CRIMINAL LITIGATION: PRACTICAL STEPS TO DRAFTING A CHARGE

Drafting is like driving of a car, you need to understand the various steps to take, the rules you must master to drive perfectly. You can only be a Master when you Practice it daily.

N.B: REFER TO OUR PREVIOUS POST ON COMMENCING ACTION AND CHARGES FOR BACKGROUND UNDERSTANDING

So in drafting, you must do the following before you start to draft (THE PRINCIPLE OF ISOLATION):

1.      Identify the Parties (offenders)

2.      Identify the offenses

3.      Identify the dates and places of commission of offence

4.      Identify the drafting Authority

AFTER,

1.     

 Cross-check the offenses you identified with the Laws you were given

TWO THINGS WILL HAPPEN:

1)      If you don’t have any law on the offence you identify strike it out

2)      If you have, mark it with the offence you have identified.

ALSO NOTE WHEN YOU WILL DRAFT ANOTHER CHARGE SHEET;

1.      When there is a break in transaction of the commission of the offence

THE CONTENT OF YOUR DRAFT MUST FOLLOW THE RULES OF DRAFTING:

1.      Rule of duplicity

2.      Rule of ambiguity

3.      Rule against Mis-joinder of offence

4.      Rule against Mis-joinder of offenders

N.B: IF IN THE QUESTION WE WERE GIVEN TWO STATUTES TO A PARTICULAR OFFENCE, WE MUST CHARGE ON THAT ALTERNATIVE STATUTE IN A DIFFERENT COUNT BUT IN THE SAME CHARGE SHEET

N.B: THAT THE SECTION YOU WILL USE IS THE PUNISHMENT SECTION

THE GENERAL CODE OF DRAFTING WILL BE ADPOPS

IN DRAFTING AN INFORMATION CODE: ADPP

IN DRAFTING A CHARGE CODE: ADPOPS 

SAMPLE DRAFT FOR INFORMATION (Applicable when drafting in the High Court in the south, and High Court in FCT)

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION

HOLDEN T LAGOS   

                                                                                                            CHARGE NO (SOUTH)

BETWEEN:

THE STATE OF LAGOS_______________                           COMPLAINANT

VS

1.      PERPERSHEEN OPALINGO

2.      BENSON BROWN

3.      ABUTABAD MANITOBA                              DEFENDANT (SOUTH)

4.      MAJID TANKO

At the session of the High Court holding in Lagos Judicial division on the 30^th day of December  2016, the court is informed by the Attorney General of Oyo State on behalf of the State that the following persons:

1.     

          PERPERSHEEN OPALINGO

2.      BENSON BROWN

3.      ABUTABAD MANITOB

4.      MAJID TANKO

Are charged with the following offences; (ALL THESE HIGHLIGHTED IS CALLED PREAMBLE)

COUNT ONE

STATEMENT OF OFFENCE

Murder, contrary to Section 221 of criminal law of Lagos state

PARTICULARS OF OFFENCE

Perpersheen Opalingo, Benson Brown, Abutabad Manitob and Majid Tanko on the 20^th March 2016 at No 16 Ninlan Road Obalende, Lagos within the Judicial division of this court Murdered Balnka Munro…

……………

Dated this 30^th day of December 2016 (PLS ALWAYS PUT DATE ON THE DAY YOU DRAFTING)

--------(PUT YOUR SIGNATURE)

NAME

DRAFTING AUTHORITY (IF IT IS A Principal State Counsel write that don’t put something else)

FOR: ATTTORNEY GENERAL OF STATE

SAMPLE DRAFT FOR CHARGE (Applicable in the High Court in the North)

IN THE HIGH COURT OF BAUCHI STATE

IN THE BAUCHI JUDICIAL DIVISION

HOLDEN AT BAUCHI

                                                                                                                        CASE NO(NORTH)

BETWEEN:

THE STATE                                                                                        COMPLAINANT

VS

1.         ABU TERROR

2.         YISA KUDU

3.         BASHIR CHAD

4.         ALLI GWAGWA

5.         KOLO STRONG

6.         SULEJA TEXAS                                                                ACCUSED PERSONS (NORTH)

1ST CHARGE

Abu Terro, Yisa Kudu, Bashir Chad, Ali Gwagwa, Kolo Strong and Suleja Texas on the 13th day of June 2012 at No. 2 Hankuri Drive Bauchi and within the Judicial Division of this Honorable Court, severally beat up Yaro Maiguard the security man on the premises and thereby committed the offence of assault punishable under section 265(a) of the Penal Code.

Dated this 30^th day of January, 2016

_______ (signature)

Name

PRINCIPAL STATE COUNSEL

FOR: ATTORNEY GENERAL OF THE STATE   

SAMPLE DRAFT FOR MAGISTRATE COURT IN THE NORTH

IN THE MAGISTRATE COURT OF KANO STATE

IN THE KANO MAGISTERIAL DISTRICT

HOLDEN AT KANO

                                                                                                                        CASE NO___

BETWEEN:

COMMISSIONER OF POLICE                                                                        COMPLAINANT

AND

1.      UMARI OBI                                                                            ACCUSED

I, MALLAM SABO SULEJA, Chief Magistrate Grade I charge you as follows: (INTRODUCTORY)

CHARGE ONE (BODY)

That you Umaru Obi on the 2nd day of November 2013 at the Julius Berger roundabout Kano and within the Magisterial District of this Court, badly beat Mallam Yusuf and thereby committed the offence of assaults punishable under SECTION 265 PENAL CODE.

 I hereby directs that you be tried for the said offence by this court (DIRECTIONAL)

DATED THIS 7th DAY OF DECEMBER 2013

________

MALLAM SABO SULEJA

CHIEF MAGISTRATE GRADE I

N.B: THIS IS THE SAME FORMAT IN ABUJA WHAT WILL CHANGE:

1. Charge No instead of Case No

2. Defendant instead of Accused

3. Count instead of Charge

                                   

 TO BE CONTINUED!!! (AMENDMENT OF CHARGES)

CONSTANT PRACTICE WILL HELP US ALL…..

ADVICE: KEEP DRAFTING AND GET A LECTURER TO HELP IN ASSESSING YOU

DO NOT DRAFT IN YOUR MIND, PUT IT DOWN…….

READ HARD

PRAY HARD

EAT HARD

REST HARD……We are nothing but a Pencil in the Hand of the Creator………

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CORPORATE LAW PRACTICE: SALIENT POINTS FROM THE FRCN CODE OF GOVERNANCE

N.B: THIS MAY NOT BE NECESSARY FOR BAR PART II, DUE TO CURRENT TURBULENCE WITHIN THE FRCN AND THE CODE ITSELF AS BEING SUSPENDED………..

N.B: THIS WRITE UP IS AN EXCERPTS FROM TEMPLAR NEWSLETTER (www.templars-law.com)

 

The Financial Reporting Council of Nigeria (“FRCN”) recently issued the National Code of Corporate Governance 2016 (the “Code”). The Code is made pursuant to the powers of the FRCN under Sections 50 and 51 of the Financial Reporting Council of Nigeria Act 2011 (the “Act”) and has a commencement date of 17 October 2016.

THE SCOPE OF THE CODE

The Code is essentially a consolidation and refinement of different sectorial codes on corporate governance and has been issued in three parts:

1)      the Code of Corporate Governance for the Private Sector;

2)      the Code of Governance for Not-for-Profit entities; and

3)      The Code of Governance for the Public Sector. 

N.B: The Code of Corporate Governance for the Private Sector (the “Private Sector Code”) is mandatory while that for the Not-for-Profit entities will be operated on a “Comply or Justify non-compliance” basis in a manner similar to the United Kingdom’s Corporate Governance Code. On the other hand, the Code of Governance for the Public Sector will not become immediately operative until an executive directive is secured from the Federal Government of Nigeria for that code to take effect.

THE CODE OF GOVERNANCE FOR THE PRIVATE SECTOR

The Private Sector Code applies to;

(i)                 Public companies (whether listed or not);

(ii)               Private companies that are holding companies or subsidiaries of public companies; and

(iii)             Regulated private companies as defined under the Private Sector Code.

N.B: The Code defines regulated private companies as “private companies that file returns to any regulatory authority other than the Federal Inland Revenue Service (FIRS) and the Corporate Affairs Commission (CAC), except such companies with not more than eight (8) employees”.

SALIENT PROVISIONS FROM THE CODE 

1.      DIRECTORSHIP: The Private Sector Code requires prospective directors of a company to disclose membership of other boards and serving directors to disclose prospective appointments to other boards. Also, more than two members of a nuclear or extended family are precluded from sitting on the board of a company at the same time. In addition, the Code provides that the positions of the chairman of the board and chief executive officer shall be separate and held by different individuals. The chairman of the board is also required to be a non-executive director.

These requirements will allow the company to gauge a prospective/serving director’s level of commitment to the board as well as determine existence of conflict (if any) and forestall abuse of power by the directors.

2.      INDEPENDENT NON-EXECUTIVE DIRECTOR: The Private Sector Code requires the board of every company to include independent non-executive directors, and provides a non-exhaustive list of factors for measuring independence including; not being a substantial shareholder, not being an employee of the company within the past five (5) years and not serving on the board for more than nine (9) years.

This requirement is aimed at inclusion of unbiased and objective directors on the board for the purpose of checks and balances in the decision making process to sustain investors’ trust and confidence in the board.

3.      CONFLICT OF INTEREST:  The Private Sector Code precludes any member of executive management3 of a relevant regulatory institution4 who leaves the services of such institution from being appointed as a director or top management staff of a company that has been directly supervised or regulated by the said institution until after three years of disengaging from that institution.

This provision is aimed at preventing conflict/bias on the part of the member of the executive management in dispensing his duties as a director.

4.      TENURE OF OFFICE OF DIRECTORS: The Private Sector Code provides that the tenure of office of the Managing Director/Chief Executive Officer and executive directors shall be not more than two terms of five years each. The tenure of non-executive directors should not be more than three terms of four.

5.      Minority Shareholder Protection: In addition to several provisions protecting shareholders rights which are similar to the statutory rights available to minority shareholders under the Companies and Allied Matters Act(CAMA), the Private Sector Code gives a shareholder or group of shareholders who have a cumulative shareholding interest of not less than one per cent of the share capital of a company the right to contribute to the agenda of the Annual General Meeting by submitting items for inclusion in the agenda.

This provision enables participation of minority shareholders in the decision making process of the company, and inhibits domination by majority shareholders, as matters which are of interest to the minority shareholders can be transacted at AGMs.

6.      External Auditors: The Private Sector Code provides that the tenure of office of auditors of a company shall not exceed ten (10) years continuously and such auditors shall only be considered for reappointment seven (7) years after disengagement. Furthermore, where an auditor’s aggregate tenure has already exceeded ten years at the date of commencement of the Private Sector Code, such auditor shall cease to hold office as an auditor at the end of the financial year that the Code comes into effect. In addition, companies are required to request that the audit partners are rotated every five (5) years. The Private Sector Code also prescribes a list of services which auditors are precluded from offering to companies including actuarial, investment advisory and taxation services.

These provisions would mitigate laxity by auditors in the performance of their functions as a result of overfamiliarity with the company, its processes and officers and preserve independence of the auditors.

7.      Internal Audit: The Private Sector Code requires every company to establish an Internal Audit Unit (IAU). Amongst other responsibilities, the IAU will report to the Statutory Audit Committee (SAC), SAC and Board Audit Committee (BAC) on the adequacy and effectiveness of management, governance, risk and control policies, deficiencies observed in these policies and management mitigation plans.

This requirement would enable companies identify any governance deficiencies and any potential risk factors prior to an external audit and establish mechanisms to mitigate these factors.

8.      Whistle Blowing: Every company is required to have whistle blowing6 policy which will encourage stakeholders to report unethical conduct and violations of any laws or policies to an internal and/or external authority, so that such conduct /violation can be verified, and appropriate sanctions applied to avoid a re-occurrence. The Private Sector Code provides that the whistle-blowing mechanism shall include a dedicated telephone “hot-line”, e-mail address, and other electronic communication methods that could be used (even anonymously) to report illegal or unethical practices. The responsibility of reviewing reported cases and notifying the SAC and BAC of these cases lies with the head of the IAU. Companies are required to treat all whistle-blowing disclosures (including the identity of the whistle blower) as confidential. In addition, the Private Sector Code affords protection to whistle blowers, by precluding companies from subjecting a whistle blower to any detriment whatsoever on the grounds that he has made a disclosure in accordance with the provisions of the code.

Furthermore, an employee who has suffered any detriment7 by reason of disclosure made pursuant to the Private Sector Code shall be entitled to compensation and/or reinstatement, whilst in the case of other stakeholders; the whistle-blower shall be adequately compensated.

These provisions will facilitate cooperation of stakeholders with regulatory authorities in curbing corporate excesses and violation of applicable laws within companies, as well as foster international corporate governance best practices by officers and management of Nigerian companies as the awareness of the plausibility of exposure and the attendant repercussion in instances of non-compliance will serve as a deterrent.

THE CODE V CAMA

Some provisions of the Private Sector Code conflict with provisions of CAMA which is the primary legislation regulating the administration of companies in Nigeria. Two areas in which these conflict occurs are with respect to:

Directors Remuneration

The Private Sector Code requires the board of every company to establish a remuneration committee which shall be responsible for recommending the remuneration of both executive and non-executive directors to the board, amongst other function. This is contrary to the CAMA which gives the company in general meeting the power to determine the remuneration of the directors.

This provision also appears inimical to the principles of corporate governance, given that the members of the board would be in a position to recommend their remuneration, and further contradicts another provision of the Private Sector Code to the effect that “a director shall not be present during the time any matter in which he has an interest is being discussed or decided”.

Voting by the Board

In addition, the Private Sector Code provides that “Where a majority of independent non-executive directors’ dissent on an issue decided by the board, such decision can only be valid where at least 75% of the full board (without reference to quorum) vote in favour of such decision”

This provision conflicts with the CAMA which expressly provides that questions arising at any meeting shall be decided by a majority of votes, and where there is an equality of votes, the chairman shall have a second or casting vote.

.                                                  ...............THE END..................................

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CORPORATE LAW PRACTICE: CORPORATE GOVERNANCE IN NIGERIA (THE CODES)

This area of corporate practice deals generally with the way and manner a company is controlled and directed so as to achieve its objectives. The persons in the affairs of management are expected to be accountable, responsible and more sensitive to the interest of shareholders, interest of creditors, and members of society at large.

.N.B: The effect of incorporation confers on a company legal personality. As a legal entity without a physical body, its affairs are carried out by human. This is the foundation of corporate governance.

The regulatory laws we need to take note of are;

1.      Companies and Allied Matters Act

2.      Investment and Securities Act

3.      Banks and Other Financial Institutions Act

4.      Insurance Act

5.      National Insurance Commission Act

6.      SEC Code of Corporate Governance 2011

7.      Code of Corporate Governance for Bank and Discount House and Guidelines for Whistle Blowing in the Nigerian Banking Industry 2014

8.      Code of Corporate Governance for Insurance Industry in Nigeria 2009

9.      Code of Corporate Governance for Operators (PENSION FUNDS)

10.  Codes of Corporate Governance for Telecommunication 2014.

THE LEGAL REGIME AND CORPORATE GOVERNANCE

COMPANY AND ALLIED MATTERS ACT

N.B: This is the major and mandatory legal document that we would first refer to in relation to company in Nigeria. It major provisions in relation to corporate governance;

1. The duties and functions of directors. See S. 283, 270, 279 CAMA

2. The powers of shareholders

3. The mandates for an audit committee (which is made up of equal number of directors and shareholders not exceeding six. See S. 359(4) CAMA.  ETC

N.B: That the mandatory provision for audit committee applies only to a public company.

                                     INVESTMENT AND SECURITIES ACT

N.B: This is the leading regulatory body on the capital market and securities investment in Nigeria

1.      SEC ensures protection of investors in Nigeria against fraudulent dealings by the maintaining fair, efficient and transparent market and reduction of systematic risk.

2.      Shares and other securities must be registered with SEC before they are offered to the public.

3.      No shares should be offered to the public without a prospectus to that effect being registered and approved by SEC.

4.       The offering of shares without registration with SEC or without a prospectus, are offences under the Act.

5.      The Act places the responsibility for ensuring the integrity of financing controls and reporting on the Board of Directors.

6.      Prosecution for contravention of the provisions of the Act is done through the Investment and Securities Tribunal (IST), and this makes for quick resolution of disputes.

Therefore, we can conclude that CAMA deals with the incorporation, running (including the issue and types of shares and other company securities) and winding up of companies, ISA deals with the offer of shares to the public and the regulation of the capital market.

THE CODES OF GOVERNANCE

We shall focus on;

1.      SEC code of Governance

2.      Code of Corporate Governance for Bank and Discount House and Guidelines for Whistle Blowing in the Nigerian Banking Industry 2014

SEC CODE OF GOVERNANCE

1.       It applies to all public companies whose securities are listed on a recognized securities in Nigeria, All companies seeking to raise funds from the capital market through the issuance of securities or seeking listing by introduction, and All Public Companies. See Article 1.1 of the code.

N.B: Where there is a conflict between the provisions of the SEC code and the provisions of any other code in relation to a company covered by the two codes, the SEC code provides that the code with the stricter provision shall apply.

SALIENT PROVISIONS ON THE SEC CODE

(a) Chairman/CEO: the code provides that for all companies with listed securities, the positions of the Chairman of the Board and Chief Executive Officer shall be separate and held by different individuals. This is to avoid over-concentration of powers in one individual which may rob the board of desired checks and balances in the discharge of its duties.

(b) Tenure of directors: Subject to the provisions of CAMA and satisfactory performance, all directors should be subject to re-election at regular intervals of at least once every 3 years. Also, biographical details of the directors nominated for re-election will be accompanied by the performance evaluation results and other information that can guide the decision of the shareholders.

(c) Directors’ remuneration: There should be a comprehensive policy on directors’ remuneration. The Board should approve the remuneration of each executive director, including the CEO individually, taking into consideration the relevance of skill and experience to the company. Only non-executive directors should be involved in the decisions regarding executive directors. Remuneration for non-executive directors should be fixed by the Board and approved by members in a general meeting.

(d) Internal audit: All companies should have an effective risk-based internal audit function. Where the Board decides not to establish such a function, sufficient reasons should be disclosed in the company’s annual report, explaining how assurances of effective internal processes and systems such as risk management, internal control and the like will be obtained.

(e) Rotation of external auditors: In order to safeguard the integrity of the external audit procees, companies should rotate both the external audit firms and audit partners. The audit partners should be rotated by the audit firm while the company should not retain the services of an audit firm continuously for more than 10years. Firms disengaged after continuous service for a period of 10 years can be reappointed after the expiration of 7 years after disengagement.

(f) Risk management: The Board is responsible for the process of risk management. It should accordingly form its own opinion on the effectiveness of the process. Management is accountable to the Board for implementing and monitoring the process of risk management and integrating it into the day-to-day activities of the company.

(g) Meetings: General meetings should be conducted in an open manner, allowing for free discussion on all issues on the agenda. The chairmen of all board committees and of the statutory audit committee should be present at general meetings to respond to shareholders questions. The venue of a general meeting should be accessible to shareholders. The Board should ensure that shareholders are not disenfranchised on account of choice of venue.

(h) Board of directors: The primary responsibility for ensuring good corporate governance in the company lies with the Board. The Board shall define a framework for the delegation of its authority or duties to Management specifying matters that may be delegated and matters that are reserved for the Board. The delegation of any duty to Management does not in any way diminish the overall responsibility of the Board and the directors for being accountable and responsible for the affairs and performance of the company.

THE SEC CODE V CBN CODE

1.      Family members on the board: The SEC code provides that not more than two members of the same family should be on the board of a public company at the same time. While the CBN code’s provision is to the effect that no two members of the same family should be Chairman and CEO or Executive Director.

2.       Board composition: The SEC code provides that the membership of the Board should not be less than 5 or more than 15. The CBN code provides for a maximum of 20 members on the Board.

3.      Independent directors: SEC code provides that there should be on the board at least one independent director while the CBN code prescribes 2 as the minimum number or 20%.

4.       Board committees: According to the SEC code, the Board is to determine the duties of its committees. The provision of the CBN code is same as SEC here.

5.       Remuneration of non-executive directors: By the provisions of the SEC code, the remuneration of the non-executive directors are recommended by the board and approved by members in general meeting. The CBN code limits remuneration to sitting allowances and expenses.

6.      Remuneration of executive directors: By the SEC code, the remuneration of executive directors is fixed by committees composed solely of non-executive directors. The CBN code is the same with SEC code on this issue.

7.       External auditors: Under the SEC code, the maximum number of years an external auditor can be continuously retained by a public company is 10. The external audit firm can be re-appointed after the expiration of 7 years from the discontinuance. The CBN code provides that the appointment of external auditors is subject to approval by the CBN and the maximum number of years of continuous engagement is still 10.

8.      Internal audit: The SEC code provides that there should be a risk-based internal audit to be headed by a senior management employee and to report to the audit committee. The CBN code provides that the internal audit should headed by at least an employee on AGM grade, and to report to the audit committee. 

t                                                               

                                                                              TO BE CONTINUED!!!!!!! 

E      READ HARD

         EAT HARD

         REST HARD

        PRAY HARD........................................

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