by Legalnaija | Jan 14, 2021 | Uncategorized
The Nigerian Bar Association (NBA) Ado-Ekiti Branch* today 14 January 2021, held her first ever virtual Statutory Meeting to commence the New Year.
This was as physical attendance at the meeting was restricted to members of the Executive and January Birthday Celebrants.
This development was in compliance with the Ekiti State Government directives as regards COVID-19 restrictions and regulations.
Signed
Adetutu Oluwaseyi
Publicity Secretary
by Legalnaija | Jan 12, 2021 | Uncategorized
With the high rate of
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For lawyers, social media is
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directly communicate with the communities they serve, social media also becomes
a natural way to reach people in need and acquire new clients.
At Lawlexis, we are best
suited to help you accomplish all your digital marketing goals for your law
firm or legal practice.
Contact
us for free consultation via –
Lawlexis
Lawlexisinternational@gmail.com
09029755663
Looking forward to helping
you use social media to accomplish your corporate and personal branding
goals.
by Legalnaija | Jan 5, 2021 | Uncategorized
“The International Arbitration Law & Practice: The Practitioners Perspective” is one book every arbitration practitioner or student should have.
The Book is a compendium of scholarly papers that focus on contemporary topics which will deepen the practice of arbitration; whether at a junior or mid-Senior level.
The book which is edited by Tolu Aderemi, Partner, Perchstone & Graeys, is also a compilation of articles by seasoned international arbitration practitioners from both within and outside the Nigerian legal jurisdiction including very eminently qualified and senior Arbitration practitioners such as Kamal Shah (UK), Funke Adekoya SAN, Dr. Babatunde Ajibade, SAN, Adedoyin Rhodes-Vivour SAN, Hon. Justice Nnamdi Dimgba, Tunde Fagbohunlu SAN, Osaro Eghobamien SAN, BOLAJI AYORINDE SAN, FCArb., O.F.R., Bode Olanipekun, SAN, Tunde Busari, SAN, FCIS, FCIArb, @Ikponwosa Omigie (Company Secretary, NAPIMS),Prof Alero Akeredolu, Funmi Roberts and Prof Olawuyi.
This Book is a valuable resource tool for Arbitration Practitioners and is a welcome contribution to the body of knowledge on the topic in Nigeria.
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by Legalnaija | Dec 28, 2020 | Uncategorized
Introduction
Case law authority is that the National Industrial Court of
Nigeria (NIC) has jurisdiction over service conditions in the military but only
upon fulfillment of prescribed condition precedents. This means that when a
dispute arises over service conditions in the military there is a multi-tier
dispute resolution procedure that requires the aggrieved soldier, rating or
aircraftman and officer to undertake certain steps in an attempt to settle the
dispute internally before resorting to court action. It is important to note the binding
nature of the multi-tier dispute resolution procedure in the military; whether
it constitutes jurisdictional condition precedent to the commencement of action
at the NIC, and the consequences of a party’s failure to comply.
Redress of Complaints in the Military
Section 178 (1) of the Armed Forces
Act, Chapter A20 Laws of the
Federation of Nigeria 2004, provides that if an officer thinks
himself wronged in any matter by a superior officer or authority and on
application to his commanding officer does not obtain the redress to which he
thinks he is entitled, he may make a complaint with respect to that matter to
the Armed Forces Council. A similar procedure is provided under section 179 of
the Act for lower rank officials, that is, a soldier, rating or aircraftman.
Where a Complaint is brought under
these provisions, it is to be resolved within three months of the complaint.
The initial complaint is to be Commanding Officer of the aggrieved officer. A
further right to appeal lies to the Armed Forces Council. In the case of junior
officials however, a further right of appeal lies to any Army, Naval or Air
Force officer under whom the complainant is for the time being serving, being
an officer not below the rank of brigadier or corresponding rank.
Sub-section (3) provides that an
officer who feels he has been wronged in any matter shall first exhaust the
administrative remedies available to him under the provision above before
embarking on any other action. Sub-section (5) states that no officer is to be penalized
or victimized for bringing a complaint in accordance with the Act “if the
complaint does not contravene a provision of this Act”. This implies that
non-compliance with the provision of the Act will not only invalidate the complaint,
it will also constitute a punishable offence under the Act. It is suggested
that non-compliance should only invalidate a complaint without more.
Case law authorities
The courts have held in
the cases of Lt. Col. Garba v. Nigerian
Army & Others (Suit No. NICN/LA/611/2016) and Col. Ositadinma Uche Nwankwo (RTD) v. Nigerian Army & 7 Others (Suit
No. NICN/ABJ/317/2016) that an aggrieved military service official must first
exhaust the administrative remedies provided under the Armed Forces Act before
approaching the NIC. Sections 178 and 179 of the Armed Forces Act, Cap. A20 LFN
2004 provides
that a soldier, rating or aircraftman who thinks himself wronged in any matter
by a fellow serviceman or authority shall
first seek redress from his commanding officer.
Where the complainant is an ‘officer’ and is not satisfied with the
decision of the commanding officer, a further right of appeal is available to
him with respect to the matter to the Forces Council. What it means is that the
NIC will only be able to assume jurisdiction in the matter after the
administrative remedies in the Armed Forces Act are shown to be have been
exhausted.
In the case of Lt. Col. Garba v. Nigerian Army & Others,
the claimant, a Lieutenant Colonel in the Nigeria Army, sued his employer
(Nigeria Army) and other relevant constituted authorities in the Nigeria Army.
He contended that by a notification of retirement dated 2nd November 2014, the
Nigeria Army (sued as the 1st defendant) notified him that he will be due for retirement
on 31st May 2015. He was then offered to apply for voluntary retirement to the
Office of the Chief of Army Staff (sued as 2nd defendant) not later
than 31st December 2014 so that the 1st defendant may not consider him for
compulsory retirement. He was then directed to proceed on terminal leave by
28th February 2015. The last sentence of paragraph 2 of the letter of
notification of retirement of 21st November 2014 stated thus: “Please note that
your disengagement from Service is subject to the approval of the Army
Council”.
The claimant, by a
letter dated 19th December 2014, accepted the offer and applied for
voluntary retirement due to failure of Promotional Board 3/2014 examination as
he was earlier directed. The 2nd defendant, by a letter dated 29th December
2014, forwarded the claimant’s application for voluntary retirement to the Army
Headquarters Department of Military Secretary Departments for further necessary
action. Specifically, the letter stated thus: “I am directed to respectfully forward a copy of Reference A on
subject in respect of the above named officer for your necessary action,
please”. There was no evidence before the court, other than mere averments,
that the 2nd defendant accepted the claimant’s application for voluntary
retirement as the claimant pleaded. Also, the 2nd defendant (as
contended by the claimant) did not issue the claimant with a certificate of retirement; nor was he paid any of his retirements
entitlements. Instead, by a letter of 1st June 2015 the 2nd
defendant approved the suspension of the claimant’s retirement, ‘until investigation
involving the claimant, Chisco Transport Limited and the Nigerian Army is
concluded.’ This action was premised on section 43(a) of the Armed Forces Act.
The Court, in Lt. Col. Garba’s case, held that the
claimant was a military officer at the time of institution of the case. As a
result, the claimant was a person subject to service law governed by the
Nigerian Armed Forces Act, Cap. A20 LFN 2004. The court further held that the
claimant’s retirement notice from the Nigerian Army was effectively suspended
in accordance with section 43(a) of the Armed Forces Act Cap. A20 LFN 2004,
hence he was not issued with a mandatory
Certificate of Retirement which could have formed the basis of retirement in the
Nigerian Armed Forces.
Notably, the court
emphasized that section 178 of the Armed Forces Act aforesaid provides ample
channel of administrative remedies for any alleged wrong done to any officer in
the service of the Nigerian Armed Forces which requires as part of service
discipline, to be exhausted before an officer can seek redress or embark in any
other action including seeking redress in court. In the end, the case of the
claimant failed because as an officer of the Nigerian Army he failed to comply
with the relevant provisions of the Armed Forces Act before bringing the case
before the court (NIC). The court, in the case of Col. Ositadinma Uche Nwankwo (RTD) held that fulfilling the
requirements of section 178 is mandatory and admits of no exception; as such
any failure will render the suit incompetent.
It is pertinent to note
earlier Court of Appeal decisions on the mandatory nature of compliance with
section 178 of the Armed Forces Act. In the case of Major General Ovo Adhekegba v. The Honourable Minister of Defence &
Others (2013) LPELR – 20154, the court held that “The wordings of Section 178, with particular reference to subsections
(1) and (2) are quite clear and unambiguous. An aggrieved officer must first
complain to his superior officer and if still unsatisfied, he then complains to
the ‘Forces Council’”. In fact, the case of Wing Commander Yusuf Garba Mshelia v. Nigerian Air Force & Another (2014)
LPELR – 23732 went the extra mile to hold that the duty enjoined under section
178 is one that is not only imposed on the officer but also one imposed on the
Forces Council itself. Thus in the words of the Court of Appeal:
The
refusal of the Forces Council to respond to the letter for redress by the
appellant is condemned. The law imposed a duty on it, to consider the
complaint, investigate it and grant the necessary redress if any. Its failure
to act is a dereliction of that duty. The Armed Forces as a body, is supposed
to be exemplary, in discipline, the world over. To violate the law and retire a
member of that body in consequence is not an exhibition of discipline or
exemplary conduct. To refuse to act in accordance with section 178 of the Armed
Forces Act 2004, and to continue to keep the appellant in suspense, is an abuse
of office, calculated at denying the appellant the right to seek redress in a
court of law…
Conclusion
The
NIC is now firmly established as a specialized tribunal with exclusive
adjudicating power on matters relating to or connected with labour and
industrial relations laws. However, the
law is settled that where a party fails to satisfy a condition precedent to the
institution of an action, the action instituted by a party is premature and
consequently incompetent. See Omaliko v.
Awachie (2002) 12 NWLR (Pt. 780) 1. It is only logical that the remedy
prescribed by law must be exhausted before recourse to the law court. See also Ajibi v. Olaewe (2003) 8 NWLR (Pt. 822)
237. It is important to note the binding nature of the multi-tier dispute
resolution procedure in the military; whether it constitutes jurisdictional
condition precedent to the commencement of action at the NIC, and the
consequences of a party’s failure to comply.
Michael Dugeri
by Legalnaija | Dec 21, 2020 | Uncategorized
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Some of the advantages of using social media for lawyers and law firms include;
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by Legalnaija | Dec 15, 2020 | Uncategorized
It
has now become a quadrennial occurrence for the Nigerian polity to experience
debates on the constitutionality or otherwise of the President’s disobedience
to summons/invitation by the National Assembly to account for executive
actions/inactions. This debate largely
arises from the perceived conflict between the provisions of Sections 67(1) and
89 of the Constitution of the Federal Republic of Nigeria 1999 (as
amended).
Ideally,
a country governed by responsible leaders would not put its citizen through the
unnecessary venture of indulging in such constitutional debate, because an
invitation by the apex legislative house should not be treated with levity by
the President, but be rather obeyed out of respect to the sovereign will of the
people. This debate has once again become very necessary given the refusal of
President Muhammadu Buhari – on the advice of his Attorney General- to honour
and obey an invitation by the National Assembly to come account for some
executive decisions and actions.
It
is necessary to clarify from the onset that any debate which involves the
interpretation of the sacrosanct provisions of our precious and organic
Constitution can never be otiose, moot or academic, but such debates contain
live issues that can (and should) be examined by the Courts (and legal
scholars) at any time. Please see the case of ARDO v INEC (2017) LPELR-41919 (SC).
Thus,
proponents of the school of thought (led by the Honourable Attorney General of
the Federation) who subscribe to the opinion that President cannot be summoned
or compelled to attend a joint sitting of National Assembly, or of either House
of the National Assembly; or that the President has a constitutional right to
refuse to honour such invitation where issued, hinge their arguments on the
provisions of Section 67(1) of then Constitution which provides thus:
“The President MAY attend any joint meeting of
the National Assembly or any meeting of either House of the National Assembly,
either to deliver an address on national affairs, including fiscal measures or
to make such statement on the policy of government as he considers to be of
national importance.” (underlining
and capitalization mine for emphasis).
This
School of thought subscribe to the view that the use of the modal verb MAY in
this section confers a discretion on the President, which he could choose not
to exercise. However, this invokes the question; does the use of the word “may”
in a statute or the Constitution indeed confer a discretion? Or can it be
interpreted as being mandatory? The Court of Appeal acknowledged this
jurisprudential dilemma in the case of AROWOSAYE
V OGEDENGBE (2008) LPELR-3701 (CA) when the Noble Lord Chima Centus Nweze
JCA (as he then was, now JSC), held as follows:
“The interpretation
of the word “may” has always posed some difficulties. In some circumstances,
the word has been held to import discretion. However, in other circumstances, it has been held to be mandatory.”
(underlining mine for emphasis).
In
the case of UDE V NWARA & ANOR
(1993) LPELR-3289 (SC) the Apex Court laid down the law that the use of the
word “may” in a legislation should be construed as mandatory when it imposes a
duty on a public official. The Apex Court held as follows:
“I agree with Chief
Umeadi that although Section 28(1) of the Law states that the lessor “may enter
a suit”, “may” should be construed as
mandatory i.e. as meaning “shall” or “must. I believe that it is now the
invariable practice of the Courts to interpret “may” as mandatory whenever it
is used to impose a duty upon a public functionary the benefit of which enures
to a private citizen.” (underlining mine for emphasis).
Therefore,
this writer submits that any argument that attempts to excuse the President’s
disobedience to National Assembly invitations by virtue of the purported
discretion conferred on him in Section 67(1) of the Constitution is not pure or
absolute, but is rather standing on a shaky and greatly contested legal
foundation as the modal verb “may” can be construed to connote compulsion to
perform an act and not discretion.
Furthermore,
there is the fundamental prescription that in the interpretation of the
provisions of the Constitution, Sections of the Constitutions must be construed
holistically and not in isolation (Please see the case of A.G FEDERATION V ABUBAKAR (2007) All FWLR (Pt. 389) 1264, 1289 -1291).
Also, the Courts (and indeed officers of the Courts including the Honourable
Attorney General of the Federation) must interpret the Constitution in such a
way that the elementary principles of Government are upheld (Please see the
case of SARAKI V FRN (2016) 3 NWLR (PT
1500) 531, 631 -632). The Constitution must never be interpreted in any
manner that would do violence to the fundamental principles upon which our
democracy is built. Please see the case of DAPIANLONG
V DARIYE (2007) 8 NWLR (PT. 1036) 239).
Therefore,
what are the fundamental principles of government upon which our Constitution
is based that must guide an interpreter of the Constitution? Our 1999
Constitution is premised upon the governmental principles and ideals of democracy,
federalism, separation of powers and checks and balances. The provisions of
Chapter 1 of the Constitution emphasizes these underlying principles which form
the rubric of the administration of this Country. Any attempt to interpret the
provisions of the Constitution must be done in such a manner that gives effect
to these underlying principles. Any purported interpretation that does violence
to these principles are untenable and null. Please see the case of SKYE BANK V IWU (2017) LPELR-42595 (SC).
Therefore,
in construing the provisions of Section 67(1) of the Constitution, one needs to
examine the provisions of other Sections of the Constitution which can be
interpreted together with it to unravel the intention of the framers of the
Constitution. It is clear that from the ipsissima
verba of that section, the President does not need the invitation of the
legislature before he exercises his powers under this Section. This writer
submits that the purpose of this Section 67(1) of the Constitution is to give a
constant access to the President to address either or both houses of the
National Assembly even without the invitation of the National Assembly, and not
necessarily to confer a discretion on the President to refrain from attending
sessions of the legislation where necessary.
It
is trite that the draftsperson of any legislation does not use words
extravagantly. Every single word in a legislation has its purpose. This writer
submits that the closing phrase of Section 67(1) of the Constitution lends
further credence to the interpretation that this Section only serves to confer
an open and constant access on the President to attend National Assembly
sittings when the President so desires. The said subsection ends with the
clause “…as he considers to be of
national importance.”
It
is clear that it is the President who has the authority to determine what is of
national importance that warrants his visitation to the National Assembly. The
power conferred on the President in this Section can only be exercised for the
purposes stated in this section and cannot extend to cover other purposes. The
President needs not wait for an invitation from the federal legislative body
before exercising this Section 67(1) power.
The
National Assembly on the other hand has been given the powers to investigate
the conduct of affairs of any person or authority charged with the duty of
administration. Please see Section 88(1)(b) of the Constitution. Section 89 of
the Constitution further gives the National Assembly the powers to summon any
person to appear before it to give evidence in respect of such investigation. Section
88(1)(b) of the Constitution provides that each House of the National Assembly
shall have the power to direct an investigation into the conduct or affairs of
any person, authority, Ministry of government charged with the duty of
executing or administering laws enacted by the National Assembly.
The
Constitution unequivocally provides in Section 5 of the Constitution that the
executive powers of the Federation shall be vested in the President and may be
exercised directly by him and shall extend to the execution and maintenance of
this Constitution as well as all laws made by the National Assembly.
A
community reading of the provisions of Sections 5, 67, 88 and 89 of the
Constitution shows the intentions of the draftsperson of the Constitution to
infuse the principle of checks and balances in the administration of the
Country. The President is the head of the executive arm of government. He is
the number one person charged with the administration of the laws of the
Federation. The Provisions of Section 88 of the Constitution shows the clear
intention of the draftsperson of the Constitution to subject the exercise of
executive powers under Section 5 of the Constitution to checks, investigations
and balances by the National Assembly.
This
is the fundamental principle upon which our Constitution is built. The principle
of checks and balances is infused in our system of government and the Courts
have always acknowledged this principle. In the case of GOVERNOR OF EKITI STATE V OLAYEMI (2016) 4 NWLR (PT. 1501) 1 @ PP.
41-42 (PARAS. G-A) RATIO 12, the Court of Appeal held thus:
“The Constitution of
the Federal Republic of Nigeria, 1999 (as amended), despite of its recognition
of the doctrine of separation of powers, has expressly made provisions for the
legislature to exercise limited oversight functions in relation to the
executive at both the Federal and State levels. So the concept and application
of the concept of separation of powers under the Constitution does not give
each arm of government the liberty to act without being subject to any
restraint or check by another arm of government.”
This
writer submits that the powers donated to the National Assembly under Section
88 and 89 of the Constitution is in conformity with this principle of checks
and balances which operates as an limitation to the fundamental doctrine of
separation of powers.
Admittedly,
the President enjoys constitutional immunity under Section 308 of the
Constitution and cannot be arrested or compelled to attend the proceedings of
any Court. Likewise, no civil or criminal proceedings shall lie against the
President in his personal capacity during his tenure. However, the National
Assembly is not a Court, it is a distinct arm of Government that derives its
powers directly from the Constitution. The investigative powers conferred on
the National Assembly by virtue of Section 88 of the Constitution does not
elevate the National Assembly into the status of a Court. The Courts belong to
Judicial arm of Government while the National Assembly belongs to the
Legislative arm of Government. Therefore, this writer submits that the provisions
of Section 308 of the Constitution shall apply only to the extent that the
President cannot and shall not be arrested by the security forces during his
presidency. However, this does not confer a blanket immunity on the President
to refrain from attending National Assembly summons and proceedings.
I
have submitted so much in this article. It is perhaps neater and tidier if I
summarize by way of recapitulation as follows:
a.
The President has the
powers to attend the any or the joint houses of the National Assembly at any
time to deliver an address on national affairs on fiscal issues and
governmental policy as he considers of national importance. The President does
not need an invitation from any of the legislative house to exercise this
power.
b.
The National Assembly
has the powers to investigate and invite or summon any member of the executive
including the President to account for the execution and administration of the
country and the laws of the land.
c.
The President does
not have any discretion to exercise when he is summoned by the National
Assembly to answer questions relating to the administration of the Country. He
is bound by his oath of office and the sovereign will of the people to honour
such invitation.
d.
The provisions of
Section 308 of the Constitution does not grant the President any immunity to
refrain from giving testimony before the National Assembly or answering any
questions in respect of any investigation thereat.
e. The President cannot be arrested by the Police of the
Security forces for any reason whatsoever. However, if he fails to honour a
summons to appear before the National Assembly, the National Assembly can
commence impeachment proceedings against him as such act amounts to gross misconduct
as defined by the learned jurist Niki Tobi JSC in the case of INAKOJU V. ADELEKE (2007) 4 NWLR (Pt 1025) 423.
by Legalnaija | Dec 15, 2020 | Uncategorized
Usually contracts not only spell out rights
and obligations of parties, it defines the scope of the legal or commercial
relationship as well as anticipates unforeseen situations (like we have
experienced and are still experiencing the effect of the outbreak of Covid19
which has not only altered daily living but how we discharge our duties in the
workplace and other legal/commercial arrangements).
Specific contract provisions like the
principle of force majeure and the doctrine of frustration may be invoked to
mitigate liability arising from a breach. While the former is the creation of
contract the latter is the creation of common law.
It is therefore safe to include force
majeure clauses in contracts. Force majeure refers to a clause
that is included in contracts to remove liability for
natural and unavoidable catastrophes that interrupt the expected course of
events and prevent participants from fulfilling contractual obligations. The
effect of such a clause is that it contemplates extraneous business risks
occasioned by future events which are beyond the control of any party to the
contract, affecting the parties from discharging same and providing a flexible
approach on how parties manage the situation.
Therefore, a party affected by outbreak of
disease (epidemic, pandemic), war, riot or natural disaster (Act of God) can
invoke the force majeure clause to avoid liability for default that will result
in breach of contract i.e the failure of performing obligations of the contract
arising from the unforeseen event.
A well written force majeure clause must
provide for:
– A range of events that triggers the non
performance of the contract
– The impact of the effect when the
clause is invoked
– The impact of such invocation on
parties contractual obligations
On the other hand common law envisages that a
contract may be discharged or set aside on the ground of frustration i.e
when an unforeseen event interferes with the capacity of the parties to fulfill
contractual obligations. It therefore implies that a contract may be frustrated
where due to supervening events, parties are unable to substantially perform
their obligations as anticipated in the contract. (Note that the presence of a
force majeure clause and frustration clause in one and the same contract
renders the frustration clause ineffective i.e displaces the frustration
clause).
A supervening event is an event that occurs:
a. After the formation
of the contract
b. Without its inclusion
in the provisions of the contract and
c. In absence of
anything either party is capable of doing by way of a fault or default or
anticipatory acts
d. When the nature of
the contractual rights and obligations is substantially altered or interfered
with such that:
· Performance
of the contract has become impossible
· The
contract is now totally different from what the parties intended
· A
fundamental contractual term has become incapable of being performed.
However, where a force majeure clause
displaces the effect of the doctrine of frustration in a contract: for events
within the force majeure clause, a party can argue frustration for any event
beyond the scope of the force majeure clause and the court may grant an order
in favour of such argument.
The striking difference between a force
majeure clause and frustration apart from the fact that the former is a
creation of contract is that parties may choose to resume or defer their rights
and obligations after the supervening event is over while in the case of
frustration, parties are discharged from rights and obligation arising from the
contract although any partial performance must either be compensated or partial
payment recovered.
Adeola Osifeko
Corporate Commercial and Dispute Specialist
by Legalnaija | Dec 11, 2020 | Uncategorized
Small businesses (MSMEs) represent about 90% of businesses
worldwide. They account for 96% of businesses and in Nigeria, they account for
84% of the country’s employment.
The global economy was greatly affected by the COVID-19
pandemic, and from the above data, it is clear that small businesses must drive
the global economy to recovery.
Oil prices in the global market crashed to about $30 per
barrel in Q1 of 2020 and about 90% of Nigeria’s export is Crude Oil. This decrease
in demand for Oil in the global market has greatly affected the Nigerian
economy as seen in the negative plunge of the GDP in Q2 of 2020.
The government in response has setup various intervention
plans to support small businesses in cushioning the overall effect of the downturn
on the economy and give room for diversification. This Report seeks to examine
the effects of these proposed interventions.
Read the full report here
by Legalnaija | Dec 7, 2020 | Uncategorized
After over 16 months as a draft, the NDPR Implementation Framework (the Framework) was finally and thankfully released by the National Information Technology Development Agency (NITDA) in the first week of December 2020, albeit dated July 2020.
As a privacy litigant and litigator, while I will continue to be grateful to NITDA for taking up the unprecedented gauntlet of regulating data protection in Nigeria, we cannot afford to, with respect, spare the Agency’s blushes within and outside the courts as far as their regulatory duties are concerned and this is done in good faith, for the betterment of the industry and its players.
First, it is highly commendable that, NITDA, like other supervisory authorities in the western World, has issued this Framework to provide further guidance towards clear compliance with the provisions of the NDPR which it describes as a “regulatory guideline” at paragraph 1.2 of its background. This description is a bit confusing to the extent that, if the NDPR is a regulatory guide, then where is the regulation itself and what does this framework seek to achieve if not to guide as well?
I am particularly concerned by the use of the term “Guideline” because it somewhat waters down the efficacy of the NDPR in the light of the Court of Appeal decision in Ogunniyi v Hon. Minister of FCT (2004) LPELR-23164(CA) that:
“The word ” Guidelines ” … simply means ” rules or instructions that are given by an official organization telling you how to do something.
With respect to the drafters of the Framework who have delivered this very momentous document at this very significant time, referring to the NDPR as a guideline does not, in my modest view, do justice to the status of the regulation which the courts have expressly and/or impliedly ruled as an extension of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) under section 37 thereof. (See the decisions in Digital Rights Lawyers Initiative v National Identity Management Commission (Unreported Suit No. AB/83/2020) delivered on the 15th day of July 2020 by the High Court of Ogun State, per A.A. Akinyemi, J. and Digital Rights Lawyers Initiative v LT Solutions & Multimedia Limited (Unreported Suit No. HCT/262/2020) also delivered by the High Court of Ogun State, per Ogunfowora, J.
On data minimization under article 2.2(b), the Framework is, sadly unclear on which of the provisions of the NDPR represents the principle especially since article 2.1(1)(b) of the NDPR muddles adequacy with the principle of accuracy, the Framework also jumbles consent under the principle of lawfulness with data minimization without making reference to the provision of the NDPR it seeks to clarify. This, with respect, does not help the professional or data subject who seeks clarity on the import of some convoluted provisions of the NDPR.
On the principle of accuracy, the Framework at article 2.2(c), like the NDPR, mishmashes it with the indices of data minimization – “adequate” and partially ignores the message of data accuracy which requires personal data to be updated and/or kept up to date. What is more, the Framework introduces “abuse” into the principle of accuracy at the expense of the principle of integrity and confidentiality.
Article 2.2(d) on retention schedule requires data controllers to communicate data retention schedules to data subjects but one would expect the document to be more explicit as to the modus of compliance. Is this also supposed to be in form of a (privacy) notice or contract or public announcement. For example, how does a data controller inform online visitors of its data retention schedule? It is hoped that further clarity would be given on this.
Surprisingly, article 2.2(e) on confidentiality and integrity is the first provision where cross reference is made to the NDPR albeit it refers to a non existent “article 2” under the NDPR. It is our modest view that, some form of referencing ought to run through the entire Framework to avoid further confusion. Again, the Framework refers to confidentiality as a right while its existence under the NDPR remains unclear, this Framework could have, with respect, done better in resolving this puzzle here.
On its extraterritorial application, the Framework repeats the same legislative “wonder” at article 1.2(b) of the NDPR yet omits to demonstrate how the NDPR will be enforced outside the shores of Nigeria in the light of conflict of laws and extraterritorial limitation of certain laws. Will the NDPR afford me protection anytime I am outside Nigeria even within the regions where, GDPR is, for example applicable?
On exceptions to the NDPR, the Framework at article 2.3 has amazingly created its own provisions outside the NDPR. There exists no provision of the NDPR which this provision of the Framework seeks to implement, hence it is our respectful opinion that, it cannot, outside the NDPR, create its own stand alone exceptions as the only one contemplated by the NDPR is found at article 2.12 with respect to transfer of data to a foreign country.
On compliance, article 3.2(iv) of the Framework offers the regulator an unutilized opportunity to give some clarity on the confusion of privacy policy with privacy notice in the NDPR but it seems this ambiguity will continue for a while.
On appointment of Data Protection Officer (DPO), article 3.4 of the Framework which provides conditions for appointment of a DPO appears to be on a collision course with article 4.1(2) of the NDPR which expressly and mandatorily provides that “Every Data Controller SHALL designate a Data Protection Officer for the purpose of ensuring adherence to this Regulation”. How can the Framework for implementing this section validly make exception for some data controllers?
On sample of privacy policy at Annexure B, the Framework suggests that a privacy policy is a contract between data controller and data subjects and that, access to online platforms automatically translates into consent. Although, the law is not settled on the status of privacy policies on a website, this kind of simulation coming from the supervisory authority is a dangerous precedent which, in itself, negates what privacy policies or notices represent, especially since the NDPR does not give such status to privacy policies.
Ultimately on the Annexure C on Countries with adequate Data Protection Laws, what stands out is the Swiss-US Privacy Shield Frameworks of the United States of America!!! For everything NITDA stands for, I will make this excuse on their behalf that, the inclusion of this data protection law is a regrettable error which was not corrected in the draft before the Framework was released.
Following the Schrems II decision of the Court of Justice of the European Union (“CJEU”) that invalidated the EU-U.S. Privacy Shield Framework in July 2020, the Federal Data Protection and Information Commissioner (FDPIC), the body responsible for the protection of personal data in Switzerland ruled, on the 8th day of September 2020, that the Swiss-U.S. Privacy Shield Framework in its entirety does not provide an adequate level of data protection for cross-border data transfers to the US.
Flowing from the foregoing, it stands to reason that, if the Swiss supervisory authority could have passed such damning verdict on the law that directly affects it, as far back as September 2020, then it is our modest view that, such should not have found itself in a document released by its Nigerian counterpart in December 2020.
In conclusion, the Framework is not only a right step in the right direction, it is a highly commendable and progressive one which should be timely updated and finetuned with the widespread input of as many stakeholders and technocrats to minimize avoidable errors and oversights before its eventual release to the public.
Once again, I congratulate NITDA for spearheading Nigeria’s baby steps in this very essential and highly technical industry.
by Legalnaija | Dec 6, 2020 | Uncategorized
There are good reasons to explore early
settlement of employment dispute. To cut costs; avoid distractions to the Mgt
or other workers; prevent floodgates of future litigation; protect and project
a brand with a good corporate conscience.
Whenever settlement is suggested or possible,
it should be genuinely pursued and expedited by those who have authority to
commit a company. Litigation lawyers should know when the other party is
stalling. Sending a low level staff to a settlement meeting is a waste of
everyone’s time.
In Rasheed
v A.C. Ltd, a claim of N300,000 was
delayed for 6 years due to a protracted settlement process!
Litigation hardly pays a company. The most
enduring discretionary power of a company can be yanked off in just one
litigation.
In Ozughalu
v. B.V.N. Ltd., an allowance which was introduced as a discretionary
payment and has been paid, reduced or denied at will for many years, when
challenged, was ordered by Court to be payable to an employee as of right.
The above is why companies should opt for
early settlement whenever an unclear aspect of its policy is being challenged
for the first time in court. Settle first and then amend the policy to avoid
floodgate of litigations by other employees who are watching.
Kayode
Omosehin
Partner
Koriat Law
