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BusinessDay 12 Apr 2018

26 BUSINESS DAY

26 BUSINESS DAY C002D5556 Thursday 12 April 2018 INDUSTRYFILE DCS hosts stakeholders in infrastructure and real estate at 7th Detail Business Nigeria’s first commercial solicitor firm, specializing in non-court room practice, Detail Commercial Solicitors (DCS), last week organised the 7th edition of its Business Series in Lagos. The event, which took place at the firm’s purpose-built office in Lekki brought together key players in infrastructure, who had in-depth discussions on how to drive policy changes in the real estate sector to aid its growth. Speakers and panelists at this event include, Andrew Nevin, Partner and Chief Economist, PwC, Sonnie Ayere CEO Dunn Loren Merrifield, Toyin Ajose, associate partner heading Detail’s real estate and construction practice, Dolapo Omidire, founder and team lead, Estate Intel. See BusinessDay Newspaper, on Monday April 9th, 2018 for the full story. POWERPERSPECTIVE MBAH ALPHEUS ANAYO ESQ. The Lagos State Electricity Power Sector Law is a product of Governor Akinwunmi Ambode people orientated policy to provide direct state intervention for a stable, affordable and reliable power supply in Lagos State. The legislation is the legal frame works that give legal backing to the Light-Up-Lagos program designed to add on incremental basis 3000MW of electricity to Lagos State. This policy backed by this beautiful piece of legislation came at a time when direct government intervention has become the last resort to provide the much needed stimulant to unlock private investments into the Nigeria Power Sector. The objectives of the law as prescribe by Section 2 are inter alia; provide for the development and management of a sustainable power supply in the Lagos State; facilitate the development and management of electricity infrastructure within the state; ensure availability of cost reflective tariff; provide support in the collection of tariffs and revenue from embedded power end users; collaborate with Federal, State, Energy and Electricity Power related Agencies to promote and support investment in the electricity power projects within the state.The Bill which received the ‘No Objection’ of the Nigeria Electricity Regulatory Commission before being passed into law has now become a reference point that States can indeed contribute their own quota towards bridging the gap of electricity supply to the people. The Law has received so many encomiums from power industry players and greeted with the same frenzy that came with the privatization of power sector with majority of power investors now turning to Lagos State as an investment destination. It is to be noted that until the relevant stakeholders envisaged by the law to implement the Light Up Lagos program, carry out their functions in L-R, Dolapo Kukoyi, Partner, DETAIL; Sonnie Ayere, CEO, Dunn Loren Merrifield; Tosin Ajose, Associate Partner DETAIL participating at the 7th DETAIL Business Series. L-R: Femi Williams, CEO, Chams Plc; Abdulmalik Mahdi, Director, Sales, Brains & Hammers; Tosin Ajose, Associate Partner DETAIL; Dolapo Omidire, Founder & Team Lead, Estate Intel speaking as panellists at the 7th DETAIL Business Series. Andrew S. Nevin, Partner and Chief Economist, PwC Nigeria speaking at the 7th DETAIL Business Series. Lagos state electricity power sector law 2018: understanding the role of the state, distribution companies and NERC accordance with the law and regulatory framework, the law and purpose of the Light Up Lagos program will remain a political statement that will not see the light of the day. The Law itself is just the path to the end and not the end itself, a conscious and committed effort is therefore required from Lagos State, the Distribution Companies in Lagos (Eko Electricity Distribution Plc and Ikeja Electricity Distribution Plc) and the Nigeria Electricity Regulatory Commission to achieve the much desired effects of the law. Each stakeholder as envisaged by the law must restrict itself to its role under the law and other regulations governing the electricity industry in Nigeria for there to be meaning achievement of the Limitation of actions: Time freezes while litigation is pending Continued from last week Court’s Judgment and Rationale The Supreme Court held that the main issue between the parties was “when did the Respondents’ cause of action arise and whether the time spent at the Federal High Court should not be counted? In deciding this issue, the Supreme Court agreed with the Respondents that the cause of action accrued when the Respondents obtained the certified true copies of the incorporation documents of the 5th Appellant from the Corporate Affairs Commission. Augie JSC relying on the Supreme Court’s decision in UBN v. Umeoduagu (2004) 13 NWLR (Pt. 890) 352that it is only reasonable that a party can only sue when he becomes aware that this right has been tampered with, held as follows: “…they (the Respondents) went in search of the truth from the right source. I also agree that this truth triggered their right to take necessary action. The truth they sourced from CAC confirmed that…the Appellants went behind the Respondents to incorporate the 5th Appellant.” On the second issue, the Supreme Court held that nothing was said in the Judgment of the Court of Appeal to alter Respondents’ case to a shareholders’ dispute.The Court of Appeal merely narrated the facts in the Respondents’ pleadings to trace what triggered their right to take necessary action. Furthermore, referring to the foreign book relied on by the lower Courts, the Supreme Court agreeing with its decision in Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1 at 20, held that‘there is nothing in our laws that says the Nigerian Courts cannot rely upon foreign decisions…they are useful in the expansion of the frontiers of our jurisprudence’. As such, where there has been no decision on whether limitation period shall count or not during the pendency of an earlier suit, the lower Court was right to ‘…look around for principles in decided cases that will proffer answers thereto’. On the effect of a statute of limitation, the Supreme Court relied on its decision in Asaboro v. Pan Ocean Oil Corporation Nigeria Ltd (2017) LPELR-41558, where it held that the statute bars the action and not the cause of action. The cause of action refers to facts the Claimant must adduce to be entitled to any relief, while the action is the medium through which he ventilates those facts. As such, Amina Augie JSC held: “I agree; earlier Suit filed by the Respondents cannot be dead; it is alive and so it can be resuscitated, which is what Respondents achieved, when they filed this Suit at the incremental power as envisaged by the Light-Up-Lagos program. The ability of the law to support real investment and mobilize the much needed private funds into the Lagos State electricity market will depend largely on the legal regulatory compliance by the stakeholders as early controversy and/or disagreement regarding the violation and/ or undermining of the law in the implementation of the program will totally destroy the good intention of the policy and erode the confidence of foreign and local investors who will not risk investing in a process that may be successfully challenged in the court of law. All Stakeholders must be willing to limit itself to the powers conferred on it by the law and other relevant laws governing the power sector. It is in this regard that we analyze the roles of various stakeholders under the law with a view of charting a proper road map for the implementation of the law and policy towards achieving the targeted 3000MW incremental power in the state. THE ROLES OF LAGOS STATE GOVERNMENT The Role of Lagos State under the Lagos State Power Sector Law 2018 is to formulate relevant policies that will support the development of embedded generation, the distribution of the electricity and ensuring collections from the customers. Section 5 of the Law rightly provides that the Lagos State Ministry of Energy and Mineral Resources shall among other things be responsible for the initiation, formulation and coordination of power sector reform policies and programs of the state; supervise, monitor and evaluate the implementation of all power policies and programmes in the state; create an enabling environment for private investment in the power sector; provide support in the collection of tariffs and revenue from embedded power end users. Section 4 of the Law vested on the Lagos State Ministry of Energy and Mineral Resources the rights to issue licenses to the feedstock Merchants (Gas suppliers) while the Nigeria Electricity Regulatory Commission retains issues license to the Embedded Power Providers. The Law established Lagos State Embedded Power Commission with the responsibility to collaborate with Nigeria Electricity Regulatory Commission to make certain regulations for the embedded power project in the state. The Lagos State Embedded Power Commission is also empowered to appoint licensed entities to trial Court with the requisite jurisdiction to entertain this matter, and the time spent at the wrong Court cannot be counted; it was suspended.” Therefore, the fact that the Respondents quickly filed the action at the High Court (within 2 months) signified that the Respondents did not sleep on their rights. Lastly, the Supreme Court held that based on the statement by Appellants’ counsel that the livewire before the trial court is the incorporation of the 5th Appellant, the issue of non-joinder is a non-issue. Additionally, that the Court of Appeal was right that the non-joinder of the Nigerian Ports Authority and the Bureau of Public Enterprises is not fatal to the Respondent’s suit. The appeal was dismissed with costs ofN300, 000.00 awarded in favour of the Respondents. Comments Notwithstanding the foregoing, this laudable Judgment is a reminder that novel decisions can and are still being delivered in Nigerian courts, in order to meet up with legal developments worldwide. The term ‘frozen period’ allows for suspension of the limitation period due to certain supervening circumstances. This is the first time such a situation would be considered and decided by the Supreme Court in Nigeria. As was recognised by Augie JSC: “The truth is that so far there has been no decision of this Court on the issue of whether limitation period shall not run during the pendency of an earlier suit.” Thus, the issue and the Judgment are novel and have become a locus classicus on the point that the time spent in a wrong Court in an earlier suit cannot be counted, as it was ‘suspended’ or ‘frozen’. The Supreme Court has thus shown its readiness to support the growth of Nigerian law and jurisprudence. As was held by Oguntade JSC in Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 at 315E-H and relied on Packer v. Packer (1954) P. 15 at 22“…If we never do anything which has not been done before we shall never act anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both.” The Supreme Court in Nigeria has followed the same approach…” Chief Wole Olanipekun, SAN, Gani Adetola-Kazeem, SAN, A.B. Ogunba, SAN, Bolarinwa Awujoola Esq, Adelani Ajibade, Esq(for Appellants) Mr. M. I. Igbokwe, SAN, Mr. Chioma Okwuanyi, Sir Adolphus Nwachukwu KSJI and Mrs. Winifred Tayo-Oyetibo (for the Respondents). procure aggregate feedstock (gas) for utilization under the Embedded Power Scheme; collaborate with Distribution Companies to pre-qualify Embedded Power providers under the Embedded Power Scheme. The Law also established the Lagos Embedded Power Council with responsibility among others to address consumer complaints in the state; provide input in the determination of end-user tariffs to ensure costreflective tariffs for embedded power and carry out such other activities as are conducive to the discharge of its duties under the Law. The Law established a Power Task Force with responsibility for the enforcement of the provisions of the law with powers to make arrest and prosecute any person for offences committed under this law especially offences on power theft, electricity asset vandalization and unauthorized use of electricity in whatever form. The Law also empowers the Lagos State Ministry of Finance and the Lagos State Debt Management of Office pursuant to the approval of the Governor to issue payment Guarantee to the Embedded Power producers and Feedstock Merchants to backstop their payment. To be continued next week

Thursday 12 April 2018 C002D5556 BUSINESS DAY 27 Absence of perimeter fencing puts airport security on edge Stories by IFEOMA OKEKE The absence of perimeter fencing across major airports in Nigeria may continue to cause runway incursions, which could be a threat to security. BusinessDay’s checks show that only the Nnamdi Azikiwe International Airport, has perimeter fence in Nigeria. The situation may remain this way for till next year as the Federal Government may not provide perimeter fences across the airports this year. The Federal Airports Authority of Nigeria (FAAN) recently disclosed that it will capture the construction of perimeter fences in all airports in the 2019 budget. Experts say 2019 may be too late for this development as Nigerian airports continue to remain porous and could be threat to security if immediate steps are not taken to address security lapses at the airports. The recent incursion of Akure airport runway by cows that caused Air Peace aircraft to delay landing for about 20 minutes, thieves opening up cargo hold at the airport, the falling off of Dana door upon arrival in Lagos airport and the recent incidents of theft at the airports has again brought to the fore the need to improve aviation safety through ensuring that aircraft, airport runways and airside are secured. Meanwhile, stakeholders have queried what the Federal Government did with N5.87 billion World Bank credit facility for perimeter fencing and other infrastructural equipment such as fire tenders. The Abuja airport fencing was said to have gulped $65 million. While other stakeholders wondered what happened to budgetary allocations for the same projects for Port-Harcourt and Lagos, year in, year out. John Ojikutu, member of aviation industry think tank group, Aviation Round Table (ART) and chief executive of Centurion Securities, told BusinessDay that if the NCAA had put security fences across airports in the country, there would not be incursion of the runways by cows. “The NCAA and the Federal Airports Authority of Nigeria, (FAAN) should be blamed for absence of security fences across our airports. There are certain things we must have in place before we are certified to operate the airport. If NCAA approved the airports to be operating without perimeter fences, the airline should know that. “This information should be in the Aeronautical Information Publication (AIP). The pilot must read it before he departs. The operators too should be blamed because if they are going to Akure, they should take precaution on landing,” Ojikutu added. He recalled that in 1990s, when he was the airport commandant people were farming on the runway side of the Murtala Muhammed International Airport, (MMIA), until he had to put a stop to it. On the issue of poaching, Ojikutu advised FAAN to “withdraw company identity cards from disengaged staff and ensure same for ground handling staff; limit number of staff working in the aircraft and apron, and conduct regular background checks on all. Ensure regular payment of salaries; demand for security enhanced fences and regular patrol of aircraft manoeuvring areas.” An operator who craved anonymity said, “Our perimeter fences are not enhanced for security fences. The International Civil Aviation Organisation, (ICAO) has recommended that they go and make security fences to protect the operational area and they haven’t done that. However, Henrietta Yakubu, general manager, public affairs, FAAN, in an interview in Lagos, said the issue of security across the airport remained a great concern to the organisation. Yakubu said the incident at Akure was being addressed, stressing that the airport had perimeter fence but there was a gap in which the cattle entered through to the runway. According to Yakubu, FAAN civil engineers were already at the Akure airport to fix the collapsed section of the fence. As part of measures to further strengthen the security of the airports across the country. She said FAAN had stopped the renewal of On Duty Cards (ODCs) for former airline and FAAN workers to ensure strict personnel monitoring. The card renewal will be thoroughly scrutinised by the agency, she said, saying all security measures have been reviewed while 10 vehicles have been added to the ones on ground to enhance runway patrol in order to minimise aircraft runway attacks. Ministry, agencies embark on capacity building for aviation sector In a bid to build capacity for the aviation industry, the Ministry of Transportation and all the aviation agencies including the Federal Airports Authority of Nigeria (FAAN), Accident Investigation Bureau (AIB) Nigerian Airspace Management Agency (NAMA), the Nigerian Civil Aviation Authority (NCAA) have held an enrichment programme for members. Anchored by the Centre for Cooperative Training, Research and Development of the Obafemi Awolowo University, Ile-Ife, the two-day seminar which held at the Administrative Staff College of Nigeria (ASCON) Badagry focused on critical areas of empowerment such as financial intelligence, taxation of income of public servants, utilisation of cooperative fund, health tips for healthy living among others. Speaking on the training workshop, Babatunde Sotin, the President of the Cooperative Society, said the quest to build capacity of members particularly in entrepreneurship derives from the determination of his administration to invest in human development. According to him, “you are aware that in the past couple of years we have invested in building structures for the society-guest house, offices, etc. Going from there, we now want to encourage and assist members who have business ideas to go into agriculture or any other business that can bring in additional income. “Soft loans will be provided for members after feasibility studies and other legalities are conducted, but before they do that, they need to be equipped with the necessary skills and know-how, hence this programme.” Sotin said this new directive became imperative as “it would ensure that members do not retire into penury as several cases have shown in the past.” He also revealed that more training programmes have been lined up to accommodate as many members as possible in the near future. Installation of CCTV at Lagos, Abuja airports 90percent ready- FAAN The on-going installation of Closed Circuit Television (CCTV) cameras at the airsides of Murtala Muhammed Airport (MMA), Lagos and Nnamdi Azikiwe International Airport (NAIA), Abuja has reached between 85 and 90 per cent completion stage. This is as Boss Mustapha, the Secretary to the Government of the Federation (SGF) would declare open the forthcoming Airport Council International (ACI) to be hosted by Nigeria. Henrietta Yakubu, the general manager, Corporate Communications of the Federal Airports Authority of Nigeria (FAAN) disclosed this to aviation reporters at the agency’s office at the Lagos Airport. Yakubu pointed out that the on-going installation of the CCTV Cameras at the airsides of the two airports in the first phase would further improve security at the airports, adding that FAAN would continue to improve on safety and security of humans and equipment at all airports across the country. She explained that after the completion of the installation of the equipment at Lagos and Abuja in the first phase, FAAN would move to Kano, Port Harcourt and Enugu Airports for the second phase. She added that the agency had trained its security personnel on the handling of the equipment and assured that security would be better enhanced at the nation’s airports with the usage of the equipment. “On the security, we have done a lot and the CCTV cameras are being installed at the airside. We have improved on illumination around our airsides. Right now, safety audits are on-going at the Port Harcourt Airport, Enugu and Kano Airports. The essence of this is to ensure that we are adhering to the standards set,” Yakubu said. “At the moment, we have reached about 85 to 90 per cent completion stage. We are doing it in phases. In fact, we are mounting it at MMIA, Abuja in the first phase simultaneously and after this, we will go to Kano, Port Harcourt and Enugu Airports. “The project has been on for a long time even before the issue of alleged incursions into the airports. It is just that we are facilitating and we want to ensure that it is done within the shortest period. Our security staff have been trained on how to monitor the equipment and others within the airports.” On the forthcoming ACI Africa conference, Yakubu declared that FAAN would use the opportunity to open up the aviation sector to internal and external investors. She explained that Mustapha would declare open the conference while Hadi Sirika, Minister of State for Aviation, Bernard Aliu, President of Council, International Civil Aviation Organisation (ICAO), and Angela Gittens, Director-General li Tounsi, ACI World would also be in attendant. She added: “We are expecting experts to come with their wealth of ideas that will help us to move our airports from just being a government entity to more viable airports and the ones that can declare profit. “The Ease of Doing business too has helped us to move forward as we showcase our potential and activities. The ease of doing business has helped us to collapse several formalities in checking the passengers, we don’t have too many checks at the airports any longer, but that does not stop us from still doing the security check.”

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