An Analysis Of The Jurisprudential Raison D’être Of A Remand Order Vis-À-Vis The Right To Personal Liberty In Nigeria

by Legalnaija | Mar 23, 2021 | Uncategorized

An Analysis Of The Jurisprudential Raison D’être Of A Remand Order Vis-À-Vis The Right To Personal Liberty In Nigeria[1]

A suspect arrested for an offence which a magistrate court has no jurisdiction to try shall, within a reasonable time of arrest, be brought before a magistrate court for remand.[2]

INTRODUCTION

The above periscope from the Administration of Criminal Justice Act 2015 (hereinafter to be referred to as ‘ACJA’) has precipitated a bevy of controversies. The sections (SS. 293-299) have been tagged a smokescreen as they presumptuously create a holding charge which has been declared by the highest Courts of the land an anathema to our laws. More so, the sections seem to be an affront to the venerable and hallowed fundamental human rights enshrined in the Constitution of the Federal Republic of Nigeria (hereinafter to be referred to as ‘the Constitution’), to wit: the right to personal liberty, as they ostensibly promote pre-charge detention. Premised on the foregoing, this article seeks to address these less certain penumbras of the provisions of the ACJA, distinguish between a ‘holding charge’ and a ‘remand order’, take a cursory look at the legality of pre-charge detention in some countries, viz. the United Kingdom, the United States of America, and Australia, and examine the legality vel non of a remand order vis-à-vis the right to personal liberty as enshrined in the Constitution.

A CONSPECTUS ON THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015

Before delving into the crux of this article, it is important to note in incisive terms that, the Administration of Criminal Justice Act was enacted to ensure the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim[3] (Emphasis Mine).

It therefore follows that, the Act, which is a law by the National Assembly, seeks to maintain law and order in the society as envisaged in the provision of section 4(2) of the Constitution. Its main purpose is to ensure that there’s an effective system in place for the administration of criminal justice.

DISTINGUISHING BETWEEN A ‘HOLDING CHARGE’ AND A ‘REMAND ORDER’

A holding charge and a remand order are prima facie akin, but they are not coterminous as there exists a fine line between both.

The term ‘holding charge’ is defined by the Black’s Law Dictionary 8th Edition, as “a criminal charge of some minor offences filed to keep the accused in custody while the prosecutor takes time to build a bigger case and prepare a more serious offence.”

From the foregoing, it is limpid that a holding charge is usually filed malafide in other to keep the accused/suspect in custody for a minor offence whilst the police conduct a solid investigation to support a main charge.

The Lawyers’ League for Human Rights, in its publication titled ‘Criminal Justice System in Nigeria: The Imperative of Plea Bargaining,’ also holds the view that holding charge has no statutory foundation in Nigeria’s penal legislation, and explains the concept as a “term used by the legal community in Nigeria to describe a criminal charge that is filed against an accused person by the police before a magistrate court that ostensibly has no statutory power to try the offence charged, but makes an order remanding the person charged in prison custody pending conclusion of investigation or the arraignment of the person in the high court, upon information being filed by the Attorney General.”

A holding charge has been declared by the Courts of the land to be completely illegal, unconstitutional, otiose and of no effect whatsoever in a retinue of cases. See OGOR v KOLAWOLE (1985) 6 NCLR 534 at 539; EYU v THE STATE (1988) 2 NWLR (Pt. 78) 602 at 608; ENWERE v C.O.P (1993) 4 NWLR (Pt.229) 333; ANAEKWE v C.O.P (1996) 3 NWLR 9Pt. 436) 320 at 332; JOHNSON v LUFADEJU (2002) 8 NWLR (Pt. 768) 192 at 217; AGUNDI v C.O.P (2013) ALL FWLR (Pt 660) 1243; SHAGARI v C.O.P (2005) 3 Q.C.C.R, (P. 17 at 36), per Sanusi, JCA

However, a remand order is quite different. It is made to detain a person who has been charged with a crime until trial; such person may be remanded until conviction or acquittal – this is applicable in capital offences. The provisions backing up a remand order are provided for in the Administration of Criminal Justice Act which deals, totally, with the system of administration of criminal justice in Nigeria.

The Supreme Court of Nigeria in Lufadeju v Johnson (2007) 8 NWLR (Pt 1037) P. 562 paras. F-G, defined remand to mean: ‘…To send to prison or send back to prison from a court of law to be tried later after further inquires have been made; often is the phrase “remanded in custody”. It also means to re-commit, on trial, the accused to custody after a preliminary examination.’

A remand order, provided for in the Administration of Criminal Justice Act, seems to be in line with the provision of section 35 (1) of the Constitution, and is designed to aid administration of criminal justice in the country. However, more on that later.

THE LEGALITY OF PRE-CHARGE DETENTION IN SOME COUNTRIES

THE UNITED KINGDOM

By the provision of section 41(1) of the Police and Criminal Evidence Act of 1984 (PACE), the police is empowered to detain an individual for up to a maximum 24 hours, after which a decision has to be made to either charge to court or release such an individual. However, under section 42(1) of PACE, the 24 hour detention may be extended to a maximum of 36 hours if the police have ‘reasonable grounds’ to believe that the continuous detention of such person is necessary to secure or preserve evidence; that the offence in question is an indictable one and the investigation is being conducted diligently and expeditiously. Any further detention, up to a maximum of 72 hours may only be authorised by a Magistrate, after an application to the Court by the police.

However, schedule 8 of the Terrorism Act 2000 governs the pre-charge detention of those arrested on suspicion of being a terrorist.[4] Legal limitations on the period of time a terrorist suspect can be detained prior to charge run from the time of arrest.[5] After 48 hours, a judicial warrant is required to keep a suspect in detention without charge.[6] A judge can only issue a warrant if satisfied that there are reasonable grounds to believe that (a) it is necessary, inter alia, to obtain or preserve relevant evidence and (b) that the investigation is being conducted diligently and expeditiously.[7] The first judicial warrant would normally authorise detention for up to a maximum of seven days.[8] Further judicial warrants may then be issued, each extending the period by up to seven days. Warrants authorising detention beyond 14 days can only be made by a senior judge. A judicial warrant may not authorise detention for more than 28 days from the time of arrest, meaning that at this point a suspect must be either charged or released.[9] This puts the maximum period of pre-charge detention in terrorism cases at 28 days, and four days for criminal offences unrelated to terrorism.[10]

THE UNITED STATES OF AMERICA

In County of Riverside v. McLaughlin[11], the Court determined that detention, without a specific charge on the basis of probable cause, was constitutionally permissible for less than 48 hours.[12] Thus, a judicial charge on the basis of probable cause within 48 hours of arrest would not constitute an “unreasonable” seizure period under the Fourth Amendment to the Constitution.[13] The U.S. Supreme Court has held that the Fourth Amendment to the Constitution imposes certain limits on the detention of persons prior to a formal charge.[14]

Under U.S. Federal law the maximum period of pre-charge detention for criminal suspects, including those suspected of committing terrorist offences, is 48 hours.

AUSTRALIA

In Australia, a person arrested for a terrorism offence cannot be detained for more than four hours from the time of arrest for the purpose of investigating whether the person committed that offence, or another terrorism offence the investigating official reasonably suspects the person to have committed.[15] The detainee must be released within the period or brought before a judicial officer.

In terrorism cases, the pre-charge detention period can be extended a number of times to a total of 24 hours on application by the investigating official to a judicial officer, normally a magistrate.[16] The limit is 12 hours for other serious offences.[17]

The laws of Australia also provide for dead time. ‘Dead time’ is not included in the periods referred to above. Accordingly, dead time can allow a person to be detained longer than 24 hours but the total amount of time spent questioning the person cannot be longer than 24 hours.[18] There is no statutory cap on the maximum amount of ‘dead time’ that can be authorised. Such ‘dead time’ includes for medical attention, because the detainee is intoxicated or to allow reasonable time for detainee to rest or recuperate; for applying for extensions of questioning time; for an ID parade, etc.

The first and only case in which an extended period of dead time was authorised by a magistrate it led to a person being detained for a total of 12 days without charge.[19] This is considered to be the maximum period of pre-charge detention that would, in practice, be allowed in Australia.

In addition, the Australian Federal Police may obtain a ‘preventative detention order’ to substantially assist in preventing an imminent terrorist attack or to preserve related evidence after a terrorist attack. This allows preventative detention for an initial period of 24 hours, extendable by a further 24 hours.

THE LEGALITY VEL NON OF A REMAND ORDER VIS-À-VIS THE RIGHT TO PERSONAL LIBERTY

The legal enclave has been inundated with arguments reconciling the provisions of the Administration of Criminal Justice Act with that of the Constitution. Arguments have also been advanced that the provisions of ACJA clearly countermand the provisions of the Constitution, and should, therefore, be declared null and void to the extent of its inconsistency. I intend to carry out a detailed analysis of both provisions.

The provision of section 35(1) of the Constitution is diaphanous and beyond peradventure. For ease of reference, I should allow myself reproduce the section hereunder:

‘Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in some case and in accordance with a procedure permitted by law, as outlined in 1(a) to (f)’

From the above periscope, it is clear that every person is entitled to personal liberty. Such liberty is sacrosanct and can only be encroached upon in some cases which are in accordance with a procedure permitted by law. As we shall soon come to see, remanding a person has its procedure which is permitted by sections 293-299 of the ACJA. See OHIZE v C.O.P (2014) LPELR — 23012, per Akomolafe-Wilson, JCA; LUFADEJU v JOHNSON (SUPRA), per Muktar, JSC (as she then was).

However, section 35(1) (c) provides that for the purpose of bringing a person before a court, in execution of the order of a court or upon reasonable suspicion of that person having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence, his personal liberty may be deprived. Furthermore, section 35(4) provides that any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –

• two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
• three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.

‘A reasonable time’ is defined in S.35(5) to mean:

• in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day; and
• in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable. (Emphasis Mine)

From the foregoing, precisely section 35(1) (c), a person’s right to personal liberty can be deprived wherein he is suspected to have committed a criminal offence or to prevent his committing a criminal offence. However, when arrested or detained by the police, it is expected that he be brought before a court of law within a ‘reasonable time.’ The reason for bringing him before a court of law is a bit ambiguous as it could be for arraignment, which is the substratum of a trial, or for obtaining a legal basis to deprive him of his right to personal liberty. If the case is the latter, then it necessary that whilst further investigation is being conducted, due process of law for depriving a person of his right to personal liberty should be followed. Usually though not invariably, investigation surpasses the ‘reasonable time’ which is two days, and for this reason the Constitution provides that such person, whilst investigation is ongoing must not be kept in custody for more than two months in the case of a person who is not entitled to bail – this is most likely applicable in capital offences, and in the event where he has been released on bail, a period of three months from the date of his arrest or detention.

Dovetailing these with the provision of the ACJA, to wit: section 293 which states thus:

‘A suspect arrested for an offence which a magistrate court has no jurisdiction to try shall, within a reasonable time of arrest, be brought before a magistrate court for remand.’

From the provision of section 293 of the ACJA, a suspect arrested shall within a reasonable time of arrest be brought before a court of law (namely a magistrate court) for remand. We would recall that the provisions of the Constitution provide that an arrested or detained person be brought before a court of law within a reasonable time, either for trial or remand, as section 35 (4) provides, ‘…and if he is not tried…,’ this clearly shows that a person/suspect may be brought before a court of law not to be tried but to obtain a remand order. The ACJA being a specific statute goes further to provide and dilate on one of the ways due process of the law should be followed, that is, an application for a remand be made ex parte, certain things may be taken into consideration when considering if ‘probable cause’ to remand has been shown, the remand shall be for 14 days and may be extended for another 14 days if ‘good cause’ is shown. Where at the expiration of the 28 days, the suspect is still in custody, the law provides that a hearing notice be issued by the Court to any relevant authority in whose custody the suspect is, and the matter can only be adjourned within a stint of 14 days and not exceeding such. Sections 296 (1), (2), (4). Section 296 (5) provides that pursuant to the hearing notice, such relevant authority may show good cause as to why the remand order should be extended for a further 14 days, finally, if need be.

It must be noted, however, that after the expiration of the stint of 28 days, the court may, on application of the suspect, grant bail. Section 296 (3).

It is submitted that the Administration of Criminal Justice Act has made a remand order legal as it can now be subsumed under a due process permitted by law.

More so, the Constitution provides for the extent of a detention to be: a maximum period of 2 or 3 months as the case may be, colligating this with the provisions of section 296 of the ACJA, having in mind the sum total/maximum number of days allowed for a remand, to wit: 42 days, that is, a period of 14 days at first, another 14 days if ‘good cause’ is shown, and a further 14 days upon the request of the Inspector-General of Police or the Commissioner of Police and the Attorney-General of the Federation, consequent upon the issuance of a hearing notice by the Court (the period allowed for adjourning the matter when a hearing notice is made is hereby excluded), shows that the provisions of the ACJA are ad idem/interlock with that of the Supreme law of the land.

PERORATION

A remand order, sadly, has become indispensable as it is needed to ensure that the detention of criminal suspects, which are not immediately tried because proper investigation is still ongoing, is done according to due process of law.

The tardy grinding of the wheels of justice seems to be the quagmire beleaguering the system as suspects spend time awaiting trial. This can only be dealt with by, putting in place, mechanisms needed for ensuring speedy trials.[20]

It is also important to note that it is banal principle that the Courts have no jurisdiction to question the law making power of the National Assembly and the House of Assembly of States (the Legislature). This is because the power to make laws is vested in them by dint of section 4 of the Constitution, and the Courts cannot by or through the common law divest them of such.[21] However, where a statute or any provision(s) of a statute enacted is in breach of the Constitution, the Courts must step in to declare such statute or provision(s) of such statute otiose.

REFERENCES

Damilola Obanijesu Oyawole

[1] Damilola Obanijesu Oyawole, an undergraduate law student of the University of Ilorin. He has a panache for Legal Research, Litigation, Intellectual Property, Cyber Security, Property Law, and Arbitration. He can be reached via obanijesudamil@gmail.com

[2] Section 293(1) of the Administration of Criminal Justice Act 2015.

[3] ACJA, S.1(1).

[4] As amended by the Terrorism Act 2006.

[5] Terrorism Act, S.41(3) and Schedule 8, para 36(3B). The police have the power to arrest anyone they suspect of being a terrorist without a judicial warrant (TA, S.41).

[6] TA, S.41(3).

[7] TA, Schedule 8, para 32.

[8] TA, Schedule 8, para 29(3).

[9] TA, Schedule 8, para 36(3)(b)(ii).

[10] Section 44 of the Police and Criminal Evidence Act 1984.

[11] 500 U.S. 44 (1991).

[12] Ibid at 56.

[13] Ibid.

[14] See Gerstein v. Pugh, 420 U.S. 103, 125 (holding that States “must provide a fair and reliable determination of probable cause as a condition for any significant pre-trial restraint of liberty…by a judicial officer either before or promptly after arrest.”).

[15] S.23CA Crimes Act 1914.

[16] S.23DA Crimes Act 1914.

[17] S.23D Crimes Act 1914.

[18] S.23CA Crimes Act 1914.

[19] Dr Haneef was arrested on 2 July 2007 in connection with the failed bomb attacks in the UK. He was charged 12 days later with supporting a terrorist organisation but the Director of Public Prosecutions withdrew the charges on 27 July 2007 because there was insufficient evidence to establish the elements of the offence.

[20] Oti, I. C., 2016, 80 Percent of the Inmates in Nigeria Prisons have not even been tried in Court; Ayade, E. A., 2010, Problems of Prisons Overcrowding in Nigeria: Some lessons from South Africa and America. LLM, Human Rights, Unpublished Thesis, Central European University, Legal Studies Department, Budapest, Hungary.

[21] Ngozi Efobi and Naomi Ekop, Legal Systems in Nigeria: Overview, available at:https://uk.practicallaw.thomsonreuters.com/w-018-0292?transitionType=Default&contextData=(sc.Default)&firstPage=true

International Gender Law Vis-À-Vis Nigeria N Custom And Cultural Practice

by Legalnaija | Mar 23, 2021 | Uncategorized

International Gender Law vis-à-vis Nigerian Custom and Cultural Practices[1]

Introduction

The rate at which the female counterparts in Nigeria are being deprived of their rights to the inheritance of parent’s and acquisition of personal property is alarming just based on customary laws and religious practices compared to what is operative in the general world Both men and women are entitled to the equal footing to the full protection of their right and freedom because they are a human being. In Bayelsa State South-South Nigeria, it is heard that whenever a woman believed to be possessed dies in any part of the State, her remains will be thrown into the water or the remains of every dead woman in the State will face a water test. If the remains sink after being thrown into the river then she is truly possessed and will be left to feed the fishes but if the remains float, then she will be brought back home and given a befitting burial. How many of the male counterpart in the State goes through inhuman treatment? It is proven that once life leaves the human body it becomes heavy, how then will a lifeless body float on a river? The question is why has the female counterparts been viewed as less inferior compared to the male counterpart? Society is filled with some riffraff just because the family members drove them and their mother as the case may be from home and took over the properties the husband or the parents left behind.

Globally, women or the female child have experienced various forms of abuses and discrimination[2]. These Customary Laws which most people of the country subject themselves to make it impossible for wives to inherit the property(s) of her late husband, she is on the other hand viewed as an asset which should be inherited and not to inherit any property. Also, a female child has no right to inheritance from the property(s) of her late parents, that her portion of inheritance is in her husband’s house whereas the husband or members of his household believes she is an asset to be inherited. What then is the fate of the female counterpart in a world dominated by the male counterpart?

This gender discrimination had been existing even from the time of the holy books, still existing and if proper attention and caution are not taken, it will continue to exist in our society irrespective of the level of education or exposure. This thesis seeks to examine the provision of the international gender law vis-à-vis the Nigerian customary laws and provide a possible way(s) for people who find themselves in menace. The world in its entirety has gone beyond the primitive times and therefore both male and female should be given equal consideration to acquire and inherit property(s) in the country and not just be contained in black on white without any regard[3].

                                       Universal Declaration of Human Rights[4]

Recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world[5].

The Article makes provision to recognize both sexes as being equal in dignity and rights and being born free without any prejudice[6]. We are both equals regardless of age, color, or education as what party A enjoys as a citizen of a State, party B has equal rights to enjoy the same and should not be cheated, coerced, or manipulates into thinking that we are not equal.

Article 6[7] states that;

everyone has the right to recognition everywhere as a person before the law.

It is crystal clear that every human on the face of the earth is to be considered a person having that same right in every part of the world and not a thing that can be taken, won, or tossed around whenever the dictator fancies. These rights should in no way be discriminated and such happens, the affected person has the right to seek redress[8].

Going forward, Article 17 of the same Law provides that;

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

From the above provision, it is obvious that everyone has the right to acquire property(s) and by inference inherent properties without any discrimination whatsoever.

      Convention on the Elimination of All Forms of Discrimination Against Women[9]

The Convention being aware of the existence of discrimination against the female counterpart gave the need for the establishment and their discrimination covers but not limited to distinction exclusion and seclusion of the sex to other sex[10].

Article 2 (f) provides that;

to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices which constitute discrimination against women.

Having this in mind, States that subscribe to the Convention are expected to remove from their existing Laws provisions that are detrimental to women enjoying the same rights which the men counterparts enjoy. However, we have some States who are a subscriber to the Convention with the same laws existing within their purview.

Article 5 (a) provides that;

to modify the social and cultural patterns of conduct of men and women, to achieve the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or stereotyped roles for men and women

PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA[11]

The Protocol referred to Article 18 of the African Charter on Human and People’s Rights which provides that each State adopting it should remove from its Law any form of discrimination against women as it is declared internationally. But in the actual sense of it, there are States in Africa that have adopted the Charter and the Universal Declaration of Human Rights and still have vivid discrimination against women encoded in their laws and customary laws.

Article 2 of the African Charter provides that;

states Parties shall combat all forms of discrimination against women through appropriate legislative, institutional, and other measures.

By implication, it is mandatory for every African States who had adopted the Charter to remove every discrimination from its laws and shall defend the rights of citizenship regardless of sex but this seems to be a mere fallacy considering what is operative in the African continent and in particular Nigeria which is the center of the discussion.

Moving ahead, Article 6 (j)[12] makes provision for every woman in the course of the marriage to acquire and administer property(s) of her own without any discrimination whatsoever on her person and this property should in no way be deprived of her. Also, Article 6 (d), provides that in the course of a divorce, the couples shall have an equal right to joint property(s).

The list goes on and on different laws and conventions providing for recognizing equality between the sex. However, we see a different thing being in vogue in our continent Africa and the whole generally but because this discussion is centered on Africa and in particular Nigeria customary laws, we shall vividly discuss some of the notable customs in Nigeria.

Examination of the Customary Laws in Nigeria.

Nigeria is a country with over two hundred (200) ethnic groups and 500 languages. Each ethnic group with its own culture, custom, and tradition[13].  The different customary laws in Nigeria have their dictates which have elements of the deprivation of inheritance of property[14]. Some religious practices in the country even make provision that a married woman has no right to purchase anything and even if any purchase is made by her, the purchase belongs to her husband. However, considering the multiplicity of ethnic groups in the country, it is reasonable that the major ethnic groups, Igbo, Yoruba, Hausa, and Edo/Benin Customary Laws are examined.

1. Igbo Customary Law of inheritance

In describing the Ibo customary Law of succession we may have to start from Onitsha because of its historical and ethnic link with the Benin customary law with which Onitsha share the rule of primogeniture[15] with some variations in places like Anambra, Imo, Rivers, etc. The eldest son or the Okpalais entitled to inherit his father’s dwelling house exclusively[16]. In Ugbona v. Ibenema[17], Egbuna J held inter alia that Ibo woman being a daughter or wife has no inheritance right to property of her parents or husband[18].

From the foregoing, the only means through a female child can inherit in her father’s household under the Igbo Customary law is possible especially in Idemili Local Government of Anambra State is when she has performed nrachi[19] ceremony. In a situation where the woman acquires landed property of her own, unless she has a son, her uterine brothers, or where she does not have uterine brothers, her stepbrother is entitled to inherit her self-acquired property and not her daughters who are entitled to inherit her personal effects.

2. Yoruba Customary Law of inheritance

Succession or inheritance of property among the Yoruba tribe of Nigeria is subject to Ori-jori i.e. per capita or the children of the deceased based upon the number of wives the deceased had. Each wife and her children constitute Idi-igi or stock. It should be noted that it is immaterial that any of the wives had predeceased the husband, as long as she has a child or children before her death, her side remains stock in the family[20]. It should however be noted that in the Yoruba tribe, the eldest surviving son inherits the property(s) of the father. In Salami v. Salami[21] it was held that the plaintiff’s right to inherit her father’s estate along with her two brothers was not diminished by the fact that she was a girl. It is also relevant in this connection to note S. 20(4) of the Western Nigeria Customary Law, which provides thus:

Where the customary law applying to land prohibits, restricts, or regulates the devolution on death to any particular class of persons of the right to occupy such land, it shall not operate to deprive any person of any beneficial interest in such land (other than the right to occupy the same or proceeds of the sale, therefore, to which he may be entitled under the rules of succession or any other customary law.

3. Hausa Customary Law of inheritance

Inheritance of property amongst the Hausa is subject to the dictates of the Islamic Law which state that one-third of the property must be given out on charity and the rest shared among the family members including the wife(s). Hausa native law and custom, before the advent of Islam, young males and females are not entitled to inherit from their deceased father’s estate as was held in Mohammad v. Mohammed[22]. The rationale behind this was that since young sons and daughters could not go to war and secure booties or loot (Gamina), they should not be allowed to inherit as heirs. However, under the Sharia system, the notion of Qawama[23] is interpreted to mean that men as a group are the guardians of and are superior to the women as a group. That notwithstanding, Sharia affords women whether daughters or wives the right of succession, making it the only customary law that guarantees such rights. The provisions have put the Sharia customary law on a higher pedestal in the realm of succession rights with emphasis on equality of all human beings.

4. Edo/Benin Law of inheritance

The principal house or Igi ogbe is of utmost importance in Benin customary law[24]. This is as a result of that the principal house is always inherited by the eldest surviving son of a deceased person absolutely notwithstanding any instruction, disposition in a Will, or family arrangement to the contrary[25]. Ogiamien v. Ogiamien[26] has provided two (2) supporting grounds for the aforementioned position; firstly the eldest son of a deceased hereditary title holder succeeds to all the property of his father to the exclusion of other children. Secondly, the eldest son inherits only the principal house. Taking over the properties is only possible after the successful completion of the father’s burial rites. However, in a situation where the eldest surviving son is incapacitated to perform the burial rites of the deceased father, the duty is passed to the next surviving son regardless of the fact whether or not there are female children of the deceased who could handle the funeral rites of the father.

Haven considered the different major Customary Laws in Nigeria and their dictates about the acquirement and inheritance of property(s) which we could see to be discriminatory to the female counterparts viewing them as a ‘thing’ rather than the ‘human’ attribute who can acquire and inherit property(s) at any time she so desires. It is however required to examine some of the International provisions which make provision for both sexes to be of equal standard.

                                                                   Ways out

It should however be noted that the possible way out of the menace women in Nigeria still suffer from all in the name of Customary Laws which will be discussed here are exhaustive enough and additional remedy or way out could be added personally.

1. Punishment and Penalties

As the proverbial statement said that law without punishment will not be obeyed. In the actual sense, we have the abolition of discrimination against women’s rights encoded in our laws in Africa but none of these laws has a punishment to be meted out to anyone found defaulting. It is believed that if there is a serious punishment attached to these laws, people will find it grievous to defile them[27].

2. Remedies

From the foregoing, if the laws could have punishment and penalties encoded within them, it is appropriate to say that the laws also should have adequate and relevant remedies in place for women who might have suffered or are suffering from these discriminations. However, for this to be in place effectively, some steps must be considered;

1. They must be timely.
2. They must be physically accessible.
3. They must involve a clear and well-defined procedure, in terms provided for by the law, for establishing liability.
4. They must enable recourse to functional independent and impartial bodies, with the authority to make enforceable decisions, impose sanctions, and award remedies[28].

By

Adeleye Adebola Valentine
+2348108173996

[1] Adeleye Adebola Valentine LL.B LL.M (In view) Ministry of Justice, Bayelsa State, 08108173996, av_debola.1@yahoo.com

[2] AJABOR, Ifeanyi Esq & OVREME, Olika Aforkoghene Esq. International Journal of Innovative Legal & Political Studies  The Female Right Of Succession Under The Igbo Customary Law: A Critique 7(1):59-67, January-March 2019

[3] Section 42 (1) of the 1999 Constitution and also again section 42 (2) of the 1999 Constitution.

[4] UN General Assembly Universal Declaration of Human Rights, 10 December 1948, 217, A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html [accessed 10 March, 2021].

[5] Preamble

[6] Article 1 and 2

[7] Supra

[8] Article 8

[9] UN General Assembly Convention on the Elimination of all Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, Vol 1249, P 13, available at: http://www.refworld.org/docid/3ae6b3970.html [accessed 10 March, 2021].

[10] Article 1

[11] Also known as Maputo Protocol. It is an international human rights instrument established by the African Union that went into effect in 2005.

[12] Supra

[13] Wikipedia List of Ethnic groups in Nigeria https://en.m.wikipedia.org/wiki/List_of_ethnic_groups_in_Nigeria Accessed 1 March, 2021 10:05.

[14] Supra.

[15] Nwugege v. Adigwe & Anor (1934) 11 NLR 134

[16] Nwafia v. Ububa (1966) 1 ALL NLR 8

[17] (1967) NMLR 251

[18] Nzeianya v. Okagbue & Ors (1963) 1 All NLR 352

[19] Denying herself not to marry where all her fathers’ children are female so that she may produce male children to maintain the continuity of the family.

[20] A.B. Kasumu and J.W. Salacuse Family Law (Revised ed. Butterworth London) pg. 39.

[21] (1924)5 NLR 43.

[22] (2002) NWLR (pt. 708) p. 104

[23] Modupe D-Fagbongbe, Gender Discrimination  Challenges for the twenty-first century [2002] (4)

[24] A. Osaretin, The Principal house in Benin Customary Law.

[25] Ugbo v. Asemota, unreported, Suit No B/49/70 of 30th March 1974, High Court Benin

[26] [1967] NMLR 245

[27] Article 2(b) CEDAW; CEDAW General Recommendation 28, Paras. 17 & 37(b); CEDAW General

Recommendation 25, Para.7.

[28] International Human Rights Law and Gender Equality and Non-Discrimination Legislation Requirements and Good Practices – a Briefing paper

Hire A Social Media Manager For Your Law Practice

by Legalnaija | Feb 23, 2021 | Uncategorized

With the high rate of internet penetration in the country and the growing use of social media. Every business must aggressively employ the use of social media to reach its targeted audience and market. 

As law firms and lawyers directly communicate with the communities they serve, social media becomes a natural way to acquire new clients and establish your practice as a thought leader in your area of expertise. 

There are many benefits to using social media for your law firm and at Lawlexis, we would love to help you accomplish all your digital marketing and social media management goals for your law firm or legal practice.  Kindly contact us for free consultation via – 

–          Lawlexisinternational@gmail.com 

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Laws Governing Employment Relationship In Nigeria And The Rights Of Workers | Oluchi Atoyebi (Mrs.)

by Legalnaija | Feb 18, 2021 | Uncategorized

In establishing any organizational endeavor, an employment contract must be
drawn up. In Nigeria, the employment relationship is governed primarily by the
sources of employment laws in the country. A proper understanding of the laws
that govern an employment relationship and adherence to laws that guide
employees’ rights and employers’obligations, can protect the company from
serious human rights violations.

This article provides a guide to laws governing the employment relationship
in Nigeria, from the sources of the law, the scope of the law, to the tenets of
a typical employment contract.

There are two(2) broad categories of employees in Nigeria, namely:

·       
“Workers”, defined under the Labour Act as those “who are
generally employees who perform manual labour or clerical work”; and

·       
“Employees”, who perform administrative, executive, technical or
professional functions (referred to as “Non-workers”).

THE SOURCES OF EMPLOYMENT LAW IN
NIGERIA.

The sources of employment law in Nigeria are:

a.    
The
Constitution of the Federal Republic of Nigeria 1999 (as amended), referred to
as “the Constitution”.

b.    
The
Labour Act Chapter L1, Laws of the Federation of Nigeria 2004 (“Labour Act”),
which prescribes the minimum terms and conditions for employment for workers as defined above. As stipulated
by the Labour act of Nigeria, the details of an employment relationship between
workers and employers should be stipulated in a contract. The Nigerian Labour
Law provides a detailed look into the rights, conditions, minimum wage and many
other tenets set by the Nigerian Government. The current version of the act was
enacted in 2004.

c.     
The
Federal laws enacted by the National Assembly (Nigeria’s national legislative
houses) and the State laws enacted by the House of Assembly (the State
legislative authority) of each state, that relate to labour and employment,
pension and workplace compensation, including the following:

●      
Guidelines
for the Release of Staff in the Nigeria Oil and Gas Industry, 2019.

●      
Employees
Compensation Act 2010

●      
Factories
Act FI, LFN 2004

●      
Industrial
Training Fund Chapter 19, LFN 2004 (as amended)

●      
National
Health Insurance Scheme Act, Chapter N45, LFN 2004

●      
National
Oil and Gas Industry Content Development Act 2010

●      
Pension
Reform Act 2014

●      
Personal
Income Tax Act P8, LFN 2004 as amended by the Trade Union (Amendment) Act 2011

●      
Trade
Disputes Act, Chapter T8, LFN 2004

●      
Trade
Unions Act, Chapter T14, LFN 2004 as amended by the Trade Union (Amendment) Act
2005

●      
Nigeria
Data Protection Regulation 2019 issued by the National Information Technology
Development Agency.

d.   
Decisions
of the Nigeria courts – case law, and

e.    
International
conventions, treaties and protocols relating to labour, employment, workplace,
industrial relations or matters that connect, which have been ratified by
Nigeria.

SCOPE AND APPLICATION OF THE SOURCES
OF LABOUR LAW

★    
The Labour
Act, which is limited in its scope of application as it regulates only the
employment of workers as defined above.

★    
The
Constitution, the NICN Act, the Trade Union Act and the Personal Income Tax Act
apply to all categories of employees, with some exceptions.

★    
The
Pension Reform Act 2014 applies to all employees in the private sector, other
than judges, members of the armed forces and the intelligent and secret
services.

★    
The
Employees Cooperation Act applies to all employees other than members of the armed
forces (although it applies to members of the armed forces employed in a
civilian capacity)

★    
The
Industrial Training Fund Act applies to every employer in Nigeria which employs
more than 5 persons, or which employs fewer than 5 persons, but has an annual
turnover of up to 50 million naira.

★    
The
National Health Insurance Scheme Act applies to employers which have a minimum
of 10 employees.

★    
The
Immigration Act 2015 applies to employers which employ foreign nationals and to
expatriate employees.

TENETS IN AN EMPLOYEE CONTRACT

1.    
The
name of the employer and the undertaking where the employee is employed;

2.    
The
name and address of the worker;

3.    
The
date of engagement;

4.    
The
nature of employment;

5.    
If the
contract is for a fixed term, expiration date should be stated;

6.    
The
period of notice for termination;

7.    
The
rates of wages and method of calculation;

8.    
The
manner and periodicity of payment of wages;

9.    
Terms
and conditions relating to hours of work, holidays and holiday pay, incapacity
for work due to sickness or injury including any provisions for sick pay; and

10. Any special conditions of the contract.

*Special conditions include
Provision of Transport, Annual holidays, Collective Agreements operative in the
Industry or sector and other requirements as the employer may deem fit or as
the employer’s duties may require.

TERMINATING THE EMPLOYMENT CONTRACT

It is required that employers be given notice of termination of their
employment or salary in lieu of such notice.

➔    
The
minimum notice period for workers as
defined above in the Labour Act are as follows:

1)   
One
day, if the length of the service is up to 3 months.

2)   
One
week, if the length of service is up to 2 years.

3)   
Two
weeks, if the length of service is up to 5 years.

4)   
One
month, if the length of the service is 5 years or more.

➔    
It is
agreeable for parties to agree to longer notice periods in their contracts of
employment.

➔    
Regarding
employees
as defined above, the applicable notice period is determined by the terms of
their respective contracts of employment.

Written by:

Oluchi Atoyebi (Mrs.)

Mrs. Oluchi Lynda Atoyebi, is the Principal Partner
and CEO of Eclat Human Resources Consulting Limited. She is a seasoned human
resource executive with several years of progressive experience in developing
and executing comprehensive management strategies and structures across
industries. She has achieved great results through using a people-first system.
Mrs Oluchi Lynda Atoyebi has her certifications in Human Resource Management under
the institutes of Chartered Institute of Management (CIPM) an MBA in Human
Resource Management from the prestigious Nile University of Nigeria with her
first degree in Political Science from the esteemed Amadu Bello University
(ABU), she has held several executive and consulting positions and she is
currently the Human Resource Director of Omaplex Law Firm, the fastest growing
and pacesetting law firm in Nigeria.

With several professional certifications in HR and
Etiquette, Mrs. Oluchi Atoyebi is driven by the passion to impact the
lives of people positively by helping to build the capacity to become
employable locally and internationally.

This passion led to the establishment of Eclat Human
Resources Consulting Limited which is focused
on enabling individuals and corporate bodies achieve their desired outcome
through the provision of workable systems, structures, and people.

Hon. Olubunmi Olugbade, The Apelua Of Ilawe Ekiti Was A Very Brilliant Legal Practitioner And An Outstanding Politician In Ekiti State | Dele Adesina SAN,FCIArb

by Legalnaija | Feb 16, 2021 | Uncategorized

Relevant Provisions From The Nigerian Finance Act 2020 | Olajumoke Ogunfowora

by Legalnaija | Feb 16, 2021 | Uncategorized

The
Finance Bill 2020 has been enacted into law by President Mohammadu Buhari on December 31^st 2020, taking
effect from 1^st January 2021.
It has made over 80 amendments to 14 different laws following hot on the hills
of the Finance Act 2019 which came into force on 13^th January 2020. The Act has made several reforms to
some tax and regulatory laws in the country; it has even included certain
incentives towards the recent COVID-19 pandemic. In this article, we will be
examining the significant changes the Act has made to various laws in Nigeria.

Changes to the Personal Income Tax Act
(‘PITA’)

·       
Redefining
gross income for PAYE tax purposes.  Section
33 (2) of the PITA was substituted with the following:

“For
the purposes of this section, “gross income” means income from all sources less
all non-taxable income, income on which no further tax is payable, tax-exempt
items listed in paragraph (2) of the Sixth Schedule and all allowable business
expenses and capital allowances”.

The idea behind this is to prevent a situation
where non-taxable income (such as reimbursable, employer’s contribution to
pension), franked investment income (such as dividend) and tax-exempt items are
considered in the computation of Consolidated Relief Allowance (CRA).

·       
Re-introduction
of life assurance premium tax relief. The newly re-introduced subsection 3 of
33 states:

“There
shall be allowed a deduction of the annual amount of any premium paid by the
individual during the year preceding the year of assessment toany insurance
company in respect of insurance on his life or the life of his spouse, or of a
contract for a deferred annuity on his own life or the life of his spouse”.

·       
The Act
also mandates that Schemes or Societies, to which contribution to a pension,
provident and retirement benefits fund is made to, should be recognized under
the Pension Reform Act.

·       
The
Finance Act introduced a proviso to Section 37 of PITA which provides that
minimum tax under its section as provided for under the Sixth Schedule to this
Act shall not apply to a person in any year of assessment where such a person
earns the National Minimum Wage or less from such employment.

In other words, any individual earning
National Minimum Wage which is N360,000 annually or less is exempted from
payment of personal income tax.

·       
Introduction
of the concept of Significant Economic Presence (SEP) to Personal Income Tax.

Changes to the Companies Income Tax Act
(‘CITA’)

·       
Minimum
tax for companies in respect of returns for years of assessments due between 1^st
January 2020 and 31^st December 2020 has been reduced from 0.5% to
0.25% of gross turnover less franked investment income.

·       
FIRS
may prescribe the form of accounts other than audited financial statements form
small and medium companies.

·       
Service
of notice of assessment and objections may be done by courier service, email or
other electronic means as may be directed by the FIRS in a notice. Tax Appeal
Tribunal may conduct its hearing remotely via virtual means, using such
technology or application as may be necessary to ensure fair hearing.

·       
Public
character for the purpose of tax exemption requires an organization or
institution to be registered in accordance with relevant laws in Nigeria and
does not distribute or share its profits in any manner to members or promoters.

·       
For
companies operating in Free Trade Zones, exemption from taxes is subject to
compliance with tax filing and returns obligation to the FIRS under Section 55
(1) of CITA.

Changes to the Stamp Duties Act

·       
The
introduction of a one-off levy of N50 known as the Electronic Money Transfer
Levy on electronic Money Transfer Levy on electronic transfers and deposits of
money in the sum of N10, 000 or more to replace the imposition of Stamp Duties
on such transfers. This levy is to be accounted for by the person to whom the
transfer or deposit is made and will be distributed between the Federal and
State Government on a derivation basis of 15% and 85% respectively.

Changes to the Federal Inland Revenue
Service Act

·       
There
is a requirement for Federal Inland Revenue Service (FIRS) to utilize adhesive
stamp produced by the Nigerian Postal Service when denoting documents by
adhesive stamp.

·       
Requirement
for companies operating in the Free Trade Zones to file returns with the FIRS.

·       
Accountant
General for the Federation to open dedicated accounts for each tax type for the
payment of tax refunds to be administered by the FIRS and fund based on annual
budgets for tax refund for each tax-type as may be approved by the National
Assembly.

Changes to the Value Added Tax Act

·       
Exclusion
of land and buildings, money and securities from the definition of goods and
services for VAT purposes.

·       
A
non-resident that makes a taxable supply to Nigeria is required to register for
tax and obtain TIN, include VAT on its invoice, and may appoint a
representative in Nigeria for the purpose of its tax obligations.

·       
Exemption
of commercial airline ticket from VAT, and hire or lease of agricultural
equipment for agricultural purposes.

·       
Exclusion
of land and buildings, money and securities from the definitions of goods and services
for VAT purposes.

Changes to the Capital Gains Tax Act

·       
Compensation
for loss of office up to N1 million exempted from Capital Gains Tax. Tax due on
excess above N10 million is to be deducted by the payer and remitted within the
time specified under the PAYE Regulations.

Changes to the Tertiary Education Trust
Fund Act

·       
Exemption
of small companies with less than BN25 million turn-over from payment of
Tertiary Education Tax.

Changes to the Industrial Development
(Income Tax Relief) Act

·       
A
small or medium company engaged in primary agricultural production may be
granted pioneer status for an initial period of 4 years and an additional 2
years (making 6 years in total).

Customs & Excise Tariff
(Consolidation) Act

·       
Downward
review of excise duty rates on tractors and motor vehicles for transportation
as well as duty-free importation of aircrafts and its parts for commercial
airlines in Nigeria.

·       
Introduction
of excise duty on telecommunication charges at a rate to be prescribed in the
law or an order issued by the President.

·       
Reduction
of import duty on tractors from 35% to 10% and reduction of import levy n cars
from 30% to 5%.

Changes to the Companies and Allied
Matters Act

·       
 Unclaimed dividends ina listed company and
unutilized amounts in a dormant bank account outstanding for 6 years or more to
be transferred to the Unclaimed Funds Trust Fund as a special debt to the
Federal Government to be managed by the Debt Management Office and shall be
available to the shareholder or account holder at any time together with the
yield thereon.

·       
Balance
of operating surplus of a corporation shall be paid to the CRF of the
Federation on a quarterly basis.

Changes due to the COVID -19 Pandemic

·       
Deductibility
of donations made in cash or in kind to the government in respect of any
pandemic or natural disaster to a maximum of 10% of assessable profit after
other allowable donations.

In
conclusion, based on all the new amendments to the Finance Act, some of which
are actually geared towards meeting the demands of socio-economic changes, it
is advisable that both existing and prospective business owners should seek to
understand the provisions of the Finance Act and the implications on how
business is to be conducted in Nigeria going forward. In other words, since
every new law has its opportunities, as well as its challenges, it is expedient
that interested investors examine critically the impact of the amendments and
make the required adjustments needed, especially as regarding payroll tax
calculators.

References

Matthews,
M. 2021, (January 6).  President Buhari
Signs the Finance Bill, 2020 into law. Andersen Tax.https://www.mondaq.com/nigeria/financial-services/1023224/president-buhari-signs-the-finance-bill-2020-into-law

Obayomi,
W. 2021, January 6. President Signs the Appropriation Bill, 2021 and Finance
Bill, 2020.  Proshare.https://www.proshareng.com/news/Budget%20and%20Plans/President-Signs-the-Appropriation-Bill–2021-and-Finance-Bill–2020/55059

20
Key Changes in the New Finance Act, 2020 You Should Be Aware Of. (2021, January
6). Pwc Nigeria. https://pwcnigeria.typepad.com/tax_matters_nigeria/

Finance
Act 2020 and its Impact on Employment Tax. (2021, January 6). Deloitte. https://www2.deloitte.com/ng/en/pages/tax/articles/finance-act-2020-and-its-impact-on-employment-tax.html

Olajumoke
Ogunfowora

AOC Solicitors

olajumokeogunfowora101@gmail.com

Cryptocurrency is still not illegal in Nigeria: A Digital Rights Lawyer’s Perspective | Olumide Babalola

by Legalnaija | Feb 8, 2021 | Uncategorized

Data Protection And Intellectual Property: A Global Approach To Dissecting Emerging Legal Issues | Oyetola Muyiwa Atoyebi, SAN

by Legalnaija | Feb 4, 2021 | Uncategorized

THE
NEED FOR DATA PROTECTION IN THE MODERN WORLD

According
to OECD in 2015, data is seen as the very infrastructure underlying the
modern digital economy.

To
succeed in the modern economic environment, businesses and technology models
heavily rely on huge amount of data to thrive. Top companies lik
e Facebook,
amazon and google, some of the world’s digital economy leaders, are leaders in
the business world due to their access to immense amount of data from their
users which they then apply with their algorithms. it helps keep their market
at a remarkably high level.

The
questions of who owns the data, who gets access to it and whether data is
something that can be owned in the first place is yet to be settled. In the
same vein, it leaves us with so many questions on intellectual property rights.

Although
there exists bits and pockets of legal frameworks for data, the EU’s General
Data Protection Regulation (GDPR) which came in force in 2018 took centre
stage and replaced most existing data laws, particularly Directives 95/46/EC (the
Data Protection Directive) and 2002/58/EC (the ePrivacy Directive). Other
new regimes like the California Consumer Privacy Act (CCPA) which became
operative on the 1^st of January 2020 is also a subject of much
discourse.

HOW
HAS DATA PRIVACY REGULATORY FRAMEWORKS RECOGNISED INTELLECTUAL PROPERTY RIGHTS?

The
question that keeps arising is, how much does these laws recognise Intellectual
Property rights?

One
thing that is certain is that IP rights are not expressly spelt out in most
data protection laws and some may even have counter effect on IP. Under the
GDPR for example, right owners wishing to take action against domain name
owners whose domains have infringed their trademarks, design or copyright, will
find it harder to obtain details of a UK domain name owner allegedly infringing
their rights due to the consent provision of the GDPR.

Similarly,
the GDPR does not recognize company rights but just personal rights. The
European Commission (EC) stated that the rules only apply to personal data
about individuals and do not govern data relating to legal entities.

The
Nigerian data protection regulation (NDPR) also takes a similar approach to
data rights. The NDPR defines a ‘data subject’ as a person who can be
identified directly or indirectly, by reference to an identification number or
to one or more factors specific to his physical, physiological, economic,
cultural or social identity. It also defines personal data as information
relating to an identified or identifiable natural person which may be a name,
address, photo, email address, bank details, posts on social networking
websites, medical information, etc. thus,

Giving
the restriction of data subjects to majorly natural persons only, the current
data protection regime has left a huge void regarding intellectual property
rights.

TRADE SECRET PROTECTION: ARE THEY ENOUGH?

Trade
secrets arguably enjoy the most protection under the current data protection
laws. The Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) sets out standard minimum levels of protection of trade secrets as
Intellectual Property Rights and provides a definition of the information that
can be protected, focusing on these three requirements:

(i)               
Secrecy,

(ii)             
commercial value; and

(iii)           
reasonable steps to keep the
information secret.

Trade
secrets regime in the EU has been recently regulated by Directive (EU)
2016/943 (“Trade Secrets Directive”). As evinced from Recital 10 and
Article 1 of the Trade Secrets Directive, the aim of the Directive is not
to introduce a full EU trade secrets regime, but rather to reach a partial
harmonisation through a minimal standard of protection, leaving room for Member
States to provide for more far-reaching protection.

TRADE SECRETS UNDER THE CALIFORNIA CONSUMER PRIVACY ACT
(CCPA)

The
CCPA particularly provides an interesting cover for trade secrets. Generally,
the CCPA allows California consumers to request that a business disclose the
specific pieces of personal information (PI) the business has collected. The
consumer also may request that the business delete any PI about the consumer
that the business has collected. If a business is able to verify the identity
of the consumer making the CCPA request, it must comply with the request unless
one of the enumerated exceptions applies. Unexcused failure to do so exposes
the business to a civil action by the California Attorney General for
injunctive relief and civil penalties of up to $7,500 for each violation.

The
question now is, what happens if the personal information covered by the
consumer request includes information considered as trade secret data? Given
the wide meaning of both PI and trade secrets under the CCPA, a conflict in
this regard is inevitable.

Although
the CCPA does not provide a clear-cut safe harbor to address this dilemma, a
potential argument that may support a decision to withhold trade secret data
when responding to a consumer request may arise.

HOW TO DETERMINE THE OWNER OF IP PARTICULARLY IN AI
DRIVEN TECHNOLOGIES THAT RELY ON DATA?

Seeing
that Artificial Intelligence (AI) is already becoming omnipresent in our
everyday life, the development raises broad and multi-disciplinary policy
questions, including several aspects of intellectual property (IP). Much like
the countries in which they operate, an increasing number of corporations are
convinced that AI will be essential to maintaining a leading position in the
future.

Determining
the owner of an IP right in AI driven technologies are quite complicated.
Biometrics, as an AI initiative provides a brilliant case study. The GDPR
includes specific provisions for biometric data. In particular, the GDPR covers
the processing of biometric data for the purpose of uniquely identifying a natural
person. Biometric data is data resulting from specific technical processing
relating to the physical, physiological or behavioural characteristics of a
natural person, which allow or confirm the unique identification of that
natural person, such as facial images or dactyloscopic data.

A
company that is desirous of collecting the biometric (or other prohibited data)
of an EU citizen, the company must be able to demonstrate that it has met an
exception to the GDPR’s general prohibition. A non-exhaustive list of these
exceptions include: that the EU citizen has given explicit consent for a
specified purpose for the data; that processing the data is essential to
protect the vital interests of the individual and he or she is incapable of
giving consent; or that processing the data is necessary for the purposes of
preventive or occupational medicine, and subject to the conditions and
safeguards referred to in the GDPR.

In
addition to meeting one of the exceptions, a company must also comply with data
protection requirements and obligations. For example, a company must provide EU
citizens with the right to be forgotten, meaning that an individual shall have
the right to withdraw his or her consent at any time. This can lead to severe
penalties for the company for failure to comply. The question then arises, at
the point where consent was yet to be withdrawn, who owned the intellectual
property right? If it is the company, do they lose that ownership when the data
subject decided they want to be forgotten?

In
this regard, it could be argued that ownership of IP rights in big AI resides
with the data subjects and only upon certain exceptions can companies use it.

INTELLECTUAL
PROPERTY AND ARTIFICIAL INTELLIGENCE: FOCUS ON COPYRIGHTS.

The
global technology transition brings into question several fundamental IP
concerns. Seeing that most IP laws were written at a time when only natural and
human intelligence were contemplated, AI challenges many traditional IP legal
notions such as originality, copying, author, designer, and inventor among
others. Arguably, when AI systems are engaged to perform creative or other
cognitive tasks, the prevailing humanistic approach to IP is not well suited to
protect the generated results.

Let’s
look at copyrights for example. Under EU and American copyright law, copyright
protection applies to the expression in any form of a computer program,
provided that the program is original in the sense that it is the author’s own
intellectual creation. In respect of the criteria to be applied in determining
whether a computer program meets the originality requirement, no tests as to
the qualitative or aesthetic merits of the program should be applied.

However,
ideas, methods and principles which underlie any element of a computer program,
including those which underlie its interfaces, are not protected by copyright.
Only expressions of intellectual efforts are protected. In addition, since no
registration is neces­sary for copyright protection to arise (with varying
exceptions), collection of evidence may sometimes be difficult.

In
conclusion therefore, from an economic standpoint, the scope of copyright
protection (and other IP protection including trademarks and trade secrets) for
an AI system is insufficient. Seeing that copyright will not protect the
creativity, skill and inventiveness devoted to the development of the
functional concept behind an AI system, it may be recommended not to rely
solely on copyright law and data protection laws. The current data regime
completely ignores this possible insufficiency. These insufficiencies for the
main time are best circumvented via a robust contractual agreement, although it
has its inadequacies, especially when dealing with a large number of data
subjects.

DATA
RIGHTS AND DATABASE RIGHTS: ACHIEVING AN EQUILLIBRIUM BETWEEN DATA RIGHT
PROTECTION AND INTELLECTUAL PROPERTY PROTECTION UNDER NIGERIAN LAWS.

On the back of several reports of privacy
violations against Facebook, the United States Federal Trade Commission imposed
a $5,000,000,000(Five-Billion Dollar) fine on the company in July, 2019.
Earlier in January, 2021, social media giants – Twitter, permanently suspended
the account of Former American President, Donald Trump for inciting violent
protests at the Capitol (the Nation’s legislative building) via his tweets on
the platform. 

What indeed is the nexus between these
narratives? Simply put, the former narrative on the fine imposed on Facebook
encapsulates the importance placed on the need to protect data rights as
contained in databases. The later relays the great extent to which the owner of
an intellectual property can exploit his powers (in this instance, it was
exercised to outlaw a President from social media). Moving forward, it is
without doubt that in several jurisdictions the world over, various laws have
been put in place to uphold various rights and more importantly in this discuss
– data rights and intellectual property rights.

This paper seeks to open a conversation on
the need to ensure that the exercise of database rights by an intellectual
property owner, does not infringe on the data rights of others.

DATABASE
RIGHTS: MEANING AND PROTECTION UNDER THE NIGERIAN COPYRIGHT LAW

Although no Nigerian legislation defines
database rights, in Nigeria, it can be regarded as a literary work eligible for
protection under Section 1, of the
Copyright Act, 2004.  For the
purposes of clarity however, the definition of a database under the United
Kingdom’s Copyright and Rights in
Databases Regulations, 1997, may be adopted. Regulation 6 of the Regulation defines a database as ‘a collection
of independent works, data or other materials which are arranged in a
systematic or methodical way, and are individually accessible by electronic or
other means’.

Therefore, in basic terms, a database right
refers to the intellectual property right accorded to a person in recognition
of the effort put in forming/creating a database.

As earlier stated, these rights are accorded
protection under the Copyright Act of Nigeria. Consequently, the owner of a
database enjoys the protection of the following rights as a copyright owner:

1.       Economic rights: These rights aim at
safeguarding the financial interests of a copyright owner by conferment of an
exclusive right to exploit the work commercially. They consequently provide the
following benefits:

·       
Enhance the market value of a business by
leveraging on the goodwill provided by ownership of IP.

·       
A source of earning as they can be
licensed/assigned

2.      Moral rights: These seek to
protect the integrity of the author’s work as it encapsulates the reputation of
a copyright owner. To this end, the law will operate to prevent a copyright
owner’s work from being used in a manner contrary to the owner’s wishes or
without his prior approval.

THE
STRENGTHS OF THE NIGERIAN DATA PROTECTION REGULATION (NDPR), 2019 IN PROTECTING
DATA RIGHTS.

As earlier established, database
rights under Nigerian law enjoy the benefit of copyright protection which
enable a copyright owner to exploit the benefits therein. However, whilst the
law will recognise and afford protection to the ingenuity of an author
(copyright owner) who has exerted effort in compiling such a database, such a
compilation must be done in a manner that does not infringe on the rights of
others. It is indeed in this regard, that the issue of Nigeria’s data
protection regime comes to fore.

Whilst they exist pockets of industry
specific legislations on data protection in Nigeria, the Nigerian Data Protection Regulation (NDPR), 2019 constitutes
the only comprehensive and holistic piece of data protection in Nigeria. The
regulation principally seeks to ensure that the processing of the data of
Nigerians is carried out lawfully in a manner consistent with the privacy
rights of Nigerians.

Since its coming into force, the NDPR has
strengthened the nation’s data protection framework by ushering in a number of
laudable developments as follows:

1.      
Enhanced
Privacy Rights: The NDPR most importantly, has articulated
the privacy rights of Nigerian citizens guaranteed under Section 37 of the 1999 Constitution as amended. In a landmark
decision, the Federal High Court in Abuja, in 2019, affirmed the data privacy
rights of Nigerians and ordered the Nigerian Information Management Commission
to protect the data rights of Nigerians beyond merely having bogus security
policies which it had prior to the suit, failed to implement. [See Incorporated Trustees of Paradigm
Initiative for Information Technology (PIIT) & Sarah Solomon-Eseh v
National Identity Management Commission (NIMC) & Anor)].

Essentially,
the NDPR preserves the data rights of Nigerians by requiring all data
controllers (organisations processing the data of Nigerians) to ensure that in
processing (making use of) the data of Nigerians:

·       
consent must be obtained;

·       
it must be in the interest of the data
subject or in public interest;

·       
 for
the performance of a contract which the data subject is a party to, amongst
others.

2.      Commitment to Ensuring Data Protection: The NDPR
also solidifies the commitment of the Nigerian government in ensuring that all
cybercrimes and associated threats linked to breaches in data bases are
addressed. Article 2.6 of the NDPR
places a duty on all data processors to put in place security measures to
protect data which amongst other things include setting up firewalls,
protection of emailing systems and employing data encryption technologies.

Reports indicating that 588 businesses
have filed data audit reports           with
the National Information Technology Development Agency           (NITDA) as at August, 2020, as opposed to a near zero
compliance level           before the
inception of the NDPR is indeed a silver lining in the quest        for data protection in Nigeria.

3.     Expansion of Nigeria’s Job and Wealth
Creation Potential:

In
Nigeria, the National Information and Technology Development Agency (NITDA)
licenses Data Protection Compliance Officers (DPCOs) to not only provide data
audit services, but to provide general training on data compliance which
obviously comes at a cost to data controllers patronizing such DPCOs thereby
fuelling wealth and job creation. In a similar vein, an avenue is created for
the government to generate funds through licensing fees for DPCOs and
applicable fines for breach of data rights.

            In
capturing the wealth and job creation potential available via the NDPR, Isa Pantami, Nigeria’s Minister of
Communications and Digital      Economy in
an interview in September, 2020, observed succinctly:

“One of my
greatest sources of joy on the Regulation is its job creation potential. Over
1.5 million businesses and non-governmental organisations would need to file
Data Audit Reports on or before March 15 every year. Each of these reports must
bear a Verification Statement, sign and seal of a licensed DPCO. If each DPCO
provides service for an average of 50 Data Controllers, we would need over
300,000 professionals to meet this need.” [Available
On: Premium Times, ‘The      Huge
Prospects of Nigeria’s Data Protection Regulation 2019, By Isa Ali Ibrahim
Pantami’ (Premium Times, 16 April 2019) accessed 7^th September
2020].

THE
CHALLENGES OF THE NDPR IN PROTECTING DATA RIGHTS

Although, the provisions of the NDPR are
laudable and set the tone for much potential in Nigeria’s efforts at achieving
a world class data protection status in which all data rights are protected,
nonetheless, there exist few challenges:

1.       Scope: The NDPR only
guarantees data protection for Nigerians in Nigeria (Article 1.2 NDPR). Consequently, the regulation does not extend
protection to non-residents. In contrast, the General Data Protection
Regulations, GDPR (applicable to countries in the European Union) has
extra-territorial provisions governing such outsourcing needs. See Article 3 of the GDPR.

2.      The Status of the NDPR:  It has been submitted, that the efficacy of
the provisions of the NDPR is watered down as it is not a legislation.
Consequently, in the event of a conflict between the regulation and statute,
the later shall prevail. For example, the provisions of the Cyber Crimes Act, 2015, on the release
of personal data pursuant to Court orders and statutory fines, will take
precedence over the NDPR. In sharp contrast however, the provisions of the
General Data Protection Regulations (applicable to the European Union) is a
substantive legislation of parliament.

3.    
 Deterrence Measures: In light
of the serious damage privacy infringement may occasion and the huge profits
earned by infringing companies doing business, it is observed that the penalty
imposed by the regulations should be made weightier. Article 2.10 of the NDPR imposes a fine of 2% on domestic gross
annual revenue or 20 Million Naira, whichever is greater on companies (handling
above 10,000 data subjects) in breach of the regulation. With the combined
values of the top tech companies Facebook, Netflix, Google and Amazon placed at
2.3 trillion dollars in 2018, the 20 Million Naira fine under the NDPR should
be increased to deter violations.

THE WAY
FORWARD: RECOMMENDATIONS

Nigeria’s quest to achieving a compliant data
protection status capable of securing database rights and indeed all other
ancillary intellectual property rights cannot be achieved overnight.  Nonetheless, the above issues discussed are
cardinal and must be tackled as a first step:

1.   Need to Improve Capacity: It is
germane that NITDA as the principal body for data protection in Nigeria
consolidates on its successes and takes steps to improve further. Whilst the
agency must be applauded for opening investigations into a number of alleged
data breaches, notably breaches by TrueCaller,
Surebet247 and the Lagos Inland Revenue Service, the absence of sanctions
or the non-publicity of same must be addressed. The agency must begin to impose
sanctions on defaulting organisations. The NITDA should take a cue from
countries within the European Union which have imposed a minimum €114,000,000 in fines since the
inception of the GDPR in 2016.

2.      Scope of the Act: The
definition of data under the NDPR must be reviewed to explicitly include
non-electronic data.  This will ensure
that data not electronically stored is also afforded protection. Such an
amendment must also include an obligation on data controllers to inform data
subjects of data breaches thus affording such subjects the opportunity to take
extra precautionary measures and further ultimately bring the NDPR into
conformity with international best practices on data protection.

3.     Increased Licensing Capacity: Lastly,
it is firmly believed that by licensing more competent data compliance
officers, market forces would operate to dictate cost of data audit reports and
associated due diligence on data compliance. This would remedy the effect of
the current regime were high compliance costs currently cripple the efforts of
data controllers at achieving compliance.

4.     Passage of the Digital Rights Bill: The
Nigerian Government must take steps in ensuring that the Digital Rights Bill is
passed into law. Following President Buhari’s non-assent to the Bill, the
National Assembly must take the bull by the horn to ensure passage by
addressing the reasons for the President’s decline of assent (for e.g. the
failure to address specific digital rights extensively). The Act, if passed
will not only crystallise the data rights of Nigerians it would also allay all
fears pertaining to the genuineness of Nigeria’s data protection regime.

CONCLUSION

This Legal content appraises the role of the
intercourse between Data protection and intellectual property rights from a
global and ever evolving purview, while succinctly addressing the need for an
improvement in the Global and Nigeria’s data protection framework with a view
to ultimately ensure that a balance is achieved in the protection of data
rights and database rights.

Written
by: Oyetola Muyiwa Atoyebi, SAN

Mr.
Oyetola Muyiwa Atoyebi, SAN is a seasoned Intellectual  Property and data protection expert with over
a decade’s worth of experience in legal practice and technology. He has
facilitated numerous transactions and given countless legal opinions on Intellectual
property and data protection inclined matters in Nigeria. Against the backdrop
of his stellar expertise, Atoyebi has also facilitated several panel
discussions and engagements on  Intellectual  Property and data protection.

He
is the youngest lawyer in Nigeria’s history to be conferred with the highly
coveted rank of a Senior Advocate of Nigeria (SAN). Mr.  Atoyebi is also a recipient of countless
awards given in recognition of his sterling contributions to the growth and
development of law and technology.

He
is the Managing Partner of OMAPLEX Law Firm, an established law firm driven by
technological innovation. As an expert in emerging areas of law practice, he
has core competence in Intellectual property, Data protection, Cyber Security,
Fintech, Robotics and Artificial Intelligence.