A Constitutional amendment is required to mend the gaps in the existence of the Special Tribunal for the Enforcement of Eligible Loans (“Eligible Loans Tribunal”) under the Banking and Other Financial Institution Act (BOFIA) 2020.
Chapter E, sections 102 to 129, BOFIA 2020, purports to establish the Special Tribunal for the Enforcement of Eligible Loans in a somewhat inconsistent manner.
All the armies of advisers and consultants on legal and legislative matters to the National Assembly, the CBN Governor, and the President of the Federal Republic of Nigeria failed to mind the Constitutional gaps in the BOFIA 2020 as it respects the Eligible Loans Tribunal.
We had examined the Special Tribunal for the Enforcement of Eligible Loans as a crucial stakeholder in Nigeria’s FinTech space here.
Background
Before the 3rd alteration of the 1999 Constitution of the Federal Republic of Nigeria respecting exclusivity of the National Industrial Court of Nigeria (NICN) on labour and labor-related matters, the appellate courts declined the exclusive jurisdiction of the NICN under the Trade Disputes Act on labour and labour-related matter.
Nigeria’s Supreme Court and the Court of Appeal held that the 1999 Constitution is superior to any legislation of the NASS, no matter how beneficial such laws may appear. NUT, NIGER STATE v. COSST, NIGER STATE CHAPTER & ORS (2011) LPELR-20028 (CA)
Federal Republic of Nigeria’s 1999 Constitution (the “Constitution”) ranks above and is yet the foundation of any legislation in Nigeria.
Under section 1(1) (3) of the Constitution, a law inconsistent with the Constitution shall be void to the extent of its inconsistency. A.G. Abia State vs. A.G. Federation (2002) 6 NWLR Part 763 Page 264.
Although the Eligible Loans Tribunal is named a tribunal, it purports to enjoy concurrent jurisdiction with the States and Federal High Court. It is in that regard a special civil court.
Appeals from the Special Tribunal for the Enforcement of Eligible Loans allegedly should have ranked – in terms of priority – over any other appeals before the Court of Appeal.
Under BOFIA 2022, the President, Court of Appeal, to publish a special practice direction that imposes accelerated hearing and gives priority to appeal from the Eligible Loans Tribunal over any other appeals.
In this wise, appeals must, if against a final decision, be on points of laws, mixed law, and facts; or if against an interlocutory decision, be on points of law only.
Similarly, appeals against the decisions of the Court of Appeal on any appeals from the Special Tribunal for the Enforcement of Eligible Loans before the Supreme Court of Nigeria take precedence and priority over any other appeals with limited exceptions: appeals on any election petition or from specially designated courts respecting AMCON (Assets Management Commission of Nigeria).
Jurisdiction and Powers of Courts
The legislative arm of the government cannot indirectly amend Constitutional provisions – procedural steps for Constitutional amendment must be locked.
The realities of the National Industrial Court of Nigeria before the 3rd amendment of the Constitution became effective in 2011 – the appellate courts upheld the existence of the NICN on the ground that it pre-existed in the Constitution.
The Supreme Court affirmed the supremacy of the Constitution when it held that the Trade Dispute Act could not reasonably limit the Constitutional powers of the High Court in National Union of Electricity Employees & Anor v. B.P.E (2010) LPELR-1966.
We agree with Chigozie Onah, law lecturer, Veritas University, that appeals against the decision of the Special Tribunal for the Enforcement of Eligible Loans (the “Eligible Loans Tribunal”) before a Court of Appeal or the Supreme Court of Nigeria will suffer a technical knock-out.
Because BOFIA 2020 cannot rightly cloth the Eligible Loans Tribunal with the status of a superior court of record – without Constitutional amendment.
Contrary to the Courts or quasi-judicial bodies established under the Constitution, including the Code of Conduct Bureau, the Eligible Loans Tribunal is an affront to the democratic tenets of constitutional amendment and a regrettable jamboree funded with the taxpayers’ fund.
Indeed, a well-intentioned action that has suffered a legislative stillbirth. Enabling legislation is required when the National Assembly succeeds in amending the Constitution to establish the Eligible Loans Tribunal.
Should the President of the Federal Republic of Nigeria constitute the Eligible Loans Tribunal before the house cleaning exercise of amending the Constitution, we submit that any decisions of the Eligible Loans Tribunal are inferior to the decision of the State High Court or Federal High Court in Nigeria.
State High Court and the Federal High Court enjoy jurisdiction over claims for recovery of eligible loans, that is, eligible bank assets from debtors under the AMCON Act 2010 and the AMCON (Amendment) Act 2015.
Conclusion
It is a waste of time and material resources for parties to patronize the Eligible Loans Tribunal in a contentious claim because it lacks the ingredients of a validly constituted judicial body.
The parties would have been able to confer exclusive jurisdiction on the Special Tribunal for the Enforcement of Eligible Loans regarding matters within its competence in any facility agreement.
It is forum shopping for a claimant to sue a defendant who resides in another judicial division in the claimant’s judicial division or a neutral judicial division.
We look forward to the days when parties to a contract may validly confer jurisdiction on trial Courts in Nigeria, similar to the principle of neutral jurisdiction in international commercial contracts.
Assume that parties to a building construction agreement who are residents in Lagos – with no form of a presence or offices outside Lagos State – entered into and performed the agreement within Lagos but prefer the High Court of Rivers State.
We submit that no civil procedure rules of a State High Court allow parties to a contract to elect a neutral jurisdiction. Yet, we do not find any statutory limitation in this respect, given that judicial division exists for administrative convenience only.
Does the restrictionism approach to territorial jurisdiction or judicial division enhance or impede access to justice in Nigeria? Does it strengthen our judiciary’s ranking globally? Sadly, in 2021, Nigeria’s judiciary ranks 121 out of 139 countries surveyed globally by the World Justice Project and 23 out of 31 sub-Saharan African countries.
Nothing under the Nigerian laws supports the present restrictionism approach by our judiciary or prevents parties to a local contract from choosing a neutral jurisdiction except the Rules of the respective High Courts.
Suppose the High Court of Jigawa State intentionally promotes adjudication-related tourism. In that case, we see no reason not to advise clients to travel to Jigawa State if its High Court is timely and free from government powers and discrimination.
The economic laws of efficiency apply to the business of justice administration. The argument that public interest overrides economic laws may be subject to thorough studies in this respect.
The President should not constitute the Eligible Loans Tribunal until the NASS amends the Constitution to establish the Special Tribunal for the Enforcement of Eligible Loans as a special civil court in Nigeria.
