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IP – How to protect your domain name in Nigeria | Davidson Oturu

IP – How to protect your domain name in Nigeria | Davidson Oturu

by | Apr 10, 2018 | Uncategorized

What
is a domain name?

Simply
put, a domain name can be considered as the name that a person or business
chooses for his/its website. It is used to identify a registered Internet
Protocol (IP) address which online visitors can use to access a website.
Examples of some domain names are “google.com”, “facebook.com” and
“linkedin.com”.

A
domain name can be regarded as a company’s unique identity and most individuals
and businesses usually invest in registering a domain name. A domain name can
comprise of a combination of letters and numbers. It is however advisable to
choose a name that is distinctive so users can easily identify it. If a common
domain name is selected by a company, it may be difficult building a reputation
with the name and impossible to prevent other competitors from using it.

Every
domain name is required to have a word (Second-Level Name) and a suffix (Top
Level Domain Name). For example, with the domain name linkedin.com, “linkedin”
is the Second-Level Name and the suffix, “.com”, is the Top Level Domain (TLD).
TLDs can be classified as generic Top Level Domains (gTLDs) and Country-Code
Top Level Domain (ccTLDs). Companies can register their domain names in any
number of TLDs. The company may choose from gTLDs (such as “.com”, “.net”), or
ccTLDs (such as “ng’” for Nigeria and “.za” for South Africa).

Importance
of protecting a domain name

It
is important that you protect your domain name by registering it with a Second
Level Name that is closely related to your brand. Examples of some relatively
popular domain name disputes highlighted below may help to put this in
perspective.

IKEA

IKEA is a company that designs and sells ready
to assemble furniture and is the world’s largest furniture retailer[1]. In 2001, IKEA won a high-profile domain name regarding
the domain name “ikea.com.cn.”  The matter was instituted in China against
a Chinese company as IKEA, which had registered its well-known trademark, was able
to show that the Chinese company (CINet) had registered multiple domain names
for financial gain and was potentially misleading consumers about the
relationship between IKEA and CINet. 

Bruce
Springsteen

In
2001, Bruce Springsteen commenced an action when he discovered that a domain
name, “BruceSpringteen.com”, had been registered to a cybersquatter, Jeff
Burgar. He however lost the domain name dispute when the World Intellectual
Property Organization (WIPO) panel ruled 2-1 in favour of Burgar as there was
no evidence to show that Bruce Springsteen’s name was trademarked[2].

Google

Google
is reported to have lost a dispute over the domain name, “Oogle.com”. They have
also lost other domain name disputes involving “Groovle.com” and “Goggle.com.”[3]

Apple

In
2012, long before the iPhone5 had been manufactured, Apple filed and won a
domain dispute claim against the domain name owners of iPhone5.com.[4] Apple has also secured ownership of other sites such as
iPhone4.com and WhiteiPhone.com.

Can
a domain name be protected as a trademark?

In
several instances, it can be argued that a domain name performs similar
functions as a trademark. While the trademark is a mark that customers can use
to identify a brand or a product, the domain name serves as an identifier and
draws visitors from any part of the world to the company’s website.

In
considering the protection of a domain name, one needs to be aware that in most
jurisdictions, it is possible to register domain names as trademarks, provided
that the domain names satisfy all conditions for it to be registered like the
trademark and service marks. Thus, if the domain name is distinctive and is
capable of distinguishing the goods or services of a company from that of other
companies, it may be registered and protected as trademark or a service
mark.

Furthermore,
in order to qualify for registration as a trademark or service mark, it must be
distinct from other domain names and well-known trademarks so that it does not
mislead or deceive customers or violate public order or morality.

Trademark
Protection vs. Domain Name Protection

Generally,
trademarks are only protected in jurisdictions where they are registered. In
other words, where trademarks are registered with a trademarks registry in a
particular country, they may not enjoy worldwide protection as the protection
they enjoy is limited to the country where they are registered.

Due
to this limitation, it may not be advisable to register a domain name only as
a trademark as this would limit its protection. Due to this limitation and
other factors, the Internet Corporation for Assigned Names and Numbers (ICANN)
was established to oversee and regulate the domain name industry. The tasks of
ICANN includes the responsibility for IP address allocation, protocol
identifier assignment, TLDs system management and root server system management
functions.

Furthermore,
ICANN exercises such regulatory powers as accrediting domain name registrars,
setting base prices for domain names, protecting domain name trademarks, and
punishing wrong-doers. It is also the responsibility of ICANN to address the
issue of domain name ownership resolution for gTLDs and it has, in conjunction
with WIPO, developed the Uniform Dispute Resolution Policy (“UDRP”) and UDRP Rules.

Through
the UDRP, ICANN and WIPO have provided a mechanism for rapid, cheap and
reasonable resolution of domain name conflicts by avoiding the traditional
court system for disputes and allowing cases to be brought to a set of bodies
that determine domain name disputes.

This
is the end of Part 1 of this article. In part 2, we will consider how a domain
name can be registered and the dispute resolution procedure that can be adopted
where a company intends to challenge the ownership of a domain name.

You
may contact me at doturu@aelex.com for more information on intellectual
property, franchising and brand protection.

[1]IKEA Is a World-Wide Wonder (Forbes)
https://www.forbes.com/sites/walterloeb/2012/12/05/ikea-is-a-world-wide-wonder/#5a188a5427b9

[2] Landmark Domain Name Dispute Cases (Hutcherson Law LLC)

[4]Apple wins WIPO dispute, secures ownership of iPhone5.com
domain http://www.idownloadblog.com/2012/05/17/apple-wins-iphone5-com-dispute
Davidson
Oturu

Partner
at Aelex
Source: Linkedin

Sources of Nigerian Law | Tobi Olatunbi

Sources of Nigerian Law | Tobi Olatunbi

by | Apr 8, 2018 | Uncategorized


The essence of this article is to assist the
law student and lawyer to identify how and where to locate information on which
law applies or what the position of the law is in relation to any legal problem
that may confront him. The expression “sources of Nigerian law ”
refers to the materials through which a legal practitioner or a court or judge
would find reliable authorities for a particular legal question.

We can classify the sources of Nigerian law
into two aspects, namely, primary and secondary sources. The primary sources
include English law (consisting of the received English law as well the
extended English law); Nigerian legislation and subsidiary enactments; Nigerian
case law or judicial precedent; and customary law rules; including the Islamic
law where applicable.

The secondary sources of Nigerian law
comprise of law reports, textbooks, legal periodicals, law digests, legal
dictionaries, newspapers, among others. Its worthy of note that only the
primary sources could have binding force on a court of law in Nigeria whereas
the mentioned secondary sources can merely serve persuasive purposes, and are
usually relied upon where no primary source is available or applicable.

We shall be discussing the various sources in
details.

PRIMARY
SOURCES

1.1            
The
English law

Any study of the
Nigerian legal system will be incomplete without a consideration of the impact
of English law. The received English law remains a veritable source of Nigerian
law. This is understandably so because of Nigera’s colonial heritage as English
law was introduced into different parts of this country following the establishment
of British colonial administration in the nineteenth century. The various
legislatures in Nigeria have thereafter made enactments which received English
law directly  into their jurisdictions or extended the force of English
statutes were usually written in general terms without specifying the
particular topic son which English statutes are received. As an illustration,
the Interpretation Act was one of such enactments . Section 45 of the Act
provided as follows:

     ( 1) Subject to the
provisions of this section and in so far   as other provision is made
by any federal law, the common law of England and the doctrines of equity, together
with the statutes of general application that were in force in England on the
1st of  January 1900 shall be in force in Lagos and, in so far as they
relate to any matter within the exclusive legislative competence of the Federal
legislature, shall be in force elsewhere in the Federation. “

The “statutes of general application
(commonly referred to among law students as SOGA) which were in force in
England on the 1st day of January 1900 ” have been received into all the
jurisdictions in Nigeria with the exception of Edo, Delta, Ekiti, Osun, Ondo
and Ogun States of Nigeria where these statutes have not been received in so
far as such statutes deal with matters within the legislative competence of
those States.

Similarly, section 14 of the Supreme Court
Ordinance ,1914, provides that:
  (1) Subject to the terms of this or any other Ordinance ,the Common law,
the doctrines of equity and statutes of general application which were in force
in England on the 1st of January 1900, shall be in force within the
jurisdiction of this court.”

 
Such statutes of general application are still in force in Nigeria even if they
have repealed in England. Since the phrase ‘statutes of general application’ is
so pivotal in this discussion, it is appropriate to elaborate on it.

What is a statute of general application?

It is important to note that no problem is
usually associated with the question of the applicability of common law and
doctrines of equity in Nigeria since Nigerian courts have continued to
recognize and apply common law principles and rules of equity to cases coming
before them for adjudication as such principles and rules stand in England on
the day of their application of English common law and principles of equity are
not barred or limited by time in Nigeria.


The Supreme Court Ordinance, the Interpretation Act and other enactments on the
subject of the statutes of general application do not define what
constitutes a statute of general application. We are therefore compelled to rely
on case law, that is what the courts have declared in their judgments, to
determine what is meant by statute of general application.

In Dede V African Association Ltd, the court
held that although Section 14 of the Supreme Court Ordinance speaks of statutes
of general application which were in force in England, nevertheless, all such
statutes must be taken to apply to the United Kingdom. Weber J, ruled that
‘statutes of general application’ must mean those statutes applicable
throughout the United Kingdom and not those in force in England only. This
would have been unfortunate decision had the judge not said that the Supreme
Court Ordinance expressly mentioned “the statutes of general application
that were in force in England ” and not the United Kingdom.

Osborne, CJ defined the phrase by applying ‘a
rough but not infallible test” in Attorney General v John Holt & Co
Limited where His Lordship stated as follows:

“…….two preliminary questions, can
however be put by way of a rough but not infallible test, viz: (1) by what
courts is the statute applied in England? and


(2) to what classes of community in England does it apply?
If on the 1st January ,1900 an Act of Parliament were applied by all civil and
criminal courts, as the case may be, to all classes of the community ,there is
a strong likelihood that it is in force within the jurisdiction. If on the
other hand, it were applied only by certain courts (e.g a statute regulating
procedure),or only to certain classes of the community (e.g an Act regulating a
particular trade),the probability is that it would not be held to be locally
applicable.


Perhaps following the propositions of Osborne, CJ in the foregoing case,the
then Federal Supreme Court ,in Lawal v Younan, held  that the Fatal
Accidents Act,1846 and the Fatal Accidents Act, 1864,both of which applied to
all classes of the community in England ,were statutes of general application.
Similarly, in Braithwaite v  Folarin, the West African Court of Appeal ,in
holding that the Fraudulent Conveyances Act ,1571,was a statute of general
application said inter alia( among other things)that the statute of general
application ,applying as it does quite generally to ordinary affairs and
dealings of men without any qualification or speciality restricting its
application.

In the same vein, the West African Court of
Appeal in Young v Abina  asserted in respect of the Land Transfer Act
,1897 as follows:
“The Land Transfer Act of 1897 applied quite generally to all
establishments in England of persons dying after 1st January 1898. It is
difficult to see how a statute could be of more ‘general application ‘in
England than that ,and it was in force in England on 1st January 1900.

The following English statutes have been held to be statutes of general
application with reference to Nigeria:
(a). Infant Relief Act, 1874,in Labinjo v Abake.
(b) Trustees Act,1888,in Taylor v Taylor.
(c) Limitations Act (Real Property), 1874,in Thomas v De Souza;
(d) Statutes of Frauds,1677,in Malomo v Olusola.

From all that we have discussed, it is
obvious that the English law remains a very important source of Nigerian law.
We must however quickly add that by virtue of Nigeria being an independent and
sovereign nation, foreign laws, including the English law, do not have any
binding force on our courts but may only serve as persuasive authorities.

Tobi Olatubi

Legal Practitioner  

What to Know Before Signing A Guaranty or Surety Agreement | Zaniath Abiri

What to Know Before Signing A Guaranty or Surety Agreement | Zaniath Abiri

by | Apr 8, 2018 | Uncategorized

A guarantee can be defined in legal parlance,
as an undertaking to answer for the payment or performance of another person’s
debt or obligation in the event of a default by the person primarily
responsible for it. It most commonly designates a private transaction by means
of which one person, to obtain some trust, confidence or credit for another,
engages to be answerable for him. Put in another way, a guarantee is
a contract to
answer for the payment of some debt, or the performance of some duty by a third person who
is primarily liable for that payment or performance.


It is a collateral
contract, which does not extinguish the original obligation for payment or
performance. Guarantee was judicially defined in the case of Nwankwo v.
E.D.S.C.S.C.U.A. (2007) 5 N.W.L.R. (Pt. 1027) 377, S.C., as the
assurance that a contract or a legal act, will be carried out. A guarantee
clause was also defined in that case, to be a provision in a contract, deed or
mortgage, by which one person promises to pay the debt of another.

Parties to a Guarantee Agreement.

There are three (3) parties to a guarantee
agreement. That is;

1.           
the
giver of a guarantee is called the “Surety”,
“Guarantor” or “Secondary Debtor”. There
may be co guarantors to any given guarantee agreement, who are usually liable
in varying degrees, depending on their personal contracts.

2.           
The
person to whom the guarantee is given is the Creditor.

3.           
The
person whose payment or performance is secured by the guarantor is termed “the
Principal Debtor”, or simply “the Principal”.

However, it is important to note that
strictly speaking, the Principal Debtor does not usually acquire any right, or
undertake any liability under the contract of guarantee and for this reason, he
cannot sue to enforce the terms of the contract of guarantee. This is so,
unless the agreement is worded in such a way, as to give the Principal Debtor,
any such rights.

Liability of the Guarantor.

Usually, the Creditor is entitled to proceed
against the Guarantor, once the Principal Debtor becomes unable to repay the
debt or interests thereon. It is at this point, that the liability of the
Guarantor, is said to have crystallized.

In the case of F.I.B Plc v. Pegassus
Trading Office (GMBH) (2004) 4 N.W.L.R. (Pt. 863) 377, the Supreme
Court held that the liability of the Guarantor, could take two (2) forms:

1.           
the
Guarantor may by his agreement, undertake to discharge the liability, only when
the Principal Debtor fails in his obligation to pay, after his default in repaying
the loan and/or interests on the loan. In this case, the Guarantor’s liability
does not arise, until a demand has been made on the Principal Debtor, who has
defaulted.

2.           
The
Guarantor may by his agreement, make himself the “real” debtor technically
referred to as “primary obligor”. Thereby giving the Creditor, the option of
asking him for the repayment of monies due to him, without first asking the
Principal Debtor. In which case, the Principal Debtor simply drops out, so the
Guarantor becomes solely liable.

The latter scenario was held to be the
position in the F.I.B Plc v. Pegassus Trading Office’s case and
the Appellant (Guarantor) was held liable to the Cross-Appellant (Creditor).

It is important to note that the exact
scope/nature of liability undertaken by a Guarantor/Surety under the guarantee
depends upon its terms and is not necessarily the same with that of the
Principal Debtor. While he may guarantee less than what the Principal Debtor
owes, the Guarantor’s obligation cannot exceed that of the Principal Debtor. It
is for this reason, that a guarantee agreement which imposes on the Guarantor,
a greater liability than that of the Principal Debtor is not invalidated but
rather, the amount of the liability will be reduced to the amount owed by the
Principal Debtor.

Obviously, the Guarantor is not liable, where the principal
debt cannot be enforced, as in the case of illegal contracts. Because the
liability of the Guarantor is dependent on that of the Principal Debtor and the
wording of his agreement, the Guarantor’s obligation is extinguished if the
original obligation fails unless it is worded to be enforceable irrespective of
the validity of the underlying contract. Finally on this note, when the
Principal Debtor’s obligations are extinguished, so is the Guarantor’s, in the
guarantee agreement.

Does the guarantee terminate with the
guarantor’s death?

Because guarantee agreements are most often,
personal contracts, the death of the Guarantor, usually brings the contract to
an end. This is unless, the guarantee agreement is worded in such a way, as to
bind the Guarantor’s estate, after death. In which case, the Guarantor’s estate
will be held liable to the Creditor, in the event of the default of the Debtor.

In conclusion, as with every other contractual
document, before signing that guarantee agreement, be sure to read, read and
re-read its terms and conditions, to fully understand what your obligations
are, under the contract. Do not assume you understand all the phrases and
clauses. It may appear simple and straight forward enough, but you will be
surprised how much obligation you may be taking upon yourself. It will be
prudent to obtain professional advice before signing one.

Zeniath Abiri

Managing Partner

Abiri & Mustafa LP

Source – LinkedIn

“Beyond the NBA race, let’s build a relationship”- Paul Usoro

“Beyond the NBA race, let’s build a relationship”- Paul Usoro

by | Apr 7, 2018 | Uncategorized

Legal powerhouse, Paul Usoro
SAN, FCIArb was present at the Egbe Amofin Oodua meeting in Ile-Ife at the
Obafemi Awolowo University earlier on today with more than 100 bar leaders, NBA
Chairmen and Secretaries from the North, West and East.


During the course of the
meeting, Paul Usoro stated his support for the Yoruba community. In his words
“Wherever God will take me to, I will continue to represent Yoruba race
well”;


“I schooled in OAU. I
was trained not only in learning but also in the Yoruba culture. Whatever I am
today, I learnt it from the Yorubas”. He also stated his desire for an
inclusive relationship beyond the NBA race.

Paul Usoro is a Man of the
people who has built bridges all around the country; He evidently treasures
relationships as he was accompanied to the meeting by Mallam Hussain Sani
Garun-Gabbas, SAN ( Hon. Attorney General and Commissioner of Justice, Jigawa
State), Alh. Tajudeen Oladoja ( Life Bencher), Francis Ekwere ( Immediate Past
1st Vice President of NBA),  Mallam
Ibrahim Aliyu ( Immediate Past 2nd Vice President of NBA) and Mr. Bukar Waziri
( Immediate Past Publicity Secretary of NBA).

Gender Equality In The Nigerian Police? | Zeniath Abiri

Gender Equality In The Nigerian Police? | Zeniath Abiri

by | Apr 7, 2018 | Uncategorized

Gender discrimination is
prejudice or discrimination based on a person’s gender in circumstances where
the gender difference is irrelevant to a person’s rights, abilities or
performance. Though it may affect any gender, women and girls are the most
commonly affected. The right to freedom from discrimination on the basis of
gender, race, ethnicity, etc, is protected by Section 42 of the Nigerian
Constitution as well as by many international instruments, which Nigeria has
ratified and enacted into law.

However, some of the laws
enacted in Nigeria, contain provisions which to encourage and perpetuate
discrimination against the female gender. The discriminatory provisions in the
Police Act and Regulations Cap P19, L.F.N, 2004 (the Act), shall be the focus
of this discourse.

The discriminatory
provisions are mainly contained in Regulations 118 – 126 of the said Act. Those
Regulations deal primarily, with the enlistment and duties of female police officers.

1.     Qualification
for Enlistment:

Regulation 118 of the Act,
provides for the criteria to be met by a female, seeking enlistment into the
Nigerian Police Force (hereafter referred to as NPF). By paragraph (g) thereof,
such a woman must be UNMARRIED. 

2. Duties of Female
Officers:

By Regulation 121 of the
Act, the following shall be the duties of female members of the NPF;

 (a) investigation
of sexual offences against women and children; 

 (b) recording of
statements from female witnesses and female accused persons and from children;

 (c) attendance
when women or children are being interviewed by male police officers;

(d) the searching,
escorting and guarding of women prisoners in police stations, and the escorting
of women prisoners to or from police stations;  

(e) school crossing
duties;

(f) crowd control,
where women and children are present in any numbers. 

An extension of the above is
found in Regulation 122 of the Act, which provides;

“Women police officers
recruited to the General Duties Branch of the Force may, in order to RELIEVE
MALE POLICE OFFICERS from these duties, be employed in any of the following
office duties, namely- 

(a) clerical
duties;  

(b) telephone duties;

(c) office orderly
duties.” 

These duties are far too
mundane for any police officer and seem to suggest that the female police
officer is incapable of carrying out the more technical aspects of police work.

3.     Permission
to Marry:

It is interesting to note
that by Regulation 124 of the Act, a female police officer needs to apply in
writing, for PERMISSION to marry, from the Commissioner of Police, of the state
police command, where she is serving. The written application must state the
name, address, and occupation of the person she intends to marry.

That section further
provides that permission will be granted for the marriage if the intended
husband is of good character and the WOMAN POLICE OFFICER HAS SERVED IN THE
FORCE, FOR A PERIOD OF NOT LESS THAN THREE YEARS.

The latter part of that
section implies that a female police officer in Nigeria, will not be allowed to
marry, any time less than 3 years after joining the NPF. This is besides the
rather appalling fact that she must apply for and obtain permission before she
can be allowed to marry.

4. Pregnancy of unmarried
women police:

By Regulation 127 of the
Act, an unmarried woman police officer who becomes pregnant shall be discharged
from the Force and shall not be re-enlisted except with the approval of the
Inspector-General of the NPF. 

It is interesting that these
are only applicable to women, in the Nigeria Police Force. A comparison of
these provisions with those contained in Section 72 (2) of the Act (the
subsection dealing with the enlistment of male police officers, into the NPF),
will show no such restrictions exists with respect to male police officers.
What if a male police officer impregnates a girl, out of wedlock? What is the point
of placing such ridiculous conditions on women? Why are the male and female
officer subject to different rules?

While many will agree that
these provisions are discriminatory, subsection 3 to Section 42 of the Nigerian
Constitution, which arguably permits discrimination on this ground. Section 42
(3) of the Constitution is now reproduced for clarity:

“Nothing in subsection (1)
of this section shall invalidate any law by reason only that the law imposes
restrictions with respect to the APPOINTMENT of any person to any office under
the State or as a member of the armed forces of the Federation or member of the
Nigeria Police Forces or to an office in the service of a body, corporate
established directly by any law in force in Nigeria.”

It suffices to say, that the
provisions of Section 42(3) of the Constitution, deals with the appointment,
while the aforementioned discriminatory provisions of the Act, extends to
serving female police officers.

The above provisions of the
Police Regulations sharply contrast the provisions of Articles 2, 3 and 18(3)
of the African Charter on Human and People’s Rights (ratified and enacted by
Nigeria, in accordance with Section 12 of the Constitution and subsequently
referred to, as the African Charter), where the right to freedom from
discrimination is guaranteed. After a combined reading of those Articles,
 it is my opinion that the provisions of Section 42(3) of the Constitution
have now been overridden. The provisions of the said Articles are reproduced
hereunder;

“Article 2.

Every individual shall be
entitled to the enjoyment of the rights and freedoms recognized and guaranteed
in the present Charter without distinction of any kind such as race, ethnic
group, colour, sex, language, religion, political or any other opinion,
national and social origin, fortune, birth or other status.

Article 3.

 l. Every individual
shall be equal before the law.

2. Every individual shall be
entitled to equal protection of the law.

Article 18(3).

The State shall ensure the
elimination of every discrimination against women and also ensure the
protection of the rights of the woman and the child as stipulated in
international declarations and conventions. “

It is interesting to note
that these offending provisions in the Police Regulations which were enacted in
1968, at a time when the societal attitude to women in the workplace was very
different from what it is today, still remain on our statute books. This is
more so as there is no rational justification for the imposition of these
discriminatory provisions, since they do not in any manner promote the
efficiency or discipline of the female police officer and today, women occupy
very senior roles in the Police and have shown themselves to be just as competent
and as disciplined as their male counterparts. An example is the rise of Farida
Waziri, through various notable ranks in the NFP, up till Assistant Inspector
General of the NFP.  The move to expunge these regulations is thus, long
overdue.

Relying on the provisions of
the African Charter, and the principles of equity, good conscience, a move can
be made for the discriminatory provisions of the Police Act and Regulations, to
be expunged. It is my hope that the needful is done, in the nearest future.


 Zeniath Abiri
Managing Partner 
Abiri & Mustafa Legal Practitioners 
Source – www.linkedin.com

OPINION – NIgerians And The 419 Of “Development” | by Ayo Sogunro

by | Apr 7, 2018 | Uncategorized

Sometime in January this year I was in my
hometown Abeokuta. I was interested in seeing how governance had fared and a
close friend had driven me around the town, showing me the modernisations. New
flyovers decked major intersections, revamped roads gleamed under the sunlight,
and pedestrian bridges brimmed everywhere. It was an impressive makeover.

I
asked my host if Abeokuta residents were satisfied with these improvements. He
replied no. He explained that the state’s health sector was dilapidated. Government
paid little attention to equipping the state hospitals and improving the
primary healthcare system. Healthcare projects still relied heavily on donor
funding. Similarly, the public school system was not exactly a joy to behold.
Human capacity in the civil service remained underdeveloped. Small and medium
scale enterprises creaked under aggressive fees, levies, and taxes.

I had just completed a research stint in
Mauritius, also spending time at their human rights commission studying the
country’s socioeconomic welfare system. Mauritius provides free universal
healthcare and education, free public transportation for students and senior
citizens, unemployment and welfare benefits, and even ‘social aid’ for families
of detainees. Yet, the country’s infrastructural investment has only just
started increasing to improve investment opportunities and tourism. Still,
Mauritius is reasonably more developed than Nigeria.

It
is frustrating that, whether deliberately or ignorantly, Nigerian politicians
conflate infrastructural investments with development. Lagos State, for
example, carried out the mass displacement of Otodo-Gbame residents to
literally pave way for an estate. But international law, binding on Nigeria
under the African Charter
and the core human rights treaties, defines the principles of development. For
instance, in the Endorois Case against
Kenya, the African Commission noted that the right to development requires the
state to ensure that its policies and projects are equitable,
non-discriminatory, participatory, accountable, and transparent, ‘with equity
and choice as important, over-arching themes’. Development has to be focused on
nurturing the people, not just fashioning the state.

Unfortunately,
Nigerian citizens are often misled by the simulated notion of development. Our
governments copy and paste infrastructure, mirroring developed countries, but ignore
the systemic socioeconomic empowerment of the people. We have roads and bridges
without comfortable mass transportation systems, hospitals and schools without
quality equipment and staff, and inaccessible government-funded estates while
majority live under horrible conditions. Ultimately, these investment in
‘things’ put us in debt, transfer our resources to external investors and
contractors, displace communities, are abandoned by new administrations, lack
long-term maintenance and deteriorate, or simply have their funds looted.

And
the majority of Nigerians remain disempowered.

Investing
in human capacity and welfare before building cities should be intuitive logic
for all of us. It is worrisome that it took a Bill Gates to make this a
national conversation (and we have already switched to our favourite hobby:
arguing over contestants in politics, sports and reality television). But while
Gates may have spoken specifically on Buhari’s economic policies, the message
cuts across all of Nigeria’s political history and applies at all levels of
government. Nigeria has to adopt a human rights approach to public expenditure
and investment if it is to cease being a dysfunctional country. This requires
that the allocation of economic resources should answer the question: how does
this expenditure protect, promote and fulfil the rights of the citizens? In
other words, public money should be used only in ways that enhance human
dignity and human rights for all members of society.

For
example, we should buy arms only to demonstrably protect the right to life of
the citizens and not merely to enhance state power or prestige. Similarly,
roads and bridges are not important in themselves, but only to the extent that
they fulfil the right to development of the people. A construction project that
displaces people or creates more hardship in the construction process violates
the right to development.

The
Nigerian Constitution, problematic as it is, also recognises socioeconomic
welfare as the basis of development. It does not mandate the government to
build megacities. Instead, it directs government to provide ‘adequate medical
and health facilities for all persons’, ‘equal pay for equal work without
discrimination’, ‘public assistance in deserving cases or other conditions of
need’, ‘eradicate illiteracy’ and similar objectives. 

True, unlike Mauritius where many of these
objectives have been realised, Nigeria has a very large population and
geography. However, this point only takes us again to the issue of
restructuring. Human development is best attained within relatively small
political units. We cannot continue with Nigeria’s highly unwieldy centralised
structure. We will need to devolve governance and return land – and the control
and use of its resources – to organic communities under an evolved local system
of government if we are to truly develop our people.

But
these reforms will disempower our current political class.

For
now, our politicians are more interested in encouraging photographable projects
with high contractual value, scamming us with ersatz development. As a friend
tweeted a few days ago:

‘When our senators speak at the NASS, they
speak from a place of sentiments and hysterics, quote the Bible, Qur’an and
stray far away empirical facts. They do not care about the citizens and they’ll
never care. We the citizens are out of cards to play.’

She
is very right.

 Originally published here in my new monthly column for The
Guardian.

Source – Ayosogunro.com

Women must have a place in a more inclusive NBA

Women must have a place in a more inclusive NBA

by | Apr 4, 2018 | Uncategorized


NBA Presidential candidate
Mr. Paul Usoro, SAN, FCIArb is meeting with Lawyers in Ibadan. While speaking
at the meeting; he stated his desire for a more complete NBA where women have
more active roles.

The meeting is well attended
with the likes of Mallam Hussain Sani Garun-Gabbas, SAN (Hon. Attorney General
and Commissioner of Justice, Jigawa State), Alh. Tajudeen Oladoja (Life
Bencher), Francis Ekwere (Immediate Past 1st Vice President of NBA),  Mallam Ibrahim Aliyu (Immediate Past 2nd Vice
President of NBA), Mr. Bukar Waziri 
(Immediate Past Publicity Secretary of NBA) and others.

Well over 16 current NBA
Chairmen along with notable NBA officials are present at this memorable
meeting.
Support for Paul Usoro is
overwhelming as more people throw their weights behind him, such examples are
highlighted below:

“We believe in Paul
Usoro, SAN and his capacity to move the bar forward. Mr. Usoro, SAN is the only
candidate that has the capacity to lift the bar”
– Mallam Hussain Sani Garun –
Gabbas, SAN (Attorney General of Jigawa State)

“We are here because we
consider this project personal. We came with 16 current NBA Chairmen, 6 current
NBA Secretaries and 6 Past NBA Chairmen and Secretaries. We are here to show
that the North is firmly in support of Mr. Paul Usoro, SAN”
– Aminu Gadanya

Querying The Constitutionality Of Section 300 (3) Of The ACJL Of Delta State | Oliver Omoredia

Querying The Constitutionality Of Section 300 (3) Of The ACJL Of Delta State | Oliver Omoredia

by | Apr 3, 2018 | Uncategorized

The
Administration of Criminal Justice Act (ACJA) was signed into law by former president
Goodluck Jonathan in 2015 and has since its enactment revolutionized the
administration of criminal justice in the country. The provisions of the Act
have been largely re-enacted in the Administration of Criminal Justice Law of
Delta State 2017.  This write-up
considers the provision of Section 300 (3) of the Administration of Criminal
Justice Law of Delta State and argues its sustainability in the light of constitutional
provisions on the state’s legislative competence to enact same.

THE CONSITUTION AND LEGISLATIVE
COMPETENCE

Generally,
the Constitution of the Federal Republic
of Nigeria 1999 (As amended) clearly sets out matters upon which federal
and state legislative arms exercise competence. Section 4(1)(3) & (7) of the Constitution provides:

“4. (1) The legislative
powers of the Federal Republic of Nigeria shall be vested in a National
Assembly for the Federation, which shall consist of a Senate and a House of
Representatives…

 (3) The
power of the National Assembly to make laws for the peace, order and
good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save
as otherwise provided in this Constitution, be to the exclusion of the Houses
of Assembly of States…

(7) The House of Assembly of a State shall
have power to make laws for the peace, order and good government of the State
or any part thereof with respect to the following matters, that is to say:

(a) any matter not included in the
Exclusive Legislative List set out in Part I of the Second Schedule to
this Constitution.”

By
the combined provisions of Section 4 (3)
and (7), all matters in the Exclusive
Legislative List set-out in the Second Schedule to the Constitution are
exclusively under the federal legislative competence of the National Assembly and
cannot be legislated upon by any State House of Assembly. The Supreme Court
gave judicial impetus to this reasoning when it considered the “exclusivity”
the exclusive legislative list in A-G OF
FEDERATION v. A-G OF LAGOS STATE (2013) LPELR-20974(SC) and stated that:

“…apart from the
National Assembly, no other legislative assembly whether of state or Local
Government (if any) can legally and effectively legislate on any matter listed
under the Exclusive Legislative List.” See also Attorney-General, Plateau State v.
Goyol (2007) NWLR (Pt. 1059) 57 at 92, paras. D – G (CA)

The
issue was also thoroughly considered by the Supreme Court in the popular case
of A-G Abia State v. A-G. Federation
(2006) 16 NWLR (Pt. 1005) where the apex court per Tobi, JSC concluded that:

“There are
two Legislative lists in the 1999 Constitution. These are the Exclusive
Legislative List and Concurrent Legislative List. The Exclusive Legislative
List of Part 1 Schedule 2 to the Constitution contains 68 items. By Section
4(2) only the National Assembly can exercise legislative powers on the 68 items…While the House of Assembly of a State is
prohibited from exercising legislative functions on matters in the Exclusive
Legislative List”

UNDER THE CONSTITUTION ONLY THE NATIONAL
ASSEMBLY CAN LEGISLATE ON EVIDENCE

The
Exclusive Legislative List in the Second Schedule to the 1999 Constitution
contains 68 items amongst which “Evidence” is item 23. Evidence by our
constitution is a matter only the National Assembly can legislate upon and the
National Assembly did so when it enacted the Evidence Act 2011 Cap E14 laws of the Federation of Nigeria which
according to its explanatory memoranda has application to all judicial
proceedings in or before courts in Nigeria.

Interestingly
however, in the “re-enacting” the provisions of the ACJA, some states have
attempted a subtle enactment on “other matters” including evidence. This is the
precarious position of Section 300 (3) of the ACJL of Delta State.

One
must note that Section 1 (3) of the constitution
makes the constitution supreme and stipulates that any law inconsistent with
the constitution must to the extent of its inconsistency be null and void. See. Towoju v. Gov. Kwara State (2006) ALL
FWLR (Pt. 321) 1365 at 1389 (CA). Therefore, whenever a State House of
Assembly legislates on any matter outside its legislative competence the act is
ultra vires and any law proceeding from it shall be deemed inconsistent with
the constitution, null and void to the extent to which it is inconsistent.

SECTION 300(3) OF THE ACJL OF DELTA
STATE IS A MATTER OF EVIDENCE AND CANNOT BE LEGISLATED BY A STATE HOUSE OF
ASSEMBLY

As
a preliminary point, it is incisive to note that the provisions of Section
300(3) of the ACJL of Delta State is not similarly contained under the ACJA
2015 which the law sought to replicate. The inclusion of Section 300(3) in the
Delta State Law was therefore an independent act by the State’s House of
Assembly to address the issue of delayed trial occasioned by the conducting of
a trial-within-trial when a confessional statement is objected to on the ground
of involuntariness. The Assembly in undertaking this noble cause however ended
up enacting a provision which clearly over-reached the State’s legislative
limits under the constitution by conspicuously legislating upon evidence. The
said Section 300(3) provides that:

“In the course of any criminal trial, where the
admissibility of any confessional statement is objected to by a defendant on
the ground of involuntariness, the Court shall note the objection and the
ground for the objection thereon and make a decision in its judgement at the
end of the trial without conducting a trial within trial”.

The
provision clearly touches on evidence in judicial proceedings which, according
to item 23 of the Exclusive Legislative List, is a matter exclusively within
the legislative competence of the National Assembly. This is particularly so as
Section 29(2) of the Evidence Act 2011
already makes provision on the exact issue and states the duty of the trial
judge when an Accused person challenges the voluntariness of a confessional
statement thus:

“(2) If, in any
proceedings where the prosecution proposes to give in evidence a confession
made by a defendant, it is represented to the court that the confession was or
may have been obtained –

 a. by oppression of the person who made it; or

b. in consequence
of anything said or done which was likely, in the circumstances existing at the
time, to render unreliable any confession which might be made by him in such
consequence, the court shall not
allow the confession to be given in evidence against him except in so far as
the prosecution proves to the court beyond reasonable doubt that the
confession (notwithstanding that it may be true) was not obtained in a manner
contrary to the provisions of this section.

Apparently,
Section 29 of the Evidence Act and
Section 300(3) of the Delta State ACJL
stipulate different positions on the court’s duty when a Defendant objects to a
confessional statement as involuntary. There cannot be two provisions on the
same issue of “evidence” which conflict each other, particularly since the
later was enacted by the State House of Assembly obviously lacking vires to so
enact. The provision of Section 300(3) cannot be saved by any thought of argument
that is a mere “domestication” of the ACJA on the issue since same provision is
not in Section 300 of the ACJA. In effect, Section 300 (3) of the ACJL of Delta
State is ultra vires the legislative powers of the Delta State House of Assembly,
inconsistent with the constitution and to the extent of its inconsistency is
null and void.

IN CONCLUSION

The
curious position under Section 300 (3) of the ACJL of Delta State is one which
can be carefully avoided in ACJLs of respective States. While the
administration of crime is a concurrent matter which both federal and state
legislature can legislate over, evidence is a matter exclusively within the
legislative territory of the National Assembly. State Houses of Assembly must
therefore note that they cannot attempt to amend the Evidence Act by the
provisions of their respective State ACJLs. What can be done however is
regulate proceedings in court which do not deal with evidence in itself but
procedures in criminal proceedings. The ACJL of Lagos State is recommended as
veritable guide on how to carefully carry out this difficult legislative task in
other to avoid provisions which may be too quickly declared null and void.

Oliver Omoredia Esq.

Associate Obiagwu & Obiagwu LLP

08100193573, oliveromoredia@yahoo.com

Looters List And The Subjudice Rule: The Need To Caution Comments | Oliver Omoredia

Looters List And The Subjudice Rule: The Need To Caution Comments | Oliver Omoredia

by | Apr 3, 2018 | Uncategorized


The
President Muhammadu Buhari (APC)-led Federal Government on Friday published the names of persons who
under the Goodluck Jonathan (PDP)-led administration had allegedly looted the
treasury of the country. The list which contained six names of high-profile
members of the Peoples Democractic Party (PDP) was published in response to the
taunting the Federal Government by the PDP that it makes true allegations of “looting”
by publishing the names of persons it claims have looted.

While
some have criticized the list for containing only six names despite the high
premium the Buhari-led administration claims to be placing on corruption,
others have criticized the list for containing no names of members of the
present APC administration. The PDP has in response debunked the allegations
and named its own “list of looters” containing names of high profile members of
the APC. This write-up, while trying as best as possible to avoid the politics
of the issue, considers the list published by the federal government and
advises on the need for caution in commentaries on matters pending before the
courts.

It
is an elementary point that under law and our constitution, a person charged
with a criminal offence is presumed innocent until his guilt is proven. This is
the essential theme of our criminal prosecution enshrined in Section 36(5) of the Constitution of the
Federal Republic of Nigeria 1999 (As Amended). It is therefore only a
competent court that can pronounce the guilt of a person accused of an offence,
and the courts in so doing must be allowed to reach a just conclusion
independent of public sentiments from the court of public opinion.

Our
criminal procedural laws, as imported from England, seem to slightly permit “suspects”
or names of persons alleged to have committed offences to be published and the
fact of the allegation may be subject to “fair comment” before the person is
charged to court. Indeed, in DANIEL v.
FRN (2013) LPELR-22148(CA), the court disagreed that extensive media
publication before the trial of a case infringed on a Defendants right to fair
hearing and a fair trial. However, when the matter becomes pending before the
courts, continued commentary on the culpability or otherwise of a party in the
case offends the subjudice rule and may, under some circumstances, be contempt
of the proceedings of the court.

Looting
of the national treasury is a serious criminal offence which cannot be
established conclusively save by a court of law. When a matter has proceeded to
and is before the courts, parties must refrain from commentary on the matter.
In the UK case of R v. Socialist Worker
(1975) QB 637, the attempts at publication of names of accused when the
courts had warned against same earned the publisher terms of imprisonment or
contempt.

In
Nigeria, while the publication of “alleged looters” may not particularly offend
our laws or  be complete grounds for
action in defamation, the publication of names of those who have been charged
to court, including statement of how much they allegedly stole, is no doubt an
act which impedes the duty of the court in independently reaching a conclusion  on the guilt of a person whose case pends
before it and whose guilt is yet to be determined. There is therefore a serious
need for caution, particularly as more comments may continue to generate on the
said list. Such persons as Olisa Metuh and the former National Security Adviser
who are already before competent courts should not have been published on a
list that indirectly confirms them as “looters” when the court is yet
exercising jurisdiction to determine the issue.

Indeed,
this action by the Federal Government could greatly prejudice the right of the
named persons to justice and was exactly what the Chief Justice of Nigeria, Walter Onnoghen, cautioned against in his
press briefing on 11th of January this year when he said, and I
quote:  

 “The
CJN wishes to remind the public that it is Contempt of Court for anyone to
discuss any matter pending in any Court of Law in the country. The punishment
for Contempt may include a term of imprisonment,”.

 “In
respect of criminal proceedings, it is forbidden for parties, their counsel or
newspaper commentators to freely offer opinions in respect of matters pending
in court, including any situation where a conviction has been entered but the
convict’s appeal is pending at the appellate court.

‘We must not allow ‘trial by newspaper’ or ‘trial by
television or trial by any medium other than the courts of law.’ I think that
anything in the nature of prejudgment of a case or of specific issues in it is
objectionable not only because of its possible effect on that particular case
but, also, because of its side effects which may be far reaching.

“Responsible ‘mass media’ will do their best to be
fair, but there will also be ill-informed, slapdash or prejudiced attempts to
influence the public.

“If people are led to think that it is easy to find
the truth, disrespect for the processes of the law could follow and, if mass
media are allowed to judge, unpopular people and unpopular causes will fare
very badly.

“Most cases of prejudging of issues fall within the
existing authorities on contempt. I do not think that the freedom of the press
would suffer, and I think that the law would be clearer and easier to apply in
practice if it is made a general rule that it is not permissible to prejudge
issues in pending cases.” See. http://sunnewsonline.com/cjn-warns-against-comments-on-pending-court-cases/

The
CJN’s admonition is clear and incisive of this issue. The Federal Government is
no doubt a party in all criminal trials it has initiated in courts against some
named in the “alleged looters list” and the publication of the list has no
effect other than to taking the cases already pending before courts to the
court of public opinion. Even though one may say it was the opposition who “asked
for it”, there is need for caution to intervene to avoid further and more full-blown
commentaries on the issue.

IN CONCLUSION

It
is the duty of the Government and all in society to preserve the machinery for
the determination of rights and the preservation of justice: the courts. Judges
do not possess adjudicatory authority because they are muscular men of
strength, rather possess this authority because the society abides by their
direction and respect their determination of rights and obligations. The rule
against subjudice acts or comments seeks to preserve this authority and if the
other arms of government who should aid in ensuring the respect for the judiciary
continue to recklessly engage in acts that derogate from its respect, the role
of judiciary in ensuring of justice may become an illusionary concept and the
rule of law; a theory we only read in law books. The Federal Government must
therefore exercise caution and restraint in leading discuss on matters already
under the adjudicatory authority of its own courts.

Oliver
Omoredia Esq.

Associate
Obiagwu & Obiagwu LLP

08100193573,
oliveromoredia@yahoo.com