Examining the Propriety of Section 84(1) of the Sheriffs and Civil Process Act of Nigeria from the Lens of the Supreme Court’s Decision in Central Bank of Nigeria V Insterstella Com Ltd

by | Aug 14, 2023 | JCLA, JCLA V10 I1 2023

Examining the Propriety of Section 84(1) of the Sheriffs and Civil Process Act of Nigeria from the Lens of the Supreme Court’s Decision in Central Bank of Nigeria V Insterstella Com Ltd

Authors: David Tarh-Akong Eyongndi, Oluwakemi Oluyinka Odeyinde

ISSN: 2521-2605
Affiliations: LLB (Hons) UNICAL, LLM (Ibadan), BL, Assistant Professor, College of Law, Bowen University, Iwo, Osun State, Nigeria; LLB (Hons) Ibadan, LLM (UNILAG), BL Lecturer Centre for Foundation Education, Bells University of Technology, Ota, Ogun State
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 169 – 189
https://doi.org/10.47348/JCLA/v10/i1a7

Abstract

Where a person has litigated a case against anybody or the government and judgment is given in monetary value, where the judgment debtor fails to voluntarily settle the judgment sum, the judgment creditor must enforce the judgment. In enforcing the judgment which is usually via garnishee proceedings, the Sheriff and Civil Process Act (SCPA) provides that the consent of the Attorney General (AG) must be sought and obtained once the funds to be used in satisfying the judgment are in the possession of the public officer. This paper, while underscoring the rationale for this prerequisite, examines its propriety vis-à-vis the finality of a court judgment, by adopting doctrinal methodology. It raises the question that since the AG’s consent is to be sought and same can be denied, what option, if any, is open to a person after such denial? Can a mandamus be used to compel the AG to consent, seeing that the giving of consent is not a duty to be performed but a discretion? The paper argues that this practice amounts to subjugating the implementation of Court’s determination/decision to the discretion of the AG which is inimical to the smooth delivery of justice. It may undermine the sanctity of court’s pronouncements as well as democracy. Therefore, the paper calls for the abolition of this practice as way forward.

Tax policy gap in southern African countries: Reflections on indirect tax coordination and tax diversity in SADC post Covid-19

by | Mar 12, 2023 | JCLA, JCLA V9 I2 2022

Tax policy gap in southern African countries: Reflections on indirect tax coordination and tax diversity in SADC post Covid-19

Author: Puseletso Letete

ISSN: 2521-2605
Affiliations: BA Law, LLB (NUL), LLM (UCT), PhD (Edinburgh). Professor, School of Law, University of South Africa until 31 August 2022
Source: Journal of Comparative Law in Africa, Volume 9 Issue 2, p. 1 – 32
https://doi.org/10.47348/JCLA/v9/i2a1

Abstract

The Southern African Development Community (SADC) tax policy on indirect tax coordination has mainly been guided by an approach toward the harmonisation of tax bases, the convergence of tax rates and the movement of taxes toward tax uniformity. This approach is one envisaged by the member states and reflected in Annex 3 of the Protocol on Finance and Investment. However, in recent studies, writers in this area opine that countries within a regional integration economic area (REC) should instead adopt an approach characterised by tax diversity of the indirect tax systems, as well as mutual coordination and cooperation to contribute towards economic integration. Recent literature proposes that tax coordination of indirect taxes must consider other options that move away from the uniformity of taxes, rates, and tax base. This paper considers this approach of placing tax diversity at the centre of the SADC tax policy of coordination of indirect taxes, particularly VAT and excise taxes. The paper reflects on the previous approaches that have characterised the implementation of the existing legal framework in tax coordination in the SADC and critically examines the implementation of the VAT and excise taxes guidelines and their significance in achieving tax coordination of indirect taxes. The article emphasises the importance of the SADC realising its goal of coordinating indirect taxes, particularly post Covid-19, due to the imminent need to raise more revenue from cross-border trade in the SADC member states to contribute toward the economic growth of member states.

Reimagining regional cooperation as a springboard for curbing piracy off the coast of Nigeria

by | Mar 12, 2023 | JCLA, JCLA V9 I2 2022

Reimagining regional cooperation as a springboard for curbing piracy off the coast of Nigeria

Author: Kalu Kingsley Anele

ISSN: 2521-2605
Affiliations: LLB, (IMSU) LLM, (Unilag), PhD (KMOU), Lecturer, Cultural Heritage Preservation Research Institute, Pusan National University
Source: Journal of Comparative Law in Africa, Volume 9 Issue 2, p. 33 – 70
https://doi.org/10.47348/JCLA/v9/i2a2

Abstract

Nigerian waters remain risky for navigation. Despite efforts by the Nigerian government to suppress piracy off its coast, little progress has been made. Moreover, Nigeria is ill-equipped, ill-prepared and lacks effective enforcement of the extant piracy legal regime due to an inefficient institutional framework to combat piracy suo motu. This paper suggests the adoption of the regional cooperation mechanism to curb piracy in Nigeria, given the number of piracy incidents off its coast and the fact that the coast extends to the waters of neighbouring countries. Additionally, Nigerian piracy affects the navigational and geostrategic importance of the Gulf of Guinea to the global energy supply and international trade, and it implicates regional trade agreements in Africa. The research methodology is a dialectical analysis of data, legal instruments, and scholarly publications. Also, this research uses the application of anti-piracy regional cooperation agendas in other piracy hotspots to suggest the adoption of regional cooperation to suppress Nigerian piracy. The results reveal that attempts to curb piracy in Nigeria have been futile because the country lacks the political will to eliminate the causes of piracy. Since Nigerian piracy has a regional effect, regional cooperation would be apt to suppress this crime. Legal instruments, soft laws, regional agreements and international maritime organisations promote regional cooperation in combating piracy. Consequently, the paper explores factors that bolster and sustain regional cooperation as a means of repressing piracy off the Nigerian coast.

The role of non-governmental organisations in advancing good governance and development through regional institutions in Africa

by | Mar 12, 2023 | JCLA, JCLA V9 I2 2022

The role of non-governmental organisations in advancing good governance and development through regional institutions in Africa

Authors: Chebo Tamajong Nfor, Atupele Masangala, Julieth Gudo

ISSN: 2521-2605
Affiliations: LLLB, LLM, PhD candidate (UCT), postgraduate teaching assistant and researcher at the Centre for Comparative Law in Africa, Department of Commercial Law, UCT; LLM, LLB (Honours), law lecturer, University of Malawi;PhD Law, LLM, LLB, postdoctoral research fellow, Centre for Comparative Law in Africa, Faculty of Law, UCT
Source: Journal of Comparative Law in Africa, Volume 9 Issue 2, p. 71 – 101
https://doi.org/10.47348/JCLA/v9/i2a3

Abstract

Non-governmental Organisations (NGOs) in Africa, as people’s representatives, play an essential role in advancing good governance, human rights and development on the continent. They have cemented their role alongside international and regional institutions, organisations and state governments. NGOs have made extensive contributions to democracy and development in Africa. They have a history of challenging poor governance and human rights contraventions, and advancing development on the continent through regional institutions such as regional courts, regional bodies and other regional networks. However, these roles have not been critically studied. There is a lack of in-depth analysis of the different methods used by NGOs in promoting good governance and development through African regional institutions. This paper identifies and examines the various tools that NGOs employ in advancing good governance and development on the continent. The paper discusses the recognition of NGOs by regional institutions and how international and regional law protects their involvement in and participation on the continent. It further outlines how NGOs have used various regional legal institutions and other regional bodies to protect the rights and interests of the people. The paper demonstrates that while the role of NGOs in advancing good governance and development on the continent is progressive, many challenges hinder this role, such as stringent rules for eligibility and application to implement certain functions, lack of access to key resources that facilitate their participation and lack of clarity on the legal instruments that govern NGOs.

Female genital mutilation in Nigeria and Burkina Faso: Safeguarding the rights of women and girls in Africa

by | Mar 12, 2023 | JCLA, JCLA V9 I2 2022

Female genital mutilation in Nigeria and Burkina Faso: Safeguarding the rights of women and girls in Africa

Author: Olaitan O. Olusegun

ISSN: 2521-2605
Affiliations: Lecturer, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria
Source: Journal of Comparative Law in Africa, Volume 9 Issue 2, p. 102 – 136
https://doi.org/10.47348/JCLA/v9/i2a4

Abstract

Article 2 of the Convention against the Elimination of Discrimination against Women explicitly prohibits violence against women, which was defined to include Female Genital Mutilation (FGM). FGM is a practice which is entrenched in African culture. Archaic as this practice is, it is widely carried out in several countries, with its attendant deleterious effects. Nigeria and Burkina Faso have a high prevalence of FGM but have made legislative efforts to curb the practice. Burkina Faso has, however, employed additional measures to ensure their laws” enforcement, which has effectively changed the cultural attitudes of several communities towards FGM in the country. This study uses a doctrinal approach to examine the prevalence, mode of operation and legal framework enacted to protect girls and women from FGM in Nigeria and Burkina Faso. It further discusses the efforts taken in Burkina Faso to implement and enforce their laws, in addition to the challenges inherent in enforcing FGM, laws in Nigeria. This article found that enforcement of laws is key to eliminating FGM and Nigeria needs to take urgent measures to enforce their FGM legislation like Burkina Faso.

Horizontal accountability: Bottom-up oversight of public duty bearers in Malawi

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

Horizontal accountability: Bottom-up oversight of public duty bearers in Malawi

Authors: Dan Kuwali and Chikosa M Silungwe

ISSN: 2521-2605
Affiliations: Dan Kuwali holds an LLD (Lund). He is an Extraordinary Professor of Law at the University of Pretoria, South Africa; Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Sweden; Adjunct Professor and Executive Director, Centre for Strategic Studies, Malawi University of Science and Technology; Fellow at the Carr Centre for Human Rights Policy, Harvard Kennedy School; and Chief of Legal Services and Judge Advocate General, Malawi Defence Force; Chikosa Silungwe holds a PhD (Warwick). He is a Former Attorney General, Government of the Republic of Malawi and a consultant at the Mizumali Foundation, Lilongwe, Malawi
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 1 – 23
https://doi.org/10.47348/JCLA/v9/i1a1

Abstract

The principle of public duty requires that public authorities should be held accountable for their acts, omissions, decisions, policies and use of public resources. Focusing on Malawi as a country whose democracy has been tried and tested, this paper locates and dissects the notion of public duty in s 12 of the Constitution of Malawi as an instrument for horizontal accountability that can be employed by the citizenry, based on ss 15 and 41 of the Constitution, for more effective and proactive oversight, as opposed to an ex post facto mechanism exercised by the Ombudsman in terms of s 123 of the Constitution. The central argument of this paper is that those who exercise a public duty do so based on people’s sovereignty and they have an obligation to account to the people for the exercise of State authority. The paper concludes that public duty is a corollary of democratic accountability, and both derive from the protection of individual rights and the rule of law.