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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

by | Mar 12, 2019 | Uncategorized

Imbalance of Nigeria’s Bilateral Air Service Agreements


Aviation Cabotage in NigeriaBilateral 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

by | Mar 12, 2019 | Uncategorized


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

by | Mar 12, 2019 | Uncategorized


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.)

by | Mar 12, 2019 | Uncategorized


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

by | Mar 8, 2019 | Uncategorized

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

by | Mar 7, 2019 | Uncategorized


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.


Quick Review Of The CBN’s Anti-Money Laundering/Combating The Financing Of Terrorism (Aml/Cft) Policy And Procedure Manual | B.K. SAKA

Quick Review Of The CBN’s Anti-Money Laundering/Combating The Financing Of Terrorism (Aml/Cft) Policy And Procedure Manual | B.K. SAKA

by | Mar 6, 2019 | Uncategorized

INTRODUCTION

The Central Bank of Nigeria (CBN) introduced new rules to
prevent money laundering in the country called the Anti-Money
Laundering/Combating the Financing of Terrorism (AML/CFT) Policy and Procedure
Manual (“The Manual”) just last month (February 2019), with the aim of further
achieving its mandate as set out in the Central Bank Act 2007 (as amended). Within
the scope of the Anti-Money Laundering/ Combating the Financing of Terrorism
(AML/CFT) Policy and Procedure Manual, Money laundering is “the act of directly or indirectly concealing or disguising any fund or
property that is derived from the proceeds of an unlawful activity. Simply put,
it is the process by which “dirty” money is made to look legitimate or “clean”
so that funds may be used freely without any trace of its illicit source”.

The manual essentially set out strategies and systems to
guide workers and the Bank conduct business in accordance with Anti-Money
Laundering laws and guidelines. The manual intends to set up systems and least
models to shield the CBN from being utilized as a channel to launder cash,
finance terrorism and different types of monetary violations.

HIGH POINTS OF THE MANUAL

In the released Manual, CBN posited that it will guard
against establishing correspondent banking relationships with high-risk foreign
banks such as shell banks, with correspondent banks that have historically
allowed their institutions to be used for Money Laundering / Financing
Terrorism (ML/FT).

The AML/CFT Policy and Procedure Manual provides that
exchanges directed through correspondent banking relationships will be overseen as per a hazard-based methodology, and Know
Your Correspondent (KYC) strategies will be built up to discover whether or
not the correspondent bank or the
counterparty is itself managed for money laundering counteractive action.

Likewise,
where controlled, the correspondent shall verify the identity of its clients as per Financial Action Task Force (FATF)
benchmarks, and where this isn’t the situation, extra due diligence will be required to determine and evaluate the correspondent’s
internal policy on money laundering and KYC
methodology.

The Manual provides
that care ought to be taken while doing business with third parties situated in
geographic areas with a past filled with supporting terrorism, bases for drug
production/distribution, suffering from civil unrest/war.

The Manual provides
that it will acknowledge clients after due confirmation of clients’
personalities, address and additionally place of business, in the wake of
finding out their wellspring of income /reserves and in the wake of considering
the dimension and level of dangers they pose on the bank based on the kind of
business under consideration.

Care
will be taken to apply a proper dimension of due diligence, contingent upon
clients’ risks profiles including that no account will be opened for unknown or
‘made up’ clients. The apex bank would not go into an association with a
prospective client until the individual/entity has been appropriately
recognized and confirmed. The client acknowledgment process likewise
incorporates guaranteeing that the prospective client isn’t on the ‘watch-list’
which includes names of quarantined people and known fraudsters. All organisations that wish to
establish account or business relationship with the bank would be providing
proof of address while operators of the account shall be required to provide
other forms of identification such as international passports/drivers’ licence/national
identity card and Bank verification Number, (BVN). This is to ensure the
veracity and authenticity of whosoever the bank is dealing with, and also make
such person traceable, in cases of disappearance.

The Bank
will conduct customer due diligence on a risk-sensitive basis to ensure our limited
resources and focused on the higher accounts and/or transactions. The categories
to be used are Simplified Due Diligence and Enhanced Due Diligence depending on
the nature of the risk involved. The Chief Compliance Officer of the bank shall
collate and present the different reports to the banks management and the audit
committee of the board, for instance the special reports on funds transactions,
swift sanction screening reports, testing for adequacy of AML/CFT Policy compliance and the New
area of AML/CFT risks.

The Manual further provides that Whistle
blowers shall be protected by the bank if they are threatened or likely to be
exposed to risk as a result of reporting any unethical conduct, an employee who
harasses and threatens a whistle blower shall be disciplined in line with the provisions
of the Human Resources Policy and Procedure Manual (HPRRM).

CONCLUSION

With money related
crimes becoming more common than any other time in recent memory, it is vital
that the financial organizations and governments create strategies to check it.
Likely the most widely recognized method for doing as such is to implement
anti-money laundering policies that
keep the sneaking of illicitly gotten assets. Most nations currently have their
very own anti-money laundering approaches, and many necessitate that
every single monetary institution entirely submit to these arrangements so as
to help endeavours against money related crimes.

Anti-money
laundering policies regularly
require most entities that total monetary exchanges to keep careful records of
their customers’ accounts and transactions. In the event that they run over any
data that gives off an impression of being suspicious, they are required to
report it to the relevant governmental bodies for further examination. Monetary
organizations are vital for the accumulation of financial intelligence, and the
open part enormously relies upon them so as to gather information.  Also, anti-money
laundering policies require financial institutions to occasionally record reports with
respect to their customers and completed transactions.

While we don’t have scarcity of laws
and regulations in Nigeria, implementation has always been the problem, the
will power and the impartiality of anti-graft agencies, sincerity and
commitment to national financial integrity on the part of local banks as well
as responsibility and responsiveness of the CBN is key to achieving financial
sanity, if all stakeholders don’t come on board to work things out, we would
keep making laws and policies to no productive end. Thus, the CBN has more work
to do, the manual is laudable, but making it work is most important.

CONTACT FOR
QUESTIONS:

Twitter:
@_Kolamiposi

Email:
kbasyt@gmail.com

Impact of Pornographic or Sensual Advertisements on the Consuming Populace| Akpan, Emaediong Ofonime *

Impact of Pornographic or Sensual Advertisements on the Consuming Populace| Akpan, Emaediong Ofonime *

by | Mar 4, 2019 | Uncategorized

The spate of pornographic advertisement is on the increase today due to the fact that sex is being used as a tool to sell almost anything.  The constant bombardment of the advertising medium with sensual females and males support a growing trend of stereotypes that views women as sex tools to be toyed with. On the other hand, the child consumer is exposed to images that stir precocious erotisation.  

The theological argument is that pornographic advertisements (advertisements with strong sexual undertones) corrupt public morality.  The obscenities in these advertisements have a corrupting impact on vulnerable persons. It also has a corrosive effect on family and religious values. Pornography is much more widely consumed than is sometimes supposed, and it is a large and extremely profitable international industry.   
The decision of the court in Heydon’s  case appears to be a foremost reaction of the courts to the advertisement of pornography, howbeit through the banning of prostitution. The harms that are of most concern when pornographic advertisements are concerned are; the coercion and exploitation of women actors in the production of pornography; harms to women, both as individuals and as a group, resulting from the consumption of pornography.  
The impact of these sensual (pornographic) advertisements include but are not limited to its role as a cause of violent sexual crime.  Pornographic advertisements can be viewed as a sort of false advertising about women and sexuality, or as being akin to libelous speech that defames women as a group, causing corresponding harm to their reputation, credibility, opportunities and income expectations and this affects the orientation of the child consumer.
Pornographic adverts sexualises rape, battery, sexual harassment, prostitution and child sexual abuse thereby celebrating, promoting, authorising and legitimising them.   By conditioning consumers to view and treat women as their sexual subordinates, pornographic advertisements undermines women’s ability to participate as full and equal citizens in public, as well as private realms.  As long as pornographic adverts are tolerated and allowed to be propagated by unregulated advertisements, child consumers are at risk. However, this is not the general opinion as some writers like Dworkin throw more dirt into the ruble when he states that no reputable study has concluded that pornography is a significant cause of sexual crime.  
In his opinion, the causes of violent personality lie mainly in childhood, before exposure to pornography can have any effect. In addition, the desire for pornography is a symptom rather than a cause of deviance. This is no doubt a leading cause of the hardship encountered in the bid to protect consumers especially the child consumer from the consumption of advertisements that promote pornography.
The question of whether pornographic advertisements causes harm raises tricky conceptual issues about the notion of causality, as well as empirical and methodological ones. As some liberals have argued,    it seems implausible to think that consumption of pornographic advertisements, on a single or even repeated occasions, will cause otherwise ‘normal, decent consumers’ with no propensity to rape suddenly to metamorphose into rapists.  
The mere fact that there may be other causes of sexual violence against women does not show that consumption of pornographic adverts cannot also be a cause. The viewing of these adverts may on its own, be neither necessary nor sufficient for violent sexual crime, yet, it might still be a cause of violent sexual crime and these other harms, if it increases the incidence of them. 
It might be helpful to consider an analogy with smoking. Smoking cigarettes, on its own, is neither a necessary, nor a sufficient, condition for developing lung cancer; this is because, there are people who smoke like chimneys who never develop lung cancer and live perfectly healthy lives to a ripe old age. There are also people who have never smoked a cigarette in their whole life who develop lung cancer. Yet, it is generally agreed nowadays that smoking cigarettes is a cause of lung cancer. This is because smoking (in combination with other factors such as genetics, diet and exercise), makes it significantly more likely that a person will develop lung cancer, or so studies suggest. Likewise, it may be safe to suggest that consumption of pornographic advertisements is a cause of violent sexual crime or of sexist attitudes and behaviour generally and the child consumer must be protected from such.
There is considerable disagreement, amongst researchers as well as liberal and feminist philosophers, about whether pornography is a cause of violent sexual crime.  An overall significant positive association exists between pornography use and attitudes supporting violence against women in non-experimental, as well as experimental, settings.   While empirical evidence remains the subject of ongoing debate and investigation. In the absence of sufficiently conclusive evidence that pornography causes crimes of sexual violence, many liberal defenders of pornography continue to view censorship as unjustified. 
However, the rights-based arguments against pornography do not rest entirely on the claim that consumption of pornography is a significant cause of violent sexual crime. The debate over whether pornographic advertisements should be censored remains very much alive and with it comes attendant problems for vulnerable persons in this case the child.
 Akpan, Emaediong Ofonime 
Akpan, Emaediong Ofonime is currently undergoing postgraduate studies at the University of Uyo and majors in Consumer Protection. She can be reached atakpanemaediongofonime@gmail.com
90 Young Lawyers enter 2nd Edition of Babalola’s Law Dictionary Quiz Competition.

90 Young Lawyers enter 2nd Edition of Babalola’s Law Dictionary Quiz Competition.

by | Mar 1, 2019 | Uncategorized

At the close of entry into the 2nd edition of the Babalola’s Law Dictionary Quiz Competition, a total of 90 young lawyers across the federation have signified their interest to compete for various prizes in the competition which holds in Lagos on the 7th day of June 2019.

Meet the learned competitors:

1.    Ojehumen

God’spower

Olujinmi & Akeredolu

2.    Abdul

Abdullateef

Ikeyi Shittu & Co

3.    Osakwe

Ifeanyi

Duale, Ovia & Alex-Adedipe

4.    Olusanya

Tope

Legal Oceans View

5.    Sidi

Anthony

Stream Source Synergy LP

6.    Obasa

Obasa

Ogunkeye and Ogunkeye

7.    Sasore

Olaitan

ADE-OSHODI & CO

8.    Badejo

Adeyemi

Ikeyi Shittu & Co.

9.    Iyamu

Iyamu

Banwo and Ighodalo

10.Ogunseitan

Olawale

Adenekan, Dosumu, ADENEKAN, DOSUMU AND AKINRIN

11.Abasiodiong

George

Nzadon, Laori and Associates

12.Braimoh

Braimoh

Iyoke & Company

13.Tiamiyu

Samuel

Country Hill Attorneys and Solicitors

14.Kpolugbo

Eseoghene

Babcock University School of Law

15.Awayewaserere

Mordiyah

Olusegun Alalade &Alalade

16.Ajibade

Olukayode

Ogunsanya & Ogunsanya

17.Onabule

Omoniyi

Invicta Partners

18.Ehiwe

Osamudiamen

Perchstone and Graeys LP

19.ADAM

MUHAMMED

COUNTRY HILL ATTORNEYS AND SOLICITORS

20.Apanisile

Samuel

Adonai Chamber

21.Igwe

Kemjika

Chief Rotimi Williams Chambers

22.Abdulkareem

Khalid

23.Okeke

Amara

24.Nweke

Yvonne

Legalscope LP

25.Ali

Hassana

Penthouse Solicitors

26.Olaitan

Victor

Macbenson Consult

27.Offojebe

Emmanuela

Nero’s practice

28.Dennis

Ibu

29.Abd.rasheed

Abolanle

Ministry of justice

30.Okeke

Ugochukwu

A.O Odum & Co.

31.Adeleye

Peace

Kenna Partners

32.Oyewusi

Muraina

Afe Babalola & Co

33.Iyoyin

Toriseju

National Judicial Institute

34.Ajiboye

Jesutooni

AIDAN Partners

35.Ugiagbe

Kelvin

Awomolo & Associates

36.Olapade

Oladipo

Gravida Attorneys

37.Ujah

Malachy

Grandlaw Partners

38.Ochayi

Agbaji

Ebokpo, Adedayo & Co

39.Eze

Nnamdi

Ogebe Ogebe Legal practitioners

40.Abdullahi

Fulani

M.B Dan’azumi & Co

41.Ayanda

Joshua

Tayo Oyetibo LP

42.Irogbo

Elohor

Jakpor Law Office

43.Chukwurah

Christopher

Attah Ochinke & Co.

44.Nwigbo

Ohaleta

45.Esuola

Abdulwasiu

Citizens Gavel

46.Adewale

Adeola

Niyi Ogunjimi & Co.,

47.Bamidele

Olubukola

Diipo Olakulehin & Co.

48.Enwongulu

Mabel

Sodangi Danso & Co.

49.Ozegbe

Ruth

Wahab Egbewole & Co

50.NWEZE

Nmesonma

Lateef Fagbemi SAN and co

51.Bongning

Wilfred

52.Nurudeen

Yusuf

The LegalHub Partnership

53.Agboola

Olabode

DF Legal

54.Whisky

Dan

Pistis Partners LLP

55.Kesmen

Hope

Matthew Burkaa & Co law firm

56.Oguntona

Olikoye

Chief Toye Coker & co,

57.Emejulu

Odirachukwumma

Mohammed Ndayako & Co.

58.Eniola

Victor

Nigeria Slum/Informal Settlement Federation

59.Yorkuri

Uedum

60.Imade

Iyamu

Banwo and Ighodalo

61.Sanya

Sanya

The Blue

62.Olufemi

Faith

Afe Babalola & Co.

63.Akinbosade

Adenike

Afe Babalol & Co.

64.Balogun-Tolani

Sefiat

Afe Babalola & Co.

65.Adeyemo

Mary

Banwo & Ighodalo

66.Odjighoro

Ogheneyoma

Aluko & Oyebode

67.Kalesanwo

Folashade

Grand law partners

68.Majekodunmi

Tosin

Twelve Legal

69.Solanke

Ifeoma

Strachan Partners

70.Fisayo

Okuboyejo

Olu Ojujoh n co

71.Okoko

Ayezu

A.A.Ndubuisi and Associates

72.Njoku

Chidimma

British American Tobacco Nigeria

73.Busari

Isa

Agbaje, Agbaje and Co

74.Ezeokoye

Chukwuemeka

E.Osoka&Co.

75.Abdul

Aliu

Rivers State Ministry of Justice

76.Karimu

Olakunle

Olakunle Karimu & Co.

77.Idisi

Oke

Ochuko Akpobasa & Co

78.Eke

Sandra

S.P.A Ajibade & Co

79.Ayodele

Taiwo

A.O. Fayemiwo & Co

80.Ehinmosan

Oyewole

Spa Ajibade & Co.

81.Ayodele

Taiwo

A.O. Fayemiwo & Co

82.Ogazi

Emmanuel

A. O. Fayemiwo & Co.

83.Yusuf

Abdullahi

A.O. Mohammed & Co

84.Ezeh

Melvina

Mbanaso Udechukwu And Associates

85.Ezeogo,

Prisca

86.Tuki

Shatu

M.D Karshima & Co

87.Itodo

Achenyo

Eve Chambers

88.Hassan

Abiodun

Moshood Shehu & Associates

89.Menkiti

Chinelo

Perchstone And Graeys

90.Oladeji

Benjamin

Eze & Associates

The qualifying rounds will hold on Friday 22nd day of March 2019 after which the names of the finalists shall be published.