Responsible & Responsive Governance: X-Raying the Paul Usoro Leadership of the Nigerian Bar Association in the light of the “Putting You First” Mantra
NBA President, Paul Usoro SAN’s Address At The NBA NEC Meeting
MTN lawyers say AGF’s legal arguments unacceptable and unknown to law
continued today as MTN Nigeria and the Attorney General of the Federation and
Minister for Justice continued their legal battle over the appropriateness of
the latter’s demand for $2 billion in back taxes. While MTN maintained that the
AGF was beyond his remit, the AGF sought to justify his demands.
hearing in the Federal High Court in Ikoyi, Justice C J Aneke heard arguments
relating to the substance of the AGF’s preliminary objection (from November
2018), the detail of which was only filed in court by the Attorney General late
on March 25th, and which has yet to be served on MTN. The arguments did
not focus on the substance of MTN’s suit, as the AGF’s preliminary objection
that MTN did not commence legal proceedings within 3 months of the cause of
action arising must first be addressed.
team of lawyers led by Chief Wole Olanipekun maintained that the AGF’s
contentions were unacceptable and unknown to law. They argued that the cause of
action actually crystalised when the AGF made a demand of MTN and threatened
the company with court action on August 20th. Previous correspondence from the
AGF was acted upon in good faith by the company, he continued. He revealed that
the previous correspondence had requested a self-assessment.
posited that the organization not only undertook the self-assessment but went
ahead to submit the result of that process to the AGF’s office. The assessment
was undertaken by KPMG and showed clearly that no back taxes were owed to the
Country. Despite this, the letter of August was still written. That letter
heightened issues and led to the company seeking to protect itself from the unlawful
actions of the AGF.
learned SAN further argued that to the extent that the letter has not been
withdrawn, the cause of action continues to exist. Therefore MTN remains within
its rights to approach the courts. Counsel to AGF was asked directly whether
the cause of action had been withdrawn (and so the demand itself withdrawn) but
declined to respond.
Chief further posited that from the AGF’s pleadings his office had admitted the
submission of MTN in so far as his main argument is not in response to the core
issues raised by MTN, but to whether or not the AGF is protected in law from
the consequences of his actions. The Chief argued that it is implicit in the
AGF’s failure to address the substance of MTN’s case, that the AGF is aware it does
not have the legal authority to take the action it has taken.
counsel to both parties, reserved ruling on the preliminary objection until May
7th.
10, challenging the legality of the AGF’s assessment of its import duties,
withholding of tax and value-added tax in the sums of N242 billion and 1.3
billion dollars. In the suit, MTN claims that a revenue assets investigation
allegedly carried out by the Federal Government on MTN over the period from
2007–2017 violates Section 36 of the Constitution of the Federal Republic of
Nigeria. It also claims that the government’s August 20 letter stating the tax
demand to the company contravenes the provisions of the section.
(AGF) acted in excess of his powers by demanding an assessment, which MTN
claims, usurped the powers of the Nigerian Customs Service to demand import
duties and the powers of the Federal Inland Revenue Service to audit and demand
remittance of withholding tax and value-added tax.
by the AGF has been a consistent theme recently, with President Muhammadu
Buhari already having ordered him to terminate a separate agreement through
which he sought to collect supposedly ‘additional recoverable revenue’ from the
International Oil Companies.
Legal effects of Condonation in Employment Relations | Michael Dugeri
forgiveness, purposeful disregard, or tacit approval by a victim of another’s
illegal or objectionable act, especially by treating the other person as if nothing
happened.
matrimonial proceedings, in which case it is understood as the voluntary
pardoning by an innocent spouse of an offense committed by his or her partner
conditioned upon the premise that it will not happen again. Condonation, which
is used as a defence in divorce actions based on fault grounds, is strongly
supported by public policy. The institution of marriage and its preservation
are considered essential for the stability of society, and therefore
condonation is encouraged to promote the notion that marriages should not be
dissolved easily.
reasons. It is often said that successful
labour relations are more like ‘a marriage, not a boxing match’. It is expected
therefore that both parties will sometimes have to overlook certain infractions
from the other in the interest of the relationship. However, what happens if
the forgiving party later regrets the decision to forgive and decides to
enforce their rights against the forgiven party in respect of the forgiven
offence? Are they allowed to do so and within what timeframe? What in fact,
constitutes condonation in employment relations?
context. Hence, the answers will be provided by examining a few decided court
cases on the issue of condonation in employment relations. To begin with,
condonation may either be by the employer or employee; it may also be express
or implied. Where condonation is express, the offended party expressly waives
his right to sue or complain, by stating so in writing or where the timeframe
to react to the offence, as provided by law or contract, has elapsed.. In cases
like these, there is little difficulty in establishing condonation. The
situation is however nuanced in cases where condonation is implied. That is,
where the offended party seems to have forgiven or overlooked the
offence/breach but without actually doing so.
implied condonation, some employment contracts (like most other commercial
contracts) contain a “no waiver”
clause, which typically provide that delays do not adversely affect the rights
of a party to enforce the terms of the contract.However, is the offending party
allowed to simply move on with the relationship without knowing whether or not
his breach may be relied upon at some point in future to apply disciplinary
measures like suspension or even termination? On the other hand, when a party
to a contract waives
a breach of that contract by the other party, it
voluntarily abandons its legal rights to enforce the contract, or to claim any remedy, in
relation to that breach.
A waiver must be
clear, but may be oral or written.
condonation is if the offended party intends to seek remedy outside the
workplace, like suing to enforce its rights or demand damages. In such a case,
one needs be mindful of “Limitation
Law”, that is, the law that a suit must be commenced within a specific period
of time from when the injury or omission, causing the damage or loss, arose or
occurred. Grievances need to be settled in time while the evidence in support
of the claim, or the defence to a claim, is/are still fresh. Not commencing
legal action within the statutorily specified period extinguishes the right to
seek remedy. Employment contracts are classed as simple contracts. Legal
actions based on simple contracts (like recovery of debts and arrears of
interest, tortuous malfeasance which includes damages for negligence or breach
of a duty of care, account stated, etc.) must be commenced within a period of
six (6) years of the occurrence of the injury, loss or damage.
employer subjecting an erring employee to its disciplinary procedure,
condonation will be implied if remedy is not sought nor applied within the
period specified for it under the employment contract or the company handbook.
Where the contract or the company handbookare silent on the period of
disciplinary proceedings, a reasonable time will be applied in determining
whether or not the employer can be said to have condoned the infraction in
question.
that the disciplinary process must not run slowly and sluggishly, or be
unnecessarily prolonged; for otherwise, the employer stands the risk of being
subsequently barred from applying penalty. From this principle, two rules are
evident: firstly, the right to suspend an employee available to an employer is
not a right that is eternally available. And secondly, where there is an
infraction, an employer who allows the disciplinary process to run very slowly
and sluggishly stands the risk of being read to have condoned the said
infraction. As a result, courts customarily frown on a prolonged suspension,
and in some cases, quash the suspension.
displeasure over a prolonged suspension, when the employee in question had been
suspended for a period of over 18 years. The suspension was held to be unfair
and unjust and accordingly quashed. In another case, the claimant was
erroneously suspended in 2005, recalled in 2009 and told that he will still be
investigated for what he was initially and erroneously suspended for. The Court
in this case also set aside the suspension and ordered that employee be paid
all his entitlements without any loss of benefit including arrears of his
salaries.
employer’s act of summary dismissal was irregular in the sense that the employerafter
the conclusion of the investigation did not suspend, terminate, sanction or
summarily dismiss him. Rather, the employer transferred him to a different
branch as its employee to continue on the job.The employer was held to have
condoned the infractions, which he later purported to act upon in dismissing
the employee.
provided that ‘disciplinary proceedings for any misconduct shall be dealt with
as soon as possible’, undue delay on the part of the employer must be read as a
waiver of the right of dismissal, and that any dismissal afterwards can only be
construed as a case of victimization.
party is lax in seeking remedy (and the laxity is usually for a period exceeding
one year),condonation will be implied. This means the aggrieved party must be
decisive in considering legal action in deserving cases. This is especially for
the employer, who is often required to apply disciplinary measures. When the
disciplinary process is activated, it is essential to follow the process
through completely. Employers must have robust procedures and supporting
documentation in place to effectively discipline their employees, both to
ensure procedural fairness, and to protect their position, should the employee
take action against them.
to the meeting is sent, the meeting is held, all the evidence and the employee’s
response is considered, the decision is made to apply the penalty, the employee
is advised that they are getting a punishment, but then the letter never gets
issued. Often these matters are not followed up because of the difficulty of
articulating the problems, creating performance improvement plans and setting
quantifiable outcomes. Subsequently, the whole grievous process achieved so far
will be wasted.
conclusion, it is important to note that disciplinary procedures in the workplace
will be to the benefit of both the employer and the employee. Employers often
find themselves making costly procedural mistakes when disciplining or
dismissing an employee for misconduct. They may have a fair reason for
dismissal, for example the employee has stolen company goods, deliberately
damaged the employer’s property or breached health and safety rules, but if the
employer has not followed a fair procedure, this can make the whole process
unfair.
clear, legally compliant and well-written procedure will guide an employer
through a good disciplinary procedure which will reduce the likelihood of
running into legal action and providing the affected employee with the much
needed feeling of fairness of the process.
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Membership Rights Of A Company | Blessing C. Madu
investors other than the business owner. A major way for the investor to
participate in these businesses is to invest in the company by purchasing
shares. Anyone who purchases shares is called a shareholder. Shareholders are
very important persons in a company whether it is public or a private limited
company. A shareholder is one who owns at least one share, attracting at least
one vote in a company. A subscriber of shares is not regarded as a shareholder
until shares are actually allotted to him. There is equally a very important
person in a company. They are referred to as the Members of a company.
person having constituent proprietary interest in the company and whose name
has been entered in the Register of Members. The right of members is dependent
upon the Companies and Allied Matters
Act Cap C20 LFN 2004, Articles of Association and any agreement entered
into by a member.
language, the term “Member’’ denotes a person who holds shares in a company. Members
and Shareholders are often used
interchangeably. It is pertinent to note that there is a difference between a
shareholder and a member of a company although the difference is not too
visible. A member is one who satisfies the provision of Section 79 of CAMA. This
Section provides that a member of a company is one who agrees to become a
member and whose name is entered in its register of members. The original
subscribers to a company memorandum are considered to have agreed to become a
member of a company. Thus, membership of a company is not synonymous to
shareholding.
between Members and Shareholders
differences between members and shareholders:
A shareholder will not become a member of a
company until his name has been input in the register of members. A shareholder
is a person who owns the shares of the company.
All shareholders whose names are entered in
the register of members are the members. Thus, all members may not be
shareholders.
Proof of shareholdership is by a share
certificate; while proof of membership is by the register of members. Ponmile
v Sparks Electrics Nig. Ltd (1986) 2 NWLR 519 AND Oilsfield Supply Center Ltd
v. Johnson (1987) 2 NWLR 625.
of a company, he must
Subscribe to shares, that is, he must be
allotted at least a share in the capital of the company
Consent to be a member
Enter his name in the register of members
before he enjoys membership benefits
is not satisfied, the person shall not be a member under this Act.
be acquired through any of the following ways;
By subscribing to the Memorandum before the
registration of the company. Section
79 of CAMA.
By applying for the shares offered by the
company. Section 125 of CAMA.
By becoming a transferee of a share and being
placed in the register of members. Section 151 of CAMA
By transmission of shares on succession to a
deceased or bankrupt member and the consequent registration in the register of
members. Section 155 of CAMA
By share qualification: the Articles may
require a director of a company to take up shares in the company upon his
appointment.
members is an indispensable condition for membership. Berliet Nigeria Co. Ltd v.
Francis (1987) 2 NWLR 675.
through its member or shareholders either in its general meeting or through the
Board (these are the main organs of a company). The importance of having a
member and a shareholder or both cannot be over emphasized. A business owner
cannot grow a company singlehandedly. He
is like a coach and the job of a coach is to hire extremely talented,
hardworking and vision minded people to accomplish specific assignments. Every
growing company needs people that will improve the standard of the company in
all ramifications and execute various projects. An illustration is provided in the
preceding paragraph.
established a shoe factory. He is the sole owner of the company because he
holds more shares in the company. Along the line, Mr B and C decide to purchase
shares from the company. By doing so, they become part of the company in
relation to the proportion of shares they hold. Mr A, who is the company’s
founder, would give part ownership to Mr B and C. Mr B and C who are now
shareholders in the company would play an important role in the financing,
operations, governance and control aspects of the business. They would appoint
directors to manage the operational activities of a company or in some cases,
they could equally assume the role of directors. Company owners make decisions
about significant matters such as changing the name of the business, appointing
or removing directors, altering the articles of association and so on.
person can be a member and shareholder of the company at the same time. E.g, Mr
B has 30 shares in AOL Limited, he was issued a share certificate and his name
appears in the Register of members; A person can be a member but not a
shareholder of the company e.g Mr B has 30 shares in AOL Limited, his name
appears in the Register of members but he has sold all his shares to Mr C; A
person can be a shareholder but not a member of the company eg. Mr B has 30
shares in AOL Limited bought from Mr B, He holds a share certificate but his
name is not included in the Register of members. The main duty of a member who
is also a shareholder is to pay the company the sum which remains outstanding
for the agreed amount of the share(s) that have been issued.
can become a member of the company?
of a company may impose certain restrictions or restrain some persons from
acquiring membership in a company. In the absence of any express provision
regarding the contractual capacity or legal personality of a person, the
provisions of Section 80 of the CAMA will apply. These include:
Minors: A minor is not a competent person to
enter into a valid contract. As a result of this, he is disqualified to acquire
membership. However, minors may be allotted shares, but it shall not be counted
for the purpose of determining the legal minimum number of members of the
company. Although, it is voidable at the instance of the minor when he attains
maturity.
Unincorporated entities: A partnership firm
cannot be issued shares because it is not a legal person. Although, such firm
may hold shares in a company in the individual name of partners as joint
shareholders.
An undischarged bankrupt
A person of unsound mind
A corporate body in liquidation
enjoy several benefits. Their rights can be classified under two heads;
Rights: these are the rights conferred upon members by the CAMA and they
include the following;
Right to receive Dividend once declared by
the board. Section 385 of CAMA
Right to transfer shares
Right to receive, upon request, certain
statutory books and records of the company
Right to inspect statutory registers
Subject to Section 228 of CAMA,
every shareholder shall have the right to attend company meeting and vote. Section
81 of CAMA.
Right to petition for the winding up of a
company
Right to seek an investigation into the
affairs of a company
Right to receive notice of meeting
Right to demand poll and appoint proxy in
company meeting
Right to take up minority actions Heyting
v. Dupont and Anor 1964 1 WLR 843
Right to requisition Extra-ordinary meeting
Right to be issued certificates within three
months. Section 146 of CAMA.
Rights: in addition to Statutory Rights, are certain rights that can be
conferred upon the members by the constitution of the company like the
Memorandum and Articles of Association.
Adedunmade Onibokun & Co., she has a passion for corporate law practice.
Membership rights or Shareholders Agreements, you can send a mail to the author
or contact @legalnaija. Kindly note that this article is for educational
purposes only and does not serve as legal advice.
IP ABC —IP Rights and Confidential Information: Whether IP Infringement or Breach of Confidence
|
of the Week
IP ABC
I am Ade Adeyoju, Founder of E-Estates, an internet company in Nigeria which
owns and runs a number of e-commerce startups, including www.buysmartphones.ng. BuySmartphones is an
e-commerce site where anyone can easily buy smartphones online and have them delivered
anywhere in Nigeria. In August 2018 the year we founded BuySmartphones, we
applied to register ‘BuySmartphones’ as a trademark in Nigeria. It wasn’t
accepted. The reason given was that ‘BuySmartphones’ was both descriptive, and
consequently not distinctive enough for trademark registration. But because
‘BuySmartphones’ was already at the heart of our branding and marketing
campaigns, including domain name Buysmartphones.ng, we continued to use it.
‘BuySmartphones’ is also just one of the brands amongst our other similarly
named brands BuyCars, BuyToys, BuyLands, BuyFood, BuyBooks, etc. Why is
‘BuySmartphones’ not registrable as a trademark in Nigeria?
Ade Adeyoju
is not registrable as a trademark in Nigeria because it is not distinctive
under Nigeria’s Trademark Act. Under both Parts A and B of the Act,
‘BuySmartphones’ is neither adapted to distinguish nor capable of
distinguishing your online smartphone-retail business from other smartphone
retailers except the trademark has acquired distinctiveness out of use. For an
online retail business that was launched in August 2018, BuySmartphones does
not pass the by-reason-of-the-use-of-trademark test. Your registered domain
name Buysmartphones.ng does not expressly amount to a registered trademark.
the purpose of trademark registration under Part A of the Trademarks Act,
‘BuySmartphones’ does not meet the conditions for distinctiveness.
requires that ‘BuySmartphones’ be inherently adapted to distinguish itself as a
mark connected to your e-commerce business or by reason of the use of the
trademark, it is adapted to distinguish.
trademark ‘BuySmartphones’ does not contain any of the essential qualities that
qualify it for trademark registration under Part A of the Trademarks Act. In
order for a trademark to be registrable under Part A of the Act, section 9 of
the Act requires that the mark must contain at least one of the following
essential particulars:
- the
name of a company, individual, or firm, represented in a special or
particular manner; - the
signature of the applicant for registration or some predecessor in his
business; - an
invented word or invented words; - a word
or words having no direct reference to the character or quality of the
goods, and not being according to its ordinary signification a
geographical name or a surname; or - any
other distinctive mark.
does not pass the tests above. Regarding paragraph (a), you may argue that
‘BuySmartphones’ qualifies for trademark because you have represented it in a
“special or particular manner” by joining two words together, ‘Buy’ and
‘Smartphones’, but this representation may not be considered adequate for the
purpose of distinguishing your goods from those of others. Regarding paragraph
(c) above, though you have formed a word with two different words to form
‘BuySmartphones’, one cannot describe this as being inventive as both words
don’t only already exist in the English dictionary but are also commonly used.
‘BuySmartphones’ completely fails the test under paragraph (c). This is because
‘BuySmartphones’ are words that directly reference the character or quality of
the goods.
‘BuySmartphones’ is not registrable under Part A of the
Act. ‘BuySmartphones’ has not been adapted or modified enough to merit
distinctiveness.
Similarly, for the purpose of trademark registration under Part B of the
Trademarks Act, ‘BuySmartphones’ does not also meet the conditions for
distinctiveness.
under Part B requires that in relation to the goods or services in respect of
which a trademark is registered or proposed to be registered, the trademark
must be capable of distinguishing goods with which the proprietor or the
trademark is or may be connected in the course of trade from goods or services
in the case of which no such connection subsists. Section 10(1) of the Act.
section 10(2), what determines distinctiveness is not the adaptability of the
trademark to distinguish goods or services (as required under Part A), but
capability of distinctiveness. There is a difference between adaptability and
capability. According to the Oxford Dictionary, adapt means “to change
something in order to make it suitable for a new use or situation”, while
capable means “[h]aving the ability, fitness, or quality necessary to do or
achieve a specified thing.”
while achieving distinctiveness under Part A of the Act relies on the extent to
which an applicant has adapted, changed, or modified the words or elements in
the trademark in order to make it distinctive or suitable for distinguishing
goods or services connected to the applicant, achieving distinctiveness under
Part B of the Act does not rely on the extent to which an applicant has
adapted, changed, or modified the words or elements of the trademark but the
ability or quality of the trademark itself to be inherently distinctive or
distinguish goods or services connected to the applicant.
‘BuySmartphones’ is not registrable under Part B of the Act. ‘BuySmartphones’
does not have the ability or quality of inherent distinctiveness.
But how about distinctiveness by reason of use of the trademark?
question. Indeed under the Trademarks Act, a trademark may be determined to be
distinctive if by reason of use of the trademark it is in fact adapted to
distinguish {section 9(3)(b)} or capable of distinguishing {section 10(2)(b)}.
Once a Tribunal determines that it is, the trademark is accepted for
registration under the appropriate part.
your case, BuySmartphones is a new e-commerce business which retails smartphones.
It was just founded in August 2018. These past months, you have been using the
unregistered trademark ‘BuySmartphones’ in your branding and other marketing
campaigns. You also have it registered as your domain name. While these
activities qualify as “use of the trademark”, has this use adapted it or made
it become capable of distinctiveness? To determine this, a Tribunal will be
considering whether your use of ‘BuySmartphones’ is to the extent that it is
adequate for the purpose of distinctiveness. The period of time, degree of use,
and even the goodwill you may have regarding the use of ‘BuySmartphones’ in
connection to your e-commerce business of selling smartphones will all be
critical.
Descriptive marks may be good for domain names in a search engine-driven
digital world and also good for businesses with low-advertising budgets,
but they are not good for trademarks and may result in bad investments.
marks only describe the goods or services to which they are applied. Generally,
descriptive marks cannot be registered as trademark. Descriptive marks may only
be registered if they have achieved secondary meaning.
is a descriptive mark. Has it achieved secondary meaning? The answer is most
likely NO. Achieving secondary meaning for any descriptive mark takes a lot of
time. It also needs some level of goodwill. Consequently, it is not
registrable.
after investing so much in branding and marketing you are unable to secure
‘BuySmartphones’ as your trademark, your e-commerce business is not protected.
Any person can use the same or similar mark to deceive potential customers and
you will have no remedy in law. This will not be good for business.
Absolutely not.
Distinctiveness is the life of any trademark. Without distinctiveness, a
trademark is dead.
launching a new business entering a market, choosing a distinctive mark that
distinguishes your goods and services in connection with your brand is not an
easy task.
Your trademark is your business. Be creative, deliberate, and strategic. On one
hand, don’t assume that you need to be descriptive in your choice of trademark
before your target customers can know your business exists. On the other hand,
a nondescriptive trademark may also not be easily recognizable by your target
customers. Everything depends on various factors, including economic, social,
legal, and even psychological factors.
Always consult your IP lawyer or law firm when deciding on the best name for
your brand products and services.
wishes
Follow-up questions, if any, are welcomed.
My wedding album and I Part 2: An analysis of the position of Intellectual property rights to Paparazzi photos.
article on this topic I had intended to write another article on a second
related topic which jumped in my mind, but I allowed laziness and
procrastination get the best of me. Now straight to the topic at hand: To who
belongs the intellectual property rights to celebrity photos and shot at events
or in a public place?
which is whether a paparazzi photographer can own the rights to celebrity
pictures taken on his own accord. And what is the position where the
intellectual property rights infringe on the celebrity’s constitutional rights
to privacy.
barber shops or hair salons in Nigeria with pictures of both local and
international celebrities as promotional tools. The same question comes to mind
when pictures of celebrities are pasted all over the tabloids and magazines as
headliners or fashion posts, or just for small gist or to gain publicity as a
brand. This issue hit very close to home as I have been to an award show (the
Headies) in the past, courtesy of a friend of mine who gave me a free ticket.
This was when I had much less lumps and bumps, and all was well with the world.
I was very shocked to see my photo boldly printed on the pages of a widely read
newspaper/magazine as one of the well-dressed attendees. I couldn’t help but
wonder what effrontery they had to post my picture without so much as a hint
that my picture could be published. This effectively denied me a choice of
whether I would like the picture posted in the magazine. But my proposed rage
was halted by many thoughts of how nice the picture actually was, how someone
may recognise me on the face of a tabloid and my then secrete craving for fame
and glamour. Now with my new self-acclaimed status as a recognised
non-celebrity, the whole saga felt more like a compliment, so instead of
writing this article or stumping out of my comfort zone to bring those
“criminals” to justice, I went ahead to cut out and keep my picture safe in my
room.
on a more serious note, I have read the provisions of the Copyright Act
repeatedly and seen that issues like this are not expressly provided for under
the Nigerian laws, except for section 37 of the 1999 constitution which
provides for the right to privacy.
mind therefore are:
the paparazzi owns the intellectual property rights to celebrity photographs
taken by him/her?
is the position of the law when intellectual property rights clash with the
rights to privacy.?
does a celebrity protect his image from arbitrary publication and/or sale?
can remove the automatic ownership of the copyrights from the photographer
include the following:
Trademarking:
Some schools of thought are of the view the celebrity may trademark his or her
picture in order to protect his right to privacy and any other intellectual
property rights that may be connected thereto[1]. While this seems like a viable solution, one must
question the extent to which the trademarking of an image will protect the
celebrity Is just one angle specifically trademarked or the celebrities face in
whatever angle it is captured?
Payment of consideration in exchange
for the Photo: Now let us bring this back to Nigerian perspective; and by
this, I mean our Nigerian “owambe” events, our glorious weddings, funerals,
birthdays, house warming, child dedication, etc. we all know the love-hate
relationship with those freelance photographers who harass us with their
cameras both big and small, our very own local paparazzi without whom we may
not enjoy our brief moment of fame. The need to analyse such underrated but
highly sensitive relationships is becoming more imminent as the technology era
takes over our society. This is a situation where the line between consent and
decent is more blurred than any other contractual relationship.
the consent for pictures taken is usually given only after the pictures are
developed and offered to the image owner who may choose to accept the picture
with a slight shrug of the shoulder signalling acceptance and admiration for
the photo or just to take the picture from a random photographer before they
use the picture for charms or out rightly decline the picture. The question
therefore is where does the intellectual property rights lie, and at what point
does the said intellectual property rights devolve from the photographer to his
customer when little or no consent or consideration is given in the first
instance.
back to Mr Tufaces story where (in summary) his very beautiful wedding picture
was taken by an alleged paparazzi photographer. Upon demand for their pictures,
the photographer in turn offered to give the photos to the celebrity at a fee.
The photographer however upon payment delivered the photographs with his
watermark very boldly inscribed on all the said photos. The photographer in
that instant like in my above analogy was a paparazzi/freelance photographer
taking advantage of the nice owambe event to showcase his talent.
therefrom was in summary to clarify the fact that once money had been exchanged
for the soft copy of the photographer’s pictures, the said photographer had in
turn sold all intellectual property rights to same. Stating otherwise would
mean that photographer may do with the photo as he pleases, and in fact, the
image owner will have to take permission from the photographer to post them on
any social media platform, or to reprint for whatever purpose you may require.
that celebrities get photographed daily by random people, and just like my
interpretation of the Lady Gaga’s hit song ‘Paparazzi’, some celebrities take
desperate measures to ensure they get more coverage while the photographers
make good money by selling the pictures to the highest interested bidders, in
fact most celebrities don’t seem to mind or care that much hence the saying
“there is no such thing as bad publicity.
consent by celebrities and public figures as far as photography is concerned.
The combination of tacit consent and the use or sale of celebrity photographs
by the photographers presupposes an ownership of the rights to the celeb
pictures in line with section 10 of the Copyright Act whereby the photographer being
the originator of the photo owns all rights thereto; he can therefore do with
the pictures taken as he wishes. However, an unequivocal protest against the
photographers use of the celebrity’s picture will effectively distort the
rights of the photographer[2].
matter that arose in the British Royal Family. Princess Kate Middleton whose
story has touched the lives of many is well known as a celebrity and gets
photographed on a daily basis. However, when she was photographed topless by a
photographer while on vacation with her husband, the princess made a clear
protest by suing the photographer and his sponsors for invasion of privacy,
with large amounts claimed in damages. This was a clear and unequivocal protest
to which the courts awarded cost in damages to the royal couple.
that protest in this instance will not shift the ownership of the intellectual
property rights but will bar the photographer from further use of the said
picture and extinguish any rights he may have to make financial gains from the
photo without the consent of the image owner.
the right to privacy as in section of the 1999 constitution of the federal
republic of Nigeria will trump the photographers intellectual property rights
Copyright Act, the photo and the intellectual property rights therein belong to
the photographer, his employers, or his hirers in the first instance as the
commissioner of the photograph.
paying customer whether before the fact will be paying for the services of the
photographer as well as all intellectual property rights attached to the
photographs taken except otherwise stated in writing.
intellectual property right may be transferred to a paying customer pays a
negotiated amount for the pictures except otherwise agreed.
the photo is taken of a celebrity or public figure by a freelance/ paparazzi
photographer, all rights in the said photo will belong to the photographer
except where the celebrity or public figure makes an unequivocal protest on the
grounds of invasion of rights to privacy. This however does not strip the
photographer of his intellectual property rights on the photographs, it only
prevents the photographer from using the photos publicly.
from this is who is a celebrity under the Nigerian context. This is a topic for
another day.
Now you see us, now you don’t
Social Media Report Of NBA’s Query To Aliyu Umar SAN | Paul Usoro SAN
this morning on the purported query issued by the NBA to Aliyu Umar, SAN over
his prosecution of the Charge against Honorable Mr. Justice Walter S N
Onnoghen, the Chief Justice of Nigeria before the Code of Conduct Tribunal. I
know nothing of that query, and I did not authorize it. I learnt of it for the
first time from the social media reports this morning and promptly called
Jonathan Taidi, the NBA General Secretary for confirmation. Jonathan, I must
mention, lost his mother only yesterday and is currently in bereavement. I had
passed on to him yesterday my personal condolences and the sympathies and
regrets of the Bar. Our prayers are with Jonathan and his extended family and
for Mama’s repose.
indeed he had forwarded to Mr. Umar a petition from one of our members and that
Mr. Umar has already responded to the petition. He claims to have mentioned the
fact of the petition to me when he received it but I have no such recollection
but more importantly, as he, Jonathan acknowledged during our conversation, I
have consistently insisted that he should inform me of matters by e-mail so
there is a record of the issues he discussed with me and which I approved. He
acknowledges that he did not send to me any such e-mail forwarding me the
petition and/or his query to Aliyu Umar and/or his response. Indeed, as I
write, I have seen none of those documents and I never authorized the query to
Mr. Umar.
ordinary course of his office and duties as the General Secretary and believed
he should pass on the petition to Mr. Umar for his reaction, so he, Jonathan,
is not accused of inaction or selective disciplinary actions. If I had
known about this matter prior to now, I would have directed that it be handled
differently and in a manner that would hold together and solidify our oneness
as a united and indivisible Bar. I have directed the General Secretary to cease
all further actions on the matter and to avail me with all the documents
thereon as soon as possible for my study and further directives. I therefore
request you, my beloved and respected colleagues, to remain calm and not be
agitated howsoever by the referenced social media reports. I would reach out
both to Mr. Umar and the member that petitioned against him.
howsoever obviate, cancel, diminish or alter howsoever the NBA position of the
Bar on the trial of Honorable Mr. Justice Walter S N Onnoghen, GCON, before the
Code of Conduct Tribunal and matters ancillary thereto. The Resolutions that
were reached by the NBA at our Emergency NEC Meeting that was held on 28 January
2019 remain sacrosanct and is the guiding light for all the positions and steps
that we have taken and will continue to take in these matters.