SENIOR LECTURER, DEPARTMENT OF PUBLIC LAW,RIVERS STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY, NKPOLU, P.O. BOX 5080 PORT HARCOURT, NIGERIA.
Law is the major plank on which the entire society rests, it defines the boundaries and structure of the society, and regulates the terms of interpersonal relations in society. A key part of this regulation manifests in commercial transactions the vital tool with which members of society pursue happiness, self realization and development in their polity.
Nigeria has been politically independent since 1960, while its economy seems to regress progressively into acute dependency over the years but especially from about 1970 to date. What is wrong with our legal reasoning? What is wrong with our business policies? How can we ensure sustainable development of the Nigerian economy through the law? These are the questions to which I address my mind in this paper. I posit that fundamental errors and fatal fallacies in our legal reasoning, has led our laws and polices on business towards a self destructive alienation of citizens and a consequential underdevelopment of the economy.
THE RELATIONS OF LAW AND BUSINESS
Law and business are two terms as inseparable as they are inevitable in society. Law organises individuals and interest groups into a cohesive society, while business is the means by which members of society transact with each other in the pursuit of their self realization both individually and collectively. The one spells the boundaries and terms of association society while the other provides the means of inter personal association for the pursuit of happiness and development in human society. Like the twirling tweed, they are interlocked in the eternal activity of human living in society, spelling the terms and providing the tool with which humanity seeks self realization and self actualization in society, ministering unto man and providing the greatest happiness for the greatest number of society’s humanity.
Law has been severally defined, with each definition reflecting the ideological and theoretical viewpoint and social experience of the definer1. From the puritanical context of Christendom, St. Thomas Acquinas defines law as right reasoning made for the good of all by he who is entrusted with care of the society2. From the renaisant context, Von Savigny defines law as a reflection of the historical experience of a society3. From the authoritarian context.
John Austin defines law as “…a command set by a supreme authority for the obedience of his subject4. From the economic context, Karl Marx defines law as an instrument with which the ruling class legitimizes and maintains oppression of the masses5. While from the functional context, Roscoe Pound defines law as an instrument of social engineering, a tool for balancing conflicting interests in society6.
What ever the leaning of a theory, a harmonizing factor that cuts across all the definitions, remains that law is the rules that apply in the operation of any given society. By this we mean the determined regulations and principles that govern relations inter persona in an organized society.
The sociological definition of law which adopts a functional approach, lends itself to much appeal as it clearly identifies law as an instrument of social control and engineering which according to Nnamani7 has the aim of building an efficient structure of society such that there is a satisfaction of wants with the minimum of friction and proper balancing of competing interest. One truth becomes salient from the above. Law is the central line on which society as an organic entity is built, and that the same time, law is useless and bereft of comprehension except within the context of society.
Business is defined in the Chambers Twentieth Century dictionary as “…employment, trade, profession, or occupation… commercial activity, a commercial or industrial concern: ones concerns or affairs…” It is thus an activity undertaken by a person, for the purpose of making an earning. Whether it is a profession practiced, a trade or an employment, it is a business if it is undertaken for commercial purposes with the end of making profit or earning a wage. A salient point about business is that it is a bipartisan transaction, by which we mean a transaction that involves more than one person or one that brings a person in legal relations with another, as one person cannot with himself engage in a profit oriented enterprise.
From the above it becomes obvious that law and business exist in a complementary nature. Law as an instrument of control regulating the relations of members of society, which is mostly of a commercial nature, and business the chief vehicle with which mankind commutes and communes in the seeking of satisfaction and accomplishment in society. Law therefore sets the stage for a hitch-free operation of business in society, by prescribing the standards to be met in the setting up of business enterprises, in the practice of a business and in the reconciliation of conflicting interest as they may arise, in the course of business. As the world turns fully into the 21st century, the relevance of these twin pillars of society increases in proportion and calls for closer study with a view to enhancing the capacity of legal policies to achieve set democratic and development-positive objectives.
THE JURISPRUDENCE OF BUSINESS IN NIGERIA
Jurisprudence, in a nutshell means legal reasoning8. It is in that concise context that the term is applied in this paper. Accordingly, by the jurisprudence of business in Nigeria, I refer to the legal reasoning behind business policies in the Nigerian State as laid down through legislative enactments. I do not intend to review every legislation regulating business in the Nigerian legal system, but to examine the underlying objective and the impact of a few key factors affecting/informing business legislations in the Nigerian legal system, with a view to highlighting their errors and fallacies, as basis for positing that a rethink in this direction is necessary if the Nigerian business environment is to be properly guided/regulated by law, towards sustainable development of the Nigerian economy.
The objectives of business regulation in Nigeria has largely been identified as
(1) Encouraging of foreign investment in the economy and
(2) Involving Nigerians in the economic development of their country9.
To these may be added.
(3) The need to create a level playing field for all participants in the economy,
(4) The need to teleguide the development process to ensure even access to scarce resources in society,
(5) The overall need to develop the economy and natural resources of the country and most importantly.
(6) The need to generate revenue for government, the silent partner in every business, through taxation.
Business is more of a social and inter personal undertaking, however, with society as an organic creation based on law, as we have shown above, even the social aspects of business becomes a subject of legal interest. Accordingly it can be said that in modern times, the law permeates virtually all aspects of business, from conception to termination and from initiation to cessation of activities.
Adegbite10 has identified governmental interventive/regulatory policies of the business community as including:
- Authorization; which deals with the form, structure and legal power of varieties of business organizations, as well as issuance of operations license, lease or permits to investors to deal in areas like mines, oil and gas.
- Taxation, which addresses necessary legal exaction of money from business interest and activities, for the running of government whose function it is to administer society and secure conducive environment for business activities.
- Facilitation; by which government introduces policies through law, designed to enhance the operation of business activities in society, these include law such as the Nigerian Enterprises promotion laws.
- Standardization; by which the law not withstanding the spirit of autonomy of the investors or operators, applicable in all commercial ventures. Stipulates regulatory standards which serve as minimum in the operation of certain businesses such as production of goods for public consumption and other health and industrial hazard implicative businesses such as oil and gas.
- Adjudication, by which the law through its judicial institutions, mediate to resolve conflict of interest between business operators and their patrons, and between persons with misunderstanding arising from commercial transaction. Also inclusive in this legal method, is the enactment on arbitration by which the law creates industrial harmony by encouraging disputing parties to resort to arbitration panels and settle their difference amicably than resort to the highly technical expensive, and often time wasting exercise of litigation11.
In this paper we are particularly interested in device numbers (1), (3) and (4) of Adegbite’s classifications the very control mechanisms with which the erroneous jurisprudence has been infused into Nigeria’s business environment. The crucial questions raised here are:
- What are the origins of Nigeria’s business jurisprudence?
- Who have been the beneficiaries of our business policies on authorizations?
- What has inhibited our ability to develop our economy positively?
- What can we do to ensure a development-positive business jurisprudence in Nigeria?
These questions shell find answers in the next part of this paper.
DISTURBING TRENDS IN NIGERIA’S BUSINESS JURISPRUDENCE
From the origins of the Nigerian nation, the wrong foundation of business regulations was laid, and up till today, the nation continues to labour under exogenic business jurisprudence that has left the economy largely, crippled and permanently scuttled. In this part of the paper, I examine these exogenic influences in Nigerians business jurisprudence, and highlight their impact on the development of the Nigerian economy.
- EXOGENOUS ORIGINS OF NIGERIA’S BUSINESS JURISPRUDENCE
Legal reasoning in modern Nigeria owes its origins to the common law of England Equity and its statutes of general application. Adopted by the colonial enterprise (government) in 184612 the common law of England, equity and statutes of general application which were in force in England on the 24th day of July 1874 were made applicable in Nigeria through the supreme court ordinance No.4 of 187613. With this adoption, came the rules of contract and other English laws forming part of and reflecting the business jurisprudence of England in that date.
As has been observed concerning England14, at common law, it was relatively easy to see that the law conceded much to the business man as rules were invariably invoked by the courts to ensure that business intentions were not defeated, so that judicial reforms took place now and again almost unnoticed, in furthering the principles of “laissez faire” and industrial democracy. The key consideration here was the English businessman and his interest was the object and end of the extension of the laws of England to every colony, land and clime that the crown’s merchants and colonial enterprise could reach.
Thus, ours is a business jurisprudence founded on the need to protect and enhance the business interest of English (foreign) merchants. The tragedy of our jurisprudence here lies not only in the fact that right through the colonial experience, the rules did not change, but that as Professor Claude Ake observes, 15 “the African (Nigerian) elite which succeeded the colonial regime compounded it by deciding to inherit the colonial system rather than transforming it in accordance with the democratic aspirations of the nationalist movement upon which they were founded. This has since rendered political leadership in Nigeria in disconcert with its citizens with politics becoming hobesian16. Thus by the failure of Nigerian post colonial leadership to dismantle the colonial machine and indigenise (democractise) governance and policies, it entrenched a business jurisprudence that serves foreign interest and underdeveloped the Nigerian economy to the development of foreign investors.
- ALLIENATION OF CITIZENS FROM THE ECONOMY:
A direct consequence of the colonial origins and neo-colonial state of business jurisprudence in Nigeria, is that citizens have been alienated from participating in the major sectors of the Nigerian economy. Prior to 1970, the banking, shipping and airlines industries for example were the other heavy sectors of the economy17, and were mostly run by foreign (English) businessmen18. Since the 1970s, the oil industry has taken over the Nigerian economy, bestriding the Nigerian business environment like the caesarian colossus, with giant tentacles of its upstream and down stream sectors spread across all sectors of the economy. The laws regulating oil and gas exploration in Nigeria, beginning from the Minerals ordinance of 194619 and the Petroleum Act of 195920 vested all rights and control of minerals and mineral oils, in, under upon any lands in Nigeria and all rivers, streams and water courses throughout Nigeria in the British crown.
By virtue of the above expropriatory laws previous, all oil minerals in Nigeria became property of the English Crown, whose economic interests required that it be prospected and drilled by her citizens21or persons paying tax to her. This is natural since colonialism is an economic empirage designed to provide resources to services the home (colonial) country.
Post colonial regulations in keeping with Ake’s view of colonial heritage, did not depart from the colonial jurisprudence of resources control. While the independence constitution of 1960 understandably22 retained this centralist approach, the 1963 republican constitution still vested on the President, on behalf of the Nigerian government, all property, interest or rights that were held by the English crown23. This act of inheritance of unitary control by a Republican Federation is one of the bizarre aspects of the Nigerian Federation and has since been perpetuated by the 1979 and 1999 24 constitutions respectively.
In exercise of these colonial powers, the Nigerian state has enacted the Petroleum Act of 1969, The Exclusive Economic Zone Act25 of 1978 etc and issued Mining Licenses to operators to mine and pay returns to the Nigerian Federal Government, which once went to the colonial government it is therefore not surprising that as at 1985 ten companies had been licensed to drill oil, all of them foreign companies26 without one single indigenous investor in the sector27 the economical implication of this development cannot be overemphasized.
As Okagbue has observed,
In 1959 when oil producing activity first started, agricultural products accounted
for some 80% of total export earning. Today 10 oil companies operate in Nigeria producing oil from over 150 oil wells and oil accounts for 90% of her export
earnings 80% of government revenue and one third of gross domestic product 28 .
Oil and gas is thus the main sector in the Nigerian economy and what the above reveals is that 90% of Nigeria’s economy is in foreign hands accounting for over 80% of the governments revenue. Without a single indigenous participant, Nigerians are thus completely alienated from the generation of wealth and value in their economy and therefore bear little or no relevance to the financing of their government. This perhaps accounts for the contemptible disregard with which the Nigerian governments have “ruled” their citizens and explains the influence of the multinational co-operations on Nigerian Policy designing and implementation.
- OVER PARTICIPATION OF GOVERNMENT IN THE ECONOMY:
There is a prevailing legal reasoning that because government owns the largest structure and wields the greatest power in society, it is in the interest of the nation that it should directly run the affairs of the economy and literally manage the exploitation of natural resources and public services for the benefit of all in the country. It is believed that it is the best agent, As Susan Lee rightly observes,
Invasive government regulation is a direct consequence of the nation that
government knows best and that social and economic goals can be achieved
by bureaucratic fiat… the result… has been the near suffocation of ever day
activity for many business people, especially those with small firms29A.
Since it can then ensure even distribution of wealth and development in the country. Following the above, the constitutions of Nigeria since 197930 have constantly vested all mineral and natural resources in the government to manage in trust and for the benefit of the citizenry. In furtherance of the same reasoning, the constitution committed to the exclusive legislative list, all items of substance31 in the Nigerian economy. The effect of this reasoning is that the government invests exclusively in many major sectors of the economy32, while competing with the citizens in the other sectors33.
This is probably a good intention sought through a bad approach in the wrong environment and circumstance. The fact here is that by so doing, the wealth of the country has become concentrated at the centre, in the hands of government which in fact is very remote from the people and is manned by persons periodically chosen or imposed on the nation, persons whose temperament and attitude towards public trust differ34 and as experience has shown, is often far from patriotic and trust worthy. This has naturally prebendalised politics in Nigeria, and pervasively democratised corruption to the under-development of the economy. When a regulator like the government becomes a key participant, the rules turn partisan and favour the maker by creating an unleveled playing field in which the objective of every regulation is to generate revenue to government and give it strong control of the sector.
- DISEMPOWERMENT OF THE PRIVATE SECTOR:
Resulting from the reasoning, discussed above, is the exhaustive disempowerment of the private sector-the domain of the citizens in the economy. With government firmly in exclusive control of most parts of the economy, and with the culture of contracting foreigners to exploit those sectors advise on and literarily manage the economy, Nigeria crippled the chance of letting citizens participate actively in the economy to generate capital, add value to their society and control their economic destiny. Adeosun35 reflecting on the apparent neglect of the private sector both in the colonial and post independence national development plants, came to the conclusion that private sector involvement in development planning was next to nothing, as the public sector planned for itself and hoped that the private sector would avail itself of any opportunities it can find in the plan. Without a vibrant private sector, the economy is left in the hands of the public sector managed by the state which is bogged down by hobbesian politics and national cake sharing mentality.
Ake stands the thesis on its feet when he observed concerning Africa, (Nigeria inclusive), that
“Entrepreneurship was discouraged, economic success became dependent on
state power or state patronage. For anyone outside the hegemonic faction of the
political elite, it was generally futile to harbour hopes of becoming wealthy by entrepreneurial activity or even to take personal safety for granted so these people directed their energy to seeking the inside track on power. For those who were
part of the ruling faction, entrepreneurial activity became unnecessary for wealth
could be accumulated faster and with less risk by using state power. So
entrepreneurship was blocked at both ends36”.
Hence the belief that even rich every rich Nigerian can have his economic history traced to government at one stage or another. This naturally has created a culture of dependency among Nigerians across the board. The average Nigerian worker is only conscious of his monthly wage with little or no interest in his contribution to the economy, while the average Nigerian businessman is propelled by the scrupulous singular desire to amass wealth, without any thought to the need to create and add value to society. They therefore mill around the corridors of power, in search of little inlets that would link them in to the juicy contracts of the state, which are actually the only big businesses in town.
Does the current move towards privatization therefore raise hopes? This again is doubtful, as it only appears to entail the handing over of the only sector of our economy to private hands. The same hands that while in office as military and civilian leaders, appropriated public funds to their private accounts, promoted the psyche of dependency and erased the culture of value creation from our national business jurisprudence37. Honestly, the question that agitates one in this issue is why the nation should be preoccupied with cyclical change of management of one single economy between nationalization and privatization why should the idea of privatization not mean encouraging of healthy competition on the various sectors of the economy to ensure a “forest” of value and service creators instead of change of guard over the same isolated “big trees” like NITEL, NEPA and NNPC etc. why cant we have competing alternatives in private hands?
- PERVASIVE IGNORANCE OF THE PEOPLE
Nigerian policy formulators in laying down rules proceed with the assumption hat the generality of the people are aware of and understand their policies. This presumption ignores the disturbing trend of widespread illiteracy in Nigeria. Beyond the few urban centres, majority of Nigerians dwell in the rural areas and live in illiteracy and ignorance, totally lost to the opportunities and reliefs created by the law in the business sector. The trite principle is that ignorance of the law is no excuse, and so their inability to conform with the rules governing transactions they may be interested in, be it “illegal” brewing of “illicit” gin or illegal bunkery in oil, or mining and their inability to benefit from the tax holidays and other industrial development incentives created by law38 such as the industrial development (income tax relief) Act39 is completely at their own peril as the law makes no effort beyond the legislative provision, towards ensuring its impactive enhancement of the economy through widespread awareness and use of legal rules and incentives.
IMPERATIVES FOR A DEVELOPMENT POSITIVE BUSINESS JURISPRUDENCE IN 21ST CENTURY NIGERIA
The developmental consequence of these policies is that development can not be attained, as a government sponsored project can hardly be sustained and worse still can hardly go beyond structural and cosmetic face-lifts that do not touch on the peoples need and aspiration. Hence the pervasive presence of monuments of abandoned white-elephant projects that appear to be initiated to siphon public funds than to address expressed or perceived needs of the people.
If Nigeria must regulate business towards development-positive ends in this new century, it must start early to review its officious attitudes towards social growth. It must strive beyond legislation, towards ensuring that the social ends and objectives of its legislations are attained. To do this, Nigeria must decolonize its business jurisprudence, deregulate its strangle grip on the business environment, and democratize the individuals opportunity to self propel towards economic heights. For it is only in the warm comfort of that individual self propelled and self sustained growth that the nation can find sustainable national development. Law and policies on business or commercial transaction must jettison the erstwhile formalistic and selfish emphasis on generating revenue for government and seek the empowerment of the citizens. Their increased access to wealth will ensure increased revenue yield to government through taxation and sustainability of the status quo After all, as Ahiauzu40 has observed, the African is much more productive and creative when he works for himself than when he is in public service41. To achieve this lofty goal, Nigerian must take steps to (1) rethink its development procurement strategy, (2) empower its citizenry and facilitate their search for individual development as the means to an aggregate – national development and (3) broaden the knowledge of the law by promoting literacy schemes and democratizing the study of business law as a basis for building a law abiding and responsible society founded on a democratic and functional business jurisprudence.
- DECOLONOSING NIGERIAN BUSINESS JURISPRUDENCE
As has been argued in this paper, the current legal reasoning behind Nigeria’s regulation of business is founded on the objective of generating revenue for government. This continues a colonial objective that sought to secure the main and entire economic sector of the colony to the businessman of the home country. What is happening in the oil and gas sector today is a reenactment of the crown licenses issued to chartered companies like the Lander brothers and the Niger Company of early colonial Nigeria, to maximally explore the region for the benefit of Great Britain and its “great people”.
If therefore we must reorganize our business jurisprudence towards developmental directions, we must rethink our current reasoning which leaves the major sectors of the economy in foreign hands, and conceive an approach which will leave Nigerians as the major stakeholders and participants in the development of their economy. Only, then can we dare to call ourself a sovereign legal system formulating policies that govern business in its polis. Until then, we remain a former colony whose ceremonial government continues to protect and preserve the economic interest of the neo colonial master. The greatest danger here lies in the fact that foreign controlled economy leaves us where the current global market wants us – domed to production of raw materials to be sold at the buyer’s price, and consumate consumption of foreign goods bought at the seller’s price.
- RETHINKING DEVELOPMENT
Prevailing evidence shows clearly that the Nigerian State sees development as a project to be embarked upon by the state. In the performance of its duties, the state has appeared to attempt to be bent on taking up all the needs and responsibility of the citizen. In other to meet this self assigned task, the state has accordingly availed itself all the resources in the country including land, for even distribution of resources and opportunities to the citizenry. This approach is as wrong as it is unrealistic. Development is a process and not a project. It is about a people finding and mastering the art of meeting their needs and desires in accordance with their sense of value and aspirations. Its about a peoples ability to recreate their life circumstances and attain their needs with increasing ease42.
Development is a people centered process that stresses what the people can do better by themselves and for themselves, and not what can be done to make the people access better life. The idea of the state planning and developing the country is therefore a misnomer. It is the tragic reason that informed the expropriatory state policies that have divested the people of the basic sources of entrepreneurship and centralized the wealth in the country to the marginalization of the generality of its citizens. We must guide ourself with the United Nations People Centred view of development exposed in Article I (1) of the Declaration on the right to development – viz:
The human person is the central subject of the development process…
development policy should therefore make the human being the main
participant and beneficiary of development.
If the people are the means and end of developmment,43 and we understand that, then business regulatory laws are most likely to pursue the integration of the people, into the development process of the nations economy, rather than pre-occupy itself as it does presently, with the pursuit of revenue and monopoly for the government.
- DIVESTING GOVERNMENT FROM THE ECONOMY
There is an urgent need for a review of Nigeria’s corporate conception of development. There must be a shift in policy designing through law, from objectives that are designed to give government revenue and control of the economy, to objectives that are designed to facilitate free enterprise among the citizenry. As Spencer rightly puts it,43A the primary role of government in society is;
Not to regulate commerce: not to educate the people; not to teach religion; not to administer charity; not to make roads and railways; but simply to defend the natural
rights of man – to protect person and property – to prevent the aggressions of the
powerful upon the weak – in a word to administer justice. This is the natural role of government. It was not intended to do less; it ought not to be allowed to do more.
To this end, laws such as the Petroleum Act of 1969 and the land use Act of 197844 need to be repealed or reviewed to divest government of the ownership and sole proprietorship of mineral (natural) resources and land itself. The oil and gas industry is not only a high yielding, but also a high risk industry, the decentralization of ownership and localization of same at situs, will ensure the democratization of wealth location and better observance of safety standards as the local owners will not only pay attention to their income therefrom, but also to the preservation of their ecology and environment at large. Is this a call for resource control? Yes a federative reality I think we must begin to face.
- EMPOWERING THE CITIZEN
The degree of harmony and progress that will be observed in the 21st century Nigerian business environment will, to a great extent, depend on the degree and quality of local participation. Law making must deliberately be promotional of people’s empowerments, the law must create empowering environment by reducing the legal and technical requirement for local investment in the economy, the legislative requirement of exorbitant financial commitment such as in the natural resources based sector should be reviewed, while the provision of capital facility for investing citizens should be considered. Again the law governing foreign partnership relaxed to enable citizens participate fully in the development of their economy even if it is by entering into partnership with foreign companies which possess the required technology. In this direction, the Nigerian investment Promotion Commission Decree45 which liberalizes the terms of foreign participation in the economy is commendable but its full benefit will only be realized when the economy is decentralized to enable the units of the federation benefit in a greater measure from such foreign partnerships and avail the entrepreneurs such partnership benefits pending their maturity to go solo.
This is important, for as Adam Smith wrote concerning his country England; 45A.
In the midst of all the exactions of government…capital has been silently and
gradually accumulated by the private frugality and good conduct of individuals,
by their universal, continual, and uninterrupted effort to better their condition.
It is this effort, protected by law and allowed by liberty to exert itself in the
manner that is most advantageous, which has maintained the progress of
England towards opulence and improvement in almost all former times.
In effect, urgent steps must be taken to empower the citizenry to participate in the economy46. The current governmental clamour for privatization and deregulation is therefore welcome provided that it is development positive in character. To be development positive, deregulation and privatization must be within the context of indignity as deregulation or privatization into foreign control can only lead to an advanced stage of imperialism, a round about return to colonialism if only in the economic sense, a sense that is even more dangerous given the well known imperatives of political economy.
- DEMOCRATIZING BUSINESS INFORMATION:
The Nigerian state of the 21st century must be an enlightened state, whose citizens have access to information and are aware of the business opportunities and laws especially as they relates to inter personal relationship.
Awareness must be sought and propagated both in English Language and local languages. The focus must be the dissemination of information. To this end, it is recommended that the study of business law should be made an integral part of the University curriculum, to ensure that every graduate has an acceptable knowledge to the society’s rules governing commercial transaction. The reason for this is that on the long run, practice point of every discipline is in society and the applicable rules to be met there at is to be found in business law. As Ukeje has opinned47.
“In order to promote social change, the school curriculum must me functional.
That is it should be so designed as to prepare the youth for specific problems
they will meet after they leave school, both in terms of their job and in terms of
social living. Thus tradition and conventions should give way to need and utility48.”
Similarly, business law can be imparted to the illiterate citizenry by development agencies such as, Non governmental agencies (NG0s) and community based organizations (CBOs) reaching the people at their environments and in the language they understand. Nigeria must democratize the knowledge of business law among its citizens to ensure mass and grass root participation. Every member of the society must understand some law that governs his living as otherwise, the legislator toils in vain to police and regulate an ignorant society which in all fairness is only fair in acting in disconcert with the law it does not know to exist.
As the 21st century unfolds, Nigeria like all African states must rethink its business jurisprudence towards building an egalitarian and more participatory society in which every one irrespective of his status can find a place and room to participate in the development of the economy.
The Nigerian situation sharply contrasts from the situation in advanced economics and countries where the wealth of the nation is in the hands of citizens, while government ensures a conducive environment for them to create wealth and finance government through taxation. Development in these countries is progressive as the people whose needs and aspirations should form the basis of development, are masters of their destinies and employ the wealth which reposes in them, to the satisfaction of their needs. A situation at once development positive as it is sustainable, since continuity is guaranteed.
The role of law in society is to create order ensure equitable distribution of rights and duties and regulate and balance conflicting interests.
The role of government is accordingly to formulate and implement laws and policies towards the achievement of the objectives of law which is the creation of a free and safe society in which members can seek self actualization and pursue happiness with the barest minimum of difficulty. It is over-government for the state to arrogate to itself the ownership and control of business interest in society,49 and a “descent into the arena”, for government the regulator to became partisan and compete with the members of society in the economy with a view to maximizing profit. Government must not be the end of policies by making itself the active beneficiary through investment, but rather a facilitator creating the enabling environment for citizens to generate wealth, the aggregate of which forms the wealth of the nation.
To this end, laws will be dead letters unless they can be made to impact positively on society. Laws are no good save as tools for social engineering. They must therefore strive at all times to reflect the social milieu and propagate the social needs of their polity.
As Adegbite rightly observed,50
“As human activities and the way of undertaking them changes, so should
the laws regulating them. It follows that law formulated for one age, may
be grossly inappropriate for another. This is not always apparent, which
explains why obsolete laws linger on the statute book for long periods.
Again inappropriate laws may be perpetuated on account of the indifference
of the legislature. If law must reflect the aspirations of those subject to it,
or truly serve their ends, then it must keep abreast of the changes that
occur in the society”.
In the 21st century Nigerian law must move beyond regulatory legislation, to ensuring and democratizing the dividends of ordered society, beyond privatization and deregulation, to democratization of the process of value and wealth creation in society. The starting point is to decolonize our business jurisprudence and rethink the jurisprudence of government-revenue centred business culture, for a citizens centred business culture.
- For details see J. D. Finch: Introduction to Legal Theory,1970, Sweet and Maxwell.
- Aquinnas T: Summa Theological (Law in General) Translated by J. G. Pandson (Art. 4)
- F.K. Von Savigny:System of Modern Roman Law (1840).
(English Translation by W. Holloway (1867)
- Austin J:The Province of Jurisprudence Determined (Ed Hart) 1954.
- Cain M. &. Hunt A:Marx and Engels on Law (1979).
- Pound R:Philosophy of Law (1974).
- Nnamani A. “Law and the larger society”The Lawyers JournalVol. 1 No.2 1990 P. I.
- The term “Juris” means “Law and “Prudentia” means “Reasoning”. For further details, see Freeman M.D.A:Lloyds Introduction to Jurisprudence 6th ed. 1994 (international Students Edition) Chapter I.
- Ubeku, A. K. “comment on the paper titled Regulation of Business Activities in Nigeria” inLaw Development and Administration in Nigeria Osibanjo and Kalu (Eds.). FMJ. 1990. P. 713. This apparently leaves out revenue generation a major reason.
- Adegbite, L. “Law and Business activities in Nigeria” InLaw Development and Administration in Nigeria. Op cit. n. 9. P. 668.
- Ibid. see pages 668-695 for a detailed discussion.
- S. 14.
- Ibid see also same section in the supreme court ordinance of 1908, 1914 and 1948 respectively whereby the same provision was retained.
- Adegbite op at, p.667.
- Ake, C. The Marginalization of Africa 1996, malthouse. P. 14.
- Ibid. p.16.
- Coming behind the Agricultural trade in Groundnut, Cocoa and Palm Oil.
- The leading examples include Berkleys Bank, Standard Bank and British Caledonian Airways.
- S. 1 see also the same provision in the Mineral Ordinance of 1948.
- S. 1 (1). See also s.1 (1) of the Petroleum Act 1969.
- E.g. Shell D’Arcy which later became Shell Petroleum Development Nigerian Limited.
- Understandable since it was a piece of colonial legislation.
- See S. 158.
- See section 40 (3) and 44 (3) of the 1979 and 1999 of the constitutions.
- S. 1 (1) see also s. 1 (1) of the National Inland Waterways Authority Decree No. 13 of 1997.
- These are Agip-Philips, Ashland, Philips, Elf, Gulf, Mobil, Pan Ocean (now Inpex), Shell, Texaco, Chevron Tenneco. The licensing of Indigenous Concerns like Dubrim, Summit and Consolidated Oil much later, made little or no significant difference as they have since virtually fizzled out.
- Okagbue I. E: The Law and Development of Natural Gas in Nigeria,1985, NIALS, Lagos. P.4.
- See ss of the 1999 constitution.
29a. Lee S.: HANDS OFF: why the Government is a menace to EconomicHealth 1996, Simon and Scluster, p.53
- See s 40 (3) 1979, s. 42(3) 1989, s. 44(3) 1999 constitutions of Nigeria.
- See Part I schedule 2 1999 constitution.
- See part II Ibid.
- Even in those sections where they are concurrent right, the Federal Government seeks to make overriding rules affecting the entire section, Tertiary education and Local Government Matters are good examples.
- While the likes of Murtala Muhammed and Buhari / Idiagbon had sought probity and accountability, nearly all others have enthroned corruption with Babangida democratically institutionalizing it.
- Adeosun, A. O: “Regulation of Business Activities in Nigeria” in Law Development and Administration in Nigeria 1990 FMJ. 403.
- Ake: The Marginalization of Africa Op cit. P.15-16.
- These Ex Generals and Ex Honourable Ministers constitute majority of the bidders.
- For detailed discussion of incentives see Ayua, I. A: The Nigeria Tax law 1996. Spectrum p.305.
- Cap 179 laws of the Federation of Nigeria 1990.
- Ahiauzu, A. I.: The African Industrial Man 1999 CIMRAT, Port Harcourt.
- Ibid p.11.
- Ake C: “An African Context of Human Right” Africa Today Vol. 34 No. 1 and 2 1987 p.8.
- Ake, C.: The marginalization of Africa. Op cit. P.42.
- These laws are highly expropiratory and robbed the people of the natural access to natural resources that should be harnessed by then for meeting their needs. See Sagay I E; “The Extraction Industry in the Niger Delta and the limits of International Law”. A paper presented in 4th ANPEZ Annual lecture in Port Harcourt on 15/09/2001.
- No. 16 of 1996.
45a. Smith A; The Wealth of Nations, liberty classics edition Indianapolis: liberty fund. 1981, Vol. 1. P.345
- Provision of well packaged and monitored soft loans and other investment promotion schemes will come handy in this situation.
- Ukeje, B. O: School and society in Nigeria 1980. Fourth Dimension.
- Ibid p.14.
- For this policy has shown itself to be capable of corrupting its operator and politicising development.
- Adegbite, L. op cit. P.667