Category: General News

As part of our broader perspectives on F.O. Akinrele & Co’s practice areas, we are constantly presented with opportunities to influence legislation and forge a path towards better governance in the Nigerian commercial sector.

Over the past 12 months, our Transport Law Group has been engaged in several legislative initiatives exemplified by the following key federal and state public sector legislative initiatives in the Nigerian maritime and transport sectors: 

The Coastal and Inland Shipping (Cabotage) Act 2003 and the Suppression of Piracy and Other Maritime Offences (SPOMO) Act 2019.

The Cabotage Act 2003

The Cabotage Act primarily reserves the commercial transportation of goods and services within Nigerian coastal and inland waters to vessels flying the Nigerian flag and owned by persons of Nigerian citizenship. The Acts seeks to limit foreign participation in domestic coastal trade and promotes indigenous shipping.

SPOMO Act 2019 

The SPOMO Act aims to deter would-be offenders and protect the integrity of maritime activities. It was enacted in 2019 to combat the problem of maritime insecurity in Nigeria, by preventing and suppressing piracy, armed robbery and other unlawful acts done against a ship, aircraft and other maritime craft, including a fixed or floating platform. It defines acts of piracy, armed robbery at sea, and other unlawful acts perpetrated within Nigeria’s territorial waters and exclusive economic zone (EEZ).

Between 2023 – 2024, we were engaged to lead a critical review of both legislations by the Nigerian Maritime Administration and Safety Agency (NIMASA), the Nigerian government agency responsible for regulation and safety of shipping within the Nigerian maritime and coastal waters.  

The objectives were to substantially review and draft the terms and provisions of both enactments incorporating international best practices in view of new and developing challenges in various aspects of both laws, particularly in field of enforcement. 

The work culminated in the drafting of a Cabotage Bill (2023) and SPOMO Bill (2023) which have since been presented to the Nigerian legislature for debate and passage into law.

The Ogun State Transport Reform Bill

In 2023-2024, the Ogun State government (a state within the western region of Nigeria), through the Nigerian Infrastructure Advisory Facility (a partner to Adam Smith International) engaged our Transport Law Group to conduct a legal and regulatory review of the Ogun State Transport Reform bill. This required a review and appraisal of the institutional and governance structure of the Ogun State transport sector. 

The ultimate objective was to coordinate and enhance productivity and promote a viable concessioning and commercialization regime for the Ogun State transport sector. 

In examining this bill, the main observations were the need for more coherence in the unification of all the transportation organs of Ogun State and the review of extant laws in order to avoid a proliferation of laws and avoid conflicts between Ogun State’s extant transport laws and the Transport Sector Reform Bill. 

Our reform and appraisal report on the Transport Sector Reform Bill has been submitted to the Ogun State government for further legislative steps to be taken.

Participating in legislative initiatives such as this will remain F.O. Akinrele & Co’s priority for many years to come.

 Broader Perspectives and Achievements in 2024: “Corporate Social Responsibility and institution Building” 

The expansion and deepening of our practice areas and our regional goals remain our core objectives. These objectives have over the past two decades, coalesced with the broader perspectives of corporate social responsibilty (CSR), which include our strong commitment to institutions of higher learning in Africa. 

Over the past 12 months, our support for the Oil and Gas Bar of the University of Lagos and the Maritime Law Students Society of the Obafemi Awolowo University has been demonstrated through sponsorship and the involvement of our partners and associates in their key projects and activities. We have also incorporated their members into our extensive law internship programmes. 

A commitment towards such institutions as these and to future generations of lawyers and industry experts remain at the forefront of our practice initiatves. 

These institution building initiatives also act as a trigger to the improvements of our African institutions by enhancing their functions and changing the way people relate to each other in public activities. 

Our plan is to expand these initiatives on a yearly basis to West African institutions of higer learning and then on a regional basis to Sub-Saharan Africa and North Africa. 

Nigeria is Africa’s biggest oil producer but a marginal gas player. In March 2021, the Nigerian government declared the 2020s, Nigeria’s ‘decade of gas’.

The decade of gas policy has signalled Nigeria’s renewed focus on gas as the fuel of choice for powering Nigeria’s industrial ambitions. According to the plan, the Federal Government’s target is to deliver 10 projects that would significantly impact the economy; attract $14 billion in foreign direct investment, raise $12 billion in revenue through royalties and taxes, and create two million jobs by 2030.

Nigeria has the tenth largest gas reserves globally with an estimated 208 trillion cubic feet (tcf) of proven gas reserves according to the Nigerian National Petroleum Corporation, NNPC.

Despite this huge potential, gas production remains relatively low. In 2021, Nigeria produced 1.62 tcf of gas, 50.7 percent of which was exported as liquefied natural gas (LNG), behind Algeria (3.56 tcf) and Egypt (2.4 tcf) who have much smaller reserves.

Nigeria hopes to be a major supplier to Europe as the continent shifts away from Russian gas.

Yet significant challenges remain. Developing a holistic solution to help ensure energy access and security will require improving investor confidence in the sector. Developing a local gas market will require stakeholders and consumers to be confident that gas flows won’t stop abruptly.

The Decade of Gas so Far

Nigeria has implemented several policies aimed at increasing the domestic utilization of liquefied petroleum gas (LPG), compressed natural gas (CNG), and gas-to-power. Some have focused on reducing and commercializing gas flares and developing industrial gas markets.

Nigeria’s energy transition plan sees gas as a key transition fuel that will help meet energy needs in the short term.

In 2020, the NNPC began developing its most ambitious gas project, the Ajaokuta-Kaduna-Kano pipeline. The 614km pipeline is a massive $2.5 billion project that will transport gas from production centers in the south to industrial clusters and production centers in the north.

The pipeline will also provide gas for three planned thermal power stations in Abuja (1,350MW), Kaduna (900MW), and Kano (1,350MW) as well as feedstock for industrial production of petrochemicals and fertilizers. The project was slated for completion in the first quarter of 2023, but the NNPC has extended this timeline to the third quarter of 2023 due to what it described as security and terrain challenges. 

Other key projects being developed include a second Escravos to Lagos Pipeline System which will double the capacity of the current transport network improving supply to about 9 power plants located in its corridor. The Obiafu – Obrikom – Oben (OB3) gas line is also being developed and will improve supply to petrochemical industries. The NNPC’s ultimate goal is to ensure domestic gas utilization of 5 billion standard cubic feet (bscf) daily.

The government is promoting CNG as the key fuel for transport. In 2022, the NNPC announced a plan to convert about 500,000 petrol and diesel vehicles into CNG-powered and deploy 580 gas-filling stations over 18 months. This plan also extends to replacing small diesel and petrol-powered generators, the main energy source for off-grid and underserved customers, with gas-powered alternatives.

Overcoming Market Challenges

To fully achieve the benefits of these initiatives and projects, the government needs to provide solutions to some of the policy and market challenges that have hampered domestic gas utilization.

Gas-fired power plants constitute about 87 percent (about 14GW) of Nigeria’s total installed power generation capacity. However, plants routinely suffer from gas supply constraints. This challenge is linked to the overall lack of liquidity in the power sector and also to the fact that the domestic gas market is a regulated one. When power generation companies are unable to pay and the domestic gas pricing is unattractive, gas suppliers prioritize international buyers that can pay.

A related problem is that there is no incentive for these producers to invest in infrastructure for domestic gas supply. Investments will be limited to off-shore basins that are near export ports. Activated and enforced gas sale and purchase contracts are necessary to make gas projects bankable and spur private-sector investment.

Another key challenge that disrupts gas flow is the sabotage of pipelines by acts of vandalism. Although instances of vandalism have decreased from its height in the 2010s, it remains a huge issue that affects the country, costing money in not only lost products but also repairs. A 2014 report from the U.K.-based Stakeholder Democracy Network (SDN), notes that pipeline vandalism costs oil companies $14bn annually. In October 2022, NLNG declared a force majeure, citing the unavailability of major liquids evacuation pipelines due to sabotage and vandalism.

Developing a holistic solution to natural gas production and supply in Nigeria will ensure energy security and improve investor confidence in the sector. A holisitic solution that creates a thriving local gas market for the power sector will also require more confident stakeholders and consumers.

THE NIGERIA-MOROCCO GAS PIPELINE

A most significant Nigerian gas utilisation project is the Nigeria-Morocco Gas Pipeline which was proposed in a December 2016 agreement between the Nigerian National Petroleum Corporation (NNPC) and the Moroccan Office National des Hydrocarbures et des Mines (National Board of Hydrocarbons and Mines) (ONHYM).

The following are its key details:

• Capacity: 30 billion cubic m/year
• Length: 5,660 km
• Cost: US$25 billion

The pipeline would connect Nigerian gas to every coastal country in West Africa (Benin, Togo, Ghana, Cote d’Ivoire, Liberia, Sierra Leone, Guinea, Guinea-Bissau, Gambia, Senegal, and Mauritania), ending at Tangiers, Morocco, and Cádiz, Spain.

It would be an extension of the existing West African Gas Pipeline, which already connects Nigeria with Benin, Togo, and Ghana. Industry experts have stated that this is a preferred route rather than the Trans-Saharan Gas Pipeline, arguing that the Trans-Saharan Gas Pipeline would have to pass through a region with significant militant activity.

Upon completion, the gas pipeline will be the world’s longest offshore pipeline second longest pipeline overall. Based on the 25-year estimate given in 2017, construction will be completed by 2046. In June 2023 it was reported that Côte d’Ivoire, Liberia, Guinea, and Benin had signed agreements with Morocco and Nigeria to participate in the Nigeria-Morocco gas pipeline project. The signing ceremony took place at the Economic Community of West African States (ECOWAS) headquarters in Lagos, Nigeria, alongside the steering committee meeting for the Nigeria-Morocco gas pipeline project, which was attended by representatives from ECOWAS and all the relevant countries. Following this development, a total of ten states are now involved in the project, building upon the agreements previously signed with ECOWAS, Mauritania, Senegal, Gambia, Guinea-Bissau, Sierra Leone, and Ghana.

In 2024, exchange rate volatility has reached unprecedented levels. With unprecedented erosions of Naira values against foreign currencies particularly, the US Dollar, GBP Sterling and the Euro. Februry 

At the commencement of the term of the current government in May 2023, the Central Bank of Nigeria (CBN) as a key part of the new government’s economic policy measures, annouced changes to the way the country’s foreign exchange market would work. Foreign currencies are to be bought and sold at rates determined by the market and not by the Central Bank. 

This signaled an intention of the government to allow market forces to determine the value of the Naira. The intentions were very well placed in view of the prevailing regime of multiple exchange rates in the previous government in 2015 – 2023.

Under the multiple exchange rate regime, foreign and domestic investor confidence had been eroded which induced foreign exchange rate volatility. In June 2023, the International Monetary Fund (IMF) repeatedly called on Nigeria to end its multiple rate regime. The huge gap between the official and unofficial rates caused severe shortages of foreign exchange by discouraging supply from official sources. 

This has had major inflationary implications on the Nigerian economy as well as severe adverse effects on Foreign Direct Investment (FDI) 

What is the genesis of the volatility and are there solutions in sight?

BACKGROUND

THE FOREIGN EXCHANGE MARKET 

This is not the first time Nigeria will be liberalising its foreign exchange market. The first was in 1986; further efforts followed in 1995, 1999 and 2016. All were marred by various impediments in implementation. 

In 2016, the float was half-hearted. The Governor of the CBN stated then that the government would retain the official rate for “critical transactions”. The intention also was for the CBN to intervene regularly according to the dynamics of the market as the market continued to evolve steadily and as more money was expected to come into the country.

The float became official in June 20, 2016, and the Naira, of course, tumbled to ₦280/$1 just 1 day later. The black market however responded more favourably, moving from ₦347/$1 to ₦337/$1. The CBN was optimistic that official and black markets would merge and the naira would settle around ₦250/$1.

In truth it was never really a float. The official window for “critical transactions” was never defined and the Naira did not rise and fall as it should in a free market.The 2016 naira float policy did not meet a ready and able market that Nigerians could leverage, and foreign exchange speculators took every opportunity to create bubbles in the market which eventually led to Naira rates dropping further.

By 2017, the Naira went up to ₦300/$1, and the black market did not merge with interbank rates as hoped. It reached an all-time low of ₦525/$1. 

From 2015 – 2023, multiple exchange rates signaled a dysfunctional economy. It eroded investor confidence and induced foreign exchange rate volatility. In June 2023, the International Monetary Fund (IMF) repeatedly called on Nigeria to end its multiple rate regime. The huge gap between the official and unofficial rates caused severe shortages of foreign exchange by discouraging supply through official channels and encouraging bad actors to exploit tand widen the gap between the exchange official and parallel rates  

FOREIGN DIRECT INVESTMENT (FDI)

The last two decades have seen a steady drop in FDI and this together with the foreign exchange volatility is attibutable to a variety of problems in the Nigerian business environment including certainy of regulation 

The United Nations Conference on Trade and Development (UNCTAD) cited as the base cause, the global economic recession which had exposed Nigeria to various macroeconomic instabilities as the cause of the dip in investment flow into the country. According to the National Bureau of Statistics (NBS), Nigeria had experienced a steady decline in FDI since 2008 when the world experienced an economic global meltdown. However, before the economic meltdown, the growth of foreign direct investment in the country has had a mix trend. In this regard, although both have witnessed a declining trend, one must identify a clear dichotomy between FDI in the oil sector and FDI in the non-oil sector with the former being more resilient than the latter due to the fact that earnings are in hard currency.

A survey report from the studies by the United Nations Conference on Trade and Development (UNCTAD) indicated that FDI inflows to Nigeria fell by 27 percent i.e. from $4.7bn recorded in 2014 to $3.4bn achieved in 2015.

From 2015-2023 and coupled with the effect of COVID, the level of non-oil FDI has dropped significantly and become a major concern with notable subsidiaries of multinationals such as Paterson Zochonics (PZ) Nigeria Plc (subsidiary of PZ Cussons Plc), a 124 year old Nigerian company and a major British manufacturer of personal healthcare products and consumer goods moving to delist its shares from the Nigerian stock exchange in 2023 due to foreign exchange challenges. Another notable example is Glaxo Smith Kline (GSK) Nigeria Plc (subsidiary of GSK a global pharmaceuticals company) deciding to cease doing business in Nigeria, 

CURRENT SITUATION

Due to the absence of local production and the recent liberalisation of commodity imports, the IMF in its “Post Financing Assessment and Staff Report” of Febraury 2024 has warned that Nigeria faces a risk of a 33% currency depreciation in 2024 which could lead to a massive surge in inflation, reaching a peak of 44% in 2024. 

The three key problems that afflict Nigeria’s foreign exchange market are the lack of transparency, foreign exchange shortages and volatility. 

Shortages occur mainly because about 90% of Nigeria’s foreign exchange earnings come from the oil sector and 60% of government revenue come from the oil sector. Since the sharp drop in oil prices in 2020 (and even though oil prices have become more robust since 2021 to date) the foreign exchange market has remained volatile with considerable increases in foreign exchange demand in a predominantly import based economy. 

To make matters worse, much of the foreign exchange from non-oil sources (such as diaspora remittances, tourism and export of non-oil products) is channelled through the black market and not through the banking system.

However there are two perspectives that must be taken in addressing the problem, the first is the long term perspective and the second is the short term perspective, both of which must immediately be embarked upon simultaneously.

LONG TERM PERSPECTIVE

The long term solutions to the foreign exchange problem remain heavy public and private sector investment in:

1. Addressing the infrastructure deficit Nigeria suffers such as the lack of stable and comprehensive electricity power in urban and rural areas; comprehensive and integrated road, rail water transportation for persons and goods; 
2. Health care
3. Educaition
4. Local raw materials development in the agro-allied industires and the oil, gas and solid minerals sectors
5. Import substitution by the development of local manufacturing based on local raw materials particularly for food production and the manufacture of and production of machinery, components and finished goods which are presently being imported

However, these are long term solutions, which require consistent planning and policy implementation by successive governments.

SHORT TERM PERSPECTIVE

The short term perspective is of immediate importance due to the highly inflationary impact the devaluation of the Naira is having on the Nigerian economy, The last seven months have seen extraordinary and unprecedented volatility with the exchange rates dropping weekly and even daily. 

The government has, in a bid to assuage public concerns sought to address the spikes in demand for foreign exchange by a basket of short term solutions.  

Amidst calls for the federal government to tighten up monetary policy by increasing interest rates thus curbing inflation, the government is currently in a bid to reduce the spikes in the demand for foreign exchange. In furtherance of this, the government is identifying potential problem areas in government activities as well as, intervening in the official foreign exchange market and in the parallel market. 

Problem Areas 

Addressing revenue leakages

The leakages from the oil sector stemming from a lack of tranparency in the governance of the sector have led to hard currency revenue leakages. This includes a lack of proper oversight of Nigerian share of crude oil allocations under contracting arrangements with the International Oil Companies, exposing such crude oil to unlawful third party actors and the syndicated theft of crude oil.

The activities of state governments after the disbursement of money by the Federation Account Allocation Committee (FAAC) have also come under scrutiy. Such actions have contributed to the depreciation of the naira, according to data and interviews with people familiar with the matter.

It has been discovered that portions of the funds from FAAC were often changed to dollars by some governments at the parallel market, putting more pressure on the naira.

An analysis shows that from July 2023 to January 2024, the Naira depreciated in six months immediately in the parallel market after the FAAC shared money to the federal, state and local governments.

With the removal by the Federal Goverenment of fuel subsidies, more volumes of naira are being shared by the federal, state and local governments and some of these monies are changed to dollars at the parallel market.

Interventions in the Official Market

In a series of guidelines recently, the CBN ordered Deposit Money Banks to sell their excess dollar stock and maintain certain level of prudential thresholds.

The new guidelines provide that the Nett Open Position (NOP) limit of the overall foreign currency assets and liabilities of banks shall not exceed “20% short or 0% long of shareholders’ funds”. The apex bank said the move was due to concerns over the growth in foreign currency exposures of banks through their NOPs.

Delaying Oil Company Remittances

In a move aimed at stabilising the naira, the Central Bank of Nigeria (CBN) has announced a new policy restricting international oil companies (IOCs) from repatriating 100 percent of their foreign exchange proceeds abroad immediately.

The policy, which takes effect immediately in February 2024, limits IOCs to repatriate only 50 percent of their proceeds immediately while the other 50 percent will be repatriated 90 days from the day of inflow.

Policing Foreign Exchange Racketeering

The federal government is also seeking to disrupt and prevent currency racketeering, foreign exchange rate manipulation, money laundering and the financing of terrorism by stopping the proliferation of unregulated transactions. 

As a number of transactions are being done through Bureaux De Change (BDC), the federal government has through the CBN unveiled a set of regulatory guidelines titled  “REVISED REGULATORY AND SUPERVISORY GUIDELINES FOR BUREAU DE CHANGE OPERATIONS IN NIGERIA”

1. BDCs shall be divided into two tiers, with different requirements for capital, presence, and locations.
2. BDCs shall have a minimum capital of N2 billion for Tier 1 and N500 million for Tier 2, and other fees and deposits to be specified later
3. Reporting requirments have been imposed on transactios over a minimum threshold of $ 10,000

The foregoing are included in a number of enumerated guidelines which are aimed at bringing BDCs under a similar supervisory and regulatory oversight as banks.

The CBN will expect these measures to have an immediate impact on the foreign exchange market. 

Our Corporate, Foreign Investment  and Capital Markets Department at F.O. Akinrele & Co. will contine to monitor these developments closely.

The Nigerian maritime sector has always represented a significant commercial engine of the Nigerian economy. Opportunities for Nigeria’s economic growth through linkages in global and inter-Africa supply chains through our maritime lanes remain robust and significant. 

The efficiency and adaptability of our maritime sector are thus critical and the Nigerian government has laid down a marker by prioritising the need to augment the nation’s GDP from the maritime sector.

For the first time, a Ministry of Marine and Blue Economy has been established to harness the nation’s ocean and coastal resources for economic growth. 

In line with these initiatives, the Nigerian Judiciary is also playing its role by updating the Admiralty Procedure Rules, to foster a fit-for-purpose dispute resolution mechanism for stakeholders in the sector and this is symbolised by the enactment of the Admiralty Jurisdiction Procedure Rules, 2023 (“the AJPR 2023“).

After consultation with maritime practitioners, the Admiralty Jurisdiction Procedure Rules of 2011 (“the AJPR 2011”) was repealed and replaced by the AJPR 2023 under the authority of the Honourable Chief Judge of the Federal High Court, Justice Terhiemba Tsoho, in exercise of his powers under Section 254 of the Constitution of the Federal Republic of Nigeria and Section 21 of the Admiralty Jurisdiction Act 1991 (AJA). 

The AJPR aims at augmenting the Admiralty Practice and Procedure at the Federal High Court, bringing it in line with global best practices and making Nigeria a regional dispute resolution hub for Africa.

Several changes have been made. The most notable are outlined below:

Notable New Provisions:

1. THE ESTABLISHMENT OF ADMIRALTY DIVISIONS AND THE DESIGNATION OF ADMIRALTY JUDGES: 

The Chief Judge has now mandated the establishment of Admiralty Divisions for the Court and designated Judges of the Federal High Court as Admiralty Judges. This is significant in ensuring that specialist Judges focus on maritime cases exclusively.

2. ESTABLISHMENT OF THE ADMIRALTY REGISTRY AND THE HEAD OF THE ADMIRALTY REGISTRY: 

The establishment of the Admiralty Registry of the Admiralty Division of the Court and the empowerment of the Admiralty Marshal (or his substitute) to head the Admiralty Registry of each Admiralty Division further reinforces the clear objective of promoting maritime specialisation.

3. VALIDITY OF WARRANT OF ARREST IRRESPECTIVE OF TRANSFER OF ACTION: 

The AJPR 2023, in preserving the position that an admiralty action in rem may be commenced in the Judicial Division of the Court in which the res may be found or is expected to arrive. have introduced two novel provisions:

1.  Where an admiralty action in rem is not commenced in a Judicial Division where the subject of the maritime (the “res”) is located or expected to arrive. provision is now made for the transfer of the warrant of arrest to the appropriate Judicial Division where the subject of the action is located or expected to arrive, and the warrant of arrest shall remain enforceable against the res in any Judicial Division in which the res may be located. 
2. Where a suit is commenced in any Judicial Division other than the Judicial Division where it ought to be commenced, the Rules provide that the suit may be heard and determined in that Judicial Division unless the Court directs otherwise. 

4. IDENTIFICATION OF PARTIES IN ACTION IN REM

The AJPR 2023 has abolished the previous requirement of specifying the “relevant person” as a defendant, in an action in rem in relation to a proprietary maritime claim. The only parties to be specified as the defendant in the Writ of Summons are the Ship or Other property. However, in an action in rem in relation to a general maritime claim, as in addition to specifying the ship or other property, a relevant person must be specified as a defendant.

This helps to clear up unneccsary technicalities that have developed in recent years, which have unfortunately impeded the progress of maritime actions.

5. RECOGNITION OF PHYSICAL AND DIGITAL SERVICE

The AJPR 2023, mandates that a Writ of Summons, a Court order of arrest, and a warrant of arrest in an action in rem, be served through physical service. 

Additionally, the Rules have now accomodated a digital approach allowing for other Court Processes in an action in rem to be served on the defendant through the defendant’s email address. 

Also, a legal practitioner in representing the defendant, can be properly served with such other Court Processes.

6. MEDIUM OF SERVICE WHERE VESSEL IS ABANDONED OR DEFENDANT’S WHEREABOUTS UNKNOWN

The AJPR 2023, provides that where an action in rem is commenced against the ship or other property which has been abandoned in Nigeria or in personam is filed against the defendant who does not reside in or carry on business in Nigeria through an agent, the Court may order service on such defendant or owner of ship or other property and such service shall be done at the last known address of the defendants business and which shall be delivered by Courier between Nigeria and in the Country of business. 

Alternatively, the service shall be by any mode as accepted by the Court.

7. ARRESTING A SHIP AND OTHER PROPERTY: 

DIGITILISATION

The AJPR 2023 introduces electronic filing (“e-filing) that has been in use in the judicial divisions of state high court and in major cities in country.

There are provisions for the physical filings (to be done at the Admiralty Registry) or e-filing (to be done at the Admiralty E-filing Unit) as regards, ex parte applications for a warrant arrest of a ship or other property. Such e-filed ex-parte applications must be in PDF (Portable Document Format) and shall be sent to the email address as shall be provided by the Admiralty Registry. E-filing, fees payable for the court processes shall be assessed and paid online.

EXPEDITIOUS – PHYSICAL & VIRTUAL HEARINGS

The AJPR 2023 mandates that where it is practicable, such application shall be heard and determined within  a twenty-four (24) hour timeline from the date of filing, and such proceedings may be conducted physically or virtually on any day, including Sundays and public holidays.

CAVEATS AGAINST ARREST

The AJPR 2023 now requires that before a warrant of arrest is issued, the applicant must apply for a search to be made in the caveat book to determine whether or not there is a caveat against the arrest of such ship or other property. 

Upon such application for search, the Admiralty Registry is to issue a report of the search and such report shall be in Form 8A (Report of Search of Caveat Against Arrest Register).

This is an improvement from the uncertain and controversial position under the AJPR 2011, where a prospective plaintiff  was required to file an affidavit stating whether or not there is a caveat against the arrest of such ship or other property. This position was susceptible to manipulation as in many cases, the Court may not be provided with the correct information. 

8. WARRANT OF ARREST FOR FOREIGN COURT PROCEEDINGS AND NIGERIAN OR INTERNATIONAL SEATED ARBITRATIONS

The AJPR 2023 introduces a simplified process of obtaining a warrant of arrest for ships or property in support of foreign court proceedings or arbitration proceedings within or outside Nigeria. The provision ensures efficiency by allowing the Applicant to file such an application without commencing a separate action. The Rules mandate that such an application will be accompanied by the certified true copy (CTC) of the Court or Arbitration Processes, and a duly notarised undertaking as to indemnity if later found that the order for arrest should not have been made.

CONCLUDING REMARKS

The AJPR 2023 establishes a new and progressive legal regime for Admiralty Proceedings in Nigeria. steering it into alignment with contemporary maritime realities. 

It is advised that all stakeholders in the maritime sector, including legal practitioners, shipping companies, and other relevant parties, familiarize themselves with the Rules to effectively navigate the intricacies of maritime legal proceedings.

The Electricity Act Amendment (EAA) bill, 2024, was signed into law on 9 February 2024. It seeks to reform the Nigerian electricity sector and addresses the challenges of power generation, transmission, distribution, and consumption. 

The EAA introduces several changes and innovations to the Electricity Regulation Act, 2006, which was the previous legal framework for the electricity sector. 

Key objectives of the EAA are:

1. Promoting the development and environmental protection of host communities of power generating companies (GENCOs) by setting aside 5% of their annual operating expenditures for infrastructure projects in the host communities.

• Establishing the Transmission System Operator SOC Ltd, a new entity that will be responsible for the operation, maintenance, and expansion of the national grid, as well as the coordination and dispatch of electricity from various sources.

• Creating an open market platform that will allow for competitive electricity trading among GENCOs, distribution companies (DISCOs), eligible customers, and other market participants.

• Assigning the duties, powers, and functions of the Transmission System Operator SOC Ltd to the National Transmission Company South Africa SOC Ltd, a joint venture between the Nigerian and South African governments, which will own and manage the transmission assets and infrastructure.

• Enhancing the regulatory and enforcement powers of the National Energy Regulator (NER), which will oversee and monitor the electricity sector and ensure compliance with the provisions of the Act.

Key Benefits of the EAA are:

1. Improving the quality and reliability of electricity supply and increasing the availability and diversity of power sources.

2. Fostering the development and welfare of host communities, as it will provide them with funds and opportunities for infrastructure projects, such as roads, schools, health centers, and water supply.

3. Stimulating the growth and competitiveness of the electricity market, as it will encourage more investment and innovation in the power sector and create more choices and options for consumers and producers of electricity.

4. Enhancing the transparency and accountability of the electricity sector, as it will ensure that the NER and other stakeholders adhere to the principles and standards of good governance, and that the electricity tariffs and prices reflect the true costs and benefits of electricity.

Key challenges and Risks to sector and economy at large are:

1. It may face legal and political opposition from some stakeholders, such as the existing GENCOs and DISCOs, who may perceive the bill as a threat to their interests and profits, and may challenge its constitutionality and validity in court.
2. It may encounter technical and operational difficulties, such as the lack of adequate infrastructure and capacity, the need for coordination and cooperation among various entities and agencies, and the possibility of cyberattacks and sabotage on the transmission system and the open market platform.
3. It may require significant financial and human resources, such as the funding and expertise needed to implement and sustain the reforms and innovations introduced by the Act, and the compensation and training needed for the affected workers and communities.

The implementation of the EAA will be monitored by industry operators and prospective investors. It is a positive step in the right direction and if properly implemented, will bring rapid development to the electricity sector.

In 2022, Mr. Anthony Nkadi, a longstanding partner in the Shipping and Transport Group was appointed Head of Regional Shipping and Transport Projects Group (RSTPG). 

This appointment combines his expertise as a seasoned maritime practitioner with his considerable aviation law experience, which have critically addressed the strategic needs, critical opportunities and challenges of the firm’s clients.

This appointment marks another milestone in his career, which has been defined by hard work, commitment and professionalism.

In 2022, Benson Akunya, our litigation partner of considerable years, recorded a number of milestones in our core practice areas and we have the pleasure of announcing his appointment into the firm’s Regional Litigation Projects Group (RLPG). Benson Akunya continues to make substantial inroads in expanding the firm’s core practice areas of litigation, arbitration and dispute resolution, demonstrating the firm’s renewed focus on the firm’s strategic growth priorities in Nigeria and the African region.

This appointment has been characterised by his hard work, commitment and professionalism.

THE DECADE OF GAS

On 29 March 2021, the Nigeria International Petroleum Summit (N.I.P.S) Pre-Summit Conference, marked the official launch of the “The Decade of Gas in Nigeria Initiative” in furtherance of the Federal Government initiative that declared January 1, 2021 to December 31, 2030 as “The Decade of Gas Development for Nigeria”.

 At a time of rising global demand for cleaner energy sources this has been viewed as a bold statement that gas development and utilization should be a national priority to stimulate economic growth, further improve Nigeria’s energy mix, drive investments, and provide the much-needed jobs for Nigerian citizens and eliminating energy poverty, currently affecting about 40% of the population.

The commitment to developing the gas value chain by reviewing and gazetting policies and regulations to enhance operations in the sector had been commenced under the National Gas Policy (2017).

RECENT GAS DEVELOPMENTS

Developments have been made in recent years in gas infrastructure development.

The Nigerian National Petroleum Company Ltd is currently deepening natural gas utilization to reduce energy poverty through the National Gas Expansion Programme and intensifying the use of petrochemicals.

The NNPC has also upscaled efforts in the gas sector through various projects like the Nigerian Liquefied Natural Gas NLNG Train 7, Ajaokuta–Kaduna–Kano Natural Gas Pipeline (AKK), OB3 and ELPS among others. The (NLNG) project since delivering its 1st LNG cargo in October 1999 continues to be the Federal Government’s arrowhead in the reduction of gas flaring in Nigeria and contributes about one per cent to Nigerian GDP, having generated $114 billion in revenues over the years, $9 billion in taxes, $18 billion in dividends to the Federal Government and $15 billion in Feed gas Purchase.

The NNPC is also expanding and integrating both domestic and regional power grids and growing the domestic gas markets through Autogas/Compressed Natural Gas/Liquified Petroleum Gas to power vehicles.

On Wednesday, February 2, at the 2022 Nigeria International Energy Summit (NIES) held in Abuja, the Nigerian Midstream and Downstream Petroleum Regulatory Authority (NMDPRA) newly created under the Petroleum Industry Act (2021) revealed that Nigeria’s proven natural gas reserve had risen to 209.5 Trillion Cubic Feet (TCF) as of January 1, 2022. The new figure represents a major increase of 2.97 TCF in proven natural gas reserves, which, of itself, represented a 1.42 percentage increase from the 206.53 TCF recorded on January 1, 2021.

Such growth, together with the prospects for continued increase, come at the most auspicious moment, given the possibility of buying into the current European need for alternative sourcing of gas.

In January 2002, the idea of a Trans-Saharan Natural Gas Pipeline that was first mooted in the 1970s, came alive when the Nigerian National Petroleum Corporation (NNPC) and the Algerian national oil and gas company, Sonatrach, signed a Memorandum of Understanding for preparations of the project. Aimed at enabling Europe to tap into West Africa’s abundant natural gas supplies, the pipeline included the northernmost Nigerian neighbouring country of the Republic of the Niger for two excellent rationales. The pipeline was going to link through its borders to get from Nigeria to Algeria and it was expected to boost exploration in Niger and expand its energy industry. The 4,128-kilometre pipeline, with 1,037 kilometres in Nigeria, 841 kilometres in Niger, and 2,310 kilometres in Algeria, and a capacity of 30 billion cubic metres of natural gas per year, will connect the Warri region in southern Nigeria, through the length of Niger to the town of Hassi R’Mel in northern Algeria, where it will connect to existing Trans-Mediterranean, Maghreb-Europe, Medgaz, and Galsi Pipelines, allowing Europe to tap into West Africa’s abundant natural gas reserves and diversifying its supply.

RUSSIA-UKRAINE CONFLICT

Russia’s invasion of Ukraine has opened up opportunities for gas rich nations in Africa to tap from the multi-billion-dollar market.

 Russia which accounted for about 45 per cent of the Europe’s gas imports and 40 per cent of its entire gas consumption is facing huge economic sanctions as Europe seeks to reduce dependence on their gas by 80 per cent by the end of 2022.

Nigeria has been described as a gas nation with 206.53 trillion cubic feet of proven gas deposit and hopes to use the energy source as its transition fuel.

The scramble for African gas has begun as Italy’s Prime Minister Mario Draghi on Monday, visited Algeria over diversifying gas supply mix. Italy depends on Russia for 40 per cent of gas imports.

Nigeria has Africa’s biggest proven gas reserves and ninth in the world, according to the United States Energy Information Administration.

The Chief Executive Officer of the Nigerian Upstream Petroleum Regulatory Commission (NUPRC) newly created under the Petroleum Industry Act (2021), Mr Gbenga Komolafe said, “The situation in Ukraine has actually presented a huge opportunity for Nigeria to occupy the market space in terms of the gas supply. I believe that is possible and as a regulator, we are doing everything possible to ensure that Nigeria is able to fulfil that obligation”.

Nigeria’s Suppression of Piracy and Other Maritime Offences Act, 2019  and the Deep Blue Project aim to ‘prevent and suppress piracy, armed robbery’ and any other unlawful act against a ship, aircraft and any other maritime craft, including fixed and floating platforms.

As Nigeria gets set to deploy the Deep Blue Project to protect its coastal waters, the Nigerian Maritime Administration and Safety Agency (NIMASA) says “piracy will no longer be allowed to thrive”.

The combined effect of these two initiatives is to halt the rising trend of piracy and other illegal acts against maritime traffic. The objective being to enhance the flow of maritime activity in Nigerian waters and the Gulf of Guinea.

 

Nigeria’s Suppression of Piracy and Other Maritime Offences Act, 2019

The Suppression of Piracy and Other Maritime Offences Act 2019 (SPOMO) gives effect to the relevant provisions of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf (SUA) The SUA convention was adopted on 10 March 1988 and entered into force on 1 March 1992. Nigeria ratified his convention.

SPOMO has ended the controversy around whether the crime of sea piracy is defined in any local legislation. The Federal High Court has exclusive jurisdiction to determine matters of armed robbery and other unlawful acts at sea.

Without clear domestic statutes, the prosecution of parties suspected of sea piracy, prior to the law’s enactment, was problematic in Nigeria.

Notwithstanding the purported domestication of the SUA Convention (and its protocol) by section 215(h) of the Merchant Shipping Act 2007 there were doubts about the proper domestication of SUA as required by the Nigerian Constitution.

Section 3 of SPOMO has clarified the position by defining ‘piracy’ as any:

(a) illegal act of violence, act of detention. or any act of depredation, committed for private ends by the crew or any passenger of a private ship or private aircraft and directed

(i) in International Waters against another ship or aircraft or against a person or property on board the ship or aircraft, or

(ii) against a ship, aircraft, person or property in a place outside the jurisdiction of any state;

(b) act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; and

(c) act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b) of this section.

SPOMO is a further illustration of the fact that Contracting states are empowered in accordance with their municipal laws to arrest and prosecute persons, ships or aircraft suspected of committing piracy regardless of whether the pirate or attacked ship flies a foreign flag or has a foreign crew. The definition also covers violent acts committed against property other than ships, such as aircraft and floating and fixed platforms in the Nigerian Exclusive Economic Zone.

Section 4 of SUA lists 18 maritime offences and unlawful acts at sea, which include armed robbery at sea and acts other than piracy committed within Nigeria or its maritime zone. Such acts include:

• the hijacking of a ship, aircraft or fixed or floating platform.
• the destruction or vandalism of a ship, installation, or navigation facility; or
• interference with the operation of a ship, installation, or navigation facility.

Jurisdiction of the Federal High Court of Nigeria

Section 5(2) of SUA the Federal High Court, to the exclusion of all other courts, has jurisdiction to hear and determine any matter under the act.

Some Key SPOMO Provisions

Such provisions include those relating to restitution to owners of violated maritime assets and the forfeiture of proceeds of piracy or maritime offences.

The act also provides that the right of prosecution shall reside in the Attorney General of the Federation of Nigeria; any officer so designated by the attorney General; or the Nigerian Maritime Administration and Safety Agency (NIMASA), with the Attorney General’s consent. These provisions have given rise to genuine concerns about the potential for delays or outright vetoes, due to bureaucratic process or political reasons in the grant by the Attorney General of consent to commence proceedings, which may be very urgent.

 

Deep Blue Project – 2021

Nigeria is investing much of its maritime safety and security hopes in the Deep Blue Project. Initiated by the Federal Ministry of Transportation and Federal Ministry of Defence, it is being implemented by the Nigerian Maritime Administration and Safety Agency (NIMASA), with participation from the Nigerian Navy, Nigerian Army, Nigerian Air Force, Nigeria Police, and Department of State Services.

The Deep Blue Project aims to prevent illegal activities in the Nigerian Exclusive Economic Zone (EEZ), enforce maritime regulations, enhance safety of lives at sea, and prevent illegal activities in the inland waterways. In February, the Federal Government added the Secure Anchorage Area (SAA), off the coast of Lagos, to the areas under the protection of the Deep Blue Project.

The project is designed with three categories of platforms to tackle maritime security issues on land, sea, and air. The land assets comprise the Command, Control, Communication, Computer, and Intelligence Centre (C4i) for intelligence gathering and data collection; 16 armoured vehicles for coastal patrol; and about 600 specially trained troops for interdiction, known as Maritime Security Unit. On air, there are two Special Mission Aircraft for surveillance of the EEZ, one of which was received May 12, with the second expected to arrive soon; three Special Mission Helicopters for search and rescue; and four Unmanned Aerial Vehicles. The sea assets consist of two Special Mission Vessels and 17 Fast Interceptor Boats.

All the assets have been delivered, except one Special Mission Aircraft.

The Deep Blue Project assets would be deployed to prevent pipeline vandalism, oil theft, illegal bunkering, arms smuggling, drug trafficking, human trafficking, and illegal fishing. They would also be deployed for pollution prevention and control in the Nigerian maritime environment.

The project is in line with the country’s total spectrum maritime security strategy, anchored on four pillars, namely, situational awareness, response capability, law enforcement and local partnerships, and regional cooperation.