CONSTRUCTION ARBITRATION: AWODEIN READS RIOT ACT TO LAWYERS

The President and Chairman of Council of the Institute of Construction Industry Arbitrators (ICIArb), Mr. Kola Awodein SAN has warned lawyers against engaging in unethical conduct in the practice of arbitration.

Speaking at the investiture of Fellows and induction of new members of the Institute of Construction Industry Arbitrators held at Eko Hotel & Suites, Lagos, Awodein noted that there are “numerous reports of Arbitrators, especially legal practitioners, making a seeming mockery of the Arbitral process by demonstrating obvious bias and partisanship and blatantly refusing to do justice to the parties and in most cases, without appropriate sanctions being meted out to them.”

Warning that the Institute would no longer condone such malpractice, Awodein, who was represented by the Institute’s President-elect, Mr. Felix Okereke-Onyeri (FNIQS, FICIArb), said: “It is important to sound it loud and clear that this is a practice and conduct that we do not welcome or tolerate in our Institute especially now that there is increasing interest in joining the Institute.”

He urged the new fellows and members to “comply faithfully with the ethics of the Body as we are determined to enforce the ethics especially in the light of the damage that is being done to the practice of Arbitration by Arbitral panels.”

In his address, the Secretary General of the Institute, Bar. Emmanuel Dike (FICIArb) noted the confidence reposed in the body by the inductees “and trust that you will be ambassadors of the Institute as far as construction industry arbitration is concerned.”

Noting that construction involves immense multidisciplinary and inter-disciplinary activity “governed by layers of simultaneous contractual relationships,” the Secretary General stated that “An understanding of the technical principles for the purpose of dispute resolution provides an edge to the professional equipped with the relevant skillset. Admission to this prestigious body is therefore an opportunity to join the league of successful sought-after arbitrators.”

According to Dike, “Given the ongoing need for continuous professional development within the Institute, our members who belong to the primary institutions governing their professions, such as the Nigerian Institute of Architects, the Nigerian Bar Association, the Nigeria Society of Engineers, the Nigeria Institute of Quantity Surveyors – to mention but a few – are encouraged to attend courses by other certified professional bodies to enhance their skills and competence.”

Among those inducted as fellows are former Attorney-General & Minister of Justice, Mr. Bayo Ojo SAN; leading arbitrator, Mrs. Funke Adekoya SAN; Mr. Adeniyi Adegbonmire SAN; Mrs. Funke Agbor SAN; Mr. Godwin Omoaka SAN and Mrs. Obosa Akpata. Also honoured posthumously was Arc. Umaru Aliyu, the Institute’s past Vice President and former president of the Nigerian Institute of Architects (NIA). Others are Chief Eboh Andrew Otokhina, Mr. Adedapo Osariuyime Tunde-Olowu (SAN), Mr. Okey Akobundu and Mr. Emeka Onyeka.

The Institute of Construction Industry Arbitrators was inaugurated on the October 15, 1993 as a multi–disciplinary institution with members drawn from the professions related to the construction industry and has become the leading arbitral institution in the construction industry in Nigeria. As a specialized alternative dispute resolution (ADR) body, in the construction industry, the Institute provides a one-stop shop for the resolution of disputes arising from construction contracts in order to free the construction industry from protracted litigation and the uncertainties inherent in construction related disputes.

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EFE ETOMI ELECTED AWLA PRESIDENT

Bar Leader and Member, National Judicial Council (2018), Mrs. Efosa Etomi has been elected President of the popular African Women Lawyers Association (AWLA). Mrs. Etomi is also a member of the Nigerian Bar Association Section on Business Law (NBA-SBL) and International Bar Association (IBA); Fellow, Institute of Chartered Mediators and Concilators, and is also affiliated to the International Federation of Women Lawyers (FIDA), International Academy of Family Lawyers (IAFL), and International Association of Privacy Professionals (IAPP).

In her “commencement” address, she promised to “promote the principles and aims of the African Union, the United Nations, African Commission on Human and People’s rights, Amnesty International, the African Charter on the Rights and Welfare of the Child, while also holding these organisations accountable by applying legal pressure where they may fall short.”

Below is the full text of the speech.

2021 African Women Lawyers Association (AWLA) Commencement

I would like to thank every single woman who elected me as the president of the African Women Lawyer’s Association. I do not take this for granted. We are at a turning point when it comes to the battle for gender equality and justice… as individuals, as a nation, as a continent, as one world. There is a lot of work to do and a lot of work that has already been done by so many women before me who paved the way. I ask you for your support and strength in bringing about the positive changes we want to see for women on this continent.

“Educate a woman and you educate a nation.”

We have heard many iterations of this saying and, just like the saying “behind every successful man is a strong woman”, these complimentary statements, while often rooted in truth also serve to mask a societal problem behind pretty words. They imply that a woman’s core strength comes mainly from pure selflessness and sacrifice. What a noble sentiment… but this is not what we are here for.

The trope of the quiet woman who give endlessly to others, often to her own detriment no longer applies. It is time for women to play key roles in society. It is time for us to step into positions of leadership, not just as the neck, but as the head. It is time for our voices to be heard. For us to be supported by those around us, if we are to be pillars of support for everyone else.

From the prepubescent girl child subjected to marriage before she has fully matured in various normalised practices, to women forced to undergo female genital mutilation and a lack of equal access to education, to the much too often silenced and villainised survivors of assault, to women like myself who attain positions of responsibility only to be held to higher, more critical standards than our male counterparts, I say this to you- enough is enough. This is our time; our time to be seen and heard.

Some may hear this and feel threatened, believing that feminism stems from a place of hate and wanting to exact revenge on our oppressors. This happens despite multiple attempts by so many to explain that feminism is simply a call for fairness & equality, an appeal to the humanity that we all possess. Many may believe the ideals but shirk from the term itself. This is because, In a world where we are repeatedly subjected to the trauma of gross abuses of human rights, it can seem like brut force and subjugation are the only things that prevail. I am here to challenge that notion, because it is the people who shape society and determine cultural norms. Patriarchal values and entrenched misogyny may have taught us that there is only one way to survive in this world… but we are not just meant to survive. We are meant to thrive.

As women step forward into their power, as we reach out and help those around us to do the same, we are shaping the world as it should be. Our strength lies in our boundless intellect refusing to be stifled; our embracing of our emotional intelligence without the fear of being labelled as “too sensitive. Our capacity for empathy can change the world and it will.

So as we step into our power, as we move forward with love, as we deploy our skills and resources to bring about justice and equity for women all over the continent, this is our vision. AWLA seeks to:

• Identify the pressing needs of self-identifying women and children across Africa
• Promote, preserve and protect the rights and interests of self-identifying women and children across Africa
• Challenge societal norms that condone discrimination, violence, abuse and indignity against women and children
• Expand and protect the legal status of women and children in Africa, through enforcing existing laws designed to do so and pushing for legislative reform where needed
• Innovate new ways of moving forward with equity for all self-identifying women and children
• Develop powerful, just women lawyers through training, mentorship and constantly evolving modes of support, in order to grow our competence and capacity to face legal and societal challenges.
• Rebuild an Africa where gender does not determine status and being female does not relegate one to the position of second-class citizenship

We aim to do this through:

• Expanding networks among female lawyers across Africa and beyond.
• Seeking sponsorships from and partnerships with like-minded organisations in Africa and the world on various empowerment & justice campaigns
• Supporting grassroots female-led organisations and individuals already doing this important work
• Utilizing information and technology platforms to raise awareness and develop new strategies for advocacy
• Conducting research and launching initiatives as needs arise within the continent
• Increasing our accessibility and profile on an individual and organisational level in order to provide those in need with a clear route to assistance, as well as to collaborate with and learn from human rights organisations that are also proffering solutions and generating data for use by individuals, industries and policy makers.

We strive to promote the principles and aims of the African Union, the United Nations, African Commission on Human and People’s rights, Amnesty International, the African Charter on the Rights and Welfare of the Child, while also holding these organisations accountable by applying legal pressure where they may fall short.

We cannot accomplish these ambitious, but attainable, goals without your support. Please feel free to reach out to us via our website and social media platforms if you would like to help, are seeking help or simply want to connect. Together, we will bring about a better, safer, more equitable world for women and children, and in doing so build a better world for us all.

Thank you
Signed,

Efosa O. Etomi
President
African Women Lawyer’s Association (AWLA)

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THE PRESIDENCY: A MATTER OF GRAMMAR

Nigerian Law School teacher, MR. SYLVESTER UDEMEZUE dissects the lexical nexus between ‘The Presidency’ and ‘The President’ and points the way forward 

The purpose of this piece is to demonstrate that it is incorrect and unfitting for any media aide to a Nigerian President to issue or sign any Public Statement or Press Release in the name or on behalf of “The Presidency,” and to suggest appropriate options to comply with extant law and procedure.

The discussion would be undertaken under four heads: Administrative & English grammar; the Law of Agency; and the Rule of Law (Constitutional). Part four would then discuss Conclusion and Recommendations

(1) The Administrative & English Grammar Angle

First, although the term, “the Presidency” is generally used to refer to “the administration or the executive, the collective administrative and governmental entity that exists around an office of president of a state or nation,” (see Wikipedia), that term is not a person known to any law in Nigeria and on behalf of which/whom a person may act as an agent. Down here in Nigeria, “the presidency” is a term/noun used to refer collectively to the following offices: “Office of the President; Office of the Vice President; Office of the Secretary to the Federal Government; Office of the Head of Civil Service of the Federation; Office of the National Security Adviser; and the entire Statehouse Administration” (see https://statehouse.gov.ng/presidency/). This term is a creation done by people in power, in Nigeria, merely for convenience, and without any legal foundation and as such having no legal power or capacity. This being the case, when you say you issue a statement on behalf of “the presidency,” you give the erroneous impression that all the occupants of the above-named offices had met and agreed to issue the affected statement. It is my humble observation (I stand to be corrected) that each of the above-mentioned offices and officers within the presidency, has its/their own Media Aides who issue statement or press releases on their respective behalf. This is one major reason it is imperative that those appointed and retained for the office of the President of the Federal Republic of Nigeria, should learn to sign or issue public statements or press releases emanating from that office, in the appropriate form/capacity so as to leave no one in doubt that they act specifically for the office of the president, and not for the entire presidency, except where the latter is the case, although I think this is still rendered inappropriate by the reasons advanced hereinbelow.

(2) The Agency Angle

In the Law of Agency, an agent cannot act on behalf of a non-juristic person. Put differently, the principal in every agency relationship must be a juristic person, a person in law, capable of suing or being sued in his name; the principal must be legally capable of doing that which he purports to do through his agent. Is “the presidency” a legal person capable of holding property, or of entering into a contract or of suing or being sued in that name? No, to the best of my knowledge and honest belief. The next question is, Which law crates “the presidency?” None that I know of! Consequently, if the “presidency” lacks the legal capacity to enter into any contract in that name or to sue or be sued in that name, then it lacks any capacity to sign any Public Statements or Press Releases, and hence cannot delegate/appoint any media aide to validly issue or sign any such statement or releases on its behalf. In conclusion, no one can validly act on behalf, or in the name of “the presidency,” since ethe presidency is not a legal person; the legal defect which “the presidency” suffers cannot be cured by getting another to do anything on its behalf which itself cannot legally do. This principle is usually expressed in the maxim “Nemo Potest Facere Per Alium, Quod Per Se Non Potest” which means that “no one can do through another what he himself cannot lawfully do.” There is yet another principle in agency which is related to the above-expressed: Qui Facit Peralum Facit Per Se Ip Sam Facere Vindepur, which means, he who does an act through another is deemed in law to do it himself. See the cases of Anyaorah vs. Anyaorah (2001) 7 NWLR (Pt 711) 158; Amadiume v. Ibok (2005) LPELR-5730 (CA). Both Pastor Femi Adesina and Alhaji Garba Shehu are each agents of Mr. Muhammadu Buhari, in his capacity as the President and Commander in Chief of Nigeria’s Armed Forces, having been separately employed, the former as the “Special Adviser, Media and Publicity to the President of the Federal Republic of Nigeria,” and the latter as the “Senior Special Assistant, Media and Publicity to the President of the Federal Republic of Nigeria.” Neither of the duo was employed by or to act for “the Presidency.” Accordingly, when they sign or each signs statement, they ought to recognize, acknowledge, and disclose their principal, and state the fact that they act for the disclosed principal, in line with the rules of the Law of Agency.

(3) The Rule of Law (Constitutionalism) Angle

Section 1 of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides that “(1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria. (2) The Federal Republic of Nigeria shall not be governed… except in accordance with the provisions of this Constitution. (3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.” The practical implication of the above provision is that the provisions of the Constitution are binding on all authorities and persons within Nigeria, including all the media aides to the President of the Federal Republic of Nigeria who, as a matter of strict legal obligation, must comply with all the provisions of law in all their conducts and actions. In the famous case of Chibuike Rotimi Amaechi v. INEC & 2 ors (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227), His Lordships, Pius Olayiwola Aderemi, JSC had this to say: “in all countries of the world which subscribe to and operate under the rule of law, all actions of both private and public persons are always adapted to the laws of the land. We ought to allow this time-honoured principle to sink well into our heads and hearts.” The Black`s Law Dictionary describes rule of law as predominance that is absolute of the ordinary laws of the land over every citizen and institution regardless of status, position, power. The rule of law, as explained by Oputa, JSC (now late) in Military Governor of Lagos State and others vs Chief Emeka Odumegwu-Ojukwu, simply means, inter alia, that the state is subject to the law, which implies that all actions and conduct of or by the state or by state actors or officials must be as sanctioned by extant laws of the land
This takes us to the next important question, what is the position of law, in the present instance? Beside the explanations already given in relation to the Law of Agency, section 5 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended vests the Executive Powers of the Federation of Nigeria, not in “the Presidency,” but in the President of the Federal Republic of Nigeria, as follows:

“Subject to the provisions of this Constitution, the executive powers of the Federation shall be vested in the President, and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation.”

This is one reason the respective Letters of Appointment of each of Pastor Femi Adesina and Alhaji Garba Shehu states that they were/are appointed respectively as the “Special Adviser, Media and Publicity to the President of the Federal Republic of Nigeria,” and the “Senior Special Assistant, Media and Publicity to the President of the Federal Republic of Nigeria.” This being the case, and in view of section 5(1) of the Constitution (cited above), it is inappropriate, even illegal, for any one of them to sign any Statements or Press Releases on behalf of “the Presidency” (an office unknown to law), instead of The President who appointed them and for whom they are legally authorized and entitled to act. Besides, the Constitution makes it clear that the powers vested in the President of Nigeria may be exercised either personally and directly by the President, or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation. I am not aware of any Law made by the National Assembly of the Federal Republic empowering any office known as “The Presidency” to act for or on behalf of the President of the Federal Republic, neither is there any extant legal instrument by which the holder of the executive powers of the Federation (Mr. President) has authorized “the presidency” to act on/in his behalf. By the way, this next question is also relevant, Does Mr. President even possess any powers to delegate any of his powers or responsibilities to “the presidency?” The answer is “no” because there is no such office in existence in Nigeria, which is known or called “the Presidency.” I have already explained (see above) what the term, “the presidency” stands for or represents.

May I point out that I have heard of a body/office known as “the presidency” and being a creation of law only in relation to the International Criminal Court (ICC). According to https://www.icc-cpi.int/about/presidency/Pages/default.aspx (accessed October 25, 2020), “the Presidency” as an arm of the ICC is “one of the four Organs of the Court. It is composed of the President and First and Second Vice-Presidents, all of whom are elected by an absolute majority of the Judges of the ICC for a three-year renewable term. The judges composing the Presidency serve on a full-time basis. The Presidency has three main areas of responsibility: judicial/legal functions, administration and external relations.” The current presidency of the ICC was elected by the judges of the Court on 11 March 2018, in line with Article 38 of the Rome Statute (the Rome Statute of the International Criminal Court, often referred to as the International Criminal Court Statute or the Rome Statute, is the treaty that established the ICC; it was adopted at a diplomatic conference in Rome, Italy, on 17 July 1998 and it entered into force on 1 July 2002). (se <https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf> accessed October 25, 2020). Conversely, there is no law establishing “the presidency” within Nigeria, either as an office, or as a branch or segment of governance/government within the country to which power could be delegated or from whom any legal authority emanates or to whom legal capacity could be ascribed. How then, can anyone purport to act to act or to be acting for a legally non-existent body? This is why I shudder on each of the several occasions that I have seen public statements or press releases signed on behalf of, or in the name of “the presidency” by any one of Pastor Femi Adesina, Alhaji Garba Shehu, or indeed by anyone else, for that matter.

(4) Conclusion & Recommendations

In view of the above, it is my humble suggestion to my friends, Pastor Femi Adesina and Alhaji Garba Shehu, to forthwith cease and desist from issuing statements for or on behalf of “the Presidency” because such action, apart from being unconstitutional and therefore illegal, is administratively inappropriate and grammatically misrepresentative, as I believe I have explained. In line with the horizons of their appointments and job specifications, I respectfully recommend the following options of signing/issuing Public Statements or Press Releases as being each apposite and in compliance with the Constitution, rule of law and administrative procedures:

1) Option One:
Signed:

Pastor Femi Adesina,
For: The President and Commander in Chief of the Armed Forces,
Federal Republic of Nigeria.✅

2) Option Two:
Signed:

Pastor Femi Adesina,
Special Adviser, Media and Publicity to
the President of the Federal Republic of Nigeria.✅

3) Option Three:
Signed:

Alhaji Garba Shehu,
For: The President and Commander in Chief of the Armed Forces,
Federal Republic of Nigeria.✅

Or
4) Option Four:
Signed:

Alhaji Garba Shehu,
Senior Special Assistant, Media and Publicity to
the President of the Federal Republic of Nigeria.✅

▪️The options below (5 and 6) are inappropriate and legally unacceptable:

5) Option Five:
Signed:

Alhaji Garba Shehu,
Senior Special Assistant, Media and Publicity,
The Presidency❌

6) Option Six:
Signed:

Pastor Femi Adesina,
Special Adviser, Media and Publicity,
The Presidency.❌

Respectfully,
Sylvester Udemezue (udems)
(Coordinator, English For Lawyers Forum, Nigeria)
(englishforlawyerng@gmail.com, 08109024556) ____________________________________________________________________________________________________________________________________________________________  Copyright 2020 CITY LAWYER. Please send emails to citylawyermag@gmail.com. Join us on Facebook at https://web.facebook.com/City-Lawyer-Magazine-434937936684320 and on TWITTER at https://twitter.com/CityLawyerMag All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use.

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