THE ESTABLISHMENT OF SPECIAL TRIBUNAL FOR THE ENFORCEMENT AND RECOVERY OF ELIGIBLE LOANS UNDER THE BANKS AND OTHER FINANCIAL INSTITUTIONS ACT 2020 (BOFIA 2020): PLACING THE CART BEFORE THE HORSE

Abstract

The Special Tribunal, with an exclusive jurisdiction for the recovery of eligible loans in banks and other financialinstitutions, was created by the Banks and Other Financial Institutions Act (BOFIA) 2020. Hitherto, this role wasexclusively performed by the various State High Courts. The Special Tribunal would be a superior court havingsame status with the Federal, State and National Industrial Courts, such that Appeals from the Tribunal will beto the Court of Appeal. The Special Tribunal can create sittings in States of the Federation similar to the practiceof the Federal and National Industrial Courts. This paper observed that the Constitution does not permit theParliament to create additional superior Courts, outside the established Courts recognized in Section 6(5) of theConstitution. The Special Tribunal may suffer the fate of the National Industrial Court before it was included inthe Constitution, unlike the Tax Appeal Tribunal and the Investment Tribunal also created by Acts of Parliamentbut subjugated to the Federal High Court. The paper further observed that the Act provided immunity for thePresident and other members of the Tribunal; authorized the President of Nigeria to unilaterally appoint theentire members of the Tribunal without recourse to the Federal Judicial Service Commission and the NationalJudicial Council; established a Panel of Experts to be funded by the Central Bank of Nigeria; and created a Fundto be fuelled from questionable sources including gifts and donations. The Paper concluded that the SpecialTribunal is infested with many challenges and thus constituted a ‘stillbirth’ of a legislative instrument by puttingthe cart before the horse. It admonished the National Assembly to stay within the armpit of its constitutionalpowers or toe the path of constitutional amendment to accommodate its creation of additional superior courts inNigeria.