Legal Framework For Art Law In Nigeria | AOC Solicitors

by Legalnaija | Jun 20, 2024 | Uncategorized

INTRODUCTION

In Nigeria, there are several laws and regulations that govern art transactions and art laws, such as the Sale of Goods Act, the Copyright Act, the National Gallery of Art Act, the Value Added Tax Act, the Customs and Excise Management Act, etc.

1. CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (as amended)

Section 21 of the constitution provides that the state shall protect, preserve and promote the Nigerian cultures, which enhance human dignity. It also provides that the state shall encourage development of technological and scientific studies which enhance cultural values.[1]

Section 44(1) of the constitution guarantees the right to own and acquire movable property in Nigeria. Thus a person has a right to purchase and own an art work in Nigeria.

2. SALE OF GOODS ACT, 1893

Although artists create artworks to express their thoughts and emotions, selling these pieces is also a common practice. When an artist sells an artwork, a contract of sale sets out the terms and conditions of the transaction. This process involves various legal considerations governed by both general sales law and specialized art law. The Sales of Goods Act, 1893, is a key legislation regulating contracts of buying and selling in Nigeria. While it allows parties to set their own terms of agreement, it also provides certain implied terms to ensure fair and standard practices in sales contracts.

When artworks are bought and sold, the principles of the Sales of Goods Act often apply, but with specific considerations unique to art:

1. Implied Terms and Quality: Determining whether an artwork meets implied terms can be complex due to issues of authenticity, condition, and provenance[2].
2. Transfer of Property: Ownership and title transfer are critical, especially in ensuring there are no disputes over stolen art or unclear provenance[3].
3. Warranties and Representations: Sellers often provide warranties about the authenticity and provenance of art, which can lead to significant legal issues if breached[4].
4. Remedies: Buyers of art may seek rescission (cancellation) of the sale, damages, or other remedies if the artwork is found to be a forgery or misrepresented[5].

3. COPYRIGHT ACT, 2022

The copyright Act is the major legislation that protects the rights of original creators and authors in Nigeria.

Section 1 of the act expressly states out the objectives of the Act to include;

1. protect the rights of authors to ensure just rewards and recognition for their intellectual efforts ;
2. provide appropriate limitations and exceptions to guarantee access to creative works ;
3. facilitate Nigeria’s compliance with obligations arising from relevant international copyright treaties and conventions ; and
4. enhance the capacity of the Nigerian Copyright Commission for effective regulation, administration, and enforcement of the provisions of this Act.

Section 2 of the Copyrights Act lists the categories of works eligible for Copyright in Nigeria. They include;

1. literary works ;
2. musical works ;
3. artistic works ;
4. audiovisual works ;
5. sound recordings ; and

Section 10 of the Copyrights act provides that Subject to the exceptions specified in Part II of the Act, copyright in an artistic work shall be the exclusive right to do and authorise the doing of any of the following acts —

1. reproduce the work ;
2. publish the work ;
3. include the work in an audiovisual work ;
4. broadcast the work ;
5. communicate the work to the public ;
6. make the work available to the public by wire or wireless means in such a way that members of the public are able to access the work from a place and at a time individually chosen by them
7. make any adaptation of the work and
8. do in relation to an adaptation of the work any of the acts specified in relation to the work under subsection (1)(a), (b) and (c).

Section 14(1) (a) & (b) of the Copyright Act provides for the moral right of an artist. The author of a work in which copyright subsists has the right to claim authorship of his work, in particular that his authorship be indicated in connection with any of the acts referred to in sections 9, 10 and11of the Act, except when the work is incidentally or accidentally included in a broadcast when reporting current events. The author of a work also has the right to object and to seek relief in connection with any distortion, mutilation or other modification of, and any other derogatory action in relation to his work.

Section 17 of the act provides that, notwithstanding any assignment or sale of the original work, an author of an artistic work shall have an inalienable right to a share in the proceeds of any sale of that work by public auction or through a dealer, subsequent to the first transfer by the author. The right conferred by this section shall apply only to originals of such work. The condition for the exercise of the right conferred by this section shall be determined by regulations made by the Commission.

The duration for copyright in artistic works is provided in Section 19 of the act. Copyright in artistic works shall subsist until 70 years after the end of the year in which the author dies[6]. In the case of an anonymous artist, copyright shall subsist until 70 years after the year in which the work was first made available to the public with the consent of the author or 70 years after the work was created, if not made available to the public within that time, provided that when the author becomes known, known, the duration of copyright shall be in accordance with the provisions of subsection (1)[7].

Except as otherwise provided in an agreement, copyright conferred by this Act, shall initially vest in the author[8]. For the purpose of Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999, copyright shall be deemed to be movable property and shall be transferable by way of assignment, testamentary disposition or operation of law[9].

Copyright is infringed by any person who without the authorisation of the owner of the copyright;

1. does or causes any person to do an act, which constitutes a violation of the exclusive rights conferred under this Act ;
2. imports or causes to be imported into Nigeria any copy of a work which if it had been made in Nigeria would be an infringing copy under this Act ;
3. sells, offers for sale or hire any work in respect of which copyright is infringed under paragraph (a) ;
4. makes or has in his possession, plates, master tapes, machines, equipment or contrivances used for the sole purpose of making infringing copies of the work ;
5. permits a place of public entertainment or of business to be used for a public performance of the work, where the performance constitutes an infringement of copyright in the work, unless the person permitting the place to be used was not aware and had no reasonable ground to suspect that the performance constitutes an infringement of the copyright ;
6. permits within its premises, the reproduction of a copyright work ; or
7. performs or causes to be performed for the purposes of trade or business or the promotion of a trade or business, any work in which copyright subsists[10].

4. THE VALUE ADDED TAX ACT

Value Added Tax (VAT) is a consumption tax levied on the value added to goods and services at each stage of production or distribution. The current rate of VAT in Nigeria is 7.5%.

The sale of artworks by artists, galleries, dealers, and auction houses is typically subject to VAT. Understanding VAT and its implications on the sale and purchase of artworks is crucial for both artists and buyers. It ensures compliance with tax laws and helps manage the financial aspects of art transactions effectively.

5. CUSTOMS AND EXCISE MANAGEMENT ACT

In Nigeria, the Customs Act and Art Law intersect in several significant ways, particularly concerning the import and export of artworks. Understanding these legal frameworks is essential for artists, collectors, dealers, and cultural institutions engaged in international art transactions.

6. NATIONAL COUNCIL FOR ARTS AND CULTURE ACT

This act establishes the National institute for Cultural Orientation with the objective of promoting and fostering the appreciation, revival and development of Nigerian Arts and Culture.

7. THE NATIONAL ART GALLERY ACT

This Act establishes the National Gallery of Art, which is responsible for collecting, preserving, and promoting Nigerian visual arts. It also provides for the regulation of art exhibitions and the promotion of art education.

8. TRADEMARKS ACT (CAP T13, LAWS OF THE FEDERATION OF NIGERIA 2004)

The Trademarks Act protects the intellectual property rights of artists and creators by allowing them to register trademarks for their works. This can include logos, symbols, and other distinctive marks used in commerce.

CONCLUSION

The legal framework of art law in Nigeria is multifaceted, involving various laws and institutions aimed at protecting and promising the heritage of art works as well as protecting the rights and interest of art stakeholders.

References

[1] Section 21, 1999 Constitution of the Federal Republic of Nigeria.

[2] Section 10, 12, 14 and 15 of the Sale of Goods act, 1893.

[3] Ibid at 2

[4] Section 12, Sale of Goods Act, 1893.

[5] Section 39, Sale of Goods Act, 1893..

[6] Section 19(1) Copyright Act, 2022

[7] Section 19 (2) Copyright Act, 2022

[8] Section 28, Copyright Act, 2022

[9] Section 30, Copyright Act, 2022

[10] Section 36, Copyright Act, 2022

Source: AOC SOLICITORS

#NBALAGOSLAWWEEK: Welcome Address By Chair Planning Committee 

by Legalnaija | Jun 13, 2024 | Uncategorized

It is with profound honor and a deep sense of privilege that I welcome you to NBA Lagos Annual Law Week 2024. In this distinguished gathering, we are united in our commitment to confront and navigate the significant transformations our profession faces, particularly as we adapt to the global shifts in legal practice.

This year’s Law Week theme, “Charting New Legal Frontiers: Practice of Law in Nigeria, Cross-Border Alliances & Partnerships,” reflects our collective ambition to forge new paths in the practice of law. We are navigating an era where global partnerships and cross-border collaborations are not just beneficial; they are imperative for success and sustainability. As we explore these frontiers, we aim to adapt and thrive in a landscape marked by rapid changes and increased connectivity.

Throughout the week, our sessions are designed to tackle various facets of our theme comprehensively. We will delve into strategies for expanding Nigerian legal practices into new markets, mastering the challenges of maintaining dual qualifications, and effectively utilizing technological advancements such as AI and blockchain. Additionally, we address pressing concerns such as the brain drain and the urgent need for talent retention within our legal community. These discussions aim not only to provide us with the knowledge to explore current trends but also prepare us for emerging opportunities and challenges. Each session is crafted to enhance our understanding and equip us with the tools to lead in the global legal arena, manage complex international transactions, and foster resilient partnerships that ensure that we remain at the forefront of legal innovation and excellence.

It is my distinct pleasure to specially acknowledge our keynote speaker, Mr. Segun Osuntokun, the Global leading partner in Bryan Cave Leighton Paisner, one of the foremost global law firms.

I also want to extend my heartfelt gratitude to our panelists, moderators, and debaters, whose invaluable contributions will be pivotal to the success of this week. Each of you will bring depth, expertise, and diverse perspectives that will enrich our discussions and expand our horizons. Your willingness to share your knowledge and engage in meaningful dialogue will enhance the quality of our sessions and inspire us all to strive for excellence in our practices.

We will be marking Nigeria’s Democracy Day within this eventful week, and a democracy walk will be held to remind us of the important role that our profession plays in nurturing and safeguarding the tenets of democracy. The Democracy Walk will be held alongside a series of community-focused events that highlight our commitment to societal betterness. These include a Charity Visit to Island Maternity and a Charity & Legal Clinic at Ikoyi prison—activities that not only exemplify our profession’s role in advocacy but also ground us in the everyday realities that shape our legal frameworks.

The Bar and Bench Forum is a cornerstone of this week’s activities and will serve as a vital platform for open dialogue between the judiciary and the legal profession. This forum will play a critical role in bridging gaps and promoting a more cohesive approach to justice and advocacy.

A special highlight of our week is the New Wigs Induction, a venerable tradition of the NBA Lagos Law Week. This ceremony is a significant rite of passage for our newest members and a celebration of their entry into the legal profession. It is an opportunity for us to welcome fresh talent and for them to imbibe the ethos and responsibilities of the noble path they have chosen.

Amidst the intellectual rigor of our sessions, we have also curated moments for relaxation and celebration, which are crucial for our personal and professional well-being. The Honourable Chief Judge’s Cocktail, the Red Carpet Law Week Theme Party, and the Elders’ Night for senior members of the Bar offer splendid opportunities for us to unwind and forge deeper connections with our peers in more informal settings.

The week will culminate in a spirited Novelty Football match and a Family Fun Day, a day for our members to unwind with their loved all ones, because we believe that ‘all work and no play’ should never be our motto.

I would like to extend a heartfelt vote of thanks to Mr. Olabisi Makanjuola, chair of our branch, and his executive committee for their visionary leadership and steadfast dedication to innovation. I also wish to pay tribute to the members of our planning committee, whose sacrifices and hard work have been the backbone of this event’s success. Your dedication and commitment are what make this law week possible, and for that, we are immensely grateful.

Our sponsors also deserve our gratitude for their generous support. Their commitment has enabled us to create a week filled with valuable learning and networking opportunities.

Lastly, I sincerely thank all of you, our delegates, for attending. Your presence enriches our discussions, your insights enhance our learning, and your commitment to our profession inspires all of us.

Thank you for joining us. Welcome to what promises to be not only an informative but also an inspiring and transformative week.

Mrs. Folashade Alli (SAN)

Monday, 10^th Of June, 2024

Judicial Review: Tolulope Aderemi Vs. Kenya Airways Limited

by Legalnaija | Jun 10, 2024 | Uncategorized

Overview:

In the case of Tolulope Aderemi v. Kenya Airways LTD, the Honourable Court addressed a passenger’s claim against Kenya Airways Ltd. for a significant flight delay. The plaintiff, Mr. Tolulope Aderemi, sought compensation for the inconvenience and untold hardship he incurred due to the wanton delay of flight KQ535D from Lagos, Nigeria to London through Nairobi initially scheduled for Saturday, 3^rd of August, 2019. The Court held that the Defendant’s summary cancellation, wanton delay of journey and inexplicable failure to communicate the rescheduling amounted to negligence. Also that the Defendant’s failure to notify the Claimant of the flight cancaellation amounted to a breach of contract by air. The Court also awarded the sum of $5,180 to the Claimant.

Facts

Mr. Tolulope Aderemi was scheduled to fly from Lagos, Nigeria to London through Nairobi on Saturday, the 3^rd of August, 2019. The flight, operated by Kenya Airways LTD, was delayed to Sunday, the 4^th of August, 2019. Mr. Tolulope Aderemi claimed that the failure of the airline to provide prompt and adequate communication of the delay amounted to negligence and also occasioned untold hardship and inconvenience to him.

Mr. Tolulope Aderemi instituted an action before the Honourable Justice Faji, sitting at the Federal High Court, Ikoyi, Lagos, seeking compensation under the Montreal Convention and the Nigerian Civil and Aviation Act, which governs international air travel and provides for passenger rights in cases of delays, cancellations, and other disruptions. Upon hearing the arguments of parties, the Honourable Court dismissed reliefs number 4 and 5 claimed by the Plaintiff and in the same vein, awarded the sum of $5,180.00 (Five Thousand One Hundred and Eighty Dollars) in favour of the Plaintiff.

Reliefs claimed by the Plaintiff

The reliefs clamed against the Defendant were as follows;

1. A DECLARATION that the summary flight cancellation, wanton delay of journey, inexplicable failure of the Defendant to promptly communicate the rescheduling of flight KQ535D from Saturday, the 3^rd of August 2019, to Sunday, the 4^th of August, 2019; the flight from Lagos, Nigeria to London through Nairobi amounts to negligence.
2. A DECLARATION that the failure of the Defendant to notify the Plaintiff and his agent of the alleged cancellation/rescheduling of flight KQ535D from Saturday, the 3^rd of August, 2019, to Sunday, the 4^th of August, 2019 amounts to breach of contract by air.
3. A DECLARATION that the Defendant was negligent in handling the summary flight cancellation, wanton delay of journey and failure to notify the Plaintiff of the rescheduling of flight KQ535D from Saturday, the 3^rd of August 2019, to Sunday, the 4^th of August, 2019.
4. A DECLARATION that the Defendant’s failure to airlift the Plaintiff’s passenger luggage on the return flight from London to Nairobi with the attendant inconvenience and untold hardship foisted on the Plaintiff amounts to negligence.
5. A DECLARATION that the Defendant’s failure to airlift the Plaintiff’s passenger luggage on the return flight from London to Nairobi with the attendant inconvenience and untold hardship foisted on the Plaintiff amounts to breach of contract of carriage by air.
6. The sum of $5,180.00 (Five Thousand One Hundred and Eighty Dollars) representing the Defendant’s liability under the Montreal Convention for the delay in airlifting the Plaintiff and rescheduling of flight KQ535D from Saturday, the 3^rd of August 2019, to Sunday, the 4^th of August, 2019.
7. General damages in the sum of N50,000,000 (Fifty Million Naira) being compensation for anguish , psychological trauma and mental distress occasioned by the summary cancellation and or rescheduling of Flight KQ535D from Saturday, the 3^rd of August 2019, to Sunday, the 4^th of August, 2019 and subsequent delay/failure to airlift the Plaintiff’s Passenger luggage on the return flight from London to Nairobi.

Rationale of the Court

The Honourable court after considering the arguments of both parties formulated two issues for legal determination to wit;

• Whether in view of the state of the parties’ pleadings, the evidence led and all surrounding facts and circumstances of this case, the Plaintiff has made out a case of Breach of contract of carriage by air and willful misconduct?
• If issue 1 is answered in the affirmative, whether the Plaintiff is entitled to the reliefs sought?

The court went further stating that the Plaintiff’s claim is two-fold to wit;

1. Cancelation/delay of his flight from Lagos to Nairobi
2. Delay in delivering his checked-in luggage on his return from London through Nairobi to Lagos.

The Honourable court in addressing the issues of parties, rightly identified thus;

“I think it is fairly common ground that the instant suit involves an International Carriage by Air (Colonies, Protectorate & Trust Territories) Order, 1953 which became operational on the 1^st of January, 1954.The MontrealConvention was ratified by Nigeria and domesticated by virtue of the Civil Aviation Act (CAA) of 2006. Even though there is a new Civil Aviation Act of No. 30 of 2022 which came into force on the 16^th of August, 2022, the applicable law to this suit is CAA 2006 which was the law in force when the cause of action arose in 2019.”

In view of the provisions of Article 19 of the Montreal Convention the court stated that there is no liability if the carrier can show that it took all measures that could reasonably be required to avoid the damage or that it was impossible for it to take said measures.

In light of the above, the court identified that Kenya Airways Ltd gave no explanation whatsoever for the delay. In the wordings of the court;

“There is no evidence of steps taken by the carrier to avoid the delay. There is no reference whatsoever to the reasons for the delay a fortiori an explanation of same or an indication of steps taken by the carrier to prevent the delay. It is also not in dispute that the carrier has a duty to notify the passenger in the event of a delay in flight. Much has been said about this.”

This ultimately led the court to find the Defendant’s conduct to be willful and consequently deprives it of the limitation protection in article 22 (1) (2) of the Montreal Convention. In a similar vein, the Honourable court opined thus;

“I find the totality of the of the defendant’s conduct on this score to be willful. It therefore seems to me that the conduct of the defendant herein deprives it of the limitation protection in Article 22 of the Montreal Convention and at the same time falls squarely within Article 22 (5) of the Montreal Convention as the failure to communicate the delay and the attendant failure to explain the delay on the particular day was done with intent to cause damage”

So in essence, the failure of the Defendant to communicate the delay, explain the delay and show the necessary steps it took to prevent said delay, would lead the court to invariably construe that said delay was done with intent to cause damage. In the wordings of the Honourable Court;

“In the instant case, the combination of the failure to notify the Plaintiff or his agent of the delay in the flight as well as the failure to explain why the delay and the steps taken to prevent same from happening show a willfulness on the part of the defendant to cause damage to the Plaintiff.”

The rationale of the court as pointed out in the above is particularly instructive as in the instant case, the Plaintiff claimed an amount in line with the limitation clause in Article 22 of the Montreal Convention. It goes without saying that Mr. Tolulope Aderemi would have been entitled to more than the $5,180.00 (Five Thousand One Hundred and Eighty Dollars) he claimed. According to the Honourable court, “the Plaintiff however claims a sum which he contends is the limitation figure. I cannot therefore give more than the plaintiff has claimed.”

With regards to the second half of the Plaintiffs claim, the Honourable court in identifying whether there was indeed a delay in delivering the plaintiff’s checked-in luggage, stated that the answer to said question is contained in Article 17(3) Montreal Convention.

Said Convention provides;

If the carrier admits the loss of a checked baggage or if the checked baggage has not arrived at the expiration of the twenty-one days after the date which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.

The court interpreting the above provision stated that;

“It is not in issue that the checked in luggage arrived within 21 days of the date it was supposed to arrive. It is only if it does not so arrive that the passenger is entitled to enforce the provisions of the Montreal Convention on delay in delivering the checked-in luggage.”

Following the above, the court held that the claim for delay in delivery of Plaintiffs checked in luggage is not actionable as the luggage was delivered per the requirements of the law.

Implications

This judgment undoubtedly underscores the obligations of airlines under the Montreal Convention, particularly regarding delayed flights. The court’s decision has several implications which include:

1. Liability for Delays: The Honourable court’s decision makes clear that airlines cannot evade liability for delays caused to passengers without showing that it took reasonable measures to prevent said delay.The decision of the court also emphasizes the airline’s duty of care towards its passengers.

In the wordings of the Honourable court;

“the defendant did not only breach the contract of carriage to carry the Plaintiff on the 3rd of August 2019 but also took no measures to prevent the delay or at best failed to show what steps it took to avoid the delay. It also failed to notify the plaintiff of the change in advance of the flight. That seems to be negligence. That is also akin to willful misconduct, a term which must be view of the peculiar circumstances of the case. In the instant case, the combination of the failure to notify the Plaintiff or his agent of the delay in the flight as well as the failure to explain why the delay and the steps taken to prevent same from happening show a willfulness on the part of the defendant to cause damage to the Plaintiff.”

The foregoing implies that when an airline is unable to discharge its burden of proof and show that it not only notified the passenger of the impending delay but that it also took certain steps to avoid the delay. The court would infer awillfulnesson the part of the airline to cause damage to the passenger.

Such inference implies that the airline would be unable to plead the limitation clause contained in Article 22(1)(2) of the Montreal Convention and would rather be liable under the provisions of Article 25 of the Montreal Convention.

2. Passenger Rights: The judgment also reinforces passengers’ rights to seek compensation for significant delays, particularly when airlines fail to fulfill their duty of care. This includes the right to receive timely information, assistance, and compensation for damages and any inconvenience.
3. Obligations of airlines: The judgment illustrates the obligations of airlines under the Aviation laws to provide adequate care and communication during delays. This case serves as a precedent, encouraging airlines to adopt more robust contingency plans and ensure compliance with passenger rights regulations.
4. A party cannot benefit from its wrongdoing: The Honourable court in the instant case also reaffirms the equitable principle of Ex turpi causa non oritur actio. In the wordings of the Honourable court, “It seems strange to me that a party would rely on the inadequacy of its system in justifying its wrongdoing.”
5. Double compensation: the refusal of the Honourable court in the instant suit to award both claims of $5,180.00 (Five Thousand One Hundred and Eighty Dollars) and N50,000,000 (Fifty Million Naira) by the Plaintiff, reaffirms the rule against double compensation as succinctly held in the case of British Airways v. Atoyebi (2014) LPELR-23120(SC).

Conclusion:

The instant suit is a pivotal case reinforcing the protections afforded to passengers under the Montreal Convention. The judgment serves as a reminder to airlines of their obligations to notify passengers of delays and take such steps to avoid such delays. As flight delays and disruptions remain a common issue in air travel in Nigeria, this case may influence future litigation and encourage airlines to adopt a more passenger-friendly approach.

The decision of the court in favor of the Plaintiff sets a meaningful precedent, ensuring that passengers have recourse and that airlines in Nigeria are held accountable for service failures. This decision will likely prompt airlines to review and enhance their contingency plans and communication strategies to avoid similar liabilities in the future.

Sponsorship Opportunity for Young Lawyers at the 18th Annual International Business Law Conference

by Legalnaija | Jun 5, 2024 | Uncategorized

The Nigerian Bar Association, Section on Business Law (NBA-SBL), is pleased to announce sponsorship opportunities for young lawyers to attend this year’s Annual International Business Law Conference. Following the success of last year’s initiative, NBA-SBL is once again offering this sponsorship opportunity to support the professional development of young legal practitioners and provide them with access to valuable learning and networking opportunities.

Eligibility Criteria:

1. You must be a young lawyer with 0-3 years of post-call experience
2. You must not be more than 25 years of age
3. You must have paid your 2024 Bar Practicing Fees (BPF) and NBA-SBL dues

If you meet the above criteria, you are eligible to apply for sponsorship to attend this year’s Annual Conference, scheduled to take place from June 26th to 28th, 2024, at the Abuja Continental Hotel, Federal Capital Territory, Lagos.

“We are excited to bring back this sponsorship opportunity for young lawyers,” said Ose Okpeku, Chairman of the NBA-SBL Conference Planning Committee. “It is part of our commitment to support the next generation of legal professionals and provide them with access to resources that will contribute to their professional growth and success.”

To stay informed about the selection process, trivia questions, and other updates regarding the sponsorship opportunity, kindly follow the NBA-SBL on social media platforms:

– Twitter: @nbasblofficial

– Instagram: – @nbasbl

Interested candidates are advised to keep an eye on these platforms for further information on how to apply for sponsorship and stay updated on conference-related news and announcements.

For more information about the conference, sponsorship opportunities, and registration details, please visit https://conference.nbasbl.org. Please visit the NBA-SBL website at www.nbasbl.org or contact the Conference Secretariat at info@nbasbl.org for additional information.