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RE NBA ELECTIONS 2020. BY ADEBAYO OREKOYA ESQ.

by Legalnaija | Feb 16, 2020 | Uncategorized

I wonder at some sons of Yoruba race and their penchant for self destruction, deceit and falsehood. I also wonder where to locate the fault? In them or in their stars? When will patriotism begin to guide our aspirations? Lies, lies and deliberate lies all because of politics!!! Where lies our integrity and honour not just as Lawyers but more importantly as “omoluabis”?

I just read the post by one Adebayo Orekoya titled “NBA 2020 Elections: Why the lopsided adoption by a faction of Egbe Amofin does not represent the decision of majority of the South West Bar”. It is very saddening that Mr Orekoya intentionally fabricated lies about the Egbe Amofin Oodua’s meeting of December 14th, 2019 and deliberately mis-informed his readers just to achieve a selfish and pre-determined intention. Few questions for you my dear Mr Orekoya.

1) Where were you in August 27th, 2019 when both leaders and followers of Egbe Amofin resolved unanimously at their lkoyi Lagos meeting that they were going to field ONLY one candidate for the 2020 NBA Presidential election to remedy the mistakes of 2014?

2) Where were you in October 26th, 2019 when Egbe Amofin congregated at Aare Afe Babalola SAN Bar centre lbadan and after exhaustive deliberation resolved and constituted the 26 Chairmen of the South West NBA branches into a Committee headed by Chief Niyi Akintola SAN to screen and recommend one person in accordance with the earlier decision of August 27th 2019?

3) Were you aware that 4 people indicated their interests to run for the office of NBA President at the meeting and that all of them supported the setting up of the Committee with clear undertaking by each of them to abide by the decision of the Committee and the house on the matter?

4) Are you aware that in line with the undertakings, some aspirants, men of honour and integrity in the over all interest of Yoruba Lawyers have stepped down in honour of their promise?

5) You said the Committee members were handpicked. Are you aware branch Chairmen were elected by members of their branches and that they were members by virtue of being the Chairmen of their branches?

6)You talked about a faction of Egbe Amofin, but you failed to name the other faction nor present any fact to substantiate your false and fertile imagination

7) You said very few lawyers were present at the Egbe Amofin Oodua’s meeting of December 14th, 2019, how many were they? Do you know that the members of Egbe Amofin that were present at the meeting in 2008 Were less than 50% of those present in December 14, 2019?

8) Are you aware that all the branches of Nigeria Bar Association in South West were present at the meeting including Yoruba lawyers practising outside the South West region?
.
9) From the Body of your write up, you were no doubt happy at the similar decision of 2008. Do you remember that the 2008 decision was based on the recommendation of a Committee composed of only 3 members under the Chairmanship of Chief Bayo Aluko-Olokun SAN?

10) You probably chose not to remember that in 2002 a similar Committee was composed of 3 members with Chief Adigun Ogunseitan as Chairman and their decision was respected by Yoruba lawyers. The other aspirant Mr Segun Onakoya who rebelled against the decision failed woefully at the poll.

YORUBA RONU.

LET OUR CONSCIENCE BE OUR COMPANION.
Prince Kunle Adetowubo.
Past Chairman,

NBA, Ondo Branch.

Dele Adesina, SAN Advises Young Lawyers to Ensure Proper Due Diligence When Drafting Contracts

by Legalnaija | Feb 14, 2020 | Uncategorized

Dele Adesina SAN was the special guest at the 2nd Legal Workshop of the Young Lawyers Forum (YLF), Nigerian Bar Association, Ikeja Branch, with the theme – “Drafting and Review of Commercial Agreements.” The facilitator of the Training, Mr. Chisom Obiokoye, from the law firm of Perchstone & Graeys, took the room of over a hundred Lawyers on the principles of drafting and review of Contracts.

According to Mr. Adesina, SAN, he was optimistic that Mr. Chisom’s lecture was an investment into the lives of the young lawyers who participated in the Workshop and was a worthy initiative by the Young Lawyers Forum.

Mr Adesina, SAN, also stated that it is trite that no court of law, no matter how powerful can make contracts for parties and further stressed on the importance and need for lawyers to pay critical attention when drafting contracts for their clients because if a contract is poorly drafted, it could expose their clients to risks in the future.

According to Mr. Adesina, SAN, “these things cannot be taken for granted, as the Courts will only interprete the terms stated in the contract and would not substitute its reasoning with the agreement of the parties.”

Mr. Adesina appreciated Mr. Chisom’s words that “parties are the masters of the facts” and lawyers should ensure that their clients always produce the facts of every matter in writing, a principle he mentioned applied to litigation as well.

He advised the young lawyers to never believe contractual relationships between parties will go on smoothly and caution must be made not to expose thier clients to risk. He further advised the young lawyers that their relevance was in their ability to anticipate possible problems that may occur and to make provisions for same in the agreement.

Mr. Adesina, SAN, further reiterated the suggestions he made to the leadership of the Young Lawyers Forum, Nigerian Bar Association, Ikeja Branch, a year ago and pledged that at least once a year he would sponsor one of such Workshops organized by the Young Lawyers Forum, Nigerian Bar Association, Ikeja Branch.

Mr. Adesina ended his address by thanking the Chairman of the Young Lawyers Forum, Nigerian Bar Association, Ikeja Branch, Mr. Ezekiel Bodunde and his Executives for the invitation.

Dele Adesina SAN as the General Secretary of the Nigerian Bar Association, from 2002-2004, spoke Truth to Power

by Legalnaija | Feb 13, 2020 | Uncategorized

Recently, the news of Lawyers being assaulted by security agents has flooded the media space. Instances include the incident in Asaba, where a Police officer attached to the convoy of the Commissioner of Police slapped a Lawyer, Samson Okehielem. Also, the Police invasion of the WACOL Office and the assault on Miss Patience in Enugu; the action of the Police was reported to have sent Miss Patience to a state of coma.

There are some other incidents to the annoyance and discomfort of lawyers. These incidents must not be allowed to continue. Lawyers and the Legal Profession are special stakeholders in a constitutional democracy and they deserve respect from our law enforcement agents. Like other climes, lawyers must be seen and accepted as strategic partners in progress in the business of maintaining law and order in the society.

Interestingly, many candidates vying for various offices within the Nigerian Bar Association also made public statements denouncing these unlawful acts and providing some comfort to members of the Bar by promising to go hard on security agencies that breach the rights of lawyers.

I know many of these statements are only for campaign purposes as many of these candidates did not release any of such statements in the past, neither is it on record that they have ever been committed to protecting the rights of lawyers. Well, except one. Many lawyers will know of Mr. Dele Adesina, SAN but not many lawyers remember some of the selfless actions he undertook alongside other Executives of the Nigerian Bar Association while he was and after he was the General Secretary.

I am sure many will recall that two days after the Nigerian Bar Association Elections on the 29th of August, 2002, the Chairman of Nigerian Bar Association Onitsha Branch, Barnabas Igwe Esq., and his pregnant wife were dastardly and brutally murdered in cold blood on the streets of Onitsha, Anambra State. It will be recalled that events leading to the murder had seen Barnabas Igwe Esq. assuming the leadership position of the hapless and helpless, oppressed and defenceless workers in and outside the Civil Service of Anambra State. Workers salary was unpaid for over six (6) months by a Government supposed to provide and cater for the social, economic and political needs of its citizens. The Bar in Onitsha under the leadership of Barnabas Igwe Esq. had called on the government of Mr. Mbadinuju to resign, having failed in its constitutional responsibilities. One thing led to the other and the gentleman was murdered with his wife. Mr. Dele Adesina, SAN as General Secretary of the Nigerian Bar Association and other Executives and Members of the Nigerian Bar Association rose up stoutly against what was described as a callous and dastard act of barbarism and fought very hard to ensure that the Governor under whom this act was perpetrated failed to get second term in office.

Originating processes and Notices of appeal; a precis of the Supreme Court’s decision in Ani v Otu

by Legalnaija | Feb 11, 2020 | Uncategorized

Originating processes
and Notices of appeal can no longer be deemed validly filed and served; a
precis of the Supreme Court’s decision in Ani v Otu (2017) 12 NWLR (Pt. 1578)
30 @ 71

From time immemorial,
various appellants have inundated the appellate courts with applications for
extension of time to appeal together with ‘preemptive’ deeming orders
regularizing their notices of appeal filed prior to the grant of such leave.

The apex and court of
appeal are wont to deeming such notices of appeal as valid, subject to
satisfaction of settled factors as laid down by the courts over the years. With
the age long precedents on deeming of notices of appeal, the question of its
propriety seemed settled so much that it didn’t attract any special attention
from the courts. Unequivocally, in Incar Nigeria Plc v Bolex
Enterprises Nig. Ltd (2001) 12 NWLR (Pt. 728) 646, the Supreme Court appeared
to have impliedly approved of the practice thus:

“A notice of appeal
filed out of time will require a prayer for enlargement of time within which to
file such notice of appeal. It is only after that prayer is granted that the
Court may deem the notice of appeal already filed as duly and properly filed.”

This remained the
judicial consensus/norm on deeming of notices of appeal until the 2017 decision
of the same supreme court to the contrary in Anthony Asuquo Ani v Ekpo Okon Abasi Otu (2017) 12 NWLR (Pt.
1578) 30 @ 70.

In that case, the appellants
filed a suit at the high court of Cross River State challenging the nomination
and selection of the Ekpo Abasi Otu (1st respondent) as Obong of Calabar. The high
court found in favour of the appellant and granted all the reliefs sought. On appeal,
the Court of Appeal set aside the decision of the High Court and that
necessitated another appeal to the Supreme Court.

Consequent upon filing a
notice of appeal against the judgement of the court of appeal, the appellants
filed an application at the Supreme Court for (1) an order extending time to
seek leave; (2) leave to appeal; (3) order extending time within which to
appeal; (4) leave to Appeal of grounds of mixed law and facts; (5) order
deeming the record of appeal as valid; (6) order deeming the notice of appeal
as valid; (7) order deeming the appellants’ brief as valid.

In addition to their
respective counter affidavits to the appellants’ motion, the two sets of
respondents filed preliminary objections to the hearing of the appeal (which
notice of appeal hasn’t even been regularized at the time of the objections).

In the leading ruling
read by Amina Adamu Augie, JSC, the Apex court granted only the four reliefs
seeking extension of time and leave to appeal while the three prayers seeking
deeming orders were refused.

Emphatically, Paul Adamu Galinje, JSC at page 70- 71
para H- B held that:

“However, the deeming order sought by the applicant in respect of
the record of Appeal, notice of Appeal and brief of argument cannot be granted.
A notice of appeal cannot be deemed as having duly filed and served because it
is a document which by definition commences an appeal. The documents which a
court can deem are those which parties exchange between themselves during the
course of proceedings, such as statement of claim or defence and briefs of
argument and not those which require
the signature of the registrar for their validity. The time for
transmission of the record of Appeal and the filing of briefs of argument can
only begin to run after the appeal is filed.”

Although a concurring
judgement, it possesses the force of the leading judgement. See the Supreme
court’s statement on concurring judgement in Ziakade Akpobolokemi v
Capt. Emmanuel Iheanacho (2016) LPELR -40563(CA) thus:

“A concurring judgment complements, edifies and adds to the
leading judgment. It could at times be an improvement of the leading judgment
when the justices add to it certain aspects which the writer of the leading
judgment did not remember to deal with. In so far as a concurring judgment
performs some or all the above functions, it has equal force with or as the
leading judgment in so far as the principles of stare decisis are concerned.

It is now no longer in
doubt that, the recent supreme court’s decision in Ani v Otu (supra) represents a paradigm shift from, not only the
procedural possibility/practice of deeming notices of appeal as valid but also
all other originating processes including writs of summons, originating
summons/motions and petitions, what however remains unclear is the effect of
the courts’ subsequent reliance on such deemed originating processes during
trial or further proceedings.

Conclusively, there’s no
gainsaying that the decision of the apex court is final, however in the
author’s respectful opinion, if it could be shown at the time of adoption of
addresses on the deeming prayer that, the said originating process was in fact,
signed by the registrar upon filing, then such a process ought to be taken to
have passed the test laid down in his lordship’s concurring judgement since the
whole essence of a deeming order is to expedite proceedings and downplay
technical justice in favour of substantial justice.

On the whole, until the
apex court takes another look at the erstwhile convenient and expedient
practice of deeming originating processes as valid, it remains inarguable that a
notice of appeal, like its counterpart originating processes cannot be deemed
validly filed and served.

Olumide Babalola, managing partner,
Olumide Babalola LP.

A Brief Review of NCC Licensing Regulations 2019 – Bisola Scott

by Legalnaija | Feb 11, 2020 | Uncategorized

INTRODUCTION

The Licensing Regulations 2019 [2] (“the Regulation”) was made by the
Nigerian Communications Commission (“the Commission”) effective from 11^th January
2019 pursuant to the powers conferred upon the Commission in sections 33 and 70
of the Nigerian Communications Act [3] (“the Act”) to publish regulations
on licensing processes among others.[4] Reg.1 of the Regulation
stipulates the objective of the Regulation, which is to provide a regulatory
framework for effective and efficient licensing processes and procedures in the
communications industry for the operation of communications systems, facilities
and services in Nigeria.

The Regulation applies to individual licence, class
licence, frequency licence and other licence category that may be determined
and published by the Commission.[5] According to the Regulation, the
Commission may classify or reclassify communication services under the
categories of licenses identified above, on terms and conditions that may be
deemed necessary in compliance with sections 32, 33, 34, 35 and 36 of the Act.[6] Prior to this Regulation, licensing
in the telecom industry was regulated by the Nigerian Communication Act,
licensing agreement templates, information on licensing process provided by the
NCC, including other related regulations and guidelines on use and deployment
of telecom infrastructure. The key provisions of the new Regulation are
highlighted below.

REVIEW OF THE REGULATION

1. Licensing Process and
Exemptions

The Regulation stipulates that all
communication services provided in Nigeria must be provided after obtaining a
licence from the Commission.[7] However, the Commission may exempt
communication services or class of persons from holding a licence by issuing
an exemption order to the exempted communication services or
persons.[8] Prior to the issuance of an exemption
order, the Commission must ensure that the service to be provided by the
exempted service provider will not interfere or cause harm to other service
providers or consumers.[9] Where the communication service will
cause harm to other service providers and consumers, the Commission will not
issue the exemption order.

The Regulation stipulates that a licence
should be granted on non-discriminatory terms.[10] A licence would be said to have
been granted on non-discriminatory terms, if the telecommunications providers
with similar types of networks or services are treated similarly, the licence
does not favour any telecommunications provider or class of telecommunications
providers over others, and the issuance of the licence is likely to enhance
competition in any market.[11] In consonance with the
Communications Act, the Commission is mandated to carry out its functions and
duties and exercise its powers in a non-discriminatory manner.[12] The Commission is also required to
be guided by the principles of transparency, fairness and non-discrimination in
the formulation of licensing procedures, issuance of communications licences
and preparation of licence conditions and terms.[13]

The licence issued by the Commission
authorizes the holder to own, operate a communication network, or provide a
communication service as prescribed in the licences.[14] Therefore, with a licence
issued by Commission, the licensee can own, operate a communication network, or
provide a communication service, and cannot exercise such rights until it has
obtained a license. The Regulation also prohibits a licensee from operating any
service or facility which is not expressly stated in its licence or for which
the Commission has provided a separate licence or authorization.[15]

The Regulation provides a different sanction
from the one identified in section 31 of the Act by providing that
notwithstanding the provision of section 31 of the Act, any person who provides
a communication service without a valid license shall be liable to an
administrative fine of N5,000,000 for the contravention and N500,000 for each
day that the contravention persists after an order to desist has been issued by
the Commission.[16] Section 31(2) of the Act provides
for fines and or imprisonment as sanctions for operating a communication
facility or providing communication services without obtaining a licence.[17] The Regulation further stipulates
that any person who continues to provide a telecommunications service after the
expiration of a licence term shall be liable to an administrative fine
equivalent to the initial fee for the relevant licence and an additional fine
of N100, 000 for each day that the contravention persists.[18]

2. Individual Licence

An individual license may be granted through
an auction, tender, fixed price, competitive bid process and any other method
which the Commission may consider as appropriate.[19] The Commission shall process the
application within the time and in the manner stipulated in section 41 of the
Act, (which is within 90 days of receiving an application) and subject to the
other terms in section 41 of the Act. The Commission shall issue an offer
letter to the applicant if satisfied with the application, and the
applicant shall pay the licence fee within 30 days of receipt of the
offer letter.[20] An individual license will not be
issued to an applicant where it holds a controlling interest in another
licence, where the Commission is satisfied that anti-competitive issues may
likely arise if such licence is granted, or where the applicant failed to meet
its obligations under the conditions of another licence.[21] An issued licence will terminate at
the expiration of its duration unless the licensee gives the Commission a
notice of its intention to renew the licence not later than six months before
the expiration of the license term.[22] Therefore, it may still subsist
after the expiration of its duration, if the licensee had given a notice of its
intention to renew the licence not later than six months prior to its
expiration. Where the licensee did not give any notice of intention to renew,
the licence will terminate automatically and licensee will be removed from the
register and will only be re-listed when the licence is renewed.[23]

The Regulation also itemizes the
communication services which are categorized as individual licences as
including: central equipment Identity registry, electronic directory
information services, fixed wireless access, global mobile personal
communications by system, infrastructure sharing and collocation services,
interconnect exchange national carrier, national long distance licence,
non-commercial closed user services, open access fibre infrastructure Network
(Infraco), private network links (Regional/National), sales & installations
of terminal equipment, unified access service licence among others. [24]

3. Class Licence

An application for a class licence shall be
submitted to the Commission with evidence of payment of the requisite fee and
relevant documents and the Commission will decide whether it would accept or
refuse the application within 30-days of receiving the application. The period
for review can be extended by the Commission by an additional period which
should not exceed 30-days.[25] The Regulation also itemizes the
telecom services which are categorized as class licences.[26] The services include payphone,
cybercafé, telecenter, sales and installation of terminal equipment, repairs
and maintenance of telecommunications facilities, cabling, and any other
undertaking that the Commission may determine as a class licence.

4. Frequency Licence

The Regulation identifies frequency licence
as a category of licence.[27] According to the Regulation, the
Commission may issue a frequency licence by auction, tender, fixed price,
competitive bidding process, administrative process, or any other method which
the Commission at its discretion may adopt.[28] In order to apply for a frequency
licence, the Regulation provides that an application should be submitted to the
Commission in the prescribed application form and accompanied with evidence of
payment of the prescribed application fee and any other required documents.[29] Upon receipt of the application,
the Commission will review the application and inform the applicant of any
further information required to process the application, or process the
application based on the conditions itemized in section 30 of the Regulation
and convey its decision to the applicant within 90 days of receipt of the
application.[30] The Regulation allows the
Commission to extend the time within which the Commission shall make a decision
on an application, for an additional period not exceeding 30 days.[31] A frequency licence issued by the
Commission subsists for one year unless stated otherwise in the Frequency
Spectrum (Fees and Pricing; etc.) Regulations [32] or the conditions of the frequency
licence.[33] After one year, the license shall
expire automatically unless the licensee gives the Commission notice of its
intention to renew same not later than 3 months prior to the expiration of the
licence.[34] The Regulation also provides that a
licensee shall ensure that the spectrum assigned to it by the Commission is
efficiently utilised as the Commission reserves the right to review the usage
of the spectrum assigned to a licensee.[35] Where the spectrum is
under-utilized or not utilized, the Commission may refuse to renew the licence
at the expiration of term of the frequency licence or impose time-bound obligations
or sanctions on the licensee.[36]

5. Procedure for
Transfer of Licence and Shares

According to the Regulation, a licensee is required
to obtain an approval from the Commission in order to transfer a license. Where
a licence is transferred without notifying and obtaining the requisite approval
from the Commission, the transfer shall be null and void, and the commission
shall impose appropriate sanctions as provided for in the Enforcement
Regulations.[37] The sanction imposed by the
Nigerian Communications (Enforcement Processes, etc.) Regulations 2019 [38] are N10,000,000.00 and a further
N500,000.00 per day calculated from the effective date of the transfer or
assignment as determined by the Commission and payable for as long as the
contravention persists. The Enforcement Regulations also provides that for any
licensee with a turnover less than N1,000,000.000.00 (One Billion Naira) the
commission may impose a lump sum fine not exceeding N2,000,000.00.[39]

The Commission monitors matters that relates
to the performance of all licensed telecoms service providers and publish
annual reports at the end of each financial year. [40]The reports contain compliance monitoring
and enforcement actions carried out by the commission. According to the
commission’s Compliance
Monitoring and Enforcement Report 2019 Q2,[41] an enforcement action was carried
out against Auto Tracker Nig.Ltd in Lagos on May 16, 2019 for providing
communication services without licence andhe suspect was arrested and handed
over to the Nigeria Security and Civil Defence Corps for interrogation. The
company was directed to immediately regularize and notify the Commission
failing which all numbers in its data base will be deactivated by MTN.

A licensee is required to apply to the
commission in writing where it intends to transfer ownership or control of its
shares in an amount exceeding ten percent of the total share capital of the
licensee, at least 90 days prior to the proposed date of transfer, or such
other period stated in the licence conditions or as may be determined by the
Commission.[42] The Commission will decide either
to refuse or grant an approval for the transfer of the shares upon such
conditions as the Commission may determine.[43] However, the Commission will refuse
the transfer if the acquisition of ownership or control of the licensee is
likely to lead to anti-competition issues in that segment of the
telecommunications market, and where the licensee still proceeds with the
transfer without prior authorization from the Commission, the Commission shall
direct the licensee to reverse the transfer and impose appropriate sanctions as
provided in the Enforcement Regulations.[44]

The Regulation prohibits the licensee from
using its interests in a licence as security, or to encumber or pledge its
interest in a licence without the prior written approval of the Commission.[45] Where a licensee fails to obtain
the approval of the Commission, the Commission may at its discretion revoke the
licence of the licensee or impose a fine not exceeding N10,000,000.[46]

6. Sanctions

The Commission may suspend or revoke a
licence where there has been a breach of the terms and conditions of the
licence, provisions of the Act or provisions of any Regulations issued by the
Commission.[47] Furthermore, where the Commission
intends to suspend or revoke a licence under the circumstances listed in
section 45 of the Act, the Commission is required to notify the licensee of the
reasons for the intended suspension or revocation, date on which the intended
suspension or revocation will take effect and period within which
representations on the intention may be made.[48] Also, where the intention to
suspend or revoke is as a result of the breach of terms and conditions,
provision, or limitation in a license, the Regulation requires that the notice
given to the licensee should stipulate that the intention will be withdrawn or
modified if the breach is remedied within 60 days.[49] The Commission shall within the
period of 30 days following the 60 days period confirm, modify or withdraw the
intention to suspend or revoke the licence.[50] If licensee fails to remedy the
breach after the issuance of the notice, the Regulation provides that the
Commission shall suspend the license for a period not exceeding three months
not later than 7 days after the last day for the licensee and where the
licensee fails to remedy the breach during the suspension period, the
Commission shall revoke the licence in accordance with the Act.[51]

CONCLUSION

The Regulation is an offshoot of the
provisions on licensing in the Act and contains further provisions on the
processes and requirements for applying for licences including the terms and
conditions of their use. It also itemizes communication services which fall
under individual and class license and sanctions for breach of the terms in the
Regulation. It clearly identifies frequency licence as a separate category of
licence.[52] The Regulation is essential for
licensees and applicants who require new or additional licences and serves as a
guideline to obtain, use and transfer licences for communication services in
Nigeria. The specific terms and conditions of use for each type of licence are
itemized in the draft model licences which are available on the Commission’s
website.

_______________________________________________________________

For further information on this article and
area of law,

please contact Bisola Scott at
S. P. A. Ajibade & Co., Lagos by

Telephone (+234.1.270.3009; +234.1.460.5091)
Fax (+234 1 4605092)

Mobile (+234.811.389.8102, +234.817.939.0319)

Email: bscott@spaajibade.com

www.spaajibade.com

[1]
Bisola Scott, Associate Intellectual Property and
Technology Law, SPA Ajibade & Co., Lagos, NIGERIA.

[2]
Federal Republic of Nigeria Official Gazette, S.I. No 15, pg. B119
-147.

[3]
C28 Laws of the Federation of Nigeria 2004.

[4]
Reg. 1, Licensing Regulation 2019, Federal Republic of Nigeria Official
Gazette, Government Notice No. 24, Vol. 106, pg.
B119-147(Regulation).

[5]
Reg. 2(a)-(d) Regulation.

[6]
Reg. 3(1) Regulation.

[7]
Reg. 5(1) Regulation. This provision is also contained in Section 31 of the
Act, which provides that “No person shall operate a communications
system or facility nor provide a communications service in Nigeria unless
authorised to do so under a communications licence or exempted under
regulations made by the Commission under this Act.”

[8]
Reg. 7(1) Regulation.

[9]
Reg. 7(2) Regulation.

[10]
Reg. 8(1) Regulation.

[11]
Reg. 6(2) (a)-(c) Regulation.

[12]
Section 4(2) of the Act.

[13]
Section 33 (3) (b) Act.

[14]
Reg. 9(1) Regulation.

[15]
Reg. 9(2) Regulation.

[16]
Reg.13(1) Regulation.

[17]
It states that ”Any person who acts in breach of sub-section (1) of this
section commits an offence and is liable on conviction to— (a) a fine not less
than the initial fee for the relevant licence ; (b) a fine not exceeding 10
(ten) times the initial fee for the relevant licence ; (c) imprisonment for a
term not exceeding 1 (one) year ; or (d) both such fine and imprisonment; Provided
that upon conviction, the person shall also forfeit to the Commission the
property, facilities; installations and equipment used by him for the provision
and operation of the unlicensed service.”

[18]
Reg.13(2) Regulation.

[19]
Reg.17(1) of the Regulation.

[20]
Reg. 17(2) Regulation.

[21]
Reg.18(1)(a)-(b) Regulation.

[22]
Reg.21 Regulation.

[23]
Reg. 22 Regulation.

[24]
Reg. (1) – (26), Schedule 2 of the Regulation.

[25]
Reg. 26 (1), (2) and (4) Regulation.

[26]
Reg. (1) – (7) Schedule 3 to the Regulation.

[27]
Reg.2(c) Regulation.

[28]
Reg.29(1) Regulation.

[29]
Reg.31(2) Regulation.

[30]
Reg.31(3)(a)-(b) Regulation.

[31]
Reg.31(4) Regulation.

[32]
Federal Republic of Nigeria Official Gazette, S.I. No 23, pg. B317
– 325.

[33]
Section 6, Part B, Second Schedule, S.I. No. 13, p. B83-104. According to
Section 7(1), frequency licence may have different durations as they may be
classified as short-term permit with a tenure of 4 months, medium-term permit
with a tenure of one year, or long-term licence with a tenure of 5, 10 or 15
years. However, any frequency spectrum licence with tenure of one year and
below is classified as a permit. The Frequency Regulation describes a licence
with a tenure of 5, 10 or 15 years as a licence.

[34]
Ibid.

[35]
Reg. 40(1) – (2) Regulation.

[36]
Reg. 40(3)(a)-(b) Regulation.

[37]
Reg. 41(1)-(2) Regulation.

[38]
Reg.7, Second Schedule to the Regulation, Official Gazette No. 11 2019 Vol.
106.

[39]
Ibid.

[40]
Nigerian Communication Commission, Compliance Monitoring & Enforcement,
available at https://www.ncc.gov.ng/licensing-regulation/legal/enforcement,
accessed on 20^th December 2019.

[41] Ibid.

[42]
Reg. 42(1) Regulation.

[43]
Reg. 42(4) Regulation.

[44]
Reg. 44 (1) – (2) Regulation.

[45]
Reg. 45(1) Regulation.

[46]
Reg. 45(2) Regulation.

[47]
Reg. 51(1) Regulation.

[48]
Reg. 52(a)-(c) Regulation.

[49] Reg.
53(a) Regulation.

[50]
Reg. 53(b) Regulation.

[51]
Reg. 54(a)–(b) Regulation.

[52]
Frequency licence is not identified as a category of licence in the Act. The
only categories of licences identified in the Act are individual and class
licence.

Source: SPA Ajibade & Co.

What happens after an intending licensor dies before signing licence agreement? | Infusion Lawyers

by Legalnaija | Feb 11, 2020 | Uncategorized

Dear IP ABC

I am James Bede, MD of WOKE Animations, a leading animation company in Nigeria. Recently, my company was in negotiations with Maxwell Obi, a renowned cartoonist and creator of the very successful comic book, ‘Nigerian Mom.’

After weeks of negotiation to obtain an exclusive licence to adapt Nigerian Mom into an animated comedy TV show, we finally reached an agreement. All that was left was to sign the licensing contract by both parties. On the morning of the scheduled date to sign the contracts, we received terrible news that Maxwell Obi was involved in a fatal motor accident. It was a shock to us. While we sincerely mourn the loss of Maxwell Obi, we wish to know if from the current circumstances, we have a deemed exclusive licence from late Maxwell Obi?

Answer

Dear James Bede

You want to know if WOKE Animations has a ‘deemed’ exclusive licence of copyright from late Maxwell Obi since he intended to enter the licence agreement but could not sign the agreement before his sudden death.

The answer is NO.

Maxwell Obi, before his death, had copyright in his work, ‘Nigerian Mom’. By section 6 of the Nigerian Copyright Act, he had the exclusive right to control reproduction of the work in any material form; publication of the work; performance of the work in public; translation of the work; making of any cinematographic film or record in respect of the work; distribution of the work to the public for commercial purposes by way of rental, lease, hire, loan or any similar arrangement; adaptation of the work; reproduction, publication, performance, making of a cinematographic film or record, and distribution for commercial purposes any translation or adaptation of the work.

Under copyright law, when a person has passed away, his or her copyright does not immediately become public domain. In Nigeria and most countries, copyright lasts 70 years after the year of the author’s death. If the copyright was owned by an organization or corporate entity, copyright lasts 70 years after the end of the year the work was first published.

Copyright is an intangible property and it is a type of personal property because it attaches to the creator or author. This makes copyright transferable.

Section 11(1) of the Nigerian Copyright Act provides that “copyright shall be transmissible by assignment, by testamentary disposition or by operation of law as, movable property.”

An exclusive licence as defined in the Act means “a licence signed by or on behalf of a copyright owner, authorizing the licensee to the exclusion of all other persons (including the person granting the licence), to exercise any right which would otherwise be exercisable exclusively by the copyright owner.” Because of the decisive nature of an exclusive licence, it cannot be inferred but has to be in writing. Section 11(3) of the Act provides that unless in writing, no assignment of copyright and no exclusive licence to do an act, the doing of which is controlled by copyright, shall have effect.

For the above reasons, even if your company had made necessary preparations to go on with the production of the TV Show, your company does not yet have the exclusive right to do so.

Is there a way forward for WOKE Animations?

Yes, there is.

When an author dies, copyright ownership changes. Copyright is personal property, so the person who created the work could choose whom to pass ownership of copyright. This means that ownership in a copyright can be passed to an heir or to a third party via a will.

Like any other asset in the estate, it would pass in accordance with the will of the copyright holder. If the holder died intestate (without a will), then it would pass in accordance with the laws of intestacy of that state.

If your company still wishes to proceed with the production of the TV show, you would then have to find out who Late Maxwell Obi’s copyright has devolved to either by express transfer or by operation of law. Whether his heir or other third party, you will need to re-negotiate with the new copyright holder.

Can a copyright owner transfer some or all of his or her specific rights?

Yes, a copyright owner can transfer some or all of his or her rights.

If a copyright owner transferred all of his rights unconditionally, it is generally termed an ‘assignment’.

When only some of the rights associated with copyright are transferred, this is a ‘licence’.

An exclusive licence exists when the transferred rights can be exercised only by the owner of the licence (licensee) and no one else—including the person who granted the licence (licensor).

If the licence allows others (including the licensor) to exercise the same rights being transferred in the licence, the licence is said to be ‘non-exclusive’.

Authors or creators can (and should) prepare for the future.

Copyright lasts 70 years after the death of the author or creator of a work of copyright. An author or creator who would like his or her copyright to go to a choice beneficiary or person—say a family member—it is important that this instruction is included in the author’s or creator’s will. If there is no will, the author or creator is considered to have died intestate and his or her estate would be distributed in accordance with the rules of intestacy in the author’s or creator’s state. Even when there is a will but the will fails to specify who will receive copyright in the author’s or creator’s works, copyright would be distributed along with the ‘residue’ or remainder of the estate among the beneficiaries of that residue.

Because most often beneficiaries intangible assets by operation of law fail to exploit the IP in these intangible assets, the author’s or creator’s work almost always suffers neglect. Consequently, the deceased author’s or creator’s loved ones are unable to benefit or fully benefit from the deceased author’s or creator’s creative industry.

In other to find out how to best navigate copyright in testacy or intestacy state, consult an IP lawyer firm to arrange your affairs before it’s too late.

IP ABC

Source: Infusion Lawyers

Effective Ways For Footballers In Nigeria to Recover Remunerations Owed Them By Clubs

by Legalnaija | Feb 11, 2020 | Uncategorized

It is common occurrence in the Nigerian
football industry for Footballers to be heavily owed salaries. In fact, it has
almost become the norm. That is saddening, but even more saddening the manner
the footballers in the Nigerian leagues go about the recovery of salaries being
owed them by the football clubs they play(ed) for; usually known as “overdue
payables“.

It is baffling why most of them go about
begging their Club Chairman, the Governor and/or Commissioner for Sports of the
state? Why do they beg for the money like it were some loan or gift they are
asking for?

Players having a sit-out to protest
non-payment of their salaries.

This article seeks to address this perception
of players, especially the mindset that sports employment-related disputes
cannot be tabled before civil courts.

Below is what players can do:

1. Non-Nigerian Players in the Nigerian
league.

For a non-Nigerian player owed by a Nigerian
football club, his or her claim can be filed at the Dispute Resolution Chamber
(DRC) of FIFA. The DRC will accept such a case because it is of “international
dimension”, as stated in Article 22 (b) of the Regulations on the Status and
Transfer of Players (RSTP).

It may interest you to know that the DRC does
not charge players filing fees for such employment disputes. The only cost the
player may incur is the professional fess the Attorney or Representative may
charge; which is sometimes paid after judgement has been obtained – known as
“contingency fees”.

Our firm has had the opportunity to be
involved and/or personally represent a few players from countries such as
Ghana, Mali, Benin Republic, etc; so it can be recommended as a reliable avenue
to recover the entitlements of players. (Note that such a claim must be filed
within two (2) years of the cause of action, to avoid it being statute barred).

After the player has obtained judgement
against the Nigerian club, the DRC gives the club an ultimatum (usually 30
days) within which the club must pay the judgement sum (money). Before now, in
the event that the club fails to pay within that period, the defaulting club
used to be referred to the FIFA Disciplinary Committee which may then fine the
cub, ban the club from signing players, deduct points from the club’s accumulated
points, or even ban the club from football competitions until the club
complies.
However, pursuant to the latest RSTP which became effective from June 2018, the
DRC now has the power to include sanctions in its decisions without the need to
refer the case to the Disciplinary Committee upon the non-compliance of a club.

2. For a Nigerian player who has a
claim against a Nigerian club, the DRC would reject it as it is expected to
be adjudicated on by the NFF Arbitration Committee; being an “internal
dispute”.

Thus, such a case can be submitted to the NFF Arbitration Committee which would
give an arbitral Award (a decision) and order the defaulting club to pay the
player, or face sanctions similar to those earlier-mentioned that FIFA dishes
out.

However, in reality, many Nigerian players at
left stranded because the NFF often fails to enforce the decisions, by
sanctioning defaulting clubs.

In fact, there are arbitral awards that were
delivered as far back as 2010 which have not been complied with by Nigerian
clubs till now.

So if a player has, or is subsequently able
to get an arbitral award at the NFF Arbitration Committee, he/she can approach
the regular court (National Industrial Court) to have it enforced.

Note that this must be done within 6 years from the date the arbitral award was
obtained. There are players who have lost their entitlements because they
failed to enforce such arbitral awards within 6 years as stipulated by the
Statute of Limitation. It is better to enforce compliance rather than beg.

Meanwhile, Some may ask the question of what
to do in the face of inefficiency by the NFF Arbitration Committee; especially
that the committee is not constituted at the moment.

In this circumstance, a player may get an
Attorney to file an employment dispute on his or her behalf at a civil court.
The civil court vested with jurisdiction on employment disputes is the National
Industrial Court (NIC). This is by virtue of the provisions of Section 254 (c)
of the 1999 Constitution (as amended) and the National Industrial Court Act
2006.

You may wish to note that although Article 68
Para 2 of the FIFA Statutes stipulates that recourse to ordinary (civil) courts
of law as regards disputes is prohibited, employment disputes do not fall under
this prohibition.

A player can decide to file an
employment-related dispute at a competent ordinary court, because the choice of
judge is a fundamental right that cannot be denied. (See FIFA Commentary,
explanation Article 22, page 64)

In fact, there are some employment disputes
which the FIFA DRC rejected on the ground that the parties had already
submitted the dispute before the regular courts in their country, and that such
courts have jurisdiction to hear the cases.

Thus, except the contract a player signed
with a club expressly states that disputes cannot be referred to
ordinary courts, or it states that the NFF Arbitration Committee/FIFA DRC/Court
of Arbitration For Sport shall have jurisdiction on disputes; then a player can
approach the National Industrial Court to recover his/her entitlements.

Written by:

Tosin Akinyemi, Esq.

Source : Sportlicitors

Why you should consider impact investment in Nigeria – Sandra Eke

by Legalnaija | Feb 11, 2020 | Uncategorized

If you have ever clamoured against the
increasing socio-economic and environmental problems in Nigeria or wondered how
you can generate profitable returns from your investments while simultaneously
contributing to the development of the society, you should consider impact
investment.

With a population of over 190 million people,[2] the second largest and fastest
growing economic market in Africa, Nigeria is an ideal place for impact
investment. The socio-economic and environmental challenges in Nigeria create
an opportunity for impact investors.

What is Impact Investing All About?

Impact investing refers to an investment that
aims to generate measurable beneficial social or environmental returns in
addition to financial gain.[3] It is centred on making a positive
impact through investments in projects that better the community.^[4] Impact
investing is usually categorised under sustainable investing, which also
encompasses socially responsible investing (SRI).[5]

The role of the impact investor is
different from a classic investor. Firstly, the impact investor expects real
and tangible social impact from its investments, without which the goal of
financing won’t be achieved.^[6] Secondly,
unlike the classic investor who is motivated by maximization of profit and
therefore anticipates returns above market average on capital invested, an
impact investor is driven by the need for a significant social impact. An
impact investor may accept below market returns – provided the projects
invested in follow through on their promises of social and environmental
change.[7]

The development of impact investment was
necessitated by the Sustainable Development Goals,[8] adopted by the United Nations in
2015 which called for a collaboration of the private, public, and philanthropic
sectors to end poverty and ensure environmental sustainability by 2030.

Legal Regime for Investing in Nigeria

There are a plethora of laws and regulations
governing investments in Nigeria. They include: The Companies and Allied
Matters Act,[9] the Nigerian Investment Promotion
Act,[10] the Investments and Securities Act,[11] Consolidated Rules and Regulations
of the Securities and Exchange Commission, the Foreign Exchange (Monitoring and
Miscellaneous Provisions) Act,[12] the Industrial Inspectorate Act,[13] National Office for Technology
Acquisition and Promotion Act,[14] the Rulebook of The Nigerian Stock
Exchange 2015 etc.

The Corporate Affairs Commission (“CAC”) oversees
the formation and administration of all business entities in Nigeria. Every
investor who seeks to set up a business in Nigeria which does not fall under
any of the categories of business exempted from registration must register
his/her business in Nigeria with CAC. The Nigerian Investment Promotion
Commission (“NIPC”) is the principal body that regulates all foreign
investments in the country and a foreigner seeking to invest in Nigeria is also
required to register with the NIPC.

Due to the number of regulatory compliances
expected to be met by a foreigner who seeks to do business in Nigeria, there is
a One Stop Investment Centre (OSIC),[15] which houses all the relevant
regulatory bodies.[16] Prospective investors who wish to
do business in Nigeria can visit the OSIC to obtain all regulatory permits and
registrations required to invest in Nigeria.

Operating Principles for Impact Investing

The International Finance Corporation, World
Bank Group, recently launched some operating principles for Impact Management.
The nine (9) principles identify the key characteristics of investment fund
management, with the aim to positively contribute to measurable socio-economic
or environmental impact.[17] The goal behind the principles is
to ensure that investing decisions are made with consideration to
socio-economic impact.[18] The principles include: definition
of strategic impact objective(s) consistent with the investment strategy;
management of strategic impact on a portfolio basis; establishment of the Manager’s
contribution to the achievement of impact; assessment of the expected impact of
each investment, based on a systematic approach; assess, address, monitor, and
manage potential negative impacts of each investment. Others are: monitoring of
the progress of each investment in achieving impact against expectations and
respond appropriately; conducting exits considering the effect on sustained
impact; reviewing, documenting, and improving decisions and processes based on
the achievement of impact and lessons learned; and publicly disclosing
alignment with the Principles and provision of regular independent verification
of the alignment.[19]

Why Impact Investment Matters in Nigeria

Nigeria is a country faced with an avalanche
of socio-economic challenges like hunger, poverty, unemployment, poor
healthcare, poor/inadequate infrastructural facilities, illiteracy, among
others, which largely affects its growth and development. However, these
challenges create an opportunity for impact funds and impact investment.

Some distinctive attempts at impact investing
in Nigeria can be seen in the growing focus of the Federal and State government
on bond issuance projects centred on solving socio-economic and environmental
challenges and the increasing emergence of small and medium scale enterprises
(SMEs) which are significant contributors to social and economic growth and
development. Entrepreneurs are more aware of social and environmental challenges
and are innovating ways to tackle them. Examples include LifeBank, an SME that
saw an important opportunity in making sure patients who need blood can get it
in due time. LifeBank developed proprietary software to tackle blood shortages
and quick access to medical products in hospitals in Lagos.[20] Wecyclers, a company that powers
social change in the environment, provides household recycling services with
the use of low-cost cargo bikes, which allowes people in low-income communities
to capture value from their waste.[21] Andela, a technology company,
recruits and trains local software developers at little or no cost, who in turn
work remotely for them for various international companies, thereby generating
employment opportunities for thousands of the unemployed populace in Nigeria.[22]

Furthermore, a good number of impact
investing funds have been made available by some foreign development
institutions and bodies. For instance, the African Development Bank invested in
the Africa Food Security Fund (AFSF) to boost agri-business SMEs and enhance
food security in some African countries like Nigeria.[23] Also, the International Finance
Corporation made an investment in Hygeia Nigeria Limited to improve the
healthcare infrastructure in Nigeria and to facilitate access to quality
healthcare services.[24] Locally, the Nigerian Capital
Development Fund (NCDF) launched an Impact Investment Note and Fairshares
investment platform to enable impact investors make investments and become
stakeholders in NCDF, to drive sustainable impact projects in the country.

A couple of Federal and State government
bonds which can be characterised as social impact bonds are additions to impact
investment funds in Nigeria. For example:

1. Issuance of Sukuk
(Islamic Bonds)

Sukuk or Islamic bonds are structured in such
a way as to generate returns to investors without infringing the tenets of
Islamic law that prohibits “riba” (interest). As an investor your money is put
into the assets of a project or investment in order to generate profits and not
interests. However, the Federal Government of Nigeria and a State government
have been involved in the successful issuance of Sukuk Bonds as impact
investment. Osun State government through a wholly owned Special Purpose
Company, (Osun Sukuk Company Plc) was the first in sub-Saharan Africa to issue
Sukuk bonds worth N11.4 billion as an education project to finance construction
of some High Schools in the state.[25] More recently, the Federal
government issued a N100 billion Sukuk bond for the construction of federal
roads across the six geopolitical zones in Nigeria.[26]

2. Issuance of Sovereign
Green Bonds

A sovereign green bond is a debt security
issued by a national government for climate and environmental projects. They
can be denominated in a foreign currency or the government’s own domestic
currency. In 2017, the Federal Government of Nigerian issued a climate bond
certified sovereign green bond worth N10.69bn, making it the first issuer of
sovereign green bonds in Africa and the 4^th in the world.[27] The bond was issued to finance
three (3) major projects: the energy education programme, renewable energy
micro utilities, and afforestation.[28] In 2019, a second tranche of the
bond was issued.[29]

3. Euro Bonds

Eurobonds are bonds that are issued in a
currency not native to the country where it is issued, e.g., where the Federal
Government of Nigeria issues a bond denominated in US Dollars in Nigeria and
invites investors from all over the world to subscribe to it. Nigeria issued
its 6^th Eurobond in 2018 worth $2.86 billion, following
issuances in 2011, 2013, and 2017 in different tranches.[30] The Eurobond was issued to help
fund Nigeria’s budget deficit, reduce the risk of inflation and to improve the
financial health of the country. Its sale was said to have been three times
oversubscribed.

4. Corporate Green Bonds

A corporate green bond is a bond issued by a
corporation other than a government or municipality, in order to raise
financing for climate and environmentally friendly projects. In March 2019,
Access Bank Plc., issued a 5-year fixed rate senior unsecured green bond,
making it the first ever Climate Bonds Standard Certified Corporate Green Bond
to be issued in Africa.[31] The bond issued was worth N15bn and
was for the financing of new loans and refinancing of existing loans in
accordance with the Bank’s Green Bond Framework and the Climate Bonds
Initiative standards, and to support projects directed at flood defence, solar
generation facilities and agriculture.[32]

5. Housing Funds

These are funds established by private or
government agencies to support the preservation and production of affordable
housing, particularly for low income earners to access decent and affordable
homes. A good example is the National Housing Fund and Family Homes Fund. The
Family Homes Fund is a social intervention program that provides access to
affordable housing, home loan assistance funds, rental housing funds and
infrastructure development funds for millions of Nigerians within the low to
medium income bracket, through strategic partnerships with various categories
of investors.

From the foregoing, it can be deduced that
the future of impact investing in Nigeria is very bright. More recently, the
Bank of Industry, African Capital Alliance, Business Day Media Limited, Ford
Foundation and Dalberg Advisors formed the Impact Investors Foundation (IIF).
The foundation was registered as a non-profit entity to foster the development
of impact investing in Nigeria and promote cooperation amongst relevant
stakeholders active in the sector.[33] It is anticipated that this
strategic collaboration would boost the growth of impact investing in Nigeria.

Challenges Faced by Impact Investors

Regardless of the potential to boost the
development of critical infrastructure and supplement government spending,
several fundamental challenges exist that have slowed investment activity. To
grow the sector in Nigeria, these obstacles would need to be addressed. Some of
these challenges include: difficulty sourcing viable investments that meet both
financial and social or environmental objectives; negative perception about
sustainable investing that value must be sacrificed for profit and that these
funds underperform compared to traditional funds; shortage of high-quality
investment opportunities with strong track records; limited innovative funds
and deal structures; lack of appropriate capital across the risk/return
spectrum; difficulty exiting investments due to foreign exchange control, are
some of the major challenges.

Conclusion

While impact investments have continued to
grow in Nigeria, its impact might not be significant amidst the plethora of
challenges faced across the country. This myriad of challenges impedes the
expansion and maximum realisation of its potential to deliver social, economic
and environmental returns at scale.

Nevertheless, these perceived challenges
shouldn’t serve as an excuse to bury the idea of impact investment. On the
contrary, it is a time for us to revaluate our guiding principles and
collaborate to build a strong socio-economic society. We need to consider
impact investment and ask ourselves these questions: What if we redefine wealth
and prosperity not in terms of how much money we are able to amass but how much
positive impact we are able to make in our community and in the lives of
others? What if we changed our perception of investment from a principal goal
of yielding profit to one of contributing to reduce deficits in social
infrastructure? The new world we have dreamt about is possible; one where
impact investing provides some of the answers to changes we have long desired.

For further information on this article and
area of law, please contact Sandra Eke at: S. P.A. Ajibade &
Co., Lagos by telephone (+234 1 472 9890), fax (+234 1 4605092)
mobile (+234 8112491286) or email (seke@spaajibade.com).

www.spaajibade.com

[1] Sandra
Eke, Associate Intellectual Property & Technology Law, SPA Ajibade &
Co., Lagos, Nigeria.

[2]
World Bank, “World Development Indicators: Google Public Data Explorer”
available at: https://www.google.com/search?q=population+of+nigeria&rlz=1C1CHBD_enNG735NG736&oq=population+of+&aqs=chrome.1.69i57j0l5.6662j0j7&sourceid=chrome&ie=UTF-8 accessed
6^th November 2019.

[3] Global Impact
Investing Network, “Impact Investment in Africa” available at: https://www.impactatafrica.org/sites/default/files/publications/impact_investment_in_africa_action_plan_2016_english.pdf accessed
on 20th April 2019.

[4]
Investopedia, “What is impact investing” available at:
accessed on 18^th April 2019.

[5]
Bloomberg, “Quick take: Sustainable Investing” available at: https://www.bloomberg.com/quicktake/sustainable-investing accessed
10th September 2019.

[6]
Optimy Wiki, “Impact investment” available at:https://wiki.optimy.com/impact-investing/ accessed
18^th April 2019.

[7]
Ibid

[8]
Common Fund for Commodities, “The Sustainable Development Goals and Impact
Measurement – A CFC Journey” available at: http://www.common-fund.org/wp-content/uploads/2019/01/AR-2017-Sustainable-Development-Goals-and-Impact-Measurement.pdf accessed
12th October 2019.

[9]
CAP C20 Laws of the Federation of Nigeria 2004.

[10]
CAP N117 LFN 2004.

[11]
CAP T22, LFN. 2004.

[12]
CAP F34 LFN 2004.

[13]
CAP I8 LFN 2004.

[14]
CAP N68, LFN 2004.

[15]
NIPC, “Guide to investing in Nigeria: Getting started” available at: https://nipc.gov.ng/iguide/getting-started/#osic accessed
12^th December 2019

[16]
ibid

[17] IFC, World Bank
Group, “Investing for Impact: The Principles” available at: https://www.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/Impact-investing/Principles/?utm_source=hootsuite&utm_medium=&utm_term=&utm_content=&utm_campaign= accessed
12^th September 2019.

[18]
ibid

[19]
ibid

[20]
Desola Ososami, “How Impact Investments can develop Nigeria?” available

at:https://www.stearsng.com/article/how-impact-investments-can-develop-nigeria accessed
20th April 2019.

[21]
ibid

[22]
ibid

[23]
African Development Bank, “African Development Bank, partners support
smallholder farmers with 17 new project grants” available at https://www.afdb.org/en/news-and-events/african-development-bank-partners-support-smallholder-farmers-with-17-new-project-grants-19222 accessed
8th November 2019.

[24]
IFC, “IFC, IFHA II, Swiss Re and CIEL Healthcare Invest in Hygeia Nigeria to
Expand Access to Quality Healthcare” available at: https://ifcextapps.ifc.org/ifcext/Pressroom/IFCPressRoom.nsf/0/C1481BDFE4A7586185257F33003E3183 accessed
5th November 2019.

[25]
The Nigerian Observer “Osun Sukuk: Driving National Fund for Development
Projects” available at: https://nigerianobservernews.com/2019/02/osun-sukuk-driving-national-fund-for-development-pojects/ accessed
5^th April 2019.

[26]
Debt Management Office, “Press Release on The Second N100 Billion Sovereign
Sukuk Issuance.pdf” available at: https://www.dmo.gov.ng/news-and-events/circulars-releases/2672-press-release-on-the-second-n100-billion-sovereign-sukuk-issuance accessed
8th November 2019.

[27] Debt
Management Office, “FGN Green Bond Offer for Subscription” available at: https://www.dmo.gov.ng/fgn-bonds/green-bond/2289-fgn-green-bond-offer-for-subscription/file accessed
8th November 2019.

[28]
ibid

[29]
The Federal Government of Nigeria embarked on an issuance of N15bn Series II
Green Bond. The law firm of SPA Ajibade & Co and Austen Peters & Co
acted as joint solicitors to the bond issuance project. A subscription level of
over 220% was recorded. See: Debt Management Office, “FGN N15bn Green Bond
Series II Prospectus” available at: https://www.dmo.gov.ng/fgn-bonds/green-bond/2810-fgn-n15bn-green-bond-series-ii-prospectus/file
accessed 8th November 2019.

[30] Nairametrics,
“Over $17bn raised from bonds by Nigeria and other African countries – World
bank” available at: https://nairametrics.com/2019/05/02/over-17bn-raised-from-bonds-by-nigeria-and-other-african-countries-world-bank/ accessed
5^th June 2019.

[31] Access Bank Plc
,”Proposed Bond Issuance” available at: https://www.accessbankplc.com/AccessBankGroup/media/Documents/Proposed-Issuance-Of-Green-Bond.pdf accessed
8th November 2019.

[32] ibid

[33] Impact
Investors Foundation, “About Us” available at: https://impactinvestorsfoundation.org/iifconvening2019/

accessed 8^th November 2019.

Source: SPA Ajibade & CO.

Does a certifying organization require more than a trademark? | Infusion Lawyers

by Legalnaija | Feb 11, 2020 | Uncategorized

Dear IP ABC

I am Mfon Udofia, owner of Emperocrest Hotel in Nigeria. Recently, my fellow hoteliers and I decided to form Hospitality Gate, a body that will have the self-regulatory responsibility of certifying standards in the hospitality industry in Nigeria. Hotels that meet the body’s standards would be certified by us and be required to pay certification fees. Only certified hotels would be entitled to use our mark of quality in their locations. We registered Hospitality Gate’s mark of quality as a trademark in Nigeria.

Six months into operations, a hotelier has threatened to report our activities to relevant authorities. According to the hotelier, Hospitality Gate has no right to use its logo as a mark of quality in the hospitality industry in the country. As a certifying organization, do we require more than a trademark?

Image Source: Remarkable.be

Answer

Dear Mr Udofia

If you registered Hospitality Gate’s mark-of-quality logo as a trademark and not a certification mark, the answer is TRUE–merely registering the mark of quality as a trademark is inadequate. A trademark is not the same as a certification mark. They perform different functions.

For Hospitality Gate to be legally entitled to use its logo as a mark of quality that certifies hotels as meeting the requirements for standards and quality in Nigeria, the logo must have been registered under Part A of the Trademarks Act as a certification mark.

So what is a certification mark?

As the name implies, a certification mark is a type of mark that is used to certify goods or services as meeting certain minimum standards set by the certifying body. Certification marks show consumers of goods or services that particular goods or services (products) or their providers (product owner) have met certain standards. Having met these standards, product owners are permitted to use the certification mark approved by the certifying body for this self-regulatory purpose and nothing more.

Under section 43 of Nigeria’s Trademarks Act, a certification mark or ‘certification trade mark’—as it is called under the Act—is described as a “mark adapted in relation to any goods [or services] to distinguish in the course of trade goods certified by any person in respect of origin, material, method of manufacture, quality, accuracy or other characteristics, from goods not so certified”.

Therefore, a certification mark is neither a trade mark nor a service mark. It is not used by the owner in connection with any of the owner’s goods or services.

Certification marks serve 3 major purposes.

Geographical Origin: that the goods or services come from a particular geographic region. For example, that a particular cow milk is from Holland;
Standard of Quality: that the goods or services meet certain standards of quality. This may involve the materials used to manufacture the goods or the compliance-control processes a service has passed through. For example, Standards Organization of Nigeria’s (SON) Mandatory Conformity Assessment Program (MANCAP) for locally manufactured products, and the Offshore Conformity Assessment Program (SONCAP) for imported products and the Electronic Product Registration scheme for traceability and quality verification; and
Accredited or Verified Members, Agents, or Experts: that the work on the goods or services was performed by an accredited member of an organization. For example, an organization with the qualification “ISO 9001 Certified”. This means that the the organization has met the International Organization for Standadization’s (UlISO) requirements in ISO 9000 Quality Management System (QMS).

Hospitality Gate’s mark of quality concerns standards. You are therefore required to register it as a certification mark, not a trademark.

There are 2 major differences between a certification mark and a trademark.

First, while a certification mark indicates that goods, services, or providers of those goods or services have met certain standards, a trademark indicates the source of goods or services in connection to trade and commerce.

Second, while a certification mark is owned and controlled by the certifying body, the body does not use the certification mark with its own goods or services, a trademark is owned and used by the proprietor to distinguish its brands from those of others. This is why under section 43 of the Trademarks Act, a certification mark is prohibited from being registered in the name of a person who carries on a trade in goods of the kind certified. In other words, a regulator cannot also be a player.

Therefore, for Hospitality Gate’s purpose, its trademark registration should have been a certification-mark registration. You are not trading any goods or services.

For Hospitality Gate to register a certification mark, it must meet two statutory requirements.

First, under section 43(5) of the Trademarks Act, conditions or limitations regulating the use of a certification mark must be registered at the Trademarks, Designs, and Patents Registry.

Second, under section 43(6) of the Act, the rules governing the use of the certification mark must be deposited at the office of the Registrar and get ministerial approval. This is because certification marks generally serve a consumer-protection function in trade and commerce. Of course, since a certification mark is usually for compliance with a defined standard, the Minister has to be satisfied that Hospital Gate as a self-regulatory body for hoteliers is ‘competent to certify’ hospitality-services providers in the country.

Therefore, apart from corporate registration as an organization or association, Hospital Gate must have a document containing the conditions or limitations that regulate the use of the certification mark. It is these requirements that the Minister of Industry, Trade and Investments is required to review and approve accordingly.

For professional guidance or assistance with registering certification marks, consult your IP lawyer or law firm.

IP ABC

Protection of Intellectual Property Rights in a Franchise Agreement – Sandra Eke

by Legalnaija | Feb 11, 2020 | Uncategorized

1.
Introduction

Intellectual Property Rights
(IPRs) are very valuable business assets which do not only contribute to the
general profitability of a business but also leads to the advancement of the
innovative and technological sectors of every country.[2] A Franchise is a form of licensing
arrangement between a franchisee and franchisor which grants the franchisee,
through a franchise agreement, access to use the proprietary knowledge,
processes, technical know-how and other intellectual property rights of the
franchisor, to enable the franchisee trade in the product or service of the
franchisor under the trade name of the franchise. In a franchise agreement
several intellectual property rights are exploited since the transfer of those
intangible rights appears to be the bane of Franchise arrangements.

These rights include
trademarks, trade secrets, patents, copyrights etc. There is often a mutually
beneficial relationship between a franchisor and franchisee, the franchisor
seeks to expand its business and brand name beyond its territorial borders
while the franchisee on the other hand seeks profitable return by exploiting
the existing brand reputation of the franchisor while remitting fees to the
franchisor. In the licencing and transfer of intellectual property rights in a
franchise agreement, it is very important that necessary steps and measures are
taken to better protect certain proprietary intangible rights from unauthorised
uses and exploitation by franchisees.

The franchisors have a
general duty of brand reputation management of its franchise especially as it
relates to the way the franchise business is run, the use of its trademark,
inventions and confidential information, and the promotional materials
utilised.[3] Sadly, there is no specific
regulatory agency or legislation regulating franchise arrangements in Nigeria.
In ensuring the adequate protection of the intellectual property rights covered
in a franchise arrangement, recourse is made to other existing laws and
regulatory agencies.[4]

For instance, the National
Office for Technology Acquisition and Promotion (NOTAP) Act, requires that all
agreements for the transfer of foreign technology to Nigerian parties should be
registered with NOTAP not later than sixty days from the execution of the
agreement,[5] it also states other requirements
that should be satisfied before an agreement can be registered,[6] and prescribes the percentage of
fees approvable as royalty earnings for registration in a franchise agreement.[7] We will examine some relevant
intellectual property rights deserving attention and protection in a franchise
arrangement.

2.
Trademarks

Trademarks are an essential
intellectual property right in a business enterprise or going concern which can
be licenced via a franchise agreement. A trademark is a signifier which is
capable of distinguishing the goods and services of one company [8] from those of another. It comprises
of logos, designs, drawings, symbols, taglines, numbers, three-dimensional
features, or a combination of any of these.[9] They are a very integral part of
Intellectual Property because they act as source identifiers by drawing the
attention of the consumers to the origin and source of the product or service.
In a Franchise agreement, the franchisor usually licences the use of its
trademark to a franchisee that in turn pays a fee or royalty for such use.
Examples of some popular franchise brands in Nigeria include: Chicken Republic,
Domino Pizza, Debonairs Pizza, Kentucky Fried Chicken (KFC), Coldstone
creamery, Slot, Mr. Biggs, Tantalizers etc.

However, the modality of
usage of a franchisor’s trademark should be clearly stipulated in a franchise
agreement because if the use of such trademark is not properly managed, the
franchise could face some serious reputational damage to its brand. For
instance, a franchisee that purchases products bearing the trademark of the
franchisor from a counterfeit supplier and distributes such fake products in
its jurisdiction, could tarnish the image of the franchise.[10] Consequently, the franchise agreement
should contain certain obligations required of the franchisee while utilizing
the trademark and brand name of the franchise. The obligations could entail in
addition to the franchisor acknowledging ownership of the Franchise trademark
by the franchisor, that all products distributed by the franchisee be sourced
from a verifiable third-party or the franchisor itself, and that any
unauthorised use or modification of the trademark or the sale of third-party
goods (under the franchise brand) without prior written approval of the
franchisor, may result in the repudiation of the franchise agreement. It is
important to note that, as opposed to some jurisdictions there is no statutory
requirement, asides those that may be implied from persuasive foreign case laws,
for a trademark licensor/franchisor to ensure that specific standards are met
by the licensee/franchisee in Nigeria. Likewise, there is no requirement that a
trademark must be transferred along with the goodwill in the business.[11]

Also, it is important that
the Franchisor obtains legal protection for the trademark of its franchise in
the jurisdiction [12] of the franchisee since trademark
registrations are territorial in nature with the exceptions of some regional
registration bodies.[13] Registration will give the
franchisor exclusive rights and protection of its trademark in the jurisdiction
of the franchisee. There are instances when the trademark of a franchisor is
already in use in the franchisee’s jurisdiction and sometimes the owners of
such mark could have registered the trademark mischievously to take advantage
of the goodwill and brand name of the franchise and to pre-empt a legitimate
claim. This was the unfortunate experience of a few famous franchise chains
like Burger King and Taco Bell when they
decided to expand their brand into new territories; only to discover that some
unrelated third parties were already making use of their trademarks.[14] Registration is very important in a
franchise agreement as it prevents the unauthorised use of the trademark of the
franchisor. However, apart from the registration of the franchisor’s trademark
in Nigeria, there is a need for the franchisor to grant a right of use (i.e., a
licence) to the franchisee to use its brand name in Nigeria and such licence
must be recorded at the Nigerian Trade Mark Registry to avoid objections by
interested parties seeking a declaration of abandonment for non-use.[15]

3.
Trade Secrets/Confidential Information

There is a temptation to
categorize confidential information as trade secrets since both require the
protection of some sensitive information, but they are not exactly the same.
Trade secrets are basically confidential in nature but it is not all
confidential information that is a trade secret. For an alleged confidential
information to transit into a trade secret, there are certain characteristics
identical to a trade secret that it must possess. For instance, such
information should possess some commercial value and certain reasonable steps
should be taken to protect such information from public access.[16] A franchise agreement usually
involves the transfer of valuable confidential information to the franchisee
and it is essential that such information is protected from general public
knowledge in order not to deprive the franchisor of the benefits of its
creations. In comparison to other intellectual property rights like trademarks
and patents, trade secrets are not territorial in nature and do not require
registrations, periodic renewals or maintenance to be protected. However, once
they get into the public domain, they lose their protection. Therefore,
appropriate measures and relevant provisions should be clearly stipulated in
the franchise agreement to restrict the dissemination of proprietary
information.[17] In a franchise agreement, the
confidential information or trade secrets of the franchisor could be in the
form of any of the following; financial or technical know-how, business plans,
implementation strategies, distribution techniques, operation manuals, pricing
technique, recipes, customer lists, chemical formula etc. It should be noted
that the franchisee has a duty of ascertaining the precise value of the trade
secrets because certain proprietary information could be of doubtful legitimacy
and value.[18]

Furthermore non-compete
clauses and provisions restricting the franchisee from taking advantage of the
trade secrets of the franchisor should be laid out in the franchise agreement
to prevent the franchisee from rescinding the agreement in order to establish a
business based on protected information or from furnishing such information to
the competitors of the franchisor upon termination of the agreement. This was
the situation in the case of Gold Messenger v Mc Guay,[19] where confidential information
belonging to the franchisor was given to the franchisee and the franchise
agreement stipulated a provision disallowing the franchisee from competing with
the franchisor for three years and within 50 miles of the franchisor’s
franchise territories. At the termination of the agreement the franchisee
utilized the confidential information to set up his own enterprise and the
court held that the franchisee cannot use the confidential information he
obtained during the period of his contract with the franchisor to compete
unfairly with the franchisor. Consequently, it is important for every franchise
agreement to clearly define the franchisor’s trade secret, require the franchisee
to execute non-disclosure agreements with its employees who may become aware of
the franchisors trade secret only on a need to know basis, prescribe
confidentiality clauses that protect the trade secrets of the franchisor from
unauthorised use both during the lifespan of the franchise agreement and post
termination of the agreement.

4.
Copyrights

This is another important
intellectual property right that can be impacted in a franchise agreement and
would thus require sufficient protection. A copyright is a legal protection
that avails creators and originators of works eligible for protection.[20] It confers an exclusive and
assignable right to the originator of various kinds of creative expressions,
whether literary, Musical, Artistic or Cinematographic works or adaptations of
any of the aforementioned works.[21] Nigerian law requires that the
author must have expended sufficient effort to give the work an original
character and the work must be fixated in a definite medium of expression.[22] Copyrightable works in a franchise
agreement include literary works like operation manuals, recipes, source codes;
musical, audio-visuals and sound recordings like radio jingles and television
commercials; architectural works like the template plans and designs of the
franchised buildings, sculptural works like Mascots etc.[23] As discussed under Trademarks,
Copyright registration is also important in obtaining protection in the
jurisdiction of the franchisee. Although copyright subsists in a work upon
creation, most jurisdictions possess a voluntary national registration system
where rights holders can lodge copies of their work.[24] In some jurisdictions, like the
United States, copyright registration entitles a claimant in a copyright
infringement action to statutory damages. It is important for franchisors to
register or lodge their copyrighted materials in the depository of the
prescribed bodies within the jurisdiction of the franchisee to obtain better
protection or in order to facilitate enforcement proceedings.

Also, it is pertinent for
franchise agreements to contain clauses on the copyright ownership of creations
of the franchisee or employers of the franchisee which were developed during
the course of the franchise, including developments in other forms of
intellectual property.[25]

5.
Patents

A patent is an exclusive and
assignable intellectual property right granted to an inventor over his/her
patentable invention for a specified period of time.[26] In Nigeria, for an invention to be
patentable it must be new or constitute an improvement of a patented invention,
result from inventive activity and be capable of industrial application.[27] Some franchisors possess patented
inventions that are licensed to franchisees in a franchise agreement. These
inventions could be in the form of business methods, computer software
application, and equipment hardware. As has been sufficiently buttressed above,
the protection granted by a patent is territorial in nature, therefore there is
a need for the registration of these rights in the various jurisdictions where
the franchisees operate, in a bid to secure maximum protection over the patent.
Franchise agreements should prescribe the mode of utilization of the patented
inventions of the franchisee in order to prevent unauthorized exploitations. In
addition, it should include specific provisions on the ownership of inventions
created during the course of the franchise arrangement, especially if the
franchise agreement empowers the franchisee to undertake any inventive activity
for the overall benefit of the franchise.[28]

6.
Conclusion

Intellectual Property Rights
(IPRs) are the main stock-in-trade in a franchise. They avail franchisors an
opportunity of business expansion while simultaneously making profits through
the collection of fees or royalty payments from their franchisees. The
nature of a franchise exposes the franchisor to a high risk of possible
misappropriation of its trade secrets, misuse of its brand reputation, goodwill
and other intellectual property rights. There are very crucial provisions that
must be inserted in a franchise agreement to ensure that the IPRs of the
franchisor are adequately protected. In this regard, it is advisable for a
prospective franchisor or franchisee to retain the services of an IP lawyer
before venturing into a franchise arrangement to ensure that all requisite
bases are covered.

For further information
on this article and area of law, please contact

Sandra Eke at:
S. P. A. Ajibade & Co., Lagos by telephone (+234 1 472 9890),

fax (+234 1 4605092) Mobile:
+234.7033442333 or Email: seke@spaajibade.com

www.spaajibade.com

[1]
Sandra Eke, Associate Intellectual Property & Technology Law Department,
SPA Ajibade & Co., Lagos, NIGERIA.

[2]
Yetunde Okojie (2018) “The Importance of IP Due Diligence in Mergers and
Acquisition” available at: http://www.spaajibade.com/resources/the-importance-of-ip-due-diligence-in-mergers-and-acquisition-article-okojie/ accessed
12^th October 2019.

[3]
Brand Protect, “Why IP protection is vital to franchisors” available at: https://www.bptm.co.uk/franchising/why-ip-protection-is-vital-to-franchisors/ accessed
13^th December 2019.

[4]
The NOTAP Act, Chapter N62, LFN 2004 through its agency, NOTAP (National Office
for Technology Acquisition and Promotion) regulates the importation of all
foreign technology into Nigeria; the Patents & Designs Act, Cap P2, LFN
2004, makes provisions for the registration of patentable inventions in
Nigeria. The Government agency that manages the grant of patents is the
Trademarks, Patents and Designs Registry; the Trade Mark Act, Cap. T13, LFN
2004 makes provisions for the registration of Trademarks in Nigeria etc.

[5]
S.5(2) NOTAP Act. Although, as decided in the recent landmark case of Stanbic
IBTC v. FRCN & Anor

(2018) LPELR-46507(CA), the
court held that the non-registration of a technology transfer agreement under

the NOTAP Act neither
renders such agreement invalid nor unenforceable.

[6] For
instance, there must be evidence of registration of intellectual property e.g.
trademarks and patents;

In the case of retail shops,
there should be evidence of the local sourcing of the raw materials from local

producers; the scope of the
agreement should specify the object of the agreement, obligations and

services to be rendered by
the technical partner, training and capacity-building, detailed information of

technical experts etc.

[7] The
fees approvable are: Initial/Basic fee: A lump sum (to be reasonably fixed);
Franchise/Continuing fee:

0.5%- 2% of net Sales or
revenue and Marketing/ Advertising fee: which should not exceed 1% of net sales

or revenue.

[8]
In this instance, it is a source identifier capable of distinguishing one
franchise from another.

[9]
See generally, Sandra Eke “Why you need to Protect your Business Hashtags and
Catchphrases” available at:http://www.spaajibade.com/resources/why-you-need-to-protect-your-business-hashtags-and-catchphrases-sandra-eke/ accessed
13^th December 2019.

[10]
Op. cit. n.1.

[11]
Section 26(1) and (4) Trade Marks Act.

[12]
To obtain a trademark protection in Nigeria, the trademark is required to be
registered with the Trademarks,

Patents and Designs Registry
in Nigeria.

[13]
Like the African Regional Intellectual Property Organization (ARIPO) and
Organisation Africaine de la Propriété Intellectuelle (OAPI).

[14]
Baybridge, “Intellectual Property in Franchising” available at: https://www.baybridge.com.au/blog/intellectual-property-franchising-why-does-it-matter/ accessed
13^th December 2019.

[15]
See Sections 31 and 33(3) Trade Mark Act.

[16]
WIPO, “Managing Trade Secrets in a Franchising Arrangement”
available at: https://www.wipo.int/edocs/mdocs/sme/en/wipo_smes_lhe_2_07/wipo_smes_lhe_2_07_topic04.ppt accessed
13th December 2019.

[17]
SPA AJIBADE & CO, “The Role of Trade Secrets in the Protection of IP
Rights” available at: http://www.spaajibade.com/resources/the-role-of-trade-secrets-in-the-protection-of-ip-rights/ accessed
14^th December 2019.

[18]
Ibid

[19]
No. 96CA1619, 937 P.2d 907 (1997).

[20]
Sandra Eke, “Fundamental elements of copyright ownership and protection under
Nigerian Law” available at: http://www.spaajibade.com/resources/fundamental-elements-of-copyright-ownership-and-protection-under-nigerian-law-sandra-eke/ accessed
14^th December 2019.

[21]
Ibid.

[22]
Ibid.

[23]
International Franchisors Association, “Basics Track: Franchisor’s Intellectual
Property and how to protect It”

available at: https://www.franchise.org/sites/default/files/BasicsTrack_Franchisor%27sIP.pdf accessed
14^th

December 2019.

[24]
In Nigeria, copyrighted works can be lodged in the robust depository of the
Nigerian Copyrights Commission.

[25]
Op. cit., n.13.

[26]
The duration of a patent in Nigeria is 20 years. A patent expires at the end of
the twentieth year from the date of the filing of the relevant patent
application after which it falls into public domain.

[27]
S.1 Patents and Designs Act.

[28]
S.2 (4) Patents and Designs Act stipulate that “where an invention is made in
the course of employment or in

the execution of a contract
for the performance of specified work, the right to a patent in the invention
is vested in the employer or, as the case may be, in the person who
commissioned the work.”

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