Paul Usoro SAN And NBA’s Exemplary Work At #NigeriaDecides2019

Paul Usoro SAN And NBA’s Exemplary Work At #NigeriaDecides2019

The Nigerian Bar Association
under the leadership of the Learned Silk, Mr. Paul Usoro SAN, did an amazing
job of monitoring the 2019 elections.



On February 12, 2019, the
President of the Nigerian Bar Association, Mr. Paul Usoro, SAN inaugurated the
2019 NBA-EWG with the core mandate to, amongst others, observe the
Presidential, Gubernatorial, National and State Houses of Assembly Elections,
2019 and ascertain and be able to comment on the extent of the conformity of
the processes and procedures for the conduct of the elections with the
relevant laws, regional and international standards and best practices.

The NBA – EWG was a 22 man National
Committee, chaired by Mazi Afam Osigwe to monitor the elections and according
to the NBA President, Branches in the States also constituted monitoring
committees that worked with the National Monitoring Team in monitoring and
reporting on the Elections in the respective States.

The Committee also kept to
its mandate at the Gubernatorial and House of Assembly Elections, after which it
released its 2ND
Interim Report Of The Nigerian Bar Association Election Working Group On The
2019 Gubernatorial And Houses Of Assembly Elections Which Held on SATURDAY, 9TH
MARCH, 2019.

Both reports covered issues
such as –

1.      Smart Card Readers

2.      Electoral Violence

3.      Secrecy
of the voting process

4.      Voters’ Turn-Out.

5.      Security Arrangements

6.      Vote buying; and

7.      Intimidation
Of Observers And Journalists


The NBA is highly commended
for the role it played in #NigeriaDecides2019 and will always be seen as the
champion of the rule of law and legal rights in Nigeria.

Members of the Committee include

Nos.      Name



Gender



Position



1.          Mazi AfamOsigwe



M



Chairman



2.         
OlalekanThanni



M



Member



3.          Ato
JBulus



M



Member



4.         
Rosemary NEmovon



F



Member



5.         
SamuelAtung



M



Member



6.         
AdammaIsamade



F



Member



7.         
AbiyeTam-George



F



Member



8.          Saliu
OJimoh



M



Member



9.          Mohammed
MuntasirAdamu



M



Member



10.        MukosoluOkafor



F



Member



11.        OlanrewajuObadina



M



Member



12.        Moses Ede



M



Member



13.        SamuelObot



M



Member



14.        Abibat
DelayoOriekun



F



Member



15.        Endung
AnthonyIdoko



F



Member



16.        BarbaraOmosun



F



Member



17.        PrinceIgaja



M



Member



18.        Adija AbokNyam



F



Member



19.        ChiomaUnini



F



Member



20.        Isah AbubakarAliyu



M



Member



21.        Habeeb
LawalAkorede



M



Natl Asst. Publicity Sec



22.        Liman Salihu



M



Secretary

2ND Interim Report Of The Nigerian Bar Association Election Working Group On The 2019 Gubernatorial And Houses Of Assembly Elections Which Held on SATURDAY, 9TH MARCH, 2019.

2ND Interim Report Of The Nigerian Bar Association Election Working Group On The 2019 Gubernatorial And Houses Of Assembly Elections Which Held on SATURDAY, 9TH MARCH, 2019.


Preamble

The Independent National
Electoral Commission (“INEC”) on Saturday, March 9, 2019 conducted
Gubernatorial Elections in twenty-nine (29) States of the Federation and also
conducted elections into the Houses of Assembly of all the thirty-six (36)
States of the Federation. Chairmanship and Councillorship elections for all the
six Area Councils in Abuja, Federal Capital Territory (FCT) also took place.
The Elections were initially slated for March 2, 2019 but were postponed at the
instance of INEC by one week.

The 125 (one hundred and
twenty-five) branches of NBA deployed observers to the areas covered by the
respective branches. NBA-EWG also utilized every lawyer who visited any of the
polling units as an observer. Thus, the NBA-EWG received reports from its
member-observers through its Toll-free line and other social media platforms.
In appropriate cases, these reports were accompanied with photographic
images and or videos. Critically, the NBA-EWG situation room made several
telephone calls to its members who were in the field in order to authenticate
reports received regarding incidents of violence, intimidation or threatened
acts of violence.

In the light of observations
of the members of the NBA Observation teams as well as reports received, the
NBA-EWG reports as follows:

DEPLOYMENT OF ELECTION
OFFICIALS AND MATERIALS FOR THE ELECTIONS.

INEC deployed ad- hoc Staff
who were trained to conduct the various elections in their respective polling
units across the country. From available statistics, a total of 2,763,990
ad-hoc Staff, mostly Youth Corps members, were deployed as Polling Officers or
Assistant Polling Officers. There were reports of incomplete ballot materials
in Orlu, Imo State which necessitated the return to INEC offices by INEC
officials. In Ibadan North West LGA of Oyo State, ad hoc staff did not show up
at polling units for fear of being attacked. These ad-hoc staff were later
replaced.

In some places in Rivers
State, blockade by security forces known as Joint Task Force (JTF) and lack of
security details assigned to INEC staff hindered timely and safe deployment of
staff and electoral materials.

COMMENCEMENT OF THE
ELECTORAL PROCESS

The NBA-EWG notes that INEC
comprehensively tackled the lapses associated with deployment of electoral
materials in the February 26, 2019 elections. This time, elections started on
schedule in most polling stations as both materials and personnel responsible
for conducting the elections arrived on time.

There were reports of ad-hoc
staff (Corp members) in parts of Lagos refusing to kick-start accreditation and
voting on account of unpaid allowances.

The NBA-EWG notes that in
Owerri, Imo State, for example, INEC officials yet again conducted the
elections using photocopies of approved ballot papers at the Government House
polling units. In polling units where voters complained about this unwholesome
practice, the INEC officials rebuffed them and proceeded to conduct the
elections in that manner.

SMART CARD READERS

The complaints about
malfunctioning card readers or card readers that did not or could not recognize
voters’ finger-prints were greatly reduced.

It was worrisome that in a
few Polling Units (“PU”) there were reported cases of card readers’
malfunctioning and no back-up plans were put in place by INEC.

We received reports from
Bauchi LGA, Bauchi State about manual accreditation of voters even though the
card readers presented no issue. This is rather curious or instructive given
the earlier announcement by INEC that the use of card readers for the elections
was compulsory.

VOTERS TURN-OUT:

The feedback from the
various observers across the country showed that the voters’ turnout was
noticeably low. Persons interviewed by our observers expressed lack of
confidence in the electoral process and unwillingness to participate in the
process as they believed that their votes would not count. The extremely low
voter turnout witnessed at the polling units was such that there were no queues
and, as such,

the accreditation and voting
processes were rather fast. Voters simply walked in, voted and left.

Our earlier observation
about voters in many polling units helping to organise themselves by writing
their names on sheets of paper so as to ensure orderly and seamless conduct of
the accreditation and voting processes during the Presidential/National
Assembly election was totally absent this time. This was no doubt attributable
to the absence of crowds at polling stations on account of the very low voter
turn-out.

In polling units observed,
there were insignificant turnouts of senior citizens, women and persons with
disabilities.

VOTE-BUYING

The political parties had a
field day inducing voters with money, food items, soaps and various other items
to vote for their parties’ candidates. These acts of inducement right before
security agents within the voting precincts has the propensity to destroy the
citizens’ confidence in the entire election process. Specifically, this was
observed in Kano, Abuja FCT, Lagos, Bayelsa, Anambra, Imo, Akwa Ibom, Oyo and
Kwara States.

ELECTORAL VIOLENCE

There were several reports
of electoral violence from all over the country. Party thugs and hoodlums had a
field day invading voting centers to snatch polling materials, destroy voting
materials, harass, molest and intimidate voters and, in some instances, INEC
officials. Suspected political thugs, accompanied by security operatives
particularly officers and men of the Nigerian Army, hijacked materials,
destroyed materials, harassed, interfered with the voting
processes, prevented the counting of votes at some voting centers,
hindered voting, intimidated and prevented some people from voting, chased away
some party agents and observers from polling units and collation
centers, For instance, in Polling Units 5, 6 and 7, of Ward 4 in Ogbomosho
South Local Government Area of Oyo State, political thugs forced voters to show
their ballot papers after voting before depositing same in the ballot boxes.

In Abia, Kogi, Ebonyi,
Rivers, Akwa Ibom, Imo, Katsina, Osun (Ile Ife, East and Central) Sokoto, Kano
and Benue states, the elections were marred by violence.

In Abia State, armed thugs
invaded and unleashed violence at Ekiri Elu Central School, Aram Umuahia,
forcing the INEC ad-hoc staff to abandon the election and run into private
residences for safety.

Armed men stormed some
polling units in Imo State and snatched election materials. In Ganaga/Township,
PU: 09, Ajaokuta LGA, Kogi State, persons believed to be political thugs, aided
by some security operatives, disrupted the counting process at the PU and
destroyed both the ballot boxes and papers. In Polling Units 04 and 07, Kuchi
Ward, Kebbe LGA of Sokoto State, voting was disrupted by thugs who attacked the
polling unit and beat up both INEC and police officers.
In Kaura Namoda, Kyam Baruwa
Ward, violent scuffle among party agents led to the destruction of election
materials and an attempt on the lives of some security personnel.

In Ile Ife east and Ife
Central of Osun State, there was intimidation of voters by thugs and security
agents. Voters were also compelled to vote for a particular political party and
those who refused were prevented from voting.

The outbreak of violence in
Oba Akoko in Akoko South West Local Government Area of Ondo State forced the
state government to impose a curfew on the community. It was reported that no
fewer than two persons lost their lives when security agents and some political
thugs engaged in a shootout consequent upon the attempt by the security agents
to prevent the thugs from gaining entrance into the collation centre in the
town.

In Akwa Ibom and Rivers
States, political thugs accompanied by Nigerian Army officers, reportedly
highjacked materials. In Rivers State in particular, a policeman and three
others persons were reportedly killed by gunmen while a chieftain of a
political party, Mrs. Emilia Nte, was reportedly kidnapped. Ballot box
snatching, destruction of voting materials, prevention of vote count at polling
units, prevention of party agents and observers from accessing collation
centers, vote-buying etc were rife in these two States.

These acts of election
violence and malpractice led to deaths in Ondo, Akwa Ibom, Rivers, Enugu and
Ebonyi States. The development discouraged voters from casting their votes as
many either refused to come out to vote or returned to their various homes
after initially coming out to vote.

In parts of Imo State, party
agents reportedly forced voters to vote for particular candidates.

Five (5) cartons of ballot
papers meant for governorship election were intercepted by security agents on
election duty at Giginyu Ward of Kano state. A female NYSC member and some
others persons were reportedly arrested.

In Katsina, Katsina State,
gunmen reportedly killed security officers and abducted INEC’s staff.

Surprising in most places
where these dreadful acts were recorded or reported, security agents were
either complicit or indifferent. Yet again Rivers, Akwa Ibom and Kogi states
ranked high in this regard.

Additionally, the NBA-EWG
situation room was inundated with widespread reports confirming the
manipulation of election processes by INEC officials coerced or aided by party
thugs and security agents.

Despite the presence of
security men mounting road blocks and checks across the country, there were
reported cases of political thugs moving freely around polling units and
disrupting the election process thus making it compelling to ask a lot of
question about how the thugs were able to access polling units and collation
centres to the extent of carting away polling materials or freely burning and
destroying electoral materials. Some electoral officials and voters were
assaulted.

There were credible reports
of harassment, intimidation and killings which called for serious security
concern and put the credibility of the entire process in issue. The specific
incidents noted here are by no means exhaustive.

SECRECY OF THE VOTING
PROCESS

We observed that the
insufficient secrecy of the voting process contributed to intimidation of
voters, vote-buying etc. As we noted in our earlier report INEC booths did not
offer sufficient privacy to voters. Party agents and some other persons had
widespread, easy and unrestrained access to voting areas to either supervise
voting by coercing voters on who to vote for, forcing them not to vote for
candidates of their choice, or prying into how they were voting. The different
modes of the violation and or abuse of the voting process occurred nationwide.
Once again, the electoral officers and the security agents posted to the
voting areas made no effort to arrest the unwholesome practices that occurred
in this regard.

SECURITY ARRANGEMENTS

It was observed that police
personnel posted to voting centers generally arrived on time. It was however
observed that in some voting centers the number of police personnel posted
there was not commensurate with the large number of registered voters in the
centers. This did not constitute a problem as a result of the nationwide low turnout
of voters.
There were cases where
police personnel even though present were inattentive or indifferent to
apparent violations of electoral laws. In cases where there were infractions of
electoral laws or threats of violence or actual violence, it was observed that
the police personnel at those polling units stayed aloof and did nothing to
prevent or stem those infractions and/or acts of violence.
Policemen and Nigerian Army
personnel were in some places complicit in the snatching of voting materials,
ballot boxes, intimidation or voters as well as perpetration of various acts of
violence. In fact, at polling unit 006, Ward 12, Ogba/Egbema Ndoni in Rivers
State, it was reported that a policeman with Force number 442884 was seen
compromising the voting process by telling people which party to vote for.

INTIMIDATION OF OBERVERS AND
JOURNALISTS

There were reports of
security agents preventing observers and journalists from accessing polling
centers and or collation centres. Security agents reportedly prevented
observers from gaining access to some polling centers in Tsafe LGA of Zamfara
State. Also, Kunle Sanni, a Premium Times journalist was reportedly
abducted in Plateau State and forced to delete photos that he had taken from
his phone. He is believed to have been released. A TV reporter was also
reportedly beaten by security agents in Akwa Ibom State.

In Yobe State, soldiers
barred journalists from covering the election. All these acts occurred despite
INEC guidelines which make it clear that all accredited observers and
journalists have a right to access polling units and collation centers.

CONCLUSION:

This our 2nd interim report
may be followed by other interim reports, as deemed necessary and required by
the NBA-EWG. A detailed and final Report of all the Elections conducted by INEC
in 2019 will be published by the NBA specifically, after the release of all the
Elections results by INEC.

SIGNED.

Mazi Afam Osigwe, FCIArb.
(UK)

Chairman, NBA-EWG

March 9, 2019

Minors in Football in Nigeria: Safeguarding their Rights and Preventing Exploitation

Minors in Football in Nigeria: Safeguarding their Rights and Preventing Exploitation

minors in football in Nigeria
Minors in football in Nigeria are part of a global system that is often exploited. In the last two decades, the global appetite for cheap, promising young talented players in football has surged. Consequently, this has led to an increase in the mobility of minors domestically and internationally in pursuit of a professional football career. A record number of 2323 minors were registered with clubs worldwide in 2015  and applications for the registration of young players made to the Fédération Internationale de Football Association (FIFA) reached a new record high of 2648 in 2016.
This high mobility rate of minors within the football industry raises questions about player safety, welfare, and rights.  Unfortunately, the risk of exposure of young players to emotional and physical harm, financial exploitation, and human trafficking football is also becoming more and more widespread due to lack of awareness.

In Europe, regarded as one of the best places to play professionally, the opportunity to play football is fierce but due to stringent enforcement of EU legislation around minors and FIFA rules, we see fewer cases of abuse of minors. With some of the world’s brightest young soccer talents available in Africa, South America, and Asia, where arguably there is less enforcement and monitoring of minors, there has been a rise in Western clubs recruiting players from these regions.  The European Clubs Association (ECA) Report on Youth Academies in Europe study highlighted that certain high profile premier league clubs preferred to recruit youth players from overseas citing the inflation of transfer fees in English football as the main reason.
Minors arrive in their droves to the west from developing countries with hopes of being discovered and playing for a major  European clubs, securing a lucrative player contract and earning far more than they would earn back home. In the quest of the European dream, these minors risk becoming victims of unscrupulous agents in the industry looking to profit at their expense.
FIFA has developed a regulatory framework composed of a set of provisions within its Regulations on the Status and Transfer of Players (RSTP) that governs the international transfer of minors. Originally adopted and introduced in the RSTP in 2001, this framework went through a series of modifications in 2005, 2009, and finally in 2015 to expand its scope to improve the protections afforded to young players.
The Court of Arbitration for Sport (CAS) has been an integral part of this regulatory regime for not only being a supreme arbitral authority resolving disputes related to the violations of the framework by football stakeholders but, more importantly, for also clarifying its practical operation through its jurisprudence by examining and interpreting its specific provisions. The Acuña case, the FC Midtjylland case, the Elmir Muhic case, and the Vada I and Vada II  cases are amongst some of the important CAS decisions that have shaped the evolution of the regulatory framework for minors within football.
The regulatory regime for the protection of minors is administered and operated by FIFA at the international level in the exercise of its executive powers to develop and amend the rules. FIFA also enjoys a supervisory authority to ensure appropriate implementation of the framework by its member associations. With the introduction of the TMS, FIFA Transfer Matching System GmbH, known as ‘FIFA TMS’,  the subsidiary of FIFA that manages the TMS, is now delegated with a monitoring responsibility for the applications submitted by associations to the approval of the Sub-Committee for the transfer or the first registration of minors and the relevant ITC requests made through the system. The regulatory regime for the protection of minors is administered and operated by FIFA at the international level who exercises its executive powers to set out and amend the rules. Below are the relevant Subsidiary provisions of the RSTP.

THE SOUTH-AMERICAN & AFRICAN EXPERIENCE

It is not uncommon in parts of South America, Central, and West-Africa, to find lower income families driven by the need for daily survival. In such families with a child that has a sporting talent, due to lack of legal advice, they often permit the child to leave home in hope of a better future which makes them vulnerable targets. It is unsurprising therefore that numerous cases of human rights abuse continue to crop up in football.
In 2007,  a fishing trawler washed up on a Tenerife beach loaded with 130 young African men, escaping Africa, of which 15 were assured that they would attend trials at Olympique Marseille and Real Madrid. Added to the mix was a group of agents focused almost exclusively on harvesting young boys for the international football market. This boat is just one of the thousands and not all of them are detected so you can easily understand the extreme difficulty faced by domestic jurisdictions not to mention the worlds governing football body FIFA to monitor and rein in these practices.
The increasing number of minors seeking transfer internationally is undoubtedly linked to the wider socio-economic difficulties affecting the third world countries. Wars, famine, drought, corruption and the severe economic disparity between the developing and developed world are determinants that can contribute to the reasons for leaving home. National laws applicable to asylum, migration, and trade are also part of the equation. Veritable protection of minors will therefore undoubtedly require a broader approach than solely measures concerning the world of football. Yet, FIFA’s article 19 could potentially contribute to improving the fate of some minors in the developing world. The question is, does it in practice?

EXPLOITATION OF MINORS IN FOOTBALL IN NIGERIA – 

THE NIGERIA EXPERIENCE

In Nigeria,  despite efforts made by the federal government to curtail illegal migration in the country, the rate of trafficking and abuse of young Nigerian footballers continues to rise.
The absence of regulations governing the transfer of underage football players has fallen short of halting the trend. Findings revealed that illegal migration of these young Nigerian boys is mostly carried out by criminals who purport to be agents, they defraud desperate young footballers online.  Most of them operate out of Nigeria and Ukraine.minors in football in Nigeria
Reports and research have shown that out of the 15,000 young African players traveling to achieve their footballing dream each year, less than 1 percent of them realise this dream. Soccer data analysis also points out that there are approximately 604 players with Nigerian nationality who currently play worldwide in clubs outside, of which under 400 play in 47 European. Out of 65 players currently playing in the five major leagues – England, Italy, Spain, Germany, and France – only 17 play at the equivalent of the Premier League. Sadly, while a research conducted by Paris-based charity Foot Solidaire, in 2013 revealed that about 15,000 young boys travel to Europe and other countries from West Africa each year, it pointed out that some travel by air, mostly to Eastern Europe, using short-stay visas while others walk across the Sahara Desert to countries like Tunisia and Morocco taking dangerous boat journeys to various parts of Europe.
Once in Europe, they are abandoned after parting with their family’s life savings. While those who are lucky enough make it to the trials but fail to get through are also abandoned by the agents as they no longer serve any economic purpose.  Faced with the harsh realities, those left with no money are most times too ashamed to let their families back home know the truth. They overstay their visa and become destitute on the streets of Europe.  The average age of these trafficked players is actually 16yrs.
It is important to reiterate Article 32 of the International Convention of the Rights of the Child, adopted by the USA on November 20, 1989, which stipulates that:
“The States recognise the right of the child to be protected from the economic exploitation and not to be compelled with any work comprising of the risks or likely to compromise its education or to harm its health or its development physical, mental, spiritual, moral or social.”minors in football in Nigeria
Legislation aimed specifically at protecting young people in sport includes The European Parliament resolution of 29 March 2007 on the future of professional football in Europe; and in 2001, The international governing body for football, Fédération Internationale de Football Association (FIFA), introduced the Regulations on the Status and Transfer of Players of FIFA (RSTP). While RSTP, with some exemptions, prohibits the international transfer of minors under 18 years despite these regulations, some clubs still “recruit in Africa, some players at 14,” hence the need for FIFA and national football associations to do more to keep clubs informed about their regulations that protect minors.
The Federal Government of Nigeria in a bid to arrest and curb the scourge of trafficking, abuse, and illegal migration, set up a committee to analyse and proffer remedies to combat these illegal activities. a statement from the Ministry of Interior, Edo State Governor, Godwin Obaseki, raised the alarm over the level of migration by residents of his state. The Governor stated, “Irregular migration of Edo State indigenes has reached epidemic proportions, and from the data of returnees kept by the State, more than 63 percent of trafficked persons were boys, which is an aberration (sic) from the usual practice of trafficking mostly girls.”

CONCLUSION

There are four important lessons to impart.
  1. National associations have oversight responsibility to ensure their members comply with the regulations of FIFA which also includes the provisions of the RSTP concerning the protection of minors. As a result, the regulatory violations by the clubs at a national level creates the basis for liability for a national association because of the national association’s status as a FIFA member and the corresponding legal duty that arises. For this reason, national associations must ensure that their members adhere to the regulatory framework under the RSTP. Otherwise, national associations cannot escape from liability.
  2. The regulatory framework under the RSTP is applicable to all minors. The confusion about the applicability of the framework to minors at the certain age category, now U-10s, is addressed in all three cases and now rectified by FIFA in its Circular no. 1468. The key distinction for the practical operation of the system is that national associations must verify the international transfer or the first registration of a minor even if the player is under the age of 10 years and neither ITC nor the approval of the Sub-Committee is required. For any player over the age of 10, an application for the approval of the Sub-Committee must be made through following the right procedure as prescribed under Art. 19.4 and Annexes 2 and 3 of the RSTP and one of the exceptions of Art. 19.2 of RSTP must be met.
  3. National associations are under the duty to ensure that minors are registered with them rather than any regional associations within their territories. For the purposes of the RSTP, an ‘association’ means national associations not regional associations. In addition, if clubs want to avoid liability under the framework, they must also ensure the registration of their minors with national associations.
  4. The registration of minors with national associations does not automatically satisfy the reporting and registration requirements of Art. 19bis of the RSTP. Clubs must register and report minors at their academies with their respective national associations to comply with the requirements of Art. 19bis as the rationale behind this obligation differs from the registration requirement under Art. 5.
    These findings of the CAS are important for the application of the framework at the national level. These important lessons must be closely observed and compiled by both clubs and national associations if they want to be in compliance with the RSTP and to offer greater protection for minors in football.

    RECOMMENDATIONS FOR THE PROTECTION OF MINORS IN 

  5. FOOTBALL IN NIGERIA

    • Globally, Nigeria has become synonymous with unbridled football talent, however, to further protect their interests and the reputation of Nigeria, there is an urgent need for a domestic transfer matching system which will enable a greater detection of the transfer of minors worldwide. Taking a cue from the Netherlands who have adopted same domestic transfer matching system which allows the Dutch Football Association to process all domestic transfers with greater efficiency, giving the Dutch Football Association greater control over all stages of the transfer process.
    • The Nigerian Football Federation could follow suit by having its own domestic database for transfer matching of minors in football in Nigeria as it benefits the country at large and more importantly caters for the movement of football players, particularly, minors and ensures that clubs who are interested In the services of a minor as a footballer will procure the minor legally and not illegally and it also gives room for proper monitoring of the transfer of minors in  Nigeria.
      This database will be a platform which will include the names and full details of all agents involved in the international and national transfer of minors as well as the names and details of all minors who are footballers in Nigeria.
    • Further to the domestication of the transfer matching system, there is a great need for public awareness of the rights of minors in football. Generally, every individual who is a footballer expects to have his or her rights protected. However, much more attention should be paid to minors as they are more vulnerable, inexperienced and can be easily manipulated. There is a need for the Nigerian Government, Nigeria Football Federation NGO’s, stakeholders in the football and the sports industry and the general public to actively take up a role in promoting the More active engagement in Secondary Schools, Football Academies, Educational institutions, campaigns and educational camps for this purpose should be promoted. Also, this should be inculcated in the syllabuses of Schools all over Nigeria.
    • FIFA on its own sanctions any club who does not comply with the rules in the RSTP concerning transfer of minors and the Child Rights Act of Nigeria also governs the interest of minors in football in Nigeria as well as the International Convention of the Rights of the Child. However, it is recommended that more stringent and strict laws be put in place to control the movement of minors.  Article 19 and the FIFA TMS  are tools which FIFA use to maintain the protection of minors, however, the ability of FIFA to monitor the situation especially in less developed countries like Nigeria has proven difficult over the years. It is suggested that the Nigeria Football Federation (NFF)  establish a monitoring department who will monitor all transfer activities involving minors as well as serve as a liaison between the NFF and FIFA with the sole aim of reporting all legal and illegal transfer activity of minors.
    • The regulations governing the transfer of underage football players fall short of protecting minors as adequately as possible.  Until there is greater synergy between the extant regulations in Nigeria, football clubs and agents will continue to engage in the illegal transfer of minors. A greater synergy will not only protect the minors but will bring Nigeria more in line with internationally acceptable standards.
 Beverley Agbakoba-Onyejianya  
& Olayinka Suara.
Olisa Agbakoba Legal 

Aviation Cabotage Policy to Resolve Nigeria’s Imbalanced Bilateral Air Service Agreements | Dr. ‘Wole Akinyeye

Aviation Cabotage Policy to Resolve Nigeria’s Imbalanced Bilateral Air Service Agreements | Dr. ‘Wole Akinyeye

Imbalance of Nigeria’s Bilateral Air Service Agreements


Aviation Cabotage in Nigeria
Bilateral Air Service Agreements are international trade agreements that permit the airlines of two countries to conduct air transport services between their respective territories. Currently, Nigeria has signed over 80 bilateral air service agreements with various countries, which have largely failed to benefit the country. This position is largely against the principle that multiple benefits are to be derived from such international commercial arrangements, as confirmed in Part 8 of the Nigerian Civil Aviation Policy, 2013, which provides that air service agreements will be premised upon economic considerations and expectations.

In This Day newspaper’s publication on November 19, 2018, it was reported that statistics from the International Air Transport Association, revealed that international airlines sold tickets worth $1.4 billion to Nigerian travelers in 2017, while tickets worth $800 million were sold in the first six months of 2018. Unfortunately, while foreign air carriers continue to make monumental gains from operating flights to and from Nigeria under the bilateral air service agreements, Nigeria’s domestic air carriers continue to remain shortchanged under the agreements, as their inability to reciprocate these flights has been reported to cost the country over $3 billion annually. Suffice to say that the present bilateral air service agreements signed by Nigeria with other countries reflect an imbalance in these agreements. This position is totally unacceptable, considering that aviation occupies a strategic role as an integral means of generating revenue in any economy.
Notably, aviation stakeholders have identified that the unfair imbalance created under Nigeria’s bilateral air service agreements can largely be attributed to an absence of government policy protecting the Nigerian airlines. Given this position, it becomes crucial to create a government policy to resolve the imbalance. It is these circumstances that warrant the consideration of Nigeria’s imbalanced bilateral air service agreements and the ramifications of enacting the proposed ‘Fly Nigeria Act’, which aviation stakeholders have clamored for, as a viable solution to resolving the imbalance.

Problems Creating Nigeria’s Imbalanced Bilateral Air Services Agreements

The imbalance of Nigeria’s bilateral air service agreements is the result of certain problems that are primarily responsible for the inability of Nigeria to reciprocate its agreements with other countries and to maximize the opportunities flowing from such agreements. The problems are identified below:
  • The demise of National Carrier
Previously, the Nigeria Airways was the national carrier that executed Nigeria’s part of its bilateral air service agreements, however, its regrettable demise meant that inevitable difficulties would be presented to Nigeria’s efforts to continue to fulfill its own end of the agreements. It is also recalled that the defunct Nigeria Airways was replaced by Air Nigeria (originally Virgin Nigeria), however, it is quite unfortunate that the latter suffered the same fate of the former.Aviation Cabotage in Nigeria
The inevitable result is that there is no existing national carrier that would position Nigeria to reciprocate its bilateral air service agreements with other countries. This constitutes an unacceptable situation considering that a country’s national air carrier boosts that country’s image and tourism.  Arguably, the current nonexistence of a national carrier is clearly an indictment on the past and current governments for their failure to sustain the continued existence and operation of the defunct national carriers.
  • Incapacity of Local Private Airlines
In the wake of the demise of the national carriers, privately owned airlines have tried to successfully operate the international routes, however, they have been incapacitated through formidable difficulties in the nature of financial constraints.
Regarding these financial challenges, one need not look any further than Arik Air’s operation of the Abuja-London route that appeared to have encountered the problematic issue of securing landing slots in UK airports, which was due to the significant costs in getting the slots. In a chat by a Former Director in Medview Airline, Mr. Lukeman Animaseun, with This Day newspaper, published on July 13, 2018, he stated that the costs of securing landing slots were too high and prohibitive, which would affect the capacity of any local private airline in operating the international routes. In other words, the same problem experienced by Arik Air would be encountered by any other private airline that sought to operate the international routes. He further noted that while the government had initially made efforts to intervene in respect of the difficulties experienced by Arik Air with the UK airport authorities, this intervention was, however, not sustained. It was his opinion that the difficulties experienced by Arik Air would not have been so, if it had the status of a national carrier, as the government would definitely retaliate against any hostile measures or actions of the UK airport authorities.Aviation cabotage in Nigeria
However, it must be stated that while it is true that the government would certainly protect the interest of its national carrier, it is also true that the government owes the same obligation to any domestic private airline that operates the international routes. This is in light of the position that under most of Nigeria’s bilateral air service agreements with other countries, there are provisions granting the parties the right to designate the air carrier(s) that will be authorised to operate the agreed routes. Against this backdrop, if in the absence of a national carrier, a domestic private airline has been authorised as the air carrier to operate an agreed route, the government owes that designated carrier a duty to advance and protect its interests. As a result, the failure of the government to adequately protect the interest of private air carriers operating international routes reflects a lack of political will to do so.

Aviation Cabotage Policy as a Resolution of Nigeria’s Imbalanced Bilateral Air Service Agreements

The concept of cabotage originated from the shipping sector and refers to the carriage of goods or passengers from one place to another place within the same country, by a transport service provider from a foreign country. The practice of the concept can, however, be considered inimical to any country where it is permitted, as the economic growth and development of that country’s maritime sector could be inhibited. As a result, it is not surprising that an appreciable number of countries have enacted cabotage laws restricting the participation of foreigners in local shipping. For instance, Nigeria has its cabotage restriction law in the form of the Coastal and Inland Shipping (Cabotage) Act, 2003.
While cabotage was originally associated with the shipping sector, its application has been extended to the aviation sector. As a result, Article 7 of the Chicago Convention 1944 permits a State to refuse foreign airlines the right to operate domestic flights in its territory. It is noteworthy that Nigeria has categorically forbidden cabotage in its bilateral air service agreements.Aviation Cabotage in Nigeria
However, it appears that simply prohibiting cabotage is inadequate in dealing with the imbalance arising from Nigeria’s bilateral air service agreements, which is created by the challenges posed to the implementation of the agreements, as earlier considered. Given this position, it is quite clear that cabotage restriction must be taken a notch further. In this regard, it is submitted that there is a growing necessity to enact legislation based upon a policy that will ensure that every government spending on travels, originates and terminates with an indigenous national air carrier. This policy can be modeled upon the United States of America legislation, Fly America Act, which primarily requires federal employees, consultants, contractors, and grantees, to use U.S. air carrier service for all air travel and cargo transportation services funded by the U.S. government. In this regard, Nigeria’s proposed model of the American legislation may be regarded as the ‘Fly Nigeria Act, if and when enacted into law.
Over the years, there has been clamour from various aviation stakeholders for the enactment of the ‘Fly Nigeria Act’, which would appreciably curb capital flight and compel foreign air carriers to partner with domestic air carriers, by way of code-sharing. Recently, a chat between correspondents from This Day newspapers and various aviation stakeholders, which was published on November 19, 2018, revealed that the Fly Nigeria Act is legislation widely clamored for by the stakeholders.
Presently, Olisa Agbakoba Legal, the sponsors of the Fly Nigeria Bill are engaged in positive talks with the Aviation Department of the Ministry of Transport, directed at promoting the Bill. The  Bill is currently before the House of Assembly, although it appears that the legislature’s attention in respect of the Bill has been directed elsewhere. It can only be hoped that the Bill will be enacted sooner than later, as Nigerian continues to grapple with the economic effects of the imbalance of its bilateral air service agreements.

Conclusion

It is clear that there is a need for Nigeria to revisit its bilateral air service agreements, in light of the glaring imbalance arising from the agreements. It must, however, be stated that while the Fly Nigeria Act will be welcome legislation for dealing with this imbalance, it is very crucial to note that the proposed legislation cannot of its own simply cure the maladies of Nigeria’s bilateral air service agreements.
For the proposed legislation to work, it is crucial that Nigeria’s domestic air carriers must be ready to fulfill the requirements that will enable them to operate the agreed international routes in Nigeria’s bilateral air service agreements. If the domestic air carriers fail to do this, the proposed legislation will inevitably be bedeviled with difficulties, as this would mean that there are no domestic air carriers to promote the success of the proposed legislation.
Dr. ‘Wole Akinyeye 
Head, Maritime Unit. 
Olisa Agbakoba Legal 

The Impact of Constitutional Alterations on the Jurisdiction of the Supreme Court: Supreme Court’s Observation in Shittu Vs. PAN LTD Revisited

The Impact of Constitutional Alterations on the Jurisdiction of the Supreme Court: Supreme Court’s Observation in Shittu Vs. PAN LTD Revisited


INTRODUCTION

The Supreme Court, per
Rhodes-Vivour, JSC
in Shittu v PAN Ltd 2018 15 NWLR (pt 1642) 195, at
209-210, paras H-B,
observed to wit

“I must observe that
there is now in existence the 1999 Constitution of the Federal Republic of
Nigeria as altered by the First, Second and Third Alterations Acts, 2010. By
the alterations, there is no longer Section 233(3) of the Constitution. That is
to say, the Supreme Court now can only hear appeals where the ground of appeal
involves questions of law. See Section 233(1) and (2) of the Constitution. The
Supreme Court no longer has jurisdiction to hear appeals where the ground of
appeal involves questions of mixed law and facts. Appeals on grounds of mixed
law and facts end at the Court of Appeal
.”

This observation has raised
a lot of questions amongst practitioners of the law in relation to its blanket
nature. This article analyzes the observation of the Supreme Court with a view
to showing that the observation is too wide and that a holistic interpretation
of the Constitution particularly Section 233(1) and (2) reveals that the
Supreme Court can still exercise jurisdiction in relation to appeals on
questions of facts or mixed law and facts in certain instances.

IMPORTANCE OF JURISDICTION

Jurisdiction is the
lifeblood of any adjudication. The Courts have consistently held that the issue
of jurisdiction is intrinsic to adjudication. A Court cannot assume
jurisdiction to adjudicate in a cause or matter unless its jurisdiction has
been properly conferred and/or invoked. It is also settled law that any
proceedings conducted without jurisdiction no matter how well conducted and no
matter how sound the decision or orders made therein is a nullity. See the
cases of –MADUKOLU V. NKEDILIM (1962) 2 SCNLR 341; DAPIANLONG V. DARIYE
(2007) 8 NWLR (PT. 1036) 332; A.-G., LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT.
111) 552; PETROJESSICA ENT. LTD V. LEVENTIS TECH. CO. LTD. (1992) 5 NWLR (PT.
244) 675.

SUPREME COURT’S JURISDICTION
– PRE ALTERATION OF THE JURISDICTION OF THE SUPREME COURT

The Supreme Court, like
other courts in the land, is a creation of the Constitution. It has its
jurisdiction specified and governed by the provisions of the Constitution. By
virtue of the 1999 Constitution, the Supreme Court is vested with both original
and appellate jurisdictions.
It has the sole authority and jurisdiction to entertain appeals from the Court
of Appeal. Section 233(1) of the Constitution confers exclusive jurisdiction on
the Supreme Court to hear and determine appeals from the Court of Appeal. The
right of appeal donated by the Constitution is further circumscribed by Section
233(2) to 233(6), as to when the right of appeal can be exercised as of right,
or with permission of the Court of Appeal or the Supreme Court.

Section 233(2) stipulates
instances when the right of appeal can be exercised as of right. Section 233(3)
prescribes when an appeal shall lie from the decisions of the Court of Appeal
to the Supreme Court with the leave of the Court of Appeal or the Supreme
Court. Subsections 4 to 6 of Section 233 regulates how the Supreme Court should
deal with the application for leave to appeal, who can exercise the right of
appeal conferred and the rules regulating the exercise of the right of appeal.

It is important to note that
Section 233(3) did not state that the Supreme Court could only grant leave to
appeal from the decision of the Court of Appeal when the ground of appeal
involves the question of mixed law and facts or facts alone. Section 233(3)
generally empowers the Supreme Court to grant permission to an aggrieved person
whose appeal does not fall within the decisions that could be appealed as of
right as enumerated in Section 233 (2).

SUPREME COURT’S
JURISDICTION- POST ALTERATION OF THE JURISDICTION OF THE SUPREME COURT

The seemingly settled state
of affairs in relation to the Supreme Court’s jurisdiction was altered by the
Constitution of the Federal Republic of Nigeria (Second Alteration) Act, 2010.
By Section 6 of the Constitution of the Federal Republic of Nigeria (Second
Alteration) Act, 2010, the whole of Section 233 of the Constitution and section
24 of the First Alteration Act are “substituted” for a new
Section 233.

The new Section 233 provides
as follows:

233 (1) The Supreme Court
shall have jurisdiction, to the exclusion of any other court of law in Nigeria,
to hear and determine appeals from the Court of Appeal

233(2) An appeal shall lie
from the decisions of the Court of Appeal to the Supreme Court as of right in
the following cases-

1.     
where the ground of appeal involves questions
of law alone, decisions in any civil or criminal proceedings before the Court
of Appeal ;

2.     
decisions in any civil or criminal
proceedings on questions as to the interpretation or application of this
constitution;

3.     
decisions in any civil or criminal
proceedings on questions as to whether any of the provisions of Chapter IV of
this Constitution has been being or is likely to be, contravened in relation to
any person;

4.     
decisions in any criminal proceedings in
which any person has been sentenced to death by the Court of Appeal or in which
the Court of Appeal has affirmed a sentence of death imposed by any other
court;

5.     
decisions on any question-

  • whether any person has been validly
    elected to the office of President or Vice-President under this
    Constitution,
  • whether the term of office of President
    or Vice-President has ceased
  • whether the office of President or Vice
    President has become vacant
  • whether any person has been validly
    elected to the office of Governor or Deputy Governor under this
    Constitution,
  • whether the term of office of a Governor
    or Deputy Governor has ceased,
  • whether the office of Governor or Deputy
    Governor has become vacant; and

   
 6. such other cases as may be prescribed by an Act of the National
Assembly.

From the above, it is clear
that by the Second alteration of the 1999 Constitution of the Federal
Republic of Nigeria
, the leeway, by virtue of Section 233(3) to an
aggrieved party whose grounds of appeal involve facts or mixed law and facts,
is closed.

The Supreme Court’s powers
in Section 233(3) to grant leave to appeal has been taken away. This is what
led to the observation of the court as highlighted above that the Supreme Court
no longer has jurisdiction to hear appeals where the grounds of appeal involve
questions of mixed law and facts and that appeals on grounds of mixed law and
facts end at the Court of Appeal.

THE OBSERVATION OF THE COURT
ON ALTERATION OF THE JURISDICTION OF THE SUPREME COURT 

While the observation of the
Honourable Court as mentioned above seems clear-cut, an in-depth analysis
suggests that it leaves room for multiple and possibly incorrect
interpretations. It is clear that an appeal shall lie from the decisions of the
Court of Appeal to the Supreme Court as of right where the ground of appeal
involves questions of law alone from decisions in any civil or criminal
proceedings before the Court of Appeal. But a fundamental question is whether
the deletion of section 233(3) from the Constitution means that the Supreme
Court has lost jurisdiction in all matters where the ground of appeal involves
questions of facts or mixed law and facts. The answer, with respect, is a
capital NO.



It is clear that paragraph
(a) of Section 233(2) of the Constitution confers a right of appeal as of right
to Supreme Court where the ground of appeal involves questions of law alone
from decisions in any civil or criminal proceedings before the Court of Appeal.
However, other matters for which an appeal may lie as of right to the Supreme
Court in subsequent paragraphs have the possibility of their grounds being not
just on the law but also on facts or mixed law and facts.

Let us consider Section
233(2) “C” as an example.  Paragraph C states that “…An appeal shall
lies from the decisions of the Court of Appeal to the Supreme Court as of right
in the following cases: “Decisions in any civil or criminal proceedings on
questions as to whether any of the provisions of Chapter IV of this
Constitution has been, is being or is likely to be, contravened in relation to
any person”
. In this instance, it is possible for a ground of appeal to be
on mixed law and facts or facts in relation to a decision of the Court of
Appeal in any civil or criminal proceedings on questions as to whether any of
the provisions of Chapter IV of this Constitution has been, is being or is
likely to be, contravened in relation to any person. If this is so, can the
Supreme Court decline jurisdiction on the basis that Section 233(3) has been
deleted? We answer this in the negative. This applies to the other matters
contained under section 233 (2) of the Constitution.

CONCLUSION

In light of the above, we
submit that while the observation of the Supreme Court is apt in relation to
matters not mentioned in Section 233(2) (b) to (d), it appears incorrect, with
respect, to the extent that the Supreme Court no longer has jurisdiction to
hear appeals where the ground of appeal involves questions of mixed law and
fact. It also appears incorrect to the extent that appeals on grounds of mixed
law and facts end at the Court of Appeal. This is because, in some instances,
the Supreme Court can still entertain an appeal on questions of mixed law and
facts or facts in limited instances as demonstrated above.

Nevertheless, alterations
and observation are commendable. The Supreme Court can seize the opportunity
provided by the alterations to decongest its docket. It is suggested that the
Supreme Court may, as of necessity, review all appeals before it and invite
parties, whose appeals are caught by the alterations, to address it on why such
appeals should not be struck out.

Babatunde Ogungbamila 

PARTNER;

HEAD, DISPUTE RESOLUTION

Economic Tort of Interference – A Tortious Liability that Could Negatively Impact Business Projections | Kofo Olabalu

Economic Tort of Interference – A Tortious Liability that Could Negatively Impact Business Projections | Kofo Olabalu


The tort of interference is
one of the most unpopular tortious liabilities which players in the business
world must be careful of. In simple terms, it means the intentional
interference with contractual or business relations.

Generally, the law of Torts
enforces the breach of a duty imposed by law, to protect the interest of an
affected person. Torts range from Trespass to person, Negligence, Nuisance
which are the more common tortious liabilities. However, there are a number of
tortious liabilities that are not quite popular.

WHEN ARE YOU LIKELY LIABLE
FOR TORT OF INTERFERENCE?

A defendant would be liable
for tortious
interference
when he intentionally interferes or damages someone else’s
contractual or business relationships with a third party and by so doing causes
economic harm.

He may be so liable by
persuading a third party to break his contract with the Plaintiff, perhaps for
a better offer, with the intention to cause harm to the Plaintiff. He would
also be liable if he commits an unlawful act capable of interfering with the contract
between two contractual parties.

For example, in Tarleton
v M’Gawley (1793), Peake 270, 170 ER 153
, the master of a ship fired its
cannons at a canoe attempting to trade with a competitor’s ship. The Court held
that the Master was liable to the plaintiff for committing an unlawful act
directed at the parties with the intention of preventing trade between the
parties.

WHAT ARE THE VALID ELEMENTS
OF THE TORT OF INTERFERENCE?

A defendant would be held
liable for Tort of Interference if the Plaintiff successfully establishes all
of the following:

1.     
The Defendant’s intention to
cause damage to the Plaintiff’s economic relationship with a third party or to
inflict economic harm on the Plaintiff.

2.     
The defendant engaged in an unlawful
act
.

3.     
The Plaintiff has suffered Damage
as a result of the interference.

Presence of incidental
economic harm is not sufficient to impose liability on a defendant. This is so
because incidental economic harm is a usual consequence of legitimate market
competition. A defendant must, therefore, cross the line of incidental economic
harm, to deliberate economic harm.

1.     
Establishing Intention To Cause Economic
Damage

There are no ironclad rules
applied to determine the existence of an intention to cause economic harm. The
Court would look at the entire circumstance of the case.

However, if a defendant had
knowledge of an existing contract, yet induces a breach in a manner which, to
his knowledge, would have a negative impact to the interest of the plaintiff, a
rebuttable presumption of an intention to cause economic harm would be
established against him. Such a presumption would be deemed to exist even if
the defendant is not aware of or familiar with the details of the contract. Leitch
& Co. v. Leydon [1931] A.C.90.

In Lumley v. Gye
(1853) 2 El. & Bl.126
, the plaintiff, who was the owner of
Queen’s Theatre, contracted the services of a famous singer, to perform
exclusively in the theatre for a period of time. The defendant who was a rival
to the theatre and maliciously intending to injure the plaintiff decided to
persuade the singer to perform for him. The Court found in favour of Plaintiff
and held the defendant liable for Tortious Interference.

    2.The
defendant engaging in an unlawful act.

An unlawful Act is one that
can give rise to a civil cause of action against the defendant. Criminal
offenses and breaches of the statute are generally not acts that can give rise
to a right of action for tortious interference, except if the acts can also
give rise to the right of action in a civil case.

A classic example occurred
in AI Enterprises Ltd v Bram Enterprises Ltd, 2014 SCC, where one
out of four brothers dissented to the sale of an apartment co-owned by them all
through their respective companies. The company of the dissenting brother
failed to buy the apartment at the first Appraised value.

Further to this, the
dissenting brother filed caveats on the building’s title and impeded potential
purchasers’ access to the property. Eventually, two years after the earlier
attempts to sell, the dissenting brother’s company bought the building at the
Appraised value.

An action instituted against
the dissenting brother for interfering with the plaintiff’s economic relations
with potential buyers failed. The Supreme Court of Canada held that the acts
committed by the dissenting brother are not acts that can give to a civil
action.

     3. Interference
Must Occasion Damage

Damage is the underscoring
factor of tortious interference. Without the proof of damage suffered by the
plaintiff, a case founded on interference with a contractual relationship is
bound to fail.

The damage may be pecuniary
or other loss of a contractual party. Where loss of pecuniary nature is proved,
the plaintiff may still recover damages for non-pecuniary losses, such as
injured feelings. If the defendant is the plaintiff’s competitor, the case may
be a suitable one for the award of exemplary damages. Pratt v. B.M.A (1919)
1K.B. 244.

IS TORTIOUS INTERFERENCE THE
SAME AS PASSING OFF?

The answer is No. Although
both Torts are similar Economic torts, they have striking differences:

1.     
In tortious interference, the defendant deals
directly with the contractual partner of the plaintiff, i.e A, the defendant,
deals directly with B who is in a contractual relationship with C. However, in
the tort of Passing off, although the defendant seeks to divert patronage of
the plaintiff’s company, there is no binding relationship between the plaintiff
and the consumers.

2.     
In tortious interference, the defendant does
not act like the plaintiff by way of copying his style of business or
trademark. However, the tort of passing off is centered on the defendant’s
attempt to deliberately deceive the public to mistake him for the plaintiff.

IS TORTIOUS INTERFERENCE
WITH ECONOMIC RELATIONS RECOGNISED UNDER NIGERIAN LAW?

Indeed, tortious
interference with economic relations is recognised under Nigerian law. In 2001,
the Supreme Court in Sparkling Breweries Ltd. v. Union Bank of Nigeria
LPELR-3109 2001(S.C)
made a pronouncement in an action founded on the Tort
of Unlawful Interference.

In this case, the
appellants, members of a group of companies requested a letter of credit from
the respondent. The respondent granted a letter of credit but later canceled
it. This led to the breakdown of the contractual arrangement between the
appellants and third parties. The appellants sued the respondent on several
grounds, one of which was an unlawful interference with the appellants’
contract with the third parties.

The Court held that damages
for tortious interference cannot be granted to the plaintiff where the act
committed by the defendant is not unlawful.

In Oshiomole &
Anor v. Federal Government of Nigeria & Anor (2006) LPELR-7570 (C.A),
the
Court of Appeal also recognised the applicability of tortious interference in
Nigeria. In this case, the appellant objected to the implementation of a price
hike in gas by the respondent and influenced the citizens to proceed on strike
action. The respondent argued that influencing citizens to embark on a strike
action constituted Interference and that in influencing the workers or citizens
to embark on strike, the appellant must have intimated the citizens on certain
details which should be privy to just the respondent and appellant. The court
upheld this argument and gave judgment in favour of the respondent.

DEFENCE TO THE TORT OF
INTERFERENCE

The defence of justification
is the major defence applicable to the tort of Interference. The Court would,
however, examine the nature of the contract and the relationship between the
contractual parties.

Advancement of the
Defendant’s interest alone will not suffice as a ground for justification. The
defense was successfully pleaded in Brimelow v. Casson [1925] 1 Ch. 302. A
theatrical performers’ protection society persuaded a theatre proprietor to
break its contracts with a theatrical manager. This persuasion was justified on
the grounds that the wage paid by the manager to the chorus girls was so low
that the girls were constrained to resort to supplementary means of income,
which led to prostitution.

CONCLUSION:

The tort of Interference is
rather a very restrictive one, with a narrow range of liability. It seeks to
protect contractual relationships from the malicious persuasion of competitors
against the plaintiff.

Competitors must, therefore,
be careful not to incur liability for tortious interference, and be mindful of
the elements of tortious interference in business dealings.

Kofo Olabalu

Associate

Olisa Agbakoba Legal 
Source: OAL Legal 

Cryptocurrency and Government Regulation in Nigeria | Bisi Akodu (Mrs.)

Cryptocurrency and Government Regulation in Nigeria | Bisi Akodu (Mrs.)


Cryptocurrnecy in Nigeria is
one of the major off shoots of the Technology wave that has changed the
Nigerian business landscape.

Technology has
since, the last century seen a high permeation in all sectors of the global
economy. To be seen as a cutting edge solution provider, individuals in the
corporate world must be technology savvy or “techy”. Competition is now more
than ever, based on the application of technology such that to move your
business to the next level, you need to be tech-involved.

Advancement in technology
has seen the birth of cryptocurrency as a major consideration in both the tech
and financial worlds. cryptocurrency has been defined as a digital currency in
which encryption techniques are used to regulate the generation of units of
currency and verify the transfer of funds, operating independently of a central
bank. Decentralized cryptocurrencies such as Bitcoin now provide an outlet for
personal wealth that is beyond restriction and confiscation.

There has been a lot of
positive and negative discourse on the value of cryptocurrency
to fiscal systems
. With all the hype about the Bitcoin, the
bubble eventually burst in June last year and has left a lot of Bitcoin
investors, including myself, sceptical as to whether there is a future for
cryptocurrency independent of government regulation.

I was recently briefed by a
client seeking legal advice regarding the use of cryptocurrency by way of an
“Agri Coin” to unify farmers, farm products and product trading in the rural
areas of Nigeria. The coin would be utilized to project, coordinate and monitor
agricultural services. I was really interested in proffering legal advice in such
a ‘techi’ area. I immediately, but with some help from my ‘techi’ sons embarked
on research into this subject. I didn’t mention the fact that it was one of my
‘techi’ sons who urged me to invest a small amount of money in the Bitcoin,
which unfortunately I lost and fortunately had the sense not to invest my
entire life savings.

As a lawyer, my interest in
new products and services remains constant. To enter a discussion on the value
of cryptocurrency, it is important to learn about related things like
blockchain, smart
contracts
and ICOs. It has been established that cryptocurrency springs
from cryptography which is the process of converting plain text into
unintelligible text and the reverse; it is entirely digital and relies on
encryption that enhances secure transactions. In researching this topic I can
say with some authority that cryptocurrency was devised as an alternative form
of payment to cash and its equivalents such as credit/debit cards, cheques etc.
Its use is independent of our traditional banks. In other words, the use of
cryptocurrency dispenses with the need for intermediaries in the form of banks
and other financial institutions.

Cryptocurrency is backed by
a technology called Blockchain. To
answer the question, “what is a Blockchain?” we first need to understand the
meaning of “a ledger”, and then apply the same within the context of our
discourse. In accounting, a ledger is a computer file or a book where you find
a complete record of a company’s financial transactions throughout its life.
Using this record, accounting officers can prepare the company’s financial
statements. The ledger records financial information on liabilities, assets,
expenses, revenues and owners’ equity.

With the above in mind and
the understanding put in context, it is clear that Blockchain is simply a” decentralized
ledger”. It contains records which can be verified autonomously without the
need to have a central entity. It is not just a public ledger, but a real-time
ledger that records practically anything that can be put on record, including
but not limited to contracts, financial transactions, information on the supply
chain, physical assets, etc.

One major feature
characterizing Blockchain technology is the decentralized feature it possesses.
 There is no one organization or person who is in charge of keeping this
ledger. Instead, the ledger is open for everyone in the chain who can see every
detail of every record hence it is “public”. Each of the records in this chain
of records is referred to as “a block”. In addition, a fundamental feature of
Blockchain technology we need to consider is its immutable character. The
records absolved by Blockchain technology are such that are fixed and cannot be
edited by any person once it gets to the platform. This accounts for
transparency in transactions.

So, in summary, think of
Blockchain as a long chain of records (financial transactions or otherwise)
made up of blocks, with each block being each of the records that make up the
long chain. Each block is encrypted and has a time stamp which is immutable.

An affiliated subject matter
which I had to get my head around to understand in my quest for knowledge is
the “Smart Contract”. Smart contracts are computer protocols intended to
digitally facilitate, verify, or enforce the negotiation or performance of
a contract. These transactions are trackable and irreversible. Smart
contracts have been touted as the true building blocks of Blockchain
applications. At the core of smart contracts are self-execution, code write-ups
and Blockchain enforcement (all technical terms which I am still trying to
understand!). 



A smart contract is designed
using lines of code and executes itself without the intervention of a third
party and after fulfilment of certain laid out conditions. In other words and
put simply a smart contract is an agreement between two people in the
form of computer code. It runs on the blockchain, so it can be stored on a
public database and cannot be changed. The transactions that happen in
a smart contract processed by the blockchain, which means they can be
sent automatically without a third party. It has been argued that using smart
contracts helps you eliminate both enforcement costs and ambiguity, making all
business transactions instantaneous. Further, it lets you replace traditional
contracts; which then saves time and money for your business. While this
may be true, it is clear from practice that the orthodox manner of contractual
evidencing still is the order of the day.  

It
is impossible to comment on the subject matter of cryptocurrency without making
mentions of token offerings and initial coin offering. An initial coin
offering, also commonly referred to as an  ICO, is a fundraising mechanism
in which new projects sell their underlying crypto tokens in exchange for a
cryptocurrency be it Bitcoin, Ethereum etc. An ICO is similar to an Initial
Public Offering (IPO) in which investors purchase shares of a company, in the
case of an ICO they are purchasing units of cryptocurrency. SureRemit a
Nigerian start-up company raised $7 million through a Blockchain ICO aided by
‘Hashed’ one of the largest cryptocurrency funds domiciled in South Korea.

The exigencies of commerce
rely to a large extent on the dissemination of information. Information is
driven by technology which is the mainstay of daily commercial activity be it
withdrawing or transferring money at an ATM point, opening letters of credit,
operating credit cards, paying for goods and services, effecting a takeover bid
the list is inexhaustible, what is clear is that technology and information
remain the main drivers of commerce lack of which can lead to dire
consequences. Technology promotes information and allows corporate business to
consider imperatives to enhance efficiency and prevent losses.

Where am I going with all
this? I am looking at the value of cryptocurrency in global financial systems
and the need for government regulation. Some exponents believe that
cryptocurrencies are ripe to compete with traditional financial systems and
that “money is an asset with value meaning that money competes with money”
therefore cryptocurrencies should be fully integrated into global financial
systems. There is however a downside to this. Without government regulation,
massive fraud and theft may be perpetrated through cryptocurrency as it can be
used to promote money laundering activities, support radical movements and bad
governments, finance illegal drug trafficking and human trafficking. Truth be
told there will always be crime and criminals, therefore, the axiom “prevention
is better than cure
” comes in. This in my view begs the need for government
regulation.

Money has always played a
fundamental role in the development of global financial systems and
historically paved the way for global trade and economic growth. Gradually, we
are seeing a transition from physical currency to almost virtual currency. The
fact that most economies have or are in the process of doing away with cash
means that financial systems are still evolving. This notwithstanding, some
sceptics are of the view that cryptocurrency can never be worth more than
“zero” and therefore should be disregarded as a technological whim. I,
therefore, believe that governments should start looking seriously at the
advantages of promoting legislation and regulations in this regard as the value
of digital assets is increasing with the world’s top five companies having data
as a primary asset.

Trading in cryptocurrency in
Nigeria is becoming very popular and can be a profitable idea for investment.
These accounts for why we have full-time crypto traders who employ various
strategies and methods of trading. As a result of its decentralized feature,
trading in cryptocurrency requires no involvement from a central bank thus
unlike regular cash and financial instruments, the pricing process is not
affected and this aids trading transparency. While this may be so, one will
question whether it will not affect the key issues of “predictability”. 

There
are at present 10 cryptocurrency exchange platforms in Nigeria otherwise termed
e-currency exchanges as well as online training courses on how to buy trade and
invest in cryptocurrency.  The interest of individuals in this area is
slowly but surely increasing. The Central Bank of Nigeria (CBN) and the
Securities Exchange Commission (SEC) both regulators of the money market and
capital market respectively have intermittently given warnings (somewhat of a
buyer beware notice)to the public regarding investing in cryptocurrencies. This
notwithstanding, cryptocurrency in Nigeria and its trading has not been
prohibited. While it is trite that there is currently no legislation in this regard,
the main issue seems to be the status of cryptocurrency. Different
jurisdictions have stated cryptocurrency to have the status of either security,
currency, property, cash equivalent, asset or commodity and this has made it
easier to be legislated on, regulated and monitored. This is however not the
position in Nigeria.

It is interesting to note
that Nigerian Banks and other Financial Institutions, as well as capital market
operators, are prohibited from investing in cryptocurrencies or carrying on
business as a virtual currency exchange. Most authors on this topic including
Chimezie Chuta, the coordinator of Blockchain Nigeria User Group, who has
written extensively on this subject matter, are of the opinion that “government
must seek out avenues and intelligent approaches to deal with Blockchain and
cryptocurrency”.

With evolving global trends
in the world’s financial sector, Nigeria is really lagging behind. The need for
the Nigerian government to review the financial services sector and completely
revolutionize institutions and soft structures cannot be overemphasized. If
Nigeria wants to be part of the technology jet set, the time to do this is now.
We have already seen a trend whereby Nigerian tech companies are operating
through off-shore locations such as Mauritius. As a former member of “Financial
Systems Strategy 20:20,
a CBN initiative established in 2007 by CBN
Governor, Professor Soludo aimed to provide a robust financial system that will
power the Nigerian economy, I often wonder where we are with 2020 being just a
year away!

In conclusion, I believe
that cryptocurrency in Nigeria has come to stay and its advantages clearly
outweigh the disadvantages. Consequently, I call on both the CBN and SEC to
make an informed decision on how to provide regulations for this product so
that it can gradually be integrated into our financial ecosystem.

Written By:

Managing Partner at Olisa
Agbakoba Legal
Source: OAL Legal
Legalnaija Tip – What Is A Non – Compete Agreement

Legalnaija Tip – What Is A Non – Compete Agreement

From @aoc.legal –  Executing a Non – Compete Agreement can save your business from exploitation by partners or employees.
Some important points in the agreement include –

Who is agreeing not to compete

Who is preventing the competition

As of when is the agreement effective

How long is the agreement enforceable

What type of business is prohibited

The reason for the prohibition

The geographic area within which competition is prohibited

What the payment is – called “consideration’ – in return for this agreement

If you have any questions on how to protect your business or ideas through a Non – Compete Agreement, pls send a DM or drop a comment.

#agreements #noncompete #nigerianlawyers
#lawfirm #Blawg #Legalnaija #aoclegal #businesslawyers #corporatelawyer #commerciallawyer

Impact Of Technology On Employment In Nigeria | Adeyemi O. Owoade, ESQ

Impact Of Technology On Employment In Nigeria | Adeyemi O. Owoade, ESQ


Technology has and continues to
impart all aspects of human existence. Work and Employment are no exceptions.
Since the Industrial Revolution, Employment, and the complexities of the Work
Place have evolved severally and systemically. In recent times, work has
shifted from the conventional skill and labour orientation to a more
sophisticated technical orientation. This shift is substantially due to the
impacts of modernization and improvements in technology. This technology
infusion in workplace has generally affected affairs and interactions.

Recently, fear has been
instilled in the hearts of countless actual and prospective employees (skilled
and unskilled); Artificial Intelligence is going to take over the jobs that are
eve inadequate in the first place. Notwithstanding this scare, the importance
of technology is unquantifiable. It cannot be over emphasized in the area of
employment.
EMPLOYMENT
BEFORE THE INCEPTION OF TECHNOLOGY
Before the advent of technology
in the work place, offices placed advertisements for employment via the mass
media. I remember seeing graduates in my area way back rushing to the newspaper
stand every morning to check for job vacancies! Applications by applicants were
submitted either personally or by post. Job interviews were conducted only
physically or what lawyers commonly term inter
praesentes
(FACE-TO-FACE). Even when a person was eventually employed, work
was done based on either the skill or labour of the employee i.e. productivity
was majorly based on the output of the employee. Clients outside the
jurisdiction of the companies had to either take long trips or undergo the
rigour of posting letters in other to pass on simple information to the
company. Once members of the Board of Directors were absent or offshore,
companies were grounded, brought to a standstill and could not make major
decisions.
POSITIVE
IMPACT OF TECHNOLOGY
At this juncture, it is
important to consider the positive impact of technology on employment in
Nigeria in recent times:
First, communication at work
place has improved immensely due to the introduction of smart phones, chat-apps
and video conferencing. Sending of emails, texts, and even documents are now
seamlessly done via the internet. Also, technology has improved work through
remote-working, tele-conferencing and co-working which have all ensured the
possibility of the work-from-home phenomenon; office work carried outside the
office. This is possible through apps such as Google-chat, Redbooth,
Go-to-meeting, Zoom etc. Online (Google) maps also help in navigating
unfamiliar places and enhance communication with locals.
Furthermore, in work
organization, technology has assisted in keeping business fully organized
through software such as Project Management Software, Facility Management
Software, SaaS Tools (when installed in a work places, eliminates manual
handling of task by automating when possible and focusing on integration of
different tasks) etc. This has helped improve the quality, efficiency and
degree of output of work done in diverse organizations.
In addition, Technology has
ameliorated the security of confidential information. This is achieved through
an end-to-end encryption of data on hardware and software and access to them is
possible through finger prints, facial recognition and passwords. Even
lockers/safes containing hardcopy data can also be secured by technology.
Lastly, technology has
monumentally improved employee/employer relationship. Accountability of
employees can also be monitored through the use of CCTV, Clocking system etc.
Also, during training of employees, technology can be applied through the use
of different applications in improving of the professionalism of the employee.
NEGATIVE
IMPACT OF TECHNOLOGY
Since the advent of technology
and through its years of improvement, the fear that the technological change
will lead to mass unemployment has remained inherent in man. In a much cited
1983 article, a great economist Wassily Leontief stated that with the rapid
pace of modern technology, it may be impossible for many workers to adjust.
Workers are being displaced from employment by machines that could work faster
and better within time. This displacement eventually leads to poverty.
Although, some Economists have disproved these assertions saying that this is
not possible as it has always been the situation since the Industrial
Revolution. Jobs and workplace will only change and people will adapt to the
new jobs. Workers will adjust to the new trends and then definition of work and
workplace will change.
Also, the advent of technology
in the work place has broken down the bridge between work life and home life as
even after the close of work, employees still receive tasks via emails,
telephone calls etc. and have to meet up with deadlines even while at home. The
work continues even while employees are on ‘leave’ from work and this causes
stress on the employees which eventually leads to lack of efficiency and health
problems. It must not be overlooked that the use of computers and other
electronically appliances in the workplace are subject to the availability of
electricity. Where there is power shortage, data being processed and other
relevant information would automatically be wiped out except there is a backup.
Moreover, softwares are prone to be affected by virus and this damages all
relevant files and database, confidential information stored on the computer.
LEGAL/ETHICAL
ISSUES ASSOCIATED WITH TECHNOLOGY AT THE WORKPLACE
The 21st century
storm of technology has raised a lot of legal/ethical issues particularly as it
relates to the workplace. Although, these cases are few in Nigeria, there are
quite a number of them within foreign jurisdictions.[i]
In Nigeria, employers take
disciplinary actions against employees for acting against laid down social
media usage rules; where an employee posts what is deemed as “inappropriate
information” on social media which would reasonably operate to belittle or
diminish the integrity of the organization. Such disciplinary actions include
termination of the employment of erring employees, instituting legal actions
against them, et al.
It is meanwhile the opinion of
the author that gross misconduct at work through the use of technology or
social media by an employee can lawfully
occasion termination of employment of such erring employee. This opinion is
firmly anchored upon a number of cases where gross misconduct was held as a
ground for lawful termination of employment and substantiated by some crucial
judicial authorities. Although none of the cases directly exemplifies or
addresses a circumstance where use of social media by an employee was found to
amount to gross misconduct, the legal reasoning that follows below is incisive
nonetheless.
In EZE v. SPRING BANK PLC [2011] 11-12 (pt.1) SCM, 93, the
following definition was brought to focus:
“Gross
misconduct has been identified as a conduct that is of a grave and weighty
character as to undermine the confidence which should exist between an employee
and the employer
”.
It is submitted that the above
definition of gross misconduct spaciously covers any improper act of an
employee on social media which brings the employer into disrepute. In
continuation, the Supreme Court in the afore-cited case stated:
An
employee may be summarily dismissed without notice and without wages if he is
guilty of gross misconduct. It is no longer the law for an employer to wait for
court’s pronouncement on a gross misconduct of his employee bordering on crime
before dismissing him
”.
From the foregoing, it is
further submitted that gross misconduct emanating from an improper use of
social media can lead to the dismissal of an erring employee.
Furthermore, Section 37 of the
Constitution of the Federal Republic of Nigeria 1999 (as amended) stipulates
that every citizen of Nigeria has the right to personal privacy, even in their
homes, correspondence, telephone conversations and telegraphic conversation.
Suffice it to say that the employee in a workplace has his/her privacy
safeguarded by the Nigeria Constitution. A question however rears its head:
“Can
an individual’s fundamental right to privacy) be limited by an employment
agreement which is inferior to the constitution?”
The author answers in the
negative.  
Telecommuting can generate legal
issues arising from the determination of time spent on work, overtime and even
commitment of employees to work while physically away from work. “Telecommuting
(also known as working from home, or e-commuting) is a work arrangement in
which the employee works outside the office, often working from home or a
location close to home (including coffee shops, libraries, and various other
venues). Rather than traveling to the office, the employee “travels” via
telecommunication links, keeping in touch with coworkers and employers via
telephone and email.”
Issues may arise from whether
employees who neglect or refuse to turn in the work outside work hours can be
queried. It is advised that employers establish a Telecommuting Policy
specifically relating to certain position or designations within the
organization. Also, employers may need to execute an agreement with the
employee outlining what is expected from employees during such work time. Such
agreement may also contain how to document time spent working.
In the same vein, it must be
emphasized that the incidence of employers having access to passwords of
employees’ social media account without the freewill or consent of such
employees is unreasonable and a brazen infringement on the fundamental right of
privacy of such employees.
In another related scenario, the
use of video surveillance by employers on employee in the workplace does not
necessarily breach constitutional rights. Although, actions can be instituted
against employers preventing the use of employee monitoring in areas designated
for health and personal comfort such as restrooms, locker rooms or lounge.  However, in the United State of America,
certain states have enacted laws prohibiting disclosure of personal social media
passwords of employees to their employers and use of video surveillance in
certain areas on employees.[ii]
Importantly however, in order to
prevent avoidable legal issues or controversies, employers must ensure that
Social Media Policies are carefully and expertly formulated and communicated to
their respective employees.
CONCLUSION/
RECOMMENDATIONS
In conclusion, due to the
dynamics and speed-of-lightning nature of technological development, more
challenging legal/ethical issues are bound to arise in future. Employees and
Employers are hereby advised to:
1.      Ensure
that privacy rights of employees are not infringed upon in the workplace
through the use of technology
2.      Employers
should ensure that computer use policies that provide for employer monitoring
in the workplace should be clearly communicated to the employees
3.      Employees
should undergo adequate training on acceptable use, storage and retention of
data in the workplace
4.      Policies
regarding emails, internet, social media and passwords should be frequently
reviewed and updated given the constant nature of change in technology.

Adeyemi O. Owoade, ESQ

Adeyemi O. Owoade is a Legal Practitioner in  Ololade
Ogunbanjo & Co. Ijebu Ode, Ogun State, Nigeria. He has keen interest in
Labour law, Finance and ICT Law. 



[i]
See for example Smith v Colorado Interstate Natural Gas Co. 777 F. SUPP 854 (D.
Colo 1991). Pietrylo v. Hillstone Rest. Grp (2009) U.S. Dist. Lexis 88702. City
of San Diego v. Roe 543 U.S. 77(2004). Palleschi  v. Cassano 2013 WL 3222573 (N.Y. App. Div.
Jan. 29, 2013.) Ehling v. Monmouth-Ocean Hospital Service Corp, 872 F.SUPP.2d
369, 2012 U.S. Dist. Lexis. 74558 (D.N.J., 2012).  
[ii]
Connecticut and Delaware require employers to notify employees while monitoring
their email communication. Colorado and Tennessee requires public entities to
adopt a policy related to public employee email. In McLauren v. Microsoft Corp.
(1999) TEX APP LEXIS 4103 (Tex APP May 28, 1999), it was held that whatever was
sent by the employee through the workplace mail is the property of the
employer. In TBG INSURANCE SERVICES CORP. v. SUPERIOR CT. G6, no reasonable
expectation of privacy in an employer’s computer located in an employee’s home.
In Garrity v. John Hancock Mutual Life Insurance Co 2002, it was held that no
reasonable expectation of privacy in emails transmitted on employer’s computer
system; employer’s interest in promoting sexual harassment is greater than
employee’s privacy interest.
Some states in the United States of America have
outlawed the use of GPS and Radio Frequency Identification devices on their
employees.
References
1.      
Dan Schmidtt, Kenneth G, ‘Labor Law 2.0: The
Impact of New Information Technology on the Employment Relationship and the
Relevance of NLRA (2015) Articles by Maurer faculty Paper 1778 http://www.repository.law.indiana.edu/facpub/1778
2.      
Eddy D. Ventose, ‘Internet & Technology
Usage in the Networked Workplace: Legal Implications’. Available on https://www.onecaribbean.org/wp-content/uploads/LegalAspectsInternetUsageWorkplace.pdf
3.      
J. Ella, ‘Employee Monitoring and Workplace
Privacy Law’ American Bar Association, Section of Labor and Employment Law
(2016) available on https://www.ameriacnbar.org/content/dam/aba/events/labor_law/2016/04/tech/papers/monitoring_ella.authcheck-dam.pdf
4.      
J.
Yarby, ‘Legal and Ethical Issues of Employee Monitoring’ Online Journal of
Applied Knowledge Management Volume 1, Issue2, 2013, pp44-55
5.      
Law
Now, ‘Technology at the Workplace – A European Overview of Employment Law
Issues in a Modern Working Environment’ (Online) posted on 18th May,
2017 on
https://www.cms-lawnow.com/ealerts/2017/05/technology-at-the-workplace accessed on 9th February,2019.
6.      
Oladele Ogunshote and Eberechi Ukejianya,
‘Getting the Deal Through – LABOUR & EMPLOYMENT 2007’, STREAMSOWERS &
KOHN
For meaning of Telecommuting
vihttps://www.thebalancecareers.com/what-is-telecommuting-2062113


[1] See
for example Smith v Colorado Interstate Natural Gas Co. 777 F. SUPP 854 (D.
Colo 1991). Pietrylo v. Hillstone Rest. Grp (2009) U.S. Dist. Lexis 88702. City
of San Diego v. Roe 543 U.S. 77(2004). Palleschi  v. Cassano 2013 WL 3222573 (N.Y. App. Div.
Jan. 29, 2013.) Ehling v. Monmouth-Ocean Hospital Service Corp, 872 F.SUPP.2d
369, 2012 U.S. Dist. Lexis. 74558 (D.N.J., 2012).  

[1]
Connecticut and Delaware require employers to notify employees while monitoring
their email communication. Colorado and Tennessee requires public entities to
adopt a policy related to public employee email. In McLauren v. Microsoft Corp.
(1999) TEX APP LEXIS 4103 (Tex APP May 28, 1999), it was held that whatever was
sent by the employee through the workplace mail is the property of the
employer. In TBG INSURANCE SERVICES CORP. v. SUPERIOR CT. G6, no reasonable
expectation of privacy in an employer’s computer located in an employee’s home.
In Garrity v. John Hancock Mutual Life Insurance Co 2002, it was held that no
reasonable expectation of privacy in emails transmitted on employer’s computer
system; employer’s interest in promoting sexual harassment is greater than
employee’s privacy interest.