by Legalnaija | Oct 12, 2023 | Blawg
The public space has been inundated with so much kerfuffle surrounding alleged organ theft, shrinkage or disappearance. This development has thrown most residents of the FCT, Kogi, Nasarawa and other Northern States where these allegations have been reported into fear of genital loss.
Different views have been expressed by different schools of thought on this subject. First, is the School of Thought that posits that the idea of genital disappearance or shrinkage is a ridiculous hoax. The second school of thought hold the view that fetish practices form part of the African system, hence human organs can be mysteriously stolen without physical severance. The third school of thought, which can be likened to the biblical character Thomas, hold the view which can be summarized as “Unless I see and confirm with my “naked eyes” I will not believe”.
Daily Trust Newspaper reported an incident of a missing genital at Sabon- Tasha motor park area in Abaji FCT on September 14, 2023, where a man identified as Godwin, a commercial bus driver, was reported to have allegedly stolen another man’s male organ, identified as Sadiq. The victim claimed that the suspect, who was travelling with passengers from Zuba to Edo State, stopped over at Abaji, where he had a handshake and asked him where he could buy drinks. Shortly after that, the victim raised an alarm that his genital organ had disappeared, which led to the arrest of the driver by some people around the motor park, where he was beaten by a mob and later rescued to the police area command.
The driver was said to have been freed by the police after the victim, who was taken to the hospital, later confirmed that his male organ had returned
In another video which circulated on social media, a man who appeared to have been severely beaten was seen assuring a victim that his reproductive organ will be restored before 4:30pm “by the grace of God”.
Also, three persons, including a commercial cyclist, were said to have raised the alarm that their male organ got missing at Anguwar Gede in Kuje Area Council of the FCT on September 15, 2023.
On 20th September 2023, one Usman Muhammed, an 18-year-old scavenger residing in Gwagwalada area of FCT alleged that one Abba who shook his hand, stole his manhood. According to Usman:
“…he extended his hand towards me for a handshake; I extended mine too. Immediately after he left my hand, I felt very uncomfortable. It felt like I was in a trance with some kind of shock in my body, and my private part was missing. Immediately, they started moving away; Abba pushed me and they drove away,”
The Commissioner of Police, CP Haruna Garba, disclosed at the FCT Command’s headquarters, while addressing journalists at a press briefing on 3rd October 2023 thus:
“Fourteen suspects who claimed that their male organs have disappeared were taken to the hospital where the medical doctor confirmed that their male organs are intact and active. Consequently, they were charged to court for giving false information and inciting public disturbance. I wish to seize this opportunity to appeal to the residents of FCT to warn their wards and children to desist from raising false alarm.”
On 10th October 2023, Vanguard Newspaper online, reported that at the Federal Secretariat a woman, alleged that her private part was stolen. However, the FCT Police Command dispelled the allegation as false and disclosed that the woman will be charged to court for raising false alarm.
From the versions reported in print and social media, the alleged disappearances or shrinking took place the moment there was physical contact between the culprit and victim.
POSITION OF THE LAW
The subject of genital theft is not new to the Nigerian system. Cases of organ theft have been recorded, albeit in a different form. The common reports pertain to ritual sacrifices whereby the victim’s members of the victim is severed from his/her body. The Courts have also recognized and acknowledged the existence of ritual sacrifices in our system.
In Fatai V. State [2013] 10 NWLR Part 1361, the Supreme Court observed that:
“Not only is the appellant and his gang a group of morally depraved brutes, their behaviour portrayed them as wild animals in human form. The offences of raping and slaughtering the women folk appear to be on the increase and so also is the heinous crime of killing women for ritual purposes.”
Also in Aiwuyor V. State [2022] 13 NWLR (Part 1846) at 89, the Court observed thus
“Being a child of only three years of age at the material time and the circumstances as revealed by the evidence of PW1, PW4 as well as DW1 and DW2, the presumption that she was/is dead is cogent and compelling in the absence of explanations from the appellant and her co-conspirators of where they took and what happened to the helpless child victim, she wanted for rituals to enhance her luck in life.”
The most proximate Judicial and statutory allusions to the subject under discourse relate to statutory provisions and judicial pronouncements on use of charms, witchcraft and superstition.
Section 213 of the Criminal Code Act provides that:
“Criminal charms
Any person who‐
(a) makes, sells or keeps for sale or for hire or reward, any fetish or charm which is pretended or reputed to possess power to protect burglars, robbers, thieves or other malefactors, or to aid or assist in any way in the perpetration of any burglary, housebreaking, robbery or theft, or in the perpetration of any offence whatsoever, or to prevent, hinder or delay the detection of or conviction for any offence whatsoever; or [Underlining mine for emphasis]
(b) is found having in his possession without lawful and reasonable excuse (the proof of which excuse shall lie on such person) any such fetish or charm as aforesaid,
is guilty of a felony and is liable to imprisonment for five years.
On its part, the Penal Code provides as follows:
“216. Whoever-
(a) by his statements or actions represents himself to be a witch or to have the power of witchcraft; or
(b) accuses or threatens to accuse a person with being a witch or with having the power of witchcraft; or
(c) makes or sells or uses, or has in his possession or represents himself to be in possession of any juju, drug or charm which is intended to be used or reported to possess the power to prevent or delay a person from doing an act which that person has a legal right to do, or to compel a person to do an act which that person has a legal right to refrain from doing, or which is alleged or reported to possess the power of causing a natural phenomenon or a disease or an epidemic; or
(d) presides at or is present at or takes part in the worship or invocation of any juju which has been declared unlawful under the provisions of section 215 of this Penal Code; or
(e) is in possession of or has control over any human remains which are used or are intended to be used in connection with the worship or invocation of any juju; or (f) makes or uses or assists in making or using, or has in his possession anything whatsoever the making, use or possession of which has been declared unlawful under the provisions of section 215 of this Penal Code, shall be punished with imprisonment which may extend to two years or with fine or with both.
(f) makes or uses or assists in making or using, or has in his possession anything whatsoever the making, use or possession of which has been prohibited by an order as being or believed to be associated with human sacrifice or other unlawful practice,
For judicial pronouncements, in the recent case of State v. Ibanga [2021] 5 NWLR Part 1769 253
“On Ingredients of offence of placing charm –
To prove an offence of placing charm, the prosecution needs to establish the following:
(a) that the accused person has placed the charm;
(b) that the charm was intended to be used or isr eported to possess the power to prevent or delay the person from doing an act which he has legal right to do or to compel him to do an act which he has a legal right to refrain from doing;
(c) that the charm possesses the power of causing any natural phenomenon or adverse consequences. [Underlining is mine for emphasis]
As noted above, the laws highlighted are the most proximate allusions to the discourse and do not squarely fit into the subject under scrutiny. Clearly, our laws recognize the existence of fetish practices, although, the possibility of genital theft by fetish means has never been submitting to the judiciary for determination. In the case of physically genital severance culprit are charged for “causing grievous hurt” or other kindred offences.
Whilst fetish practices and use of juju may be considered abstract, they remain common in Africa and cannot be ignored, hence their recognition under our Criminal Laws.
From the information available in the public space, there is no single victim of a purported genital theft whose genital has been confirmed missing by a certified medical practitioner, although this is not an attempt to dismiss the claims made by alleged victims especially as fetish practices, use of juju and witchcraft have been characteristic of the African system.
Hence, It is this author’s view that where there is expression of contrition and admission by the culprit to the use of fetish means to tamper with a person’s genital, same should be liturgically investigated and submitted to court for determination. In the interim, members of the public are enjoined to refrain from participating in any forms of Jungle justice as that in itself is an offence.
Arome Abu is the Managing Partner of TCLP.
CAVEAT: Note that this information is provided for general enlightenment purposes and is not intended to be any form of legal advice.
Obscure Legal Facts is an exclusive publication of THE COUNSEL L-P. ABUJA, FCT
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by Legalnaija | Oct 2, 2023 | Blawg
1.0 THE FUNDAMENTALS OF FINANCIAL STATEMENTS
Financial statements are crucial reports which provide information about a company’s financial results, its financial position, and cash flow. They provide essential accounting information that help businesses track financial activities, assist potential and existing investors in making investment decisions and government regulators make fiscal assessments.
To this intent, this article shall examine the liability of directors’ breach of duty of care, skill, and diligence, arising from presenting misleading financial statements, which could amount to either fraudulent or negligent misrepresentation, and the extent to which directors can rely on the advice of professionals such as independent auditors, the company’s audit committee and executive officers of the company.
Due to the transnational nature of corporate law, judicial decisions of the English and Australian jurisdictions are considered in establishing liabilities connected to a person discharging managerial responsibility who makes disclosures in financial statements which are not only untrue thereby capable of reasonably influencing users of financial information place reliance on them.
2.0 ISSUES ARISING FROM RELIANCE ON FINANCIAL STATEMENTS
The Companies & Allied Matters Act 2020 confers responsibility of preparing financial statement on directors of both private and public limited liability companies on an annual basis (also quarterly for public companies) and further provides for the type of accounting information directors are expected to include when preparing financial statements . These information are usually retrieved from a company’s financial activities and performance, providing an invaluable resource for assessing the financial liquidity, and capacity of a company to maximise shareholders’ value. It is also used by directors of a company to evaluate financing, investment, and taxation objectives. While auditors are to provide expert advice to directors, statutory provisions, and judicial decisions maintain that directors are primarily responsible for preparing accurate financial statements. On the other hand, the Chief Executive Officer, Chief Financial Officer or persons providing similar functions are responsible for certifying audited financials and are further mandated to discharge this corporate responsibility in accordance with specified standards.
For instance, the accountant certifying the financial statement complies with accounting standards i.e International Financing Reporting Standards (IFRS) for public companies and in the case of a private company, Accounting Standard for Private Enterprises (ASPE). Failure to discharge this duty accordingly amounts to a conviction specified in the CAC Regulation.
In the business world, buying, keeping, and selling company shares entail enormous risk taken by local and foreign investors because of the high degree of reliance made on financial statements which may sometimes be inaccurate. Global events are replete with instances where companies present false trajectories on liquidity, dividend and bonus shares pay out in order to attract users of financial statements i.e investors, financial institutions. The outcomes of such failings are usually tied to directors’ duty of care and diligence, poor corporate governance practices which could lead to the removal of any director found wanting.
In a recent Autonomy and HP litigation, ACL Netherlands BV & Ors v Lynch & Anor , The High Court found two executive directors, Mike Lynch and Sushovan Tareque Hussain, liable for making false financial statements in Autonomy’s annual report. The court held these directors responsible for providing false information regarding the company’s financial performance on its software product known as IDOL. They claimed that Autonomy was solely a software company, but in reality, Autonomy engaged in reselling computer hardware to generate more revenue. By combining the sales of hardware and software in Autonomy’s quarterly and annual reports, the directors created a false impression that Autonomy was a very successful technology UK start-up. Based on these presentations, the claimants acquired Autonomy, and purchased it at an overpriced value. On discovery of the true facts, they commenced an action I damages against the directors of autonomy and amongst other relief sought for their removal.
On the issues of fraudulent information, the court ruled that for the financial representation of the defendants to qualify as a misleading statement, it is sufficient that the misleading statements “has an impact on the mind” which led the claimants into making an investment decision . The court also held that in establishing liability connected with damages associated with a misleading statement, a person discharging managerial responsibility in this case a director, must have been aware that the statement is untrue at the time it was made or appreciate that relevant information was not being disclosed. Additionally, the court emphasized that the company’s auditors cannot be considered as the ultimate test or a safe guarantee for matters that fall under the directors’ responsibility .
On the issue of relying on negligent misrepresentation, the director duty of care, skill and diligence is essential in assessing the liability of the director. In Australian Securities and Investments Commission v Healey also referred to as the Centro case, the court considered the issue of whether an omission made by the director would give rise to liability in damages against such director.
Here, the directors of Centro Property Group (CNP) and Centro Retail Group (CER) classified current liabilities incorrectly as non-current liabilities. CNP also provided guarantees to an associated company which amounted to US$1.75 billion after the balance date, without disclosing this material post balance date as required by accounting standards. In one of the reliefs sought against the directors, the claimant maintained that the directors were in breach of sections 180 and 344 of the Corporations Act 2001. While Section 344 mandates directors to take “all reasonable steps to comply with, or secure compliance with sections 296 and 297”. Section 296 requires financial reports to follow applicable accounting standards, while section 297 stipulates that financial statements present a true and fair view of the company’s financial position and performance, and section 180 requires directors to exercise their duties with care and diligence. The claimant, thereafter, sought a declaration that the directors had contravened sections 180 and 344 and claimed damages and further sought an order disqualifying the directors.
Although the directors maintained that it was unrealistic to expect them to review voluminous board papers alongside the draft financial statements and they claimed that they were unaware of the specific pages containing CER’s debt, the court held that the directors could have prevented the information overload and held them responsible for not identifying the errors in the financial statements or seeking clarification from management and auditors. Consequently, the directors were liable to the breach pursuant to sections 180 and 344.
We also note that the court held that while directors can rely on expert advice, they cannot abdicate their own fundamental responsibility to review and approve the company’s financial statement.
From the foregoing cases, the courts consistently require directors to exercise care, skill, and diligence when preparing financial statements, regardless of whether any misleading statements were occasioned by fraudulent misrepresentation or mistakes arising from negligent misrepresentation. This position was also emphasised by the Court of Appeal in our jurisdiction, as demonstrated in the case of Okeke v. SEC & ORS where the Court of Appeal held that “the provisions of Sections 331 – 333 of the CAMA 1990 impose a duty upon a company to keep proper and accurate records of accounts and the penalties for non-compliance therewith. Likewise, Sections 334 – 337 impose a duty upon Directors of the Company to prepare annual accounts. Sections 345 – 348 of the Act have equally imposed a duty on Directors to deliver financial statements, and the penalties for non-compliance therewith”.
From the judicial decisions and statutory provisions cited, there’s a mandatory requirement by law imposed on directors of companies to prepare accurate financial statements, which is connected to their duties of care and skill. Failure to comply inevitably incurs penalties, extending from damages to removal of such director from office.
3.0 KEY LESSONS
Having established the fact that directors are personally liable for preparing financial statements, it also projects the corporate governance practices of such organisation which invariable leads to corporate reputational damage, loss of shareholders’ capital which could plummet into insolvency and the eventual job losses.
Despite the passage of Nigerian Code of Corporate Governance 2018 and the Companies and Allied Matters Act 2020, multinational and indigenous companies’ board and management are still found wanting when exercising their corporate responsibilities in this regard. In 2021, the World Bank refrained from executing any contract with nine Nigerian individuals and firms due to bad corporate governance practices, extending to fraud, and collusive practices. This implies that there is a huge demand for recruiting reputable and competent directors where the goal is not only to build profitable organisations but enduring ones. Statutes and judicial decisions are also consistent in qualifying the standards required by directors in discharging their corporate responsibilities when preparing financial statements: that they should act professionally at all times, possess the requisite knowledge of accounting practice and concepts in assessing financial books and preparing accurate statements, develop the right disciplines for their roles, balance the need for sufficient information from management, whilst carefully and diligently reviewing all of the financial information presented in annual reports including asking management and the auditors the right questions.
Ultimately, shareholders are also statutorily empowered to exercise their powers at general meetings to remove a director liable for making misleading statements to protect the company from further financial and/or reputational loss.
Author: Adeola Osifeko
Bio: Adeola is an IP lawyer, transactional and corporate governance practitioner with local expertise and global outlook. She curates corporate commercial contents on legal advisory and regulatory compliance needs for start-ups, SMEs and corporate entities seeking to establish, run and scale their businesses in Nigeria. She can be reached by sending an email to adeola@aeolawpractice.com
by Legalnaija | Sep 21, 2023 | Uncategorized
Amanda Nneoma Uzoagba
Amanda Nneoma Uzoagba is an Entertainment Lawyer, Award-Winning Author, Film, TV & Music Business Executive/Consultant, Public Speaker, Legal Educator and Podcaster (Founder of ‘Dear Creator Podcast’ and the co-host of Legal Avenue Podcast with Lola OJ & Mandy). She holds a degree in law (LL.B) from the University of Nigeria Nsukka (UNN) and was called to bar in 2017. She is currently a Senior Legal Executive at EbonyLife Group, which is a prominent player in the African entertainment industry. Amanda has facilitated many events, conferences, and webinars targeted at educating and enlightening entertainers, entrepreneurs and creatives, on the protection of their intellectual property rights, and creative works.
She has more than eight years of experience in the Entertainment Industry, starting out as a blogger and PR consultant for Record Labels before she was called to the Nigerian Bar. As a Film, TV and Music Business Executive, she has worked on more than six big budget productions exhibited in theatres and on international streaming platforms. She has worked on a variety of co-production, development and production deals with international studios such as Netflix, Sony, BBC, Westbrook, AMC, Amazon Prime etc. Within the music industry, she has represented artists (big and underground artists), music producers, songwriters and record labels through record label deals, publishing and distribution deals as well as helping them navigate the complex legal landscape of the music business.
In 2019, Amanda launched her consultancy firm called Goldwhisk Consult, a boutique consulting firm which focuses on the Entertainment and Creative Business providing a range of services related to the legal and business aspects of the entertainment industry. Her diverse background and extensive experience makes her a prominent figure in the intersection of law and the entertainment industry in Nigeria and across the world. She not only provides legal counsel but also actively contributes to the education and development of professionals in this field through her coaching network tagged #LegalCoachingbyMandy for Law Students and Young Lawyers.
Rita Anwiri Chindah
Rita Anwiri Chindah (@esmeraldoesq) is a lecturer at the Rivers State University. An intellectual property consultant for IGA Nigeria Limited who is the Heritage Consultant for the Lagos State Government where she provides legal advice on how to commercialise and monetize the culture, tourism, and heritage of Lagos State by exploring the intangible asset the state has.
She holds a master’s degree in intellectual property and Information Technology from the University of Derby, United Kingdom. The podcast host of #IPSERIES which features conversations on recent intellectual property cases and development globally & has 113 episodes published with 21 blog post editions on Substack.
Part of the team that drafted the Rivers State ICT Policy, a 3 time Judge for the Adavize Alao Essay Competition on Privacy Data Protection in 2019, 2020 & 2021. A member of the “Technical Working Group ” drafting the Geographical Indication Law for Nigeria in collaboration with African Intellectual Property Rights & Innovation in Africa (AfrPi) & Africa International Trade and Commerce Research (AITCR) sponsored by the EU. As Chief Convener of the Intellectual Property Society of Nigeria (IPSN) my team and I have organized two virtual conferences which took place every last Friday in October and celebrated one World Intellectual Property Day.
A member of the Chartered Institute of Arbitrators (CIARB) Young Members Group (YMG) Global Steering Committee. Current PRO of the Chartered Institute of Arbitrators Port Harcourt Chapter, Pro-Term Secretary Young Members Group of Chartered Institute of Arbitrators Port Harcourt Chapter. A legal adviser for the Rivers State Musician Guild and she has spoken at various intellectual property events both physically and virtually Charter President Rotary Club of Port Harcourt, Greenbelt.
Akinyemi Ayinoluwa
Akinyemi Ayinoluwa (akinyemilaw) is a Partner and Co-founder at HighTower Solicitors and Advocates. His music law practice focuses on the representation of recording artists, songwriters, record producers, record labels, investors in music, and talent managers. He is often recommended as a lawyer who breathes, drinks and eats music. Akinyemi’s past legal experience includes: Associate at Wemimo Ogunde & Co and Awokoya & Co. Prior to qualifying as a lawyer, he was a songwriter, recording artist, composer and performer; he was the lead singer of the defunct 100 degrees boy band.
He has authored numerous articles in the field of music law, estate planning, commercial transactions, and regularly gets invited to deliver speeches and courses about these subjects. On a small number of clients, Akinyemi functions as a business manager, as well as the lawyer. In recent years, Akinyemi has built up a formidable roster of hit making producer clients from Afrobeats: Magicsticks, NIPHKEYS, Andre Vibes, Kukbeatz, Masterkraft, Blaq Jerzee, ID Cabasa, Northboi, Rexxie, Jaypizzle, RunCheck, Larry Lanes, Tuzi, and many others.
Akinyemi Ayinoluwa prides himself in helping clients understand the value of their intellectual property rights and to be mindful of the exploitation that is rampant in the industry. Akinyemi’s zeal and passion for education has also caused him to design educational resources for recording artists, record producers and beatmakers.
Beverley A Agbakoba
Beverley A Agbakoba-Onyejianya @maxxyb is currently a Partner, and Head of the Sports, Entertainment and Tech practice at Olisa Agbakoba Legal. She is also a regulatory and compliance professional. Beverly is called to the Nigerian and UK bar, she also sits on the panel of neutrals at the Lagos Multi Door Court and the Lagos Court of Arbitration.
She has over 19 years professional experience in the banking and capital markets sectors in the United Kingdom and Nigeria. Her broad experience in the regulatory and compliance industry covers investment banking, brokerage and fund management sectors and has seen her hold various leadership roles in regulatory and compliance sector. She is a member of the Nigerian Economic Summit Group (NESG) Sports thematic Industry group on Alternative Dispute Resolution and Youth Policy Development.
She is also a member of the Lagos Divisional Football Association and a Mediator -Football Tribunal at Fédération Internationale de Football Association (FIFA). Beverley is recognised as a thought leader in sports law and has co – authored, authored and published numerous articles and materials on sports law, entertainment law, corporate governance including the A to Z of Sports Law in Nigeria.
Beverley is the founder of Lagos Tigers Football Club – a youth academy and is passionate about youth sports development. She is regularly invited to speak at international and national conferences on sports governance, intellectual property, regulatory and compliance, and personal development. Beverly is a member of faculty at the Entertainment Law Mastery class scheduled for the 28th and 29th of September,2023.
Olayemi Oladapo
Olayemi Oladapo is a Nigerian music executive and lawyer based in the UK. He currently serves as the International Partner Manager for Middle East & Africa at PRS for Music, the UK’s Collective Management Organisation. In this capacity, he oversees the company’s partners located in the Middle East and African regions.
Previously, Olayemi managed legal and licensing operations for Mavin Records for 2 years before being promoted to the role of Publishing & Licensing Manager. During his tenure, he played a key role in establishing the label’s Music Publishing division over the following two years.
Following that, he a launched a boutique law practice for creatives called Uxbridge LP where he represented artists and producers on deals with major labels and publishers. Olayemi boasts extensive experience working with licensing and publishing partners globally, successfully negotiating and finalizing numerous sync and other licensing deals. Additionally, he co-founded Second Summer, a talent management company.
Charles Ajiboye
A result oriented lawyer, author, speaker, chartered mediator and chartered conciliator. A Fellow of the Institute of Chartered Mediators and Conciliators(ICMC), a Fellow of the Chartered Institute of Auctioneers, an Associate of the Institute of Chartered Secretaries and Administrators of Nigeria(ICSAN), and an Advisor at the Institute for productivity and Business Innovation Management(IPBIM). He is a Chartered Secretary and a Certified Board Evaluator.
Charles is extremely creative and innovative. He is an artist and an art collector and has had both a solo and collaborative art exhibition to showcase his works. He represents several creatives across several emerging industry. He has provided Digital Legal Services and worked with several Tech. Companies, Fin. Techs and Start-ups with a cumulative investor funding in excess of USD50million, including Cars45, Dealdey, Stutern, CarsBazr e.t.c. He has served on several boards of companies including the Manufacturers Resource Centre Limited owned by Manufacturers Association of Nigeria which has over 2,500 Nigerian manufacturing companies as members among others.
He is Executive Partner, The Penthouse Law; Founder, IC-CUBE Nigeria; Chairman; Penthouse Gardens Ltd. and CA Collections and the National Assistant Publicity Secretary of the Nigerian Bar Association.
His awards include ESQ Rising Star Award, for 40 under 40 changing the face of law in Africa, Business day fastest growing Law firm of 2019 Award, Trek Africa Lawyer of the Year Award, STN Best Brain of the year award, All Times Transcendant Leadership Award, Most technology driven law firm of 2019 Award and Young Entrepreneur of the year award by Ideation Hub Africa.
He has been featured by various electronic and print media such as Channels TV, TV Continental, Galaxy TV, African Independent TV, Lagos TV, Thisday, Punch, The Sun and The Nation Newspapers and City People magazine and several online platforms as one of the leading lights in youth advocacy and silent change agents in Nigeria. He serves as Patron of several Youth Organizations and he is a Knight of St. Mulumba (KSM) in the Catholic Church
He is the Convener of the nearly 1,000 lawyer-members, Law As A Business Community, National Chess Tournament for Lawyers, and the IC-CUBE National Start-Up Conference. In the 4years the conference held, it gathered over 3,000 youths and sustained the partnership of global brands.
Charles is a fitness enthusiast and a Member of Ikoyi Club 1938 where he swims or play golf in his spare time. He is married with children.
by Legalnaija | Sep 18, 2023 | Uncategorized
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by Legalnaija | Sep 18, 2023 | Blawg
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by Legalnaija | Sep 13, 2023 | Training
The Nigerian film and media industry is a rapidly growing industry that has contributed significantly to the nation’s Gross Domestic Product (GDP). The industry is plagued by several challenges, one of which is finance. However, there are several mechanisms for financing the film industry in Nigeria, such as government and private institutions’ grants/loans, private equity, and contributions from members and friends.
In August 2023, the Nigerian film industry experienced a remarkable surge in box office revenue, with a 25% increase compared to the previous month. The Cinema Association of Nigeria reported total earnings of N603 million from ticket sales across the country, up from N482.5 million in July
The Nigerian film and media industry, like any other industry, requires legal services to ensure that the rights of all parties involved are protected and that the industry operates within the confines of the law. According to an article on Unilag Law Review, entertainment law is a demanding career that involves the sound knowledge of contract law, corporate law, finance, tort, bankruptcy law, immigration, tax law, insurance law, labour law, intellectual property law and applying the principles to the interactions between players in the entertainment industry. Lawyers in this practice area help to structure, negotiate and execute arrangements of agreements for a wide variety of industry participants.
Legal issues may arise in all stages of the creation of original works of entertainment. They move from the production stage, where formal contracts are drawn to set forth the respective rights of the parties involved in entertainment work, to the licensing and distribution stage. Legal issues may also arise from seemingly trivial matters such as copyright infringement or breach of contract.
In Nigeria, intellectual property laws form the foundation of the legal framework for the media and entertainment industry because most media and entertainment activities are intellectual property related. Lawyers play a crucial role in ensuring that these laws are adhered to and that creators’ rights are protected.
In summary, lawyers play an important role in ensuring that the Nigerian film and media industry operates within legal boundaries and that all parties involved are protected.
If you are a film and media lawyer or stakeholder in Nigeria, you might be interested in the Entertainment and Sports Law Mastery Training. This training is designed to provide lawyers with a clear mastery of the entertainment industry and how to take advantage of the opportunities therein. The training will cover topics such as music contracts and agreements, film and media agreements, art law, talent acquisition and management, licensing and intellectual property law, and sports law.
The training will take place on 28th & 29th September, 2023 at NECA House, Alausa, Ikeja, Lagos. The training will be held from 9am to 5pm daily. The registration fee for the physical session is 60,000 Naira or 45,000 Naira (early bird) if you register before 15th September, 2023. For the virtual session, the registration fee is 50,000 Naira or 35,000 Naira (early bird) if you register before 15th September, 2023.
Interested parties can register here https://linktr.ee/Lawlexis
This training promises to be a practical session and lawyers on all levels are welcome to register. For more information or to register for the training, please contact Lawlexis on 09029755663 or email them at lawlexisinternational@gmail.com
by Legalnaija | Sep 11, 2023 | Uncategorized
INTRODUCTION
In Nigeria, aviation services like any other business are regulated and administered by legislation which sets the course for legal and governance frameworks required to legitimately carry on aviation services classified as air transport or air operating services and allied aviation services in Nigeria. This article shall further consider the categories of air operations, registration and licensing requirements spelt out by the Corporate Affairs Commission Checklist 2022, and the Nigerian Civil Aviation Regulation 2022, (Nig. Cars 2022). For the purpose of this article, focus shall be given to Part 18 of Nig Cars 2023, (“IS 18 Nig Cars 2023”) which addresses civil aviation air transport economic activities.
REGULATORY FRAMEWORK
The aviation industry in Nigeria is primarily overseen by the Federal Ministry of Aviation, which is responsible for the formulation of aviation policies. There are also other government bodies governing and regulating other aviation services in Nigeria such as:
- the Nigerian Airspace Management Agency, established under the Nigerian Airspace Management Agency (Establishment, etc) Act 1999 (NAMA), which provides air traffic and navigation services; and
- the Federal Airport Authority of Nigeria, established under the Federal Airports Authority Act 1996 (FAAN), is responsible for the development, provision and maintenance of airports and associated services.
- the Nigerian Civil Aviation Authority (NCAA), established under the Nigerian Civil Aviation Act 2022 (CAA). It is worthy to note that the CAA empowers the NCAA to among other things make Regulations for air operations and issue the required license, permit, and certificate once the air carrier establishes that it has complied with the requirements of the Corporate Affairs Commission, (CAC).
As a matter of fact, while the CAC[1] prescribes the share capital thresholds for carrying out aviation services, the type of authorization issued establishes compliance with the precursory requirements. These thresholds are as follows:
- Air transport (Local): NGN 500 million
- Air transport (Regional): NGN1 Billion
- Air transport (International): NGN 2 Billion
- Air ambulance, fumigation and private jet: NGN 20 Million
- Air transport training institutions: NGN 2 Million
- Aviation (Ground Handling Services): NGN 500 Million
- Agents of foreign Airlines: NGN 1 Million
- Travel/Tours: NGN30 Million.
LICENSING
Having satisfied the registration requirements, authorization for commercial air operations could be in form of a license, permit and/or any other authorization depending on the nature of the aviation services.
IS 18.2 Nig. Cars 2023 prescribes four types of authorisations issued by NCAA for commercial flight operations’ discussed below:
- Air Transport License (ATL).
ATL is obtained and renewed by the grant of written application and compliance with the requirements for grant and renewal respectively. The said license is issued by NCAA for carriage of passengers, mail, and cargo by air. ATL is valid for a period of five (5) years and is subject to renewal every five years on expiration of the initial term. Amongst other things, the ATL holder may be required to demonstrate its ability to continue to meet the terms and conditions set forth in the CAA, otherwise, the NCAA can suspend or revoke an ATL if the holder of the ATL contravenes the terms and conditions set forth in the Act, Nig. Cars, rules and orders made thereunder.
- Air Operating Permit (AoP).
This applies to the permit issued by NCAA for commercial carriage of passengers, mail, and cargo for non-scheduled and charter services, it is usually obtained and renewed by the grant of written application and compliance with the procedures for grant or renewal required by NCAA. The AoP is valid for a period of three years and is subject to renewal every three (3) years. However, the NCAA can suspend or revoke an AoP if the holder contravenes the terms and conditions set forth in the CAA, Nig. Cars, rules and orders made by NCAA.
- Air Travel Organiser License (ATOL).
ATOL is applicable to tour organisers who are engaged in holiday travels, tour packages, special events, and religious pilgrimages, and can be obtained and renewed by the grant of a written application and compliance with the requirements for grant or renewal submitted to NCAA. An ATOL is valid for a period of 2 years and subject to renewal every two years. However, NCAA can suspend or revoke an ATOL, where the holder contravenes the terms and conditions provided by the in the CAA, Nig. Cars, Rules and orders made by the NCAA.
- Permit for Aerial Aviation Services, (PAAS).
PAAS is applicable to aerial work operations, flying club, flying school and such other services as may be designated by the NCAA from time to time. It can be obtained and renewed by the grant of written application and compliance with the requirements for grant or renewal required by NCAA. A PAAS is valid for a period of three (3) years and subject to renewal every three (3) years on expiration of the initial term. NCAA can suspend or revoke a PAAS in the format specified in the Regulations where the holder contravenes the terms and conditions provided by the CAA, Nig Cars, Rules, and order made by the NCAA. An applicant of a PAAS shall not be incorporated under Part C of the Companies and Allied Matters Act and any amendments, thereof. Also, the issuance of a security clearance by the relevant agency should precede the issuance of a PAAS.
On 10 July 2023, the NCAA released a public statement directing all right holders to among other things comply with the following[2]:
- Renew current license/certifications pursuant to Nig.CARs 2023 except for subsisting certificates, licenses, permits, authorisations issued under Nig.CARs 2015, which will remain valid until expiration.
- Submit all applications for variation and renewal of licenses/certificates before the effective date pursuant to Nig.CARs 2023.
- Submit all applications for variation and renewal of licenses/certificates before the effective date which is currently at the document evaluation phase of the licensing/certification process pursuant to the Nig.CARs 2023.
- Ensure all applications for initial issue of licenses/certificates at the document evaluation phase of their licensing/certification are processed from the effective date pursuant to the provisions of the Nig. CARs 2023.
In addition to the above directive, on 11th August 2023, NCAA further directed all air operators to comply with the Nig. CARs 2023 on insurance coverage[3].
Specifically, IS 18.14.1.1 of the Nig. Cars 2023 provides amongst other things that all airlines and other allied aviation service providers must NOT operate without:
- Adequate and valid insurance cover;
- Submit to the NCAA copies of valid insurance certificates, evidence of payment of premium and other policy documents of insurance cover of not less than three (3) months as specified in provision.
- Have adequate insurance documentation which must be renewed before the expiration of the current policy and be submitted to the NCAA as soon as such renewal is effective.
It should further be stated that non-adherence with these obligations will attract immediate sanctions which extends to grounding the specific aircraft and taking enforcement action against any defaulting airline/service provider.
AIR OPERATIONS.
The scope of air operations for the purpose of this article shall be limited to commercial air operations classified into three categories now discussed as follows:
1.Domestic Operations[4]
Generally, commercial domestic operations are classified as scheduled air transport, aerial aviation services, and organized package tours.
Where the operator carries on scheduled air transport between two or more states in Nigeria, such operator is expected to notify the NCAA of its operational routes, the frequency(ies) of operations and the fares to be charged before commencement of operations.
It shall also be required to apply for the relevant applicable license alongside obtaining an Air Operator Certificate (AOC); ensure compliance with the provisions of the CAA, Nig. Cars and other directives made thereunder; show proof of adequate insurance cover for passengers, cargo and third party. However, holders of AOC are not required to obtain flight clearances from the Authority prior to undertaking non-scheduled international operations, however, they are required to depart and enter the country through designated customs aerodromes. In addition, non-scheduled operators shall submit the passenger and cargo manifests, airway bills and client services invoices to the NCAA.
1.1Aerial Aviation Services, (AAS).
AAS are services which include aerial mapping, aerial survey, crop spraying, aerial advertisement, flying club, flying school and such other services as may be designated by the NCAA from time to time. Domestic operators who are holders of Permit Aerial Aviation Services, (PAAS) qualify to carry on AAS and are further required to obtain Safety Certificates from the NCAA before commencing this service. They are also restricted from engaging in any form of carriage of passengers, cargo or mail for hire and reward and any form of operation different from those specified in their Permits.
1.2Self-Handling Services, (SHS).
SHS is a situation in which airport users directly provide one or more categories of ground handling services to the exclusion of contracts with third party providing such services. For the purpose of this regulation, the airport users shall not consider one another as third parties if a private entity holds a majority in another entity and where a single entity has a majority holding in each i.e domestic airlines are considered to operate independently. These operators are required to obtain approval from NCAA after duly fulfilling the statutory requirements as specified by IS 18.12 Nig. Cars 2023 which is applicable to the collection and remittance of all sale and sundry charges.
1.3Organized Package Tour, (OPT)
OPT applies to holders of Air Travel Organiser License (ATOL). OPT are expected to operate within the conditions specified in their license and shall not engage in aircraft operations. They are to have current and adequate bank/insurance bonds to cover their operations.
Before operation commences, license and permit holders must obtain an air operator certificate and meet certain requirements, including providing adequate insurance cover for passengers, cargo and third parties. Permit holders engaged in cargo operations must obtain air operator certificates from the NCAA before operations commence.
2.Regional and International Operations by Nigerian Airlines
An air carrier permit (ACP) is issued by the NCAA to designated Nigerian airlines on regional and international routes, subject to the airline fulfilling the requirements specified in this Regulation. The Nig.Car also mandates all Nigerian airlines designated on regional and international routes to obtain safety certificates to maintain adequate financial standing for their flight operations and show evidence of domestic operations for at least six (6) months.
3.Foreign Airline Operations in and out of Nigeria
IS 18 Nig.Cars 2023 contains specific regulations for commercial air transport by foreign air operators within Nigeria. This regulation sets forth Foreign Carrier Operating Permit (FCOP) as the requisite authorisation issued by the NCAA. A foreign air carrier operating in and out of Nigeria engaging in scheduled international air services, is required to fulfill specified standards i.e desists from operating sale offices and outlets in cities other than the point(s) of entry specified in the subsisting bilateral air services agreement under which a foreign carrier is designated, and shall be limited to the aerodromes and restricted from distributing tickets through banks and other financial institutions as well as engaging in self-handling.
ALLIED AVIATION SERVICES, (AAS).
AAS are services rendered in support of aircraft operations, aerodromes and such support services which enhance the business of air transportation. The regulations[5] provides for the nature ofbusinesses classified as allied aviation services[6] such as: ground handling, agent of foreign airlines, travel agency, cargo agency and air freight forwarding, inflight catering services, aviation fuel supply, air transport training institutions, aircraft sale or leasing and other aviation related services. Nig Cars 2023 further profiles entities qualified to run these businesses[7], prescribes the relevant resources required to discharge actual and potential obligations, and protects service providers from discrimination against or decline of access to any airline, allied service provider in provision of services or facilities at the airport whilst mandating submission of monthly financial obligations to the NCAA.
CONCLUSION.
Compliance with the provisions of IS 18 Nig. Cars 2023 amongst other things establishes consistency and uniformity across the global aviation industry, allowing for seamless operations, in addition to promoting economic growth. It also reflects the strengths and weaknesses of our domestic aviation policy. For instance, due to the global nature of aviation services strong compliance indicates recognition and adherence to international practices, efficiency in harmonising aviation industry laws within our local context and effective enforcement mechanisms through the imposition of sanctions, penalties and fines, which invariably promotes safety and security of investment within the sector. On the other hand, non-compliance reflects inadequate understanding of the industry and inability to compel stakeholders to uphold the law and practices of the industry. The essence of compliance is strongly rooted in predictability, and enforcements, therefore, potential and existing stakeholders are encouraged to adhere to the provisions of the Nig Cars 2023.
Author: AdeolaOsifeko
[1] Corporate Affairs Operations Checklists 2022 pages 19 and 20
[2] Nigeria Civil Aviation Authority Website, ‘Publication & Implementation of Nig. Cars 2023 – Fourth Amendment to Nigeria Civil Aviation Regulations’ 12 July 2023 https://ncaa.gov.ng/media-center/news/publication-and-implementation-of-nig-cars-2023-fourth-amendment-to-nigeria-civil-aviation-regulations/ Accessed on 4 August 2023
[3] Nigeria Civil Aviation Authority Website, ‘ NCAA Demands Compliance with the Civil Aviation Regulation on Insurance Cover 14 August 2023 ‘ https://ncaa.gov.ng/media-center/news/ncaa-demands-compliance-with-civil-aviation-regulation-on-insurance-cover/ Accessed on 14 August 2023
[4] 2023 Nig Cars, Regulations 18.4.2
[5] 2023 Nig. Cars, Part 18.12
[6] 2023 Nig. Cars, Part 18.12.1.2
[7] 2023 Nig. Cars, Part 18.12.1.3
Adeola is an IP lawyer, transactional and corporate governance practitioner with indigenous legal practice experience and global outlook.She curates corporate commercial content on legal advisory and regulatory compliance needs for startups, SMEs and corporate entities seeking to establish,run and scale their businesses in Nigeria. Her contents are customised to provide pragmatic and relevant answers and legal solutions to Nigerian and foreign entrepreneurs/executives seeking corporate-commercial services.
by Legalnaija | Sep 7, 2023 | Book
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by Legalnaija | Aug 29, 2023 | Training
With the massive developments in the digital world, the vast spectrum of entertainment industries all across the globe has seen rapid developments. Of course, this includes Nigeria as well. The music, game, and film industries have all been on an uprising in recent years, and tons of people foresee that the growth will only continue.
Also, since the number of internet users in Nigeria has surpassed the 100 million mark, it is only natural to predict how the gaming industry will grow and expand in the country. Taking into account the youth of the country’s population, and how 70% of it is under the age of 30, many experts predict the skyrocketing of casual gamers by the year 2025. The business of sports entertainment is a multi-billion dollar industry. It includes everything from professional sports leagues to collegiate and amateur athletics. The industry also encompasses the businesses that support these activities, such as stadiums and arenas, equipment manufacturers, and apparel companies.
It is important this thriving industry has lawyers who are well equipped to service its unique, creative and extremely talented community including the billion dollar companies that participate in the industry. For lawyers looking to participate in Nigeria’s thriving global entertainment and sports industry, its important you attend the Entertainment and Sports Law Training scheduled to hold on the 28th and 29th of September, 2023. See more details below;
Theme: Entertainment Law Mastery 2.0
Date: 28th & 29th September, 2023
Mode: Hybrid
Venue: NECA House, Alausa, Ikeja, Lagos
Time: 9am – 5pm daily
Modules;
- Music Contracts & Agreements
- Film & Media Agreements
- Art Law
- Talent Acquisition & Management
- Licensing & Intellectual Property Law
- Sports Law
Members of Faculty
- Beverly Agbakoba-Onyejianya (Partner, Olisa Agbakoba Legal)
- Akinyemi Ayinuoluwa (Partner, Hightower Solicitors)
- Rita Anwiri Chindah, ACIArb (Lectuer, Faculy of Law, Rivers State)
- Olayemi Oladapo (International Partner Manager, Middle East & Africa, PRS.)
- Amanda Uzoagba (Senior Legal Executive, EbonyLife Media)
- Charles Ajiboye (Partner, The Penthouse Solicitors)
Registration Fee:
Physical Session
60,000 Naira | 45,000 Naira (early bird – ends 15th September, 2023).
Registration Link- https://bit.ly/3YixvAm
Virtual Session
50,000 Naira | 35,000 Naira (early bird – ends 15th September, 2023).
Registration Link- https://bit.ly/44U5Rfs
This session promises to be a practical session, lawyers, entertainers and stakeholders in the entertainment and sports industry are encouraged to participate as well. Kindly note participants will receive certificates of attendance, as well as NBA-ICLE points allotted by the Nigerian Bar Association’s Institute of Continuous Learning Education.
Registration fee also covers training materials, tea break and lunch. For more information, please contact Lawlexis on 09029755663 or lawlexisinternational@gmail.com. Looking forward to welcoming you at the training.
by Legalnaija | Aug 19, 2023 | Training
Art lawyers are professionals who specialize in the legal aspects of the art world, such as contracts, intellectual property, authentication, provenance, restitution, taxation, and litigation. They help artists, collectors, dealers, galleries, museums, and other stakeholders protect their rights and interests in the art market.
The art market is a complex and dynamic sector that involves a variety of transactions and disputes, often across different jurisdictions and cultures. Art lawyers can provide valuable advice and representation in these matters, ensuring that the parties involved comply with the relevant laws and regulations, avoid potential risks and liabilities, and resolve any conflicts or issues that may arise.
The art market is also a significant and growing part of the global economy. According to Statista, the sales value of the art market worldwide was 67.8 billion U.S. dollars in 2022, reaching the second-highest value reported in the last 15 years. The art market is comparable in size to other major private markets, such as venture capital, private equity, and real estate. Moreover, the art market has shown resilience and innovation in the face of the COVID-19 pandemic, with online sales and non-fungible tokens (NFTs) becoming more prominent and popular. The art market also contributes to the cultural and social development of society, as it supports the creation, preservation, and dissemination of artistic expressions and heritage.
Therefore, art lawyers play an important role in facilitating and enhancing the functioning and value of the art market. They help ensure that the art market operates in a fair, transparent, and ethical manner, respecting the rights and interests of all parties involved. They also help foster a culture of trust and cooperation among the various actors in the art world, promoting a positive and productive environment for artistic creation and exchange. By doing so, art lawyers not only serve their clients, but also serve the public interest and the common good.
To learn more about art Law, register and participate in our Entertainment Law training scheduled to hold in September. See more details below;
Modules for this training include;
1. Music Contracts & Agreements
2. Film & Media Agreements
3. Art Law
4. Talent Acquisition & Management
5. Licensing & Intellectual Property Law
6. Sports Law
Other details are:
Theme: Entertainment Law Mastery 2.0
Date : 28th & 29th September, 2023
Venue: NECA House, Alausa, Ikeja, Lagos
Time: 9am – 5pm daily
Registration Fee:
Physical Session
60,000 Naira | 45,000 Naira (early bird – ends 8th September, 2023).
Registration Link- https://bit.ly/3YixvAm
Virtual Session
50,000 Naira | 35,000 Naira (early bird – ends 8th September, 2023).
Registration Link- https://bit.ly/44U5Rfs
This session promises to be practical session and lawyers on all levels are welcome to register. For more information contact Lawlexis on 09029755663 or lawlexisinternational@gmail.com. Looking forward to welcoming you at the training.
Image Credit: Njideka’s 2017 ‘Bush Babies’ is known as the most costly recorded Nigerian Art piece sold. Her blended media piece sold for $3.4M (N1.2 Billion) at Sotheby’s New York, authoritatively breaking the record as the most costly Nigerian art piece.
