Nigeria. In the circumstances of this case, by virtue of Section 21(c) of the Arbitration and Conciliation Act, the arbitral tribunal had fully acted within its powers and proceeded to make the award. An application to enforce an arbitral award under Section 31(1) of the Arbitration and Conciliation Act shall be made in writing to the court. The Arbitration Act does not specify the type of application to be made; however, Order 39, Rule 4(1) of the Lagos State High Court (Civil Procedure) Rules provides for the application by motion on notice to set aside, remit or enforce an arbitral award. Thus, an application to enforce an arbitral award under the act may be made by motion on notice, as was previously held in Triana Ltd v UTB.(2) The Lagos State Arbitration Law, along with the rules made thereunder, covers Lagos State. Section 2 of the law provides that from the commencement of the law, all arbitration within Lagos State shall be governed by its provisions, except where the parties have expressly agreed that another arbitration law shall apply. The law applicable in Lagos State indicated that the application should be made by originating motion, as is expressly stated in Rule 7(1) of the Lagos State Arbitration Rules. The Lagos State Arbitration Law came into effect a few days after the disputed agreement was entered into. As the parties had agreed to be bound by the law enforced in Nigeria (the Arbitration and Conciliation Act), the subsequent enactment of the Lagos State Arbitration Law had no bearing on the parties’ pre-agreed arbitration clause. In the case at hand the arbitrator chose the act because it was the arbitration law of Nigeria and the choice could be implied from the arbitration clause. Thus, the Arbitration and Conciliation Act was the

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applicable law. Comment Arbitration recognises the autonomy of the parties; thus, the parties to an arbitration agreement may choose the applicable law and the arbitral tribunal must apply the law agreed by the parties. In the case at hand the parties had already agreed that the applicable law was the law enforced in Nigeria. The Arbitration and Conciliation Act is the law applicable to arbitration in Nigeria, while the Lagos State Arbitration Law is applicable to all arbitration within Lagos State (as of its commencement date, May 18 2009), except where the parties have expressly agreed that another arbitration law shall apply. The appellant had alleged that the respondent did not comply with the procedure for filing an application to enforce an arbitral award. The parties had agreed on the applicable law as “the law from time to time enforced in Nigeria”. They could not have meant the Lagos State Arbitration Law, as it was not the law enforced in Nigeria when they entered into the agreement. The Court of Appeal rightly dismissed the appellant’s appeal to set aside the award. Contrary to the appellant’s argument, the decision confirms that it is not mandatory to comply with the Lagos State Arbitration Law regarding the commencement of enforcement of an arbitral award where the parties have expressly agreed on another arbitration law. However, would the court have decided differently if the arbitration had been conducted in Lagos and the parties had not agreed on the applicable law? This is the conflict created by the co-existence of two conflicting statutes - the federal Arbitration and Conciliation Act and the Lagos State Arbitration Law - on the same subject matter. Nigeria has a three-tier system of government, comprising federal, state and local governments, each of which has its own legislative powers as provided under the 1999 Constitution.(3) The question here is: which tier of government has legislative competence to regulate arbitration? Arbitration is addressed in neither the exclusive legislative list(4) nor the concurrent legislative list(5) of the Second Schedule of the Constitution. However, it could be said to be incidental to “Trade and Commerce” (Item 62(a) in the exclusive legislative

list), which the federal legislature has legislative competence to regulate. Moreover, the Arbitration and Conciliation Act is one of the international instruments that have been incorporated into Nigerian law, and the federal legislature has legislative competence to incorporate international treaties into domestic law. Thus, the federal legislature may be said to have legislative competence to regulate arbitration. On the other hand, it has been argued in support of the Lagos State Arbitration Law that since arbitration is not included on any of the lists in the Second Schedule of the Constitution, it falls within the legislative competence of the states. Prior to the enactment of the Lagos State Arbitration Law, Lagos State had adopted verbatim the provisions of the Arbitration and Conciliation Act and included the act in the laws of Lagos State.(6) The enactment of the Lagos State Arbitration Law made the act inapplicable in Lagos State, subject to the exception set out in Section 2 of the law. With regard to applications for the commencement of enforcement of an arbitral award, it is interesting to note that the Lagos State Arbitration Law not only conflicts with the federal Arbitration Law, but also contains conflicting provisions on the issue.

While Section 56 of the law requires the application to be made in writing (as under the Arbitration and Conciliation Act), Rule 7(1) of the Lagos State Arbitration Applications Rules requires that it be made by originating motion. The Lagos State Arbitration Law has created inconsistency in the applicability of the Arbitration and Conciliation Act in Lagos State. However, the Constitution is very clear on the supremacy of federal law. Section 4(5) of the Constitution provides that “if any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail; and that other law shall to the extent of the inconsistency be void”. In the light of the foregoing, it would be prudent for Lagos State to amend its arbitration law to avoid this unnecessary confusion, rather than waiting until such time as the Supreme Court is called on to determine the matter. This decision is also a call for accelerated proceedings in respect of arbitration matters before the courts for determination. The respondent applied to the Lagos State High Court for enforcement of the arbitral award on October 14 2010. The arguments were heard on January 23 2011, while ESQ LEGAL PRACTICE 71

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ESQ Law Report SPA Ajibade & Co.

Court confirms company bylaws must be observed when calling a meeting Legal Practitioners, Arbitrators & Notaries Public

ESQ LEGAL PRACTICE 73

Law Firm Profile

ABDULAI, TAIWO & CO. 39 years on, ATC is waxing stronger... Head Office: Goodwill House 278, Ikorodu Road, Lagos, Nigeria E-mail: law@abdulaitaiwo.com Web: www.abdulaitaiwo.com

ounded in 1976, Abdulai, Taiwo & Co. is a full service commercial and IP law firm with a long-standing reputation for excellence. The firm’s integrated practice enhances its capability to provide multi-faceted legal advice and due diligence services, and it has “preferred friend” relationships with leading firms across West Africa, which facilitates seamless cross-border services. The firm has a broad experience in advising international clients which puts it in a vantage position to identify and address usual areas of concern and expectations. Its international client base includes companies consistently listed in the top echelon of “Fortune 500”. It is regularly consulted on Nigerian business regulatory issues by law firms and counsel from all over the world. Business Start-Ups The firm has a reliable and long standing reputation on Nigerian business regulatory issues, and is the author of some leading books on the subject. Privatization The firm has a strong reputation in privatization transactions advising both on the buyer and seller sides. The firm has advised the National Council on Privatisation on some of its largest and most complex international tenders, such as: Nitel (the national telecom.); Aluminum Smelter Company of Nigeria; Nigeria Machine Tools. M&A and Private Equity The firm has significant experience in corporate joint-ventures, cross-border M&A and Private Equity. Intellectual Property The firm’s IP practice covers trademarks, brand protection, patents, designs, management know-how and licensing agreements. Banking and Finance The firm has over the years maintained a strong reputation in advising on all aspects of investment banking and finance transactions; including the first RMBS securitization in West Africa, and Real Estate Investment Trust Scheme (REITS). Capital Market The firm has acted as Lead Counsel on numerous significant capital market transactions in Nigeria. General Corporate Counseling The firm continues to be the “counselof-choice” to several multi-national companies.

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PPP and Infrastructure Project Finance The firm advises operators, sponsors and financiers on documentary and regulatory issues for Public Private Partnerships (PPP); infrastructure finance; and utilities projects. Litigation & ADR The team is headed by Akin Osinbajo, Joint Managing Partner of ATC and former Attorney-General of Ogun State. The firm’s broad-based practice encompasses matters involving securities litigation and enforcement, banking litigation, commercial litigation and arbitration, tax controversy, intellectual property, and multi-jurisdictional regulatory enforcement matters. Pro Bono Services Pro bono legal advisers to “Nigerian Business Coalition Against Aids Ltd. Gte” (NIBUCAA); and “Save The Children International” (SYC). Corporate Social Responsibility (“CSR”) To commemorate its 20th Anniversary in 1995, the firm endowed, in perpetuity, the “ABDULAI, TAIWO & CO. – COMPANY LAW PRACTICE” – library shelf at the Nigerian Law School, to be stocked annually with contemporary law reference books and journals. Several other institutions have also been beneficiaries of law publications donated by the firm to their libraries. Ranking and Recognitions • “IFLR:1000 – Guide to the World’s Leading Financial Lawyers” years 2000-2015; • “Chambers Global – Guide to the World’s Leading Lawyers for Business” years 2005-2015; • “Legal 500 (EMEA)” years 2005-2015; • “Who’s Who Legal: Nigeria” years 2009-2015 • 2013 Winner “African Quality Service Award for Corporate Legal Practice”, in the African Governance and Corporate. Leadership Awards by the Institute For Government Research and Leadership Technology. Transaction Tombstones • Lead Counsel on numerous significant pioneer transactions in Nigeria. • Series 1, 2 and 3 of FGN Guaranteed Notes Under the FMBN SPV Issuer NGN100 Billion Residential Mortgage-Backed Securities Programme – the first and only RMBS Securitisation concluded in Nigeria till date; • Pioneer series of Federal and State Government Water Sector PPP Con-

• • • • • • • •

cession in Nigeria; NIPOST Financial Inclusion PPP transaction, which pioneered the Agent Bank concept in Nigeria. Pioneer series of Unit Trusts (Mutual Funds) capital market transactions in Nigeria; Mandated Counsel for start-up establishment of key national institutions and companies Abuja Commodities and Securities Exchange Plc; Nigeria Inter-Banks’ Settlement Plc Investment & Securities Act, of 1999 (guiding all securities & capital market transactions). Equipment Leasing Association of Nigeria Ltd. Gte. Mandated Consultants to the Nigerian Investment Promotion Commission (NIPC) for the compilation of the original edition of the handbook titled “Investors’ Guide to Nigeria” which has become the nation’s marketing document to investors.

Publications • Books by the firm’s partners include a book entitled “Establishing a Business in Nigeria” 4th Edition, ISBN 978 30065 17 and the following titles in the NIGERIA Practice Notes Series : • “Registration of Trademarks, Patents and Technology Transfer Licences” ISBN 978 30065 33; • “Privatization of Government Enterprises by Tender and Public Offer” ISBN 978 30065 84; • “Registration and Regulation of Foreign Investments and Enterprises” 2nd Edition ISBN 978 30065 76; • “Law Office Etiquette - Essential Habits of Successful Firms” ISBN 978 30065 68; • Also, the Nigeria Country chapters of the following international compendiums: • “Legal Aspects of Doing Business in Africa” – ISBN 9065449329; published by Juris Law Publishers. • “Corporate Acquisitions and Mergers”, ISBN 1-85333-832-X, published by Kluwer Law International; • “Intellectual Property Law Review” ISBN 978-1-90766-34-2, by Law Business Research Limited; • IP Client Strategies in the Middle East and Africa” ISBN 978-0-314-90728-8, published by Thomson Reuters/Aspatore Books. • “International Corporate Law” ISBN 1-58762-221-1 published by Thomson Reuters/Aspatore Books

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ESQ LEGAL PRACTICE 75

FROM LEGAL

COUNSEL TO BUSINESS COUNSEL –JUSTINA LEWA

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hat are the top traits for succeeding as an in-house counsel? To succeed as an in-house counsel, you must know your onions and be well grounded in the law. You have to know what the business is all about and what each unit of the business is doing. You may be called upon at any time to advise and provide legal opinions on commercial and transactional issues affecting the business. In my view therefore, you need the following traits to succeed: • Knowledge • Courage • Integrity • Professionalism • Passion • Team work and • Emotional intelligence. What would the future role of the General Counsel? The growing importance of the role of the General Counsel as a Problem Solver or Solution Provider would continue to evolve. Nigeria being an emerging economy is growing and businesses with attendant challenges would continue to require the expert knowledge of professionals especially lawyers who by virtue of their training are ‘learned’ versatile and positioned to provide expert legal services. The role of the General Counsel as a Negotiator/Strategic thinker and Manager of the dividing line is indispensable for the gamut of legal services and instant support provided for the smooth running of businesses. The GC sees the big picture and delivers practical advice due to his/her integration with the business. With the increasing focus on corporate governance, the future role of the GC would continue to grow in importance. Has risk management changed in terms of the complexity of business today? How critical is it to institute a corporate responsibility component within organisation? Definitely, risk management has changed in terms of the complexity of business today as it is critical to creating value. The name of the game is now Enterprise Wide Risk Management and goes beyond Credit risk. It encompasses Market, Operational, Franchise, Strategic and Legal risks. Risk Management globally, has w w w.esqlaw.net

Interview therefore, become a structured and disciplined approach that aligns strategy, processes, people, technology and knowledge with the purpose of evaluating and managing the uncertainties the business faces as it creates value. The need to institute a corporate responsibility component within an organisation cannot be over emphasized given the uncertainties and challenges surrounding businesses which have necessitated risk measurement, control and reporting in order to protect margins and capital. Poor governance and corruption have undermined Africa’s development and hampered its progress towards more equality. What do you think of this assertion? The assertion is on point. Africa has suffered debilitating effects of corruption where public funds have been converted into private use thereby resulting in distorted distribution of wealth among the citizens, with tilt of affluence to a minority well-connected few. In trying to perpetuate its hegemony on the economy, the privileged few usually erect institutional and systemic barriers to prevent wealth from being re-distributed away from their enclaves. For example in 2010, Transparency International in her Corruption Perception Index (CPI) noted Africa as the most corrupt region in the world, while also noting sub-Saharan Africa as the most underdeveloped region on earth. The nexus between under-development and corruption is closely related. What are the roles of in-house legal counsel today in providing strategic advice to the Board? In-house Legal counsel today occupies a strategic position in advising the Board on any issue. Apart from formalized advice in terms of legal opinion and Board legal representation, in -house Legal counsel is at the heart of the decision making process and therefore in a position of influence to provide quality advice and guide the Board having regard to the ever changing and evolving regulatory environment.

As a gatekeeper and also a trusted guardian of the Board, how can a General Counsel gain voice in the boardroom? The General Counsel must, as a matter fact be seen by the Board as competent and adding value to Board discussions . The General Counsel is an enabler and provider of information on trends and new developments. Essentially, therefore, the General Counsel must be sufficiently grounded in matters concerning the company, the regulatory environment, the economy, the sector and most importantly, matters that may expose the company to liability, direct or contingent and generally as a participant to ensure good corporate governance and Board effectiveness. What could General Counsels do differently that would elevate their role to advisor? In the ever competitive and harsh operating business environment, innovation is key. The General Counsel must be able to think outside the box and proffer practical solutions to otherwise intractable problems facing the entity or business. What will the Board and the business gain by the GC developing a more strategic role? Overall efficiency and effectiveness of internal processes of the Board and business. When avoidable liabilities, whether direct or contingent are reduced to nil or barest minimum, the Board and the entity would concentrate on core functions and businesses which would ultimately lead to improvement in the bottom-line.

ness development? In-house teams can support business development by ensuring strong policy and legal framework for services proposed. For instance, the inhouse Legal team was crucial to the implementation of the Direct Sales Executives (DSE) programme of the institution. These are outsourced sales agents recruited primarily for the mobilization of cheap, low cost funds from the public. The in-house team formulated the legal policy and framework for the execution of the programme which has produced great success for the institution. Another example was the provision of the needed policy and legal framework for the institution to collaborate with an English premiership football club in extending some of the Bank’s services overseas. This has also proved a huge success within the country and a means of enriching lives. What is Sterling Bank actively doing now? What is your role in it? The Bank is presently driving its retail strategy. My role is to review all product programmes to ensure that the interest of the Bank is adequately protected and that the product programmes are compliant with extant laws, regulatory guidelines and meet the

Can you share with us some practical examples of how inhouse teams can support busi-

ESQ LEGAL PRACTICE 77

Interview

financial needs of the Bank’s customers. We have also prepared standard agreements and uploaded on the intranet for accessibility by the Relationship Managers in a bid to provide prompt service to customers. The Legal team has also undertaken in-house training on documentation especially for staff of the Retail Lending Group to build capacity and improve efficiency towards the retail drive. It would interest you to know that I am also involved in deposit mobilization for the Bank. It is immaterial that I am not in the marketing function. Can you also share with us some of those strategies for ensuring the in-house legal team is seen to create value? The first strategy is Relevance. We have succeeded in making the Legal team relevant to the institution to the extent that our opinion and advice are

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sought after by both employees and senior Management staff. It is a general belief within the system that without the Legal team the institution would suffer greatly. The second strategy is Impact. We have gone through the process of in-house training, mentoring and level of support given to the staff of other Departments and Units created value. The Legal team has drafted, reviewed and advised on several complex transactions and agreements on project and asset based financing, public & private ,debt equity issues, loan syndications, Power, Oil & Gas, Mergers & Acquisitions, etc. to minimise the Bank’s transaction risks and maximise value. What are some of those essential Skills for In-House Counsel in Delivering Commercial Growth? As an in-house Counsel, one must have a grasp of all happenings in the institution. As a

matter of fact, it is mandatory for Legal Officers to be part of some key Management Committees – Risk Management, Credit, Technology, etc. In my view therefore, the in-house Counsel must be sufficiently kno--++--wledgeable to understand local and international laws, possess strong interpersonal and communication skills, strong organisational and people management skills, ability to multi-task and function effectively under pressure, negotiation skills and be an effective team player. Most of the time, when you wake up early in the morning, what are some of those things that engages your mind in your role as a gatekeeper? As a gatekeeper and a problem solver, waking up in the morning so many things run through my mind and stare me in the face to be accomplished during the day and that is without prejudice to certain meet-

ings and tasks that the Managing Director could assign to me to handle. The first thing is how to manage my time and prioritize the work or issues competing for my attention in order to achieve results. Are you able to take time away from the business? Yes, I am able to take time off from the business to go on vacation as it is absolutely necessary for one’s health and for better performance. After a good rest, you are set to return with more vigour. As you are also aware, no one is indispensable. In Sterling Bank, we have a leave policy which makes it mandatory for everyone to take a vacation each year. What do you do outside this office to enrich your life? I do charity work – from time to time visit old peoples home, the orphanage, mentoring and participating actively in church activities. w w w.esqlaw.net

Nigerian Lawyers In Entertainment Industry UDUAK ODUOK

ith a deep passion for law and extensive experience as a trial lawyer litigating a wide variety of issues in both civil and criminal law, Uduak Oduok is an attorney who “gets it” when it comes to resolving legal issues for her clients. A former fashion model who still remains very connected and involved in the fashion and entertainment industries, Uduak began her career as a health lawyer and subsequently transitioned into criminal defines, business litigation and fashion and entertainment law. She has represented and counselled a range of clients from businesses to musicians, models, actors and actresses to designers on numerous areas of the law including contracts, business and intellectual property laws (copyright and trademark laws). She earned her B.A. in Speech Communications, with honors, from San Jose State University. During her stay in the University, she co-founded the African Student Union as well as competed on the school’s debate team winning numerous trophies for her school. In 2001, Uduak earned her Juris Doctorate (J.D.) from UC Hastings College of the Law where she contributed to the Hastings Law Newspaper. She was also one of two students on the Hastings Admissions Committee and also served as an elected student representative on the Hastings Associated Student Executive Board. In 2000, Uduak enrolled at Georgetown Law Center in Washington DC as a visiting student. While at Georgetown, she competed and earned a spot on the school’s national

moot court team. She along with her partner on the FDMCC national moot court team, won the Mid-Atlantic Championship and ‘Best Respondent’s Brief’ and was a semi-finalist on the national level for Georgetown. She accomplished all of these while holding part-time jobs, throughout college and law school, to help put her through school. In 2007, with a keen interest on the intersection of law and fashion specific to Africa, Uduak launched the first ever publication focused on bringing African fashion and entertainment to the Western masses. In 2008, her effort was recognized with a feature in the prestigious American Bar Journal. In 2010, Uduak was nominated for the Africa Fashion International Africa Fashion Awards for her, “Outstanding Contribution to Fashion Communications.” This young Legal practitioner is also a member of the press, she has interviewed numerous members of the legal profession including Judges and renowned attorneys. Within the fashion and entertainment industries, in her journalistic capacity, she has rubbed shoulders with some of the most reputable names in the world interviewing personalities such as: The Late Designer Alexander McQueen, Designers Vivienne Westwood, Jason Wu, Donna Karan, Hip-hop mogul Diddy, Supermodels Beverly Johnson and Naomi Campbell, Comedian Mo’Nique, British designer Ozwald Boateng and India’s Sabayasahci Mukherjee. A pioneer in her own right, in late 2011, Uduak, also an avid blogger and social media law legal commentator, launched the first ever music law blog “African Music Law.

AUDU MAIKORI

udu Maikori is the co-founder of one of Nigeria’s leading record labels Chocolate City Entertainment, he is a member of the Chartered Institute of Arbitrators UK, International Association of Entertainment Lawyers, the Nigerian Bar Association and International Bar Association (IBA). Audu is currently a Senior Partner with Law Allianz a firm of legal practitioners based in Lagos and Abuja. In May 2007, Maikori co-organized the first ever Nigerian International Music Summit aimed at establishing a legal/regulatory framework for the Nigerian music industry in March 2007. Over 400 music industry stakeholders drawn from all over Nigeria attended the event. His belief in the creative industries of Nigeria and Africa made him a spokesperson and mentor for many youth in and around Nigeria. Maikori has received both local and international commendations for his work in developing the youth including being invited to Albania in 2008 to deliver a keynote speech at a seminar organized by the Albania Ministry of Youth and Employment, Minister of culture and British Council. In 2010, Maikori was part of the Enough is Enough campaign

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which saw thousands of Nigerians protest against issues ranging from infrastructure failings, fuel shortages and power blackouts that reflected badly on the government’s effort to provide the basic amenities for its citizens. In a largely peaceful four-hour protest, they marched to the National Assembly in Abuja, carrying placards, wearing T-shirts which stated “Enough is Enough,” and carrying a letter outlining their demands. Maikori became the face of Enough is Enough after a police officer warned him to back down or be shot; Maikori refused to backdown and dared the officer to shoot. He later led the other protesters to march on peacefully to make their protests heard by the National Assembly. Audu Maikori was appointed a member of the Presidential committee on the Subsidy Reinvestment and Empowerment Programme (SURE- P) which is made up of private sector business leaders with proven integrity who were selected by President Goodluck Jonathan to oversee and ensure the effective and timely implementation of projects to be funded with the savings accruing to the Federal Government from subsidy removal. ESQ LEGAL PRACTICE 79

Nigerian Lawyers In Entertainment Industry KEMI ADETIBA

ven though she is a Law school graduate, Kemi has in a short space of time, excelled in the entertainment industry both in Nigeria and across sub-Saharan Africa. Starting out as an on-air personality with Rhythm 93.7, she soon became the voice behind two nationally syndicated hit shows: Soul’d out and her signature show, Sunday at the Seaside, also frequently helming other shows at the radio station. Kemi Adetiba got her first taste of the media industry as a little girl accompanying her father, Dele Adetiba, to radio and television stations. Dele Adetiba is a renowned veteran in the advertising and broadcast industries, playing a pivotal role in their development in Nigeria. It was not long before he threw his daughter in front of the camera, where she headlined two national television commercials for the iconic detergent brand OMO. Slowly, she began to transition from her first love, radio, to focus on a budding television career. Today, she is one of Nigeria’s top television personalities and producers, having hosted hit shows on MNet (Studio 53, Temptation Nigeria), Soundcity (Lifestyle, Celebrity Profiles, Chat Room, various red-carpet specials), and the nationally syndicated reality show, Maltina Dance All for three years running. The Future Nigeria Awards took notice of talents, nominating Kemi for the On-Air Personality of the Year award five years in a row (including 2011, where she became the first double-

nominee in the ceremony’s history with a nod for Screen Producer/Director of the Year). Thanks to her fun, affable personality, Kemi was tapped to host numerous events including Silverbird Entertainment’s 25th Anniversary Gala, the Dance Theatre of Harlem’s Year-End Celebration show, the launch of HAUTE fashion magazine in New York, the 2008 Future Nigeria Awards (with Nollywood actor Raz Adoti), the 2009 Hip-Hop World Awards, and MADE Magazine’s “Celebrities on the Runway” show. In 2007, after years of success in front of the camera, her love of storytelling drew her to enroll in the New York Film Academy. Today, Kemi is an award-winning director, producer and cinematographer. Her body of work includes music videos, commercials, television content and films. Shortly after its release, her short ‘Across a Bloodied Ocean’ was screened at the Pan African Film Festival in Los Angeles and the National Black Arts Festival in Atlanta. That same year, her production company, K-Alpha, produced for DVD The 2009 ThisDay Music Festival featuring headline act R.Kelly. She has seen tremendous success as a music video director. Her first, for the song “Ekundayo” by singer/ songwriter TY Bello, was named Best Female Video at the 2009 SoundCity Music Awards. Omawumi’s “Today Na Today” video won Best Female Video at the Nigerian Entertainment Awards in New York and was nominated for Best Music Video at the

2010 SoundCity Awards. Her work on Banky W.’s “Lagos Party” also earned Best Editing and Best Male Video nominations at that year’s SoundCity Awards. Kemi’s work on “More You” by singer/songwriter Bez won her international critical acclaim, with the most touching tribute coming in the form of a write-up by her alma-mater, the New York Film Academy.

DOZIE DAVID ATUEYI

e is a partner at David & Company Legal Consultants, this is a firm engaged in the practice of media, sports and entertainment law. David is a graduate of the University of Lagos. After which he attended the Nigerian Law School in 2001 and was called to the bar the following year. He also attended a certificate program in Entertainment Law at the University of Johannesburg in 2007. With eleven years’ experience at the Nigerian Bar, Dozie focuses on Legal Drafting and Conveyancing for businesses and professionals in the media, entertainment, fashion and related industries. Currently, he is the Executive Editor of Pharmanews, West Africa’s premier health journal, and the Executive Producer of the Pharmanews television programme. He is also an Editorial

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Consultant for Lagos Indicator, a developmental publication of the Lagos State Government. He runs Africa to America Productions LLC, a New York-based creative company committed to empowering Africans within the continent and in the Diaspora. Various events are organized by the company, such as the African Mayors & Local Government Summit, the Millennium Development Goals (MDG) Ambassadors from Africa Conference and The Great Nigeria SME Expo. He is the producer of the theatre company, Rhythm of the Black Man, reputed for cutting edge stage productions. It was started by a group of students at the University of Lagos, leading to the musical album project, “Your Dream Come True”, which gave birth to the gospel music sensation known as KUSH.

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Nigerian Lawyers In Entertainment Industry OPE BANWO

pe Banwo is an Entrepreneur, Attorney, Business Consultant, Author, Motivational Speaker, and Corporate Solutions Provider. He holds a Second Class (Upper Division) Degree in Law from University of Ife (now Obafemi Awolowo University) in 1985, was admitted to the Nigerian Bar in 1986 and a Master’s Degree in Law from University of Lagos (1989). He was also admitted to the New York Bar and Federal Court of Nebraska in the United States in 1997. He has written 8 published books on different topics over the years including bestsellers such as “The Kingdompreneur”, “Overcoming the Gideon Complex”, “The Kingdom Citizen”, “The Return of The Prodigal” and “Blessings of Adversity”. He has presented different position papers and acted as a resource person at many business seminars, workshops and conferences over the last 24 years. Ope started in the corporate world as a Management Trainee with Arthur Anderson and Co in 1989 and swiftly rose to become CEO of a PLC company within 4 years thereafter. As a Business executive he has served at the highest corporate levels for more than 19 years. He also spent about 15 years in the United States of America as CEO of sev-

eral companies and Managing Partner of Banwo and Igbokwe Law Offices before relocating back to Nigeria in 2009 to start the BANWO GROUP of companies comprising of a Law office, Finance Company, record label and entertainment company. As a solutions provider and business consultant, Ope Banwo has provided cutting edge solutions to several industries including Law, Entertainment and Aviation. He is the originator of several initiatives in the entertainment industry including the Fanbook Concept, Celebrity Books and different approaches to marketing and distribution. As the Pioneer CEO of Dove Media, he was the first to introduce media distribution through Fast Food Outlets and Post offices in Nigeria among many others. As a man committed to public service, Mr Ope Banwo made headlines when he started the MARKET OMBUDSMAN, a public initiative to ensure transparency, accountability and fairness in the market place. In his position at Market Ombudsman, Ope Banwo initiated many public benefit LAWSUITS against some of the biggest corporations and banks in Nigeria during the economic crisis including the very first CLASS ACTION lawsuit over the stock market meltdown.

EMEM EMA

ondly known as Mem ‘O,’she holds a degree in law from the University of Lagos. She is an ex-member of the now defunct group called ‘Kush,’ which comprised of Ty Bello, Lara George and Dapo Torimiro. She is also the founder of her entertainment company called ‘One Management.’ Under her leadership, One Management has worked with and/or represented a diverse portfolio of clients from multinationals to celebrity talents in

the entertainment field including Singer Waje, Actress Nse Ikpe-Etim, Fashion Designer Yemisi, Filmmakers Nagite Dede and Kunle Afolayan (The Figurine), Artists Dare, Provabs, JayRule, among many. One Management was also responsible for helping secure and successfully bring foreign acts to prestigious events like Soundcity Music Video Awards, as well as working with ThisDay Music Festival.

DAYO OGUNYEMI

ayo is a Beta Gamma Sigma graduate of Columbia Business School where he earned an MBA. He also holds a Juris Doctor from Columbia Law School, an SB from the Massachusetts Institute of Technology, and is admitted to practice law in New York. This is the story of current CEO of 234 Media, he has spent the past two decades at the confluence of entertainment, media and technology with employment experience with Booz Allen & Hamilton’s media and technology practice, Sony Music Entertainment Inc. and BMG. In the past decade, he has focused on the finance, media and technology w w w.esqlaw.net

landscapes in Africa, garnering experience in principal investing, consulting, financial advisory and capital raising. He has served as one of the principal advisers to the Nigerian film industry on finance, distribution and intellectual property, including negotiating key licensing and distribution agreements. He has also formulated policy, advising the UN ECA and more than 7 African governments and regional economic communities (including the EAC and ECOWAS) on intellectual property, telecommunications, technology, e-commerce and finance. He serves on the board of the African Film Academy and as a film law expert for WIPO. ESQ LEGAL PRACTICE 81

Nigerian Lawyers who rock the Entertainment world OBI ASIKA

e is the founder and Visionary of Storm 360, he is at the forefront of driving urban entertainment across Nigeria, Africa and the rest of the world . Storm 360 is one of the key drivers of the emerging entertainment industry in Nigeria and he works across TV, film, music, events, digital and merchandise. In 1987, Obi attended the University of Warwick from which he received his LLB hons in 1990, having obtained a distinction in National Common entrance in the UK at Eton College. After his degree in Law he became Secretary, Nigerian Society; Member, Political Society; Member, Afro-Caribbean Society; Radio Host & DJ and Events Promoter. He has worked in a range of different sectors and has always been interested in companies who are interested in Nigeria,

he believes that the significant obstacles in doing business in essence translates to significant opportunities and that there are few places in the world where the spirit of entrepreneurship is as alive as here in Nigeria. He has worked as an executive producer of several TV shows and events, including Big Brother Nigeria, Doctor’s Quarters, Dragons Den Nigeria, The Apprentice Africa, Calabar Rocks, Etisalat One Million Dollar Show, 100% Naija, Naija Sings and in terms of events, Nigerian World Cup Village for FiFA 99, Big Brother and Channel O Eviction Parties, Calabar Music Festival, The Calabar Carnival and worked with major brands such as MNET, MTV, Channel O, Soundcity, and State Governments like Cross River State and The Lagos State Government.

DOLAPO KUKOYI

ver the years, Dolapo has advised clients ranging from startups, large established companies, and multinationals to non-profit organizations, offshore foundations and Government agencies. Dolapo also heads the firm’s pioneering Media & Entertainment Practice, most recently advising on the structuring of a multi-sector Nigerian Entertainment Industry Conglomerate inspired by artists: FAMECORP Ltd. In

2009, Dolapo has led the team advising the Nigerian Electricity Regulatory Commission (NERC) developing the Network Transmission Agreements. She currently leads the team advising the Aiteo Consortium on its acquisition of 6 Distribution Companies as part of the Nigerian power sector privatization. Her determination and attention to the intricacies of every brief set her apart as a pillar of support to clients.

OLUWASEYE LAWAL

luwaseye is a Partner and Head of the Advocacy Team at L & A – Legal Consultants, one of the leading Intellectual Law Practices in Nigeria which specializes in Media & Entertainment Law. L & A has a clientele which include some of the best known names in Nigeria’s key Creative Industries. Mr. Lawal has over 10 years legal practice experience in general corporate commercial law and litigation

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with an emphasis on Media Entertainment related matters and has been involved in major landmark matters which have impacted positively in the Nigerian Creative Industries landscape. Mr. Lawal is a member of the Nigerian Bar Association (NBA), International Bar Association (IBA), and Intellectual Property Law Association of Nigeria (IPLAN).

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Nigerian Lawyers who rock the Entertainment SASHA P

asha also known as the “First Lady” of Nigerian Hip Hop has remained one of the most visible source of inspiration for female rap artists, with the success of her debut album “First Lady”, winning the “Best Female Video”at the presitgious channel o awards, October 2009 and “best hip hop act in Africa” at the coveted KORA awards 2010 making her the first West African female hip hop artist to be nominated twice (first in 2004) Sasha whose real names are” Yetunde Alabi” attended the International School Ibadan (ISI) before studying Law at the University of Lagos, Akoka. She shot into the limelight in 2001 at Unilag’s “Girls nite out” annual talent hunt. She won the “Best female artist” award at the women in entertainment awards held in England (February 09) for her first single titled “Adara” ,and was nominated in two categories ( Best female video and Best cinematography) by the Nigerian Soundcity Video Music Awards for her second single “Only One” which was held on the first of August 2009. Without a doubt she has earned the respect of her peers from her dedication, hard work and stellar performances some of which include her being the first

ever Nigerian female artist to perform at the 20th anniversary of the World Music Awards in October 2008, she has shared stages with a host of International and National acts which include Boys 2 men, Dru Hill, Rihanna, Shakira, P Diddy, John Legend and R kelly. She is a designer of her own clothing label (Eclectic by Sasha) and She still remains arguably one of the busiest entertainers in Nigeria but she always makes time to give back to the community which she believes made her who she is ” I believe as an individual , I have a social responsibility to make a difference any way I can” , and this she has done consistently over the years, she was part of the “Save a street child” campaign in Lagos (January 2009) and the recently launched “Maternal Mortality” project (May 2009) which is an initiative by renowned Nigerian Fuji musician Kwam 1 to educate and help cater to the needs of young mothers who seek adequate medical care and will be singing Christmas carols with the ADIC orphanage ,Ovation Red Carol service and Coca-Cola light up a tree all in the spirit if Christmas.

CHUDE JIDEONWO

hude is a lawyer, award-winning journalist and media entrepreneur. For a decade now, he has garnered key experience in all forms of traditional and new media, which has translated that practical experience into successful media campaigns; he is also recognized as a leading expert on New/Social Media and Youth Lifestyles. Above all, he has worked as an expert in development across the continent, mostly with “The Future Project”, which is focused on inspiring leadership, building entrepreneurs and innovative use of the media (traditional and new) tool for sustained social change, and which has reached millions of Nigerians, especially young people, in about 5 years. He studied Law at the University of Lagos, emerging as the best Student in Land Law. Thereafter he was called to the Nigerian Bar in November 2007. He concluded his Master’s programme in Media and communication at the prestigious Pan-African University, Lagos. He began his career as a TV presenter with Nigerian Television Authority (NTA), between 2000 and 2005, then he worked as

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a researcher with Celebrating Jesus (MBI) and Inside Out with Agatha. His credits as writer, assistant director, and host include The Academy, Patito’s Gang, Video 10, Big Brother Nigeria in 2006 and Moments with Mo. He has written and edited over fifteen publications within and outside the country. He joined the defunct NEXT Newspapers as copy editor in July 2009, the youngest in that position, from where he became a member of the paper’s editorial board. He also ran a column, Sons and Daughters, for three years in the Sunday edition of the Guardian profiling Children of the rich and famous. Chude is also youngest recipient of the Nigeria Media Merit Award, winning for Entertainment Journalist of the Year. Other awards and nominations include the Olive Award for Media and Production, the Green Yaggy Achievement Award, the Sowambe Awards as Best Social Media Activist, Just U Award, Dynamix Awards, the Life Changers Award for Best Advocacy Campaign of the Year, and the Inside Out Role Model Award.

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Nigerian Lawyers who rock the Entertainment RICHARD MOFE-DAMIJO Richard Evans Eyimofe Mofe-Damijo popularly known as RMD, He is one of the most respected actors in Africa, he has starred in over 200 Movies both locally and internationally, the talented actor hails from Warri, Delta state, Nigeria. He attended mid-west college Warri and Anglican Grammar school where he was a member of the drama club, he enrolled into the University of Benin to continue his education and studied Theatre arts. In 1997 Richard returned to the university to study law at the University Of

Lagos and graduated in 2004. After starring in popular soap opera “Ripples” in the late80’s, before having a brief stint with Concord Newspapers and Metro Magazine as a reporter. “Out of bounds” was the first film for which he received a writer/producer credit. In 2005 at the maiden edition of the African Movie Academy Awards Mofe-Damijo won the award for Best Actor in a leading role. Currently he is the commissioner for culture and tourism in Delta State.

TOSIN BUCKNOR

his Law graduate from the University of Lagos is the voice behind top radio’s headline morning show “Top of the Morning, she is also a Poet, Blogger, Columnist, Actor, Singer and founder of S.H.A.R.E, social network for young adults. She has also contributed to scripts

for popular television shows like The Apprentice Africa, Amstel Malta Box Office, Mtn Family Gameshow, Citi Sistas, My mum and I, About to wed and several more. Tosin is also the founder of THESE GENES, an organisation that creates awareness about sickle cell.

OMAWUMI MEGBELE

his Warri born singer, song-writer and actress rose to prominence as a contestant on Idols West Africa, Omawumi with her string voice and out-going personality was voted first runner-up of the competition. Since then she has had numerous performances on stage with musicians such as P-square, 2face Idibia, D’Banj, Banky W, M.I, Sasha P, 9ice, Chaka Demus and Pliers, Donell Jones.

The award winning songstress graduated from Ambrose Alli University with a degree in Law, after graduating in 2005 she moved to Port Harcourt where she worked with her family’s Law Firm O.S Megbele & Associates. Omawunmi also studied French at Alliance Francaise. She is currently a brand ambassador for Globacom, Konga.com and Malta Guinness.

GBENGA GEORGE

e is the CEO of Soforte Entertainment Group, the company consists of Africa’s largest automated entertainment distribution company, the company boasts of 15 online partners including iTunes and Amazon. His organization is a member of the National Association of Recording Merchandisers (NARM), the largest association of music business companies in in America, NARM members are responsible for a total of 95% of

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total music sale in America. He is also a Partner at Paradigm Partners Solicitors & Advocates, a law firm that covers a wide range of the corporate commercial law sphere with particular bias in Real Estate, Oil and Gas, Energy, Intellectual Property and Entertainment law. Gbenga is happily married to Gospel singer and multi-award winning sensation Lara George, former lead singer of the defunct musical group. w w w.esqlaw.net

Photo News

More pictures from the rcently concluded 9th annual SBL conference held in Lagos

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Photo News

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Vol. 5 Issue 4

L E GAL PR ACTICE

CALL FOR NOMINATIONS: NIGERIAN LEGAL AWARDS NIGERIAN LAWYERS WHO ROCK THE ENTERTAINMENT WORLD

GBOLAHAN ELIAS, SAN: A CHIP OFF THE OLD BLOCK

WHO FUNDS NIGERIA’S INFRASTRUCTURE? – Ayuli Jemide

– Ayuli Jemide, Senior Partner, Detail Solicitors N1,000 $5.99 £3.99 E 8 8 E S Q L E G A L P R A C T I C Finance

Marketing

Management

Technology

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