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

by Legalnaija | 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.)

by Legalnaija | 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:

Bisi Akodu (Mrs.)
–

Managing Partner at Olisa
Agbakoba Legal

Source: OAL Legal

Legalnaija Tip – What Is A Non – Compete Agreement

by Legalnaija | 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

Happy International Women’s Day 2019

by Legalnaija | Mar 8, 2019 | Uncategorized

Women are the largest untapped reservoir of talent in the world. – @hillaryclinton .

We celebrate women all over the world #internationalwomensday

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

by Legalnaija | 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 21^st 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 18^th 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

by Legalnaija | 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 *

by Legalnaija | 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.

by Legalnaija | 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.

Get Personalised Study ,Visa & Scholarships Advice at the Study UK Fair

by Legalnaija | Feb 25, 2019 | Uncategorized

Are you
considering an international education?

No better way
to evaluate your options than by attending the Study UK Fair.

You will
receive personalised counselling on the different study options

available to you , advice
from our visa experts as well as mentoring and

insider perspective from UK Commonwealth
Alumni

So get ready to
meet with UK institution representatives, UK Visas &

Immigrations service
representatives and commonwealth alumni, who will

be ready to answer your questions.

Date: 7 March
2019

Venue: Eko
Hotels & Suites, Victoria Island, Lagos

Time: 10:00am –
04:00pm.

We hope to see
you !

1st Interim Report Of The Nigerian Bar Association Election Workinggroup (2019 Nba-Ewg) On The 2019 Presidential And National Assembly Electionswhich Held On Saturday, 23rd February, 2019

by Legalnaija | Feb 25, 2019 | Uncategorized

Preamble

The Presidential and National Assembly Elections were conducted by
the Independent National Electoral Commission (“INEC”) on Saturday,
23rdFebruary, 2019 in all the thirty-six States of the Federation as well as
the Federal Capital Territory (FCT). The Elections were initially slated for
February 16, 2019 but were postponed at the instance of INEC by one week. The
Gubernatorial and Houses of Assembly elections are now scheduled to hold on
Saturday, 9th March, 2019.

Mandate

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 work of the 2019 NBA-EWG as stated by the NBA President was to
focus, amongst others, on observing the following:

i. The extent of compliance of all stakeholders with the governing
laws and regulations in the conduct of the elections;

ii. To what extent the elections are free, fair and credible and
that there is no voter intimidation and/or violence; and

iii. That every vote counts and to that extent, there is no
falsification or manipulation of the votes, howsoever, at any stage of the
election process, and that the announced results reflect the choice of the
voters.

Modus operandi

Having been duly accredited by the electoral umpire, INEC, the
2019 NBA-EWG not only mobilized its members but also deployed the membership of
the Association nationwide to observe and or monitor the elections in all the
States of the Federation and the FCT.

To ensure a seamless operation, the 2019 NBA-EWG set up a
Situation Room at the National Secretariat of the Association in Abuja where it
receives real-time reports and live feeds of events from its members who were
deployed on the field for the purpose of its mandate. Additionally, and in
order to achieve promptness, speed and coordination, the 2019 NBA-EWG procured
a toll-free telephone line where members called in with their reports and,
also, activated various social media platforms where it streams live reports
and events as contributed by members.

Nature of Report

This constitutes the 1st Interim Report of the 2019 NBA-EWG. The
Report makes no pretence at completeness but is submitted only as a precis of
the initial observations of its members in respect of or in relation to the
conduct of the national elections of Saturday, 23rd February, 2019. It is the
2019 NBA-EWG’s legitimate expectation that a comprehensive, composite and
all-encompassing report will be published at the completion each of the two
electoral tranches i.e.

(a) the Presidential and National Assembly Elections; and (b) the
Governorships and Houses of Assembly Elections. Meanwhile, as necessary and
required, additional Interim Reports may be issued by the 2019 NBA-EWG prior to
the publication of the final comprehensive report of the Group in respect of
the Presidential and National Assembly Elections.

Dramatis Personae

A total of Ninety-One (91) registered political parties
participated in the elections, although only Seventy-Three (73) of these
parties fielded candidates for the presidential elections in which the
incumbent President and candidate of the All Progressives Congress (APC),
Muhammadu Buhari, GCFR and a former Vice President and candidate of the
Peoples’ Democratic Party (PDP), Alhaji Atiku Abubakar, GCON, are said to be
the leading contenders.

Issues:

In respect of the Presidential and National Assembly Elections
of Saturday, 23rd February, 2019, the 2019 NBA-EWG reports as follows:

INEC and the challenges of
logistics

The NBA-EWG notes that although the elections were originally scheduled
to hold on Saturday, 16th February, 2019, INEC caused same to be postponed by a
week, citing “logistical challenges”. The NBA-EWG notes with regret, however,
that despite the postponement, the elections recorded some noticeable but
avoidable lapses associated with the same ‘logistical challenges’.

For example, members reported that polls did not commence at the
scheduled time of 8am in most polling units nationwide. This drawback was,
however, more manifest in the States of the South-South, South-East, South-West
and North-Central regions of the country.

In a number of polling units across the country, election
materials, especially ballot papers, were either over-supplied (i.e. in excess
of the registered voters in the polling unit) or under-supplied. From reports
available to us at this time, this situation was prevalent in the South-South
and South-East sub-regions, particularly in Edo, Akwa Ibom, Imo and Enugu
States respectively.

The 2019 NBA-EWG notes as well that in isolated cases (Owerri in
Imo State for example), INEC officials conducted the elections using
photocopies of approved ballot papers. In polling units where voters complained
about this unwholesome practice, the INEC officials rebuffed them and proceeded
to conduct the elections in that manner, nevertheless.

We also observed that many electoral officers could not locate the
Polling Units where they were to conduct elections. In one example at Dutse
Alhaji, Abuja FCT, polling officers who could not locate their polling unit
returned to a wrong polling unit with the electoral materials. In another
example in Abuja the polling officers actually commenced the conduct of
elections in a different and wrong polling unit.

Many voters also had difficulties locating their polling units as
there were insufficient details on the PVCs and at INEC website on how to
locate one’s polling unit. This was very prevalent in Abuja.

The splitting of the Polling Units into sub-units based on
alphabetical order without informing the voters or putting in place some order
in executing same, initially caused disenchantment as voters had lined up
randomly or in a single straight line in accordance with their time of arrival
not knowing that such polling units had been subdivided.

INEC hotlines were almost always unreachable and when reached
there was nobody to address callers’ enquiries and in some instances the calls
terminated on their own.

Smart Card Readers

The major complaints of the voters, as aggregated by members,
revolve around the card reader. The 2019 NBA – EWG reports that the performance
of the card readers, although not generally unsatisfactory, raised concerns and
provided sufficient basis for anxiety among the voting populace.

Some of the acknowledged complaints about or concerning the card
reader device include but are not limited to: inability to authenticate
fingerprints or biometrics, inaccurate or false outputs for identified card
holders, non-recognition of certain alphabets associated with some surnames or
forenames. Illustrative locations where these incidents occurred include some
polling units in FCT, Kano and Akwa Ibom States.

The Working Group reports also that in most units and concerning
the malfunctioned card readers, presiding officers commendably resorted to
manual accreditation to enable registered voters to cast their ballots.
However, this was not devoid of the associated suspicion by the voters of
possible abuse of such discretion by the polling officials.

The NBA-EWG reports also that in some polling units in Abuja, smart
card readers recognized voters’ cards but produced unintended outputs,
particularly in cases where, for example, the facial features of the Permanent
Voter’s Card (PVC) holder were inexplicably different from those displayed on
the card reader device. In such cases, the discretion whether the affected
voter proceeds with the voting process or should be disenfranchised rested with
the presiding officer. It was reported that in most of such peculiar cases,
such discretion was exercised against the registered voters.

By and large, the preponderance of opinion from the NBA-EWG, 2019
is that the smart card device although it may not have totally failed the
integrity test, created appreciable anxiety among the voting populace
consequent upon the reported cases of malfunction and/or outright performance
failure of the device.

We also observed a nation-wide absence of technical assistance
needed to resolve issues associated card reader malfunction. There were also issues
of non- availability of back-up card readers in most of the polling units
observed.

Electoral Violence

There were several reports and live feeds of electoral violence
from all over the country. Party thugs and hoodlums had a field day invading
voting centers to harass, molest and intimidate voters and, in some instances,
INEC officials. Strangely, in places where these despicable acts were recorded
or registered, security agents were either complacent or complicit.
Rivers, Lagos and Kogi states were notorious in this regard.

There were also confirmed reports from different parts of Nigeria
where voters were prevented, hindered or inhibited from performing their civic
responsibilities on the suspicion that their votes had the potential to produce
outcomes that were undesirable to or unintended by the illegal “enforcers” and
“gatekeepers”. Thus, voters were chased away and forced to return to their
homes. Akwa Ibom, Niger, Lagos, Imo, Kogi and Benue States rank high as
examples of places where these unconscionable and loathsome acts of voter
intimidation and suppression took place.

In some places, such as Lagos, Kano and Edo States, amongst
others, voters who wanted to vote for certain candidates were threatened with
violence, suffered violence and/or were prevented from voting by the earlier
referenced illegal “enforcers” and “gatekeepers”. Cases of supervised or guided
voting were also reported in parts of Kano State.

Additionally, the NBA-EWG situation room was inundated with
widespread reports confirming the manipulation of election processes by INEC
officials aided by party thugs and security agents. Such reports included
incidents where the Electoral Officers deliberately voided votes cast, refused
to allow some persons to vote, refused to allow voters whose names were on the
voters register to vote by using Incidence Forms where there were card reader
issues, giving out ballot papers with 2015 dates, refusing to stamp or sign or
date ballot papers, refusing to allow some party agents to inspect and confirm
the sensitive materials brought to polling units, etc.

Secrecy of the voting process

It was observed that all over the nation the INEC polling 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 voters or to pry into how they were voting. Lagos, Kano,
Edo, Imo and parts of Rivers States illustratively recorded these incidents of
gross breach of voter privacy. Neither the electoral officers nor the police
officers around the voting areas made any effort to prevent and/or stop this
unwholesome practice.

Voters’ Turn-Out.

The NBA-EWG reports that despite the late arrival of INEC
officials and voting materials, the turn-out of voters and their enthusiasm for
the elections was largely impressive and satisfactory.

Voters in many places helped 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.

In most of the polling units observed, there were significant
turnouts of senior citizens, women and even persons with disabilities.

Security Arrangements

It was observed that police personnel posted to voting centers
visited by the NBA-EWG members generally arrived on time apart from some
isolated instances where the absence of the police personnel were observed.
There were indeed cases where police personnel were completely absent or left
at some point and before the conclusion of the election processes at the
polling units.

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. It was also 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.

CONCLUSION:

As earlier indicated, this is but the 1st interim report of the
2019 NBA-EWG which may be followed by other interim reports, as deemed
necessary and required by the NBA-EWG. A detailed and final Report of the
Presidential and National Assembly Elections will be published by the NBA in
the fullness of time, specifically, after the release of all the Presidential
and National Assembly Elections results which would be preceded by (a) the
complete collation of the results by INEC; and

(b) the conduct of the elections in places where INEC has now
cancelled and rescheduled polls, notably in Rivers, Lagos and Akwa Ibom States.

SIGNED.

Mazi Afam Osigwe, FCIArb.
(UK)

Chairman

2019 NBA-EWG

23rd February, 2019

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