#NBASBL2021: Alternative Currencies, A Hot Topic At The 15th Annual Business Law Conference

by Legalnaija | Jul 1, 2021 | Uncategorized

…As experts tackle the disruption of money in 2021!

Experts and analysts have indicated that the session on “Alternative Currencies in The Digital Age” at this year’s annual business law conference (a hybrid conference) of the Nigerian Bar Association Section on Business Law (NBA-SBL) is one that must not be missed by legal practitioners, tech entrepreneurs, business executives and other stakeholders, as it promises to be intriguing not just because a panel of very knowledgeable practitioners and industry players would be discussing another technological advancement, but because the discussion would be centred around the disruption of money itself!

A disruption that will be challenging not just because it strikes at the very heart of global economic stability but it is happening at a time when world economies are undergoing enormous stress. Yet, with the growing interest in crypto-currencies and central bank digital currencies amongst others, it is clear that the monetary landscape is changing

Prior to the Central Bank of Nigeria (CBN)’s announcement prohibiting financial institutions from dealing with local cryptocurrency exchanges and ordering the shutdown of crypto traders’ accounts, cryptocurrency startups acted as local exchanges, helping to facilitate transactions among users. Nigeria has accounted for crypto transactions worth $566 million in five years. The rather abrupt shakeup by CBN has plunged cryptocurrency startups, traders, and investors into a frenzied state of readjustment.

A selection of highly knowledgeable speakers will therefore be on hand to discuss best practices with regards to alternative currencies. Among these are, Rotimi Ogunyemi – ICT Attorney and Chairman of the NBA-SBL ICT Committee. Other distinguished panellists include: Ruth Iselema – Co-Founder, Bitmama, Victor Ndukauba – DMD, Afrinvest, Michael Ugwu – Founder, Freeme digital, Carmelle Cadet – CEO, EMTec, Akin Sawyer – Managing Partner, Feleman (Moderator)

This session will be intriguing not just because a panel of very knowledgeable practitioners and industry players would be discussing another technological advancement, but because the discussion would be centred around the disruption of money itself! A disruption that will be challenging not just because it strikes at the very heart of global economic stability but it is happening at a time when world economies are undergoing enormous stress. Yet, with the growing interest in crypto-currencies and central bank digital currencies amongst others, it is clear that the monetary landscape is changing.

At the end of the session, participants would have a clearer understanding of Cryptocurrencies/Crypto-assets, and Blockchain technology; and would be better able to distinguish the hype from the real-life use cases. Participants will understand all forms of Decentralised Finance, such as Stablecoins

Participants would understand the emergence of Central Bank Digital Currencies (CBDC) and all forms of Centralised Alternative Currencies such as Govcoins. They would also come out with an understanding of the evolution of the Alternative Currencies Ecosystem, the risk environment, and the regulatory challenges that lie ahead, as well as an understanding of the disruption of money together with the Monetary Policy and Governance issues arising, such as domestic interoperability, cross-border interoperability, digital identity, cybersecurity, and illicit finance

Akin Sawyer is the founder of Feleman Limited, an Africa-focused impact investment and advisory firm. Akin serves as a Non-Executive Director of Splash Mobile Money, a mobile payments company in West Africa. He spent the first fifteen years of his career in management consulting and the corporate world.

Timi Ajiboye, CEO/Co-founder Buycoins. Buycoins helps people begin your journey into the open global financial system.

Ruth Iselema is the Founder and CEO of Bitmama. Bitmama is one of the best crypto trading platforms to buy, sell and trade Bitcoin, Ethereum, Ripple, Celo and other cryptocurrencies in a secure way.

Carmelle Cadet, Founder and CEO Emtech and is a passionate advocate of Blockchain and Digital Currency Technology for payment modernization and financial inclusion efforts.

The 15th annual business law conference themed, ‘Retooling Businesses for Change: Leveraging the Tech Explosion” is scheduled to hold on Wednesday July 14th and Thursday 15th, 2021.

To secure a place at this conference, please visit: conference.nbasbl.org now as registration is still ongoing.

The Interplay Between Electronic Information And Litigation

by Legalnaija | Jun 25, 2021 | Uncategorized

INTRODUCTION

Today’s 21st century law firm is one highly dependent on technology to facilitate and ease its activities. Technology, which is an essential tool of the modern law firm leverages on electronic Information to function optimally.  For example, legal software such as Lexis Nexis and Law Pavilion transcend the traditional method of conducting legal research by deploying technology which utilizes electronic information stored in databases to facilitate case law reporting, electronic case file management, case analysis etcetera. Confidential client information as well as records (such as title documents and wills) are also now commonly stored digitally to ease referencing as well as provide backup for physical storage.

These digital developments have also redefined the pattern of legal proceedings in Courts of law across the globe as evidenced by innovations such as; electronic filings of processes, virtual court sittings, online services of processes etc.

Indeed, it is without a doubt, that these usages of technology generate viable information albeit in an electronic form that are subject to the various laws governing court proceedings.

Indeed, it is the workings of electronic information in civil court proceedings that form the fulcrum of this discuss.

MEANING OF ELECTRONIC INFORMATION

Electronic Information in its basic sense essentially means any information stored or existing in electronic form. For example, electronic books (e-books); electronic newspapers (e-newspapers); electronic journals (e-journals) as well as internet resources. Electronic information also consists of information found in databases, online videos, magazines, archives, conference papers, government papers, scripts and monographs in an electronic form, software, operating systems, web-based information and applications.

Electronic information by its nature is typically generated out of the usage of information and technology (I.T) devices and platforms. Again, for example, word documents saved on computers, emails, witness depositions recorded in video formats are all notables in this regard.

Indeed, it is noteworthy to state that technology in the legal space has come to stay as Information and Communication Technology which are digital infrastructures aid the electronic manipulation of information for the purpose of business, governance, security and most pertinently in this context – for legal research.

THE DUTY TO PRESERVE ELECTRONIC INFORMATION IN CIVIL MATTERS

It is rightly observed here, that lawyers generally owe a fiduciary duty to their clients in the course of acting on their behalf. Accordingly, it is trite that in their representation of clients, lawyers ensure that adequate steps are taken to observe this duty. Indeed, the duty to preserve electronic information falls within the scope of the fiduciary obligations owed to clients and can be found to arise in the following lights:

1. Evidential Matters
2. Data Protection Law

1. Evidential Matters:

A duty to preserve electronic information in civil litigation typically arises in respect of evidence when there is an existing apprehension of litigation. In advanced jurisdictions, electronic information as matters of evidence are so serious that the Courts are known to grant injunctive reliefs in respect of same to preserve them. An example is the landmark American case of Dodge, Warren & Peters Insurance Services Incorporation v Riley¹, wherein the Court granted an injunctive relief to freeze a person’s computer system even before a discovery request was issued in order to preserve the information contained in it.

Although Nigeria has no law specifically mentioning the preservation of electronic data in litigation, the general obligation to do so can be found in the provisions of the Rules of Various Courts, the Evidence Act, 2011 and the Rules of Professional Conduct, 2007. It is important to consider each of these in relation to the specific matter of preservation of electronic information.

1. Rules of Court:

A cardinal area where the duty to preserve electronic information can be inferred are in the provisions of the Rules of Court as they relate to the discovery of documents. A discovery as we clearly know, is a procedure by which a party requests another party in a suit to disclose to him, before the trial, material documents that are in his possession and control to enable the requesting party to inspect the said documents and if necessary make copies of same.²

For the purpose of clarity on the import of discoveries, Order 28 Rule 8(1) of High Court of the FCT (Civil Procedure Rules) 2018, reads:

“A party may in writing request any other party to any cause or matter to make discovery on oath of the documents that are or have been in his possession, custody, power or control, relating to a matter in question in the case. Request for discovery shall be served within 7 days of close of pleadings and shall form part of the agenda of pre-trial conference. The party on whom such a request is served shall answer on oath completely and truthfully within 7 days of the request or within such other time as the court may allow and it shall be dealt with at pre-trial conference.”

The import of the above is that it behoves on a party that might be a party to a likely litigation to ensure that documents and more particularly documents in electronic form which can reasonably be inferred to be in its custody are preserved for the purposes of such litigation.

Thus, where an order has been made by the Court, mandating a party to produce documents in the course of litigation and he fails to obey same, he may suffer the following as held in CFAO (Nig) Plc v Sanu) ³:

1. The defaulting party will be precluded from putting the document in evidence
2. If he is the claimant, his case may be dismissed

iii.    If he is the defendant, his defence may be struck out

1. If the fault is that of counsel, he may be liable to bear the cost occasioned by his failure
2. The counsel may be liable to attachment
3. Defaulting parties may also be held in contempt of Court

It is therefore clear that a duty invariably arises at the instance of a party in respect of evidence (which could be in electronic form) to ensure that same is preserved and not destroyed or wilfully withheld, as same can attract the aforementioned consequences.

1. Evidence Act, 2011:

The presumption of withholding evidence under Section 167(d) of the Evidence Act⁴  is another statutory provision that stresses the duty to take steps to ensure that evidence in the form of electronic information in this context is preserved. For clarity, the said section reads:

“…the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withhold it.”

The above provision clearly stresses the need to preserve electronic information as the Court would presume that the failure to do so was deliberate as same would be unfavourable to a party if availed.

1. Rules of Professional Conduct, 2007:

Rule 14(2) of the RPC⁵, places a duty on lawyers to ensure that they inform their clients of all likely risks that may occur in the course of representing the client. Invariably, it can be deduced that a lawyer has a duty to inform his client to avoid the destruction of electronic information or failing to preserve certain electronic information that may become evidential subjects as such an act would constitute a risk by the clear wordings of Rule 14(2)⁶  as aforementioned.

It is also trite to note accordingly, that a lawyer has a duty to inform a client of evidential issues such as discovery requests. In this regard, the provisions of the old Order 26 Rule 12 of the Lagos State High Court (Civil Procedure Rules) 2012 reads:

“A Legal Practitioner upon whom an Order against any party for interrogatories or discovery or inspection is served under the last preceding Rule, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment”.

1. Legal Practitioner’s Act, 1976:

As has been earlier stated, a lawyer may be liable for loss of electronic information as they relate to his clients, as same can be treated as a breach of the general duty of care owed to a client under the extant provisions of the Rules of Professional Conduct, 2007.

The Legal Practitioners Act⁷, similarly imposes sanctions in instances where a Legal Practitioner acts negligently in handling a client’s matter. Loss of electronic information by a counsel is squarely negligence, and therefore attracts the sanctions contained therein. Section 8 of the Act ⁸ provides that:

“Subject to the provisions of this section, a person shall not be immune from liability for damage attributable to his negligence while acting in his capacity as a legal practitioner, and any provision purporting to exclude or limit that liability in any contract shall be void”.

Further, Section 11(2) of the Act⁹  reads:

“Where a person whose name is on the roll is judged by the Disciplinary Committee to be guilty of misconduct not amounting to infamous conduct which, in the opinion   of the Disciplinary Committee, is incompatible with the status of a legal practitioner, the Disciplinary Committee may, if it thinks fit, give such a direction as is authorized by paragraph (c) (ii) or (iii) of subsection (1) of this section; and any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing   over of documents or any other thing, as the circumstances of the case may require”.

The sanctions under the aforementioned paragraphs (c) (ii) or (iii) of subsection (1) are to the effect that the Legal Practitioner’s Disciplinary Committee, may, if it thinks fit, give directions:

(i)   Ordering the Registrar to strike that person’s name off the roll; or

(ii)  Suspending that person from practice by ordering him not to engage in practice as a legal practitioner for such period as may be specified in the direction; or

(iii)  Admonishing that person.

2. Data Protection Law

The Nigeria Data Protection Law (NDPR) 2019, is Nigeria’s principal legislation on data protection in the country. The NDPR contains lofty provisions about the rights of data subjects (Nigerian citizens whose data are processed for various purposes) by data controllers (any entity processing the data of data subjects).

In the context of litigation practice, there are various instances in which the data of Nigerian citizens would require protection. For example, a litigation lawyer who has been briefed by a client must take steps to ensure that certain information revealed to him especially those in electronic form are well preserved. Also notable is the practice of certain Courts like the Supreme Court of Nigeria requiring soft copies of processes to be frontloaded alongside hardcopies. In both instances there are obligations under the NDPR for such data to be protected.

By the extant provisions of Article 2.1(d)of the NDPR¹⁰, the personal data of a data subject must be secured against all foreseeable hazards and breaches such as theft, cyberattack, viral attack, dissemination, manipulations of any kind, damage by rain, fire or exposure to other natural elements. Accordingly, anyone in control of data, that is data controllers must ensure that they put in place adequate measures to protect data. The NDPR further stipulates the means of ensuring data protection by respective data controllers. In this regard, Article 2.6 of the Regulations¹¹  provide thus:

“Anyone involved in data processing or the control of data shall develop security measures to protect data; such measures include but not limited to protecting systems from hackers, setting up firewalls, storing data securely with access to specific authorized individuals, employing data encryption technologies, developing organizational policy for handling Personal Data (and other sensitive or confidential data), protection of emailing systems and continuous capacity building for staff.”

DISCOVERY PLANS IN PREPARATION FOR ELECTRONIC DISCOVERY REQUESTS

A discovery plan here would typically mean a plan setup by a lawyer or Law Firm to deal with matters of electronic discovery and more specifically a notice to produce electronic documents. Accordingly, it is important that a Law Firm has a proper discovery plan to respond to discoveries in the course of litigation.

The following are practical steps towards creating a discovery plan for the purposes of litigation:

1. Identify the Relevant Custodians of Electronic

Information:

The first step in the development of a discovery plan is to identify the custodian of electronic information. Here, we mean the people or likely persons who may either have created an electronic information (e.g. the writer of an e-mail), received the information or shared same. The proper identification of custodians in this context is important as it allows for the following:

1. Knowing who the maker of a document may likely be or a person of interest in relations to a particular electronic document and subsequently prepare such persons to testify as witnesses.

1. Knowing the specific devices on which electronic information was generated e.g. a laptop or a mobile phone.

2. Identify the Kind of Electronic Information Created:

The next step is for a lawyer to be able to ascertain the most likely format in which information that has become the subject of a discovery was created in. Hence a lawyer must be attentive to the mode of operation of his client. For example, in preparing for a discovery in respect of a media house sued for libel, preparing for discovery would not only be limited to electronic information contained on word form online but also videos or audio recordings by such a media outfit.

3. Identify Where the Electronic Information is Stored:

Having identified who created the electronic information and the format it was created, the next practical step is to identify where it was stored. Accordingly, it is important that a lawyer engages a client to settle beforehand; cardinal issues such as the manner in which it stores data – whether on physical drives or in the cloud or both, the emailing system of the organization –whether or not central email systems (such as RoundCube) or private mails are utilized. In all of these, the goal is to be able to ascertain easily, where any electronic information subject to discoveries can be found.

4. Identify and Settle Relevant Time Issues Relating to Electronic Information:

Here it is pertinent to ensure that electronic information that ought to be available at a particular time is still available. For example, where the law states that particular data ought to be retained for a particular time frame, the deletion or destruction of such electronic information would be a gross violation of the law and put a party at disadvantage in litigation proceedings. For example, in respect of the obligation to preserve electronic information, Section 38(1) of the Cyber Crimes (Prohibition Act), 2015, as it relates to network providers in Nigeria accordingly reads:

“A service provider shall keep all traffic data and subscriber information as may be prescribed by the relevant authority for the time being, responsible for the regulation of communication services in Nigeria, for a period of 2 years.”

ELECTRONIC INFORMATION IN EVIDENCE

The most notable advancement in the legal industry in the recognition of electronic information, is the admission of electronically generated evidence by Section 84 of the Evidence Act¹². Prior to the Evidence Act of 2011, the various laws on evidence from 1958 to 2011, were silent on the admissibility of electronic evidence. Admissibility of such evidence depended on fulfilling the requirements that governed the admissibility of documents generally, in their primary or secondary forms. However, owing to technological advancements permeating every area of human activity, it became pertinent that the law recognized electronic evidence in the dispensation of justice; hence the amendment of the Evidence Act in 2011.

It is pertinent to state that, the Evidence Act of 2011, does not expressly use the term “electronic document/information” but inference can be drawn from Section 258(1) of the Act where the Act defines ‘document’ and ‘copies of document’ to include tapes, films, sound tracks, and so on. However, electronic or computer generated evidence has been described by several authors as information of probative value that is stored or transmitted in binary form¹³. In light of this, it can be said that electronic evidence includes but is not limited to digital devices such as telecommunications or electronic multimedia devices and the usages and applications of electronic information.

Indeed, e-evidence can be found in e-mails, digital photographs, ATM transaction logs, word processing documents, instant message histories, files saved from spreadsheets, internet browser histories databases, contents of computer memory, computer backups, computer printouts, digital video or audio files, and so on.  As such, in a bid to regulate the admissibility of such electronic information, Section 84 of the Evidence Act lists the requirements to be fulfilled before such evidence is admitted. This is a form of judicial scrutiny to ascertain the authenticity of such information due to its vulnerability. By the extant provisions of Section 84(2) of the Evidence Act, which has been given credence in the Supreme Court decision of Kubor v. Dickson (2012) LPELR – 9817 (SC), for an electronic document to be admitted in evidence, the following four conditions must be complied with;

1. That the statement sought to be tendered was produced by the computer during a period when it was in regular use;
2.  during that period of regular use, information of the kind contained in the document or statement was supplied to the computer;
3. That the computer was operating properly during that period of regular use, and;
4. That the information contained in the statement was supplied to the computer in the ordinary course of its normal use.

Also, Section 84 (4) of the Evidence Act further provides that the party who seeks to tender a computer generated statement or document shall file a Certificate of Compliance before such evidence would be admitted in Court.

Therefore, the failure to comply with the stipulated requirements of Section 84, would render the evidence inadmissible before the Court. The effect of admission of electronic evidence in civil litigation in our legal system cannot be overemphasized, as it has expanded the scope of matters that would be admissible in court, thereby aiding the courts with the necessary evidence to do justice as well as ensuring that matters are dispensed with faster and much easier.

CONCLUSION

Legal Information is the backbone of an efficient judiciary. The Courts of Law depend on the quality of information given to relate to the cases at hand for justice to be meted on all parties.  For Information technology to be meaningful in the legal industry, there must be results, output and productivity. As such, this paper is a further call geared towards ensuring that lawyers are enjoined to guarantee that electronic information, and records are properly managed to enable the Courts of law make impartial and all-inclusive quality decisions thus, safeguarding the goal of the judiciary – which is to bestow legal rights to individuals and the society. With the continuous evolution of the technology, the Court also has a duty to keep up with the changes in technology, to promote certainty in the use of electronic records, while taking into account all practical aspects

Mr. Oyetola Muyiwa Atoyebi, SAN is an exceptional Technology lawyer and thought leader with over a decade’s worth of experience in legal Practice and technology. He has facilitated numerous transactions and given countless legal opinions as regards tech in Nigeria, his outstanding performance has attracted international recognitions and awards. He is the youngest lawyer in Nigeria’s history to be conferred with the highly coveted rank of a Senior Advocate of Nigeria (SAN).

He is the Managing Partner of OMAPLEX Law Firm, an established law firm driven by Technology innovation. As an expert in emerging areas of law practice, he has core competence in information technology, cyber security, Fintech, Robotics and Artificial intelligence. He is described to be the go-to person when it comes to issues around tech.

The learned silk is best characterized as a diligent, resourceful and yet humble individual who is revered for his highly analytical and pragmatic approach to solving legal problems as well as an unwavering commitment to achieving client goals. Indeed, his hard work and dedication to his clientele sets him apart.

Beyond his interests in law, the learned silk is an avid golfer and a tech enthusiast.

Win N150k OR A 3 Month Internship In The Paul Usoro Challenge

by Legalnaija | Jun 22, 2021 | Uncategorized

A new Paul Usoro & Co challenge is live!

Criteria: • All entries should be submitted in word or pdf format to the designated email address with full name, phone number and year of call. (puchallenge@paulusoro.com) • All present and past PUC employees are not eligible to participate. • The essay will be published on the PUC website.

9th

Essay Guidelines: • The body of the essay should not be more than 10 pages and all citations and references should be with the Modern Language Association (MLA) format.

N150k or a 3 month internship to be won!

#pucchallenge

#FIDA2021 Law Week Dinner – A Touch Of Royalty

by Legalnaija | Jun 11, 2021 | Uncategorized

Dear Colleagues,

It’s that time again to unwind, FIDA Lagos is set to hold her 2021 Law week dinner themed *”A touch of Royalty”*.
After the intellectually challenging 2-day technical session, what more could we crave for than to let our hair down and enjoy the weekend in style.

This year’s dinner is scheduled to hold on *Saturday, the 19th of June, 2021* at the prestigious *”White Stone Event Centre”* in the heart of Ikeja. Doors will be open by *4pm*.

Side attractions such as dance, comedy, competition have all been lined up for the dinner. Mouth watering gifts and prizes awaits the first 20 persons.

Sumptuous finger licking delicacies ranging from African to Chinese and the best of continental cuisine is what to expect.

Adequate security is guaranteed as you have fun in the heart of Ikeja. So come show off your latest dancing steps.

You don’t want to miss this royal event, hurry and get your dinner cards at :

*#5,000 – For FIDANS*
*#10,000 – For Non-FIDANS*

Interested persons should kindly pay into the *FIDA Lagos Stering bank account- 0003538220*

1. For more enquiries, Please call Abiola Laseinde on 07031781142 or Tadeni on 08023175302 or Nnenna on 08037728600

#NBASBL2021: Three (3) Exciting Things To Note About The NBASBL2021 Conference

by Legalnaija | Jun 8, 2021 | Uncategorized

The Nigerian Bar Association’s Section on Business Law (NBASBL) 2021 Conference is around the corner and once again it’s an opportunity for commercial lawyers, members of the business community, regulators and members of the public to sit, discuss and strategize on critical issues that benefit the Nigerian business community. This upcoming conference which will be the 15^th Annual Conference of the Section of Business Law has us excited for the following reasons;

1. The Theme

The theme of this year’s conference, which is Re-tooling Business for Change: Leveraging the Tech Explosion, speaks to recent global trends on the role of technology in today’s legal industry. In the words of Mr. Adeleke Alex – Adedipe, 2021 Chair, Conference Planning Committee;

“with the growth of technology comes an unending struggle of law to keep pace with technological developments and disruptions. This is particularly true of the business space as the fourth industrial revolution continues to emerge and the world tries to grapple with the economic realities of the Covid-19 pandemic”.

It is exciting to note that the NBASBL is looking forward at relevant Tech – trends and is looking to get ahead of it, rather than be left behind.

2. The Innovation Hub Challenge

The NBASBL 2021 Conference will also be hosting the Innovation Hub Challenge, wherein winners stand a chance of winning between $1500 – $5000 seed money for solution – driven Apps able to generate social and economic value for a digital society.

The competition is open to all Nigerian Innovators and the panel of Judges includes distinguished personalities from the Tech, Legal and Business Eco – System. Winners also get one year free legal support.

3. The Keynote Speaker

The keynote speaker for the NBASBL 2021 Conference is Dr. Wendy Okolo, an aerospace engineering researcher in the Intelligent Systems Division at NASA Ames Research Center. She leads a controls team on a Space Technology project to advance the guidance, navigation, and control technologies that will make precision landing for deployable entry vehicles a reality for planetary exploration. At 26 years old, Wendy became the first black woman to obtain a Ph.D. in aerospace engineering from the University of Texas at Arlington. Her graduate studies were recognized and funded by the U.S. Department of Defense through the National Defense Science and Engineering Graduate Fellowship, Zonta International through the Amelia Earhart Fellowship, the American Institute for Aeronautics and Astronautics, and the Texas Space Grant Consortium. Other research awards include a Resolution of Commendation from the Tarrant County Court of Texas and an award for excellence in research by the Women of Color in STEM (Science, Technology, Engineering, & Mathematics).

We have not even mentioned the array of over 40 speakers, over 35 sessions and an exciting list of conference events. You should be a part of this exciting conference so go right now to the NBASBL website to register.

Nigeria’s suspension of Twitter and the AGF’s move to prosecute offenders – few legal matters arising By Olumide Babalola

by Legalnaija | Jun 6, 2021 | Uncategorized

On the 4th day of June 2021, the Federal Government of Nigeria, through the Federal Ministry of Information & Culture issued a press release informing the entire world, ironically on Twitter, that, the operations of the global microblogging social networking site have been suspended in Nigeria. To put this far-reaching decision in proper perspective, the ministry, in a series of tweets, stated that:

“FG suspends @Twitter operations in Nigeria. The Federal Government has suspended, indefinitely, the operations of the microblogging and social networking service, Twitter in Nigeria.”

Barely 6 hours after the tweets, Nigerians’ access to twitter was systematically and gradually limited or completely blocked and thereby necessitated their resort to Virtual Private Networks (VPN) to access the all-important app/site.

In another frenetic move to ensure Nigerians do not have access to Twitter, the office of the Attorney General of the Federation was reported to have instructed the Director of Public Prosecutions to commence the prosecution of “violators of the Federal Government De-activation of operations of Twitter in Nigeria”

Upon this directive, many newspapers have reported that the purpose is to prosecute users who access twitter though VPN in spite of its suspension in Nigeria. However, this article seeks to briefly highlight some of the many legal issues that have arisen from the most reported events in the past 24 hours in Nigeria, especially among its young citizens.

1. What does it mean to ‘operate’ in Nigeria?
It is beyond doubt that, from the Ministry of Information’s tweets, what was been suspended in Nigeria are the “operations of Twitter.” Now, what does the term ‘operation’ mean under the Nigerian law? At page 275 of Babalola’s Law Dictionary (2nd edn. Noetico Repertum, Lagos, 2019), the word was defined by the Court of Appeal in Osondu v Federal Republic of Nigeria (2000) 12 NWLR (Pt. 682) 470 at 483 as:
“(1) Exertion of power; (2) the process of operating or mode of action; (3) an effect brought about in accordance with a definite plan; (4) action; and (5) activity”

From any of the definitions above, what the FG has simply done was to suspend the “activities” of Twitter in Nigeria and nothing more. It is not beyond doubt that, for business or establishment purposes, to my knowledge, Twitter neither operates an office nor does business in Nigeria within the context of its suspension by the FG.
Hence, the suspension of its operations is rather a matter for the companies that grant access to the site than for Twitter itself since the FG is aware that the company’s physical office in Africa is located in Ghana. Secondly, Twitter, a company, does not have ‘activities’ in Nigeria within the context of its business operations.
However, a discussion of the propriety of such knee jerk approach by the FG to the company’s deletion of Nigeria’s President’s controversial tweet, is another issue that is not the crux of this intervention.

2. Nigerian Communications Commission’s powers to suspend Twitter

From a press release by the Association of Licences Telecommunications Operators of Nigeria (ALTCON) dated 5 June 2021, the public was informed of the NCC’s shut down directive but the statement simply alludes to the Commission’s regulatory powers under the NCA 2003.

It must be quickly stated that, no regulator’s power to give directives is at large. Such directives must be given under specific provision(s) of the relevant enabling law. It is trite law that, an agency’s power to give directives is a delegated power which must be clearly and specifically donated by its enabling law. (See NNPC v. Famfa Oil Ltd (2012) 17 NWLR (Pt 1328) 148; FGN v. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162; Ogunlaji v. A.G Rivers State (1997) 6 NWLR (Pt. 508) 209; UNTHMB v. Nnoli (1994) 5 NWLR (Pt. 36) 376)

I am aware of the NCC’s Internet Code of Practice which empowers the Commission to instruct Internet Service Providers (ISPs) to block access to certain offensive sites. For the avoidance of doubt, clause 7.5 of the Code expressly provides that:
“Upon determination by the Commission that the content reported under Paragraph 7 (2) above is indeed unlawful, the Commission shall issue a takedown notice to all IASPs to deny or disable access to the content. The IASP shall be expected to comply with such takedown notice within 24 hours of receipt of the notice.”
It is interesting to note that, in 2019, I filed a suit at the Federal High Court, Abuja against the NCC challenging the likelihood of this provision to be used to violate fundamental rights of Nigerians pursuant to sections 39 and 46 of the 1999 Constitution but the court dismissed our case as premature and speculative in spite of the instructive wording of section 46 that empowers an applicant to file a suit even when any of his fundamental rights is ‘likely’ to be interfered with.
I saw this (the arbitrary shutdown of anti-government websites) coming and we approached the court but his lordship saw otherwise in Digital Rights Lawyers Initiative v NCC, Suit No. FHC/ABJ/CS/56/2019 (Judgment delivered in 2020)
Assuming the NCC even wielded the big stick under clause 7.5, the exercise of such powers is clearly circumscribed by certain conditions which must be satisfied as condition precedent before a takedown notice can be issued. Secondly, under the clause, it is the offensive contents that are meant to be attacked but not the entire platform as done in this case.

3. The AGF’s imminent prosecution of ‘offenders’

The AGF, as the chief law officer, has simply directed the DPP to prosecute violators of the ‘de-activation’ directive. To my mind, I respectfully opine that, the very simple question that answers any speculation(s) that may arise here is – who are/were the recipients of the directive. The users or the ISPs? I think the answer is as clear as it could get.

Without necessarily deviating into any argument as to whether the FG has criminalised the use of Twitter (which would be a very preposterous thing to even imagine) and since users were never directed to de-activate their Twitter accounts or never to access Twitter, they are not under any legal obligation to ‘de-activate’ or suspend twitter unlike the ISPs who are duty bound to comply with the regulator’s directives except they are ready to ‘risk it all.’

4. Interference with freedom of expression of millions of Nigerians
CNN reported that about 39 million Nigerians have twitter accounts which mean different things to different people e.g market place, social networking, means of communication, information site etc.
By the suspension, the FG has clearly interfered (whether rightly or wrongly) with citizens’ medium of expression and reception of information in a dangerous affront to section 39 of the 1999 Constitution. I understand a number of organisations are planning to approach the courts once the JUSUN strike is over to challenge the suspension and that is the reason I will pause here.

Conclusively, there are many more legal issues that have arisen and will continue to arise from the FG’s suspension of Twitter in Nigeria. However, considering the value that Nigerians daily derive from the site which, in my modest opinion outweighs political sentiments to the contrary, it is advisable for the FG to rethink its decision. Thankfully, it is a suspension but not an outright ban.

By Olumide Babalola

Indefinite Suspension Of Twitter in Nigeria – Legal Considerations

by Legalnaija | Jun 4, 2021 | Uncategorized

So today the Federal Government released a statement indefinitely  suspending twitter operations in Nigeria.

The reason behind this according to them is that there is a “persistent use of the platform for activities that are capable of undermining Nigeria’s corporate existence”

As plausible as this may seem, the question remains – can the FG Ban or suspend the use of twitter in Nigeria. I say this because it is unequivocally enshrined in our Constitution that freedom of expression is a fundamental  right and this right is protected by section 39 (1) of our Constitution.

Nigeria is also a party to several international conventionsthat have established the importance of respecting the peoples right to freedom of expression.

The rights of Nigerian citizens to use the platform provided by twitter can be referred to as digital right that comes within the purview of the freedom of expression protected by the Constitution.

It is thus correct to say thatDigital rights are human rights which cannot be arbitrarily breached or curtailed arbitrarily.

The United Nation’s Universal Declaration of Human Rights unequivocally states that limiting, curtailing or outrightlydisconnecting people from the internet violates their rights. Digital rights under which the use of social media such as twitterfalls, are considered to be fundamental human rights. As a matter of fact, theUnited Nations Human Rights Council in its 2016 resolution resolved that the “same rights that people have offline must also be protected online.”  Nigeria as a member of the United Nations and a member of the Human Right Council is a signatory to that resolution and is therefore bound by it.

Additionally, the International Convention on Civil and Political Rights (ICCPR) which Nigeria is a member and signatory to,provides in paragraph 2 of its Articles that “everyone shall have the right to hold opinions without interference”.It further provides that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print, in the form of art, or through any other media of choice”

It is important to point out however that these rights are subject tocertain restrictions, but these restrictions cannot be arbitrarily or unnecessarily activated;the permissible restrictions include; the protection of national security or maintenance of public order.

I will want to believe that the Federal Government is  relying on the above leeway to suspend twitter indefinitely; however I find the decision hasty and impulsive considering the fact that Twitter has a system in place where it removes illegal content upon receipt from third parties, including Governments, to remove illegal content in accordance with the laws of the countries where the people use the service. So if the Federal Government has justifiable proof of a breach of our laws by some twitter users, the simple approach should be to request twitter’s censorship and not a general indefinite ban of the platform. Because how do you justify an attempt todisenfranchiseof over 40M Nigerians of their right to freely express themselves without a firm legal basis for such limitations.

Indeed fake news and incitement are real threats that MUST  be curtailed but banning twitter is similar to throwing away the baby with the bath water. The Federal Government must be wary not to impede people rights and creativity by limiting online freedom.  Citizens must be allowed to communicate freely online and offline albeit in accordance with legal provisions.

OMORUYI OSAGIE EDOIGIAWERIE ESQ ACIArb(UK)

OmoruyiEdoigiawerie is a Legal Practitioner with over a decade experience. Over the years, he has garnered consummate experience in Corporate Legal Practice and Statutory Compliance Matters.

His core expertise lies primarily in Corporate Commercial Practice, Startup Law, Immigration and Employment law, Immigration Law, Alternative Dispute Resolution and Entrepreneurship. Additionally he regularly provides advisory and capacity building support to a spectrum of clients particularly start-ups whom he enjoys mentoring. To date he has helped build and grow over 1000 startups most of who remain gainfully in business.

Omoruyiholds Graduate and postgraduate degrees in Law and is an Alumnus of the University of Lagos, Harvardx program on Leadership, he is also a Member of the Chartered Institute of Arbitrators UK,  Mediation specialist and management Consultant, he is also a member of the Nigerian Bar Association and several professional bodies and is an ardent contributor to topical national and Legal issues.

He can be reached on twitter @UyiDlaw, Instagram  @Uyilaw and email omoruyi@uyilaw.com.

OmoruyiEdoigiawerie Esq ACIArb

Lagos, Nigeria.

4-6-2021