Arbitration is one of the
alternative dispute mechanisms recognized by law in Nigeria. Parties, in making
their contracts, sometimes have an Arbitration clause that prescribes referral
of any dispute arising from the contract to arbitration. It is therefore not
unusual to find parties, in response to court summons, apply that a case
currently being litigated be stayed pending arbitration. On the other hand, it
is uncommon to find cases in Nigeria where a party, who after commencing
arbitration proceedings, approach the court for an injunction in aid of
arbitration. In this article, the author examines the legal framework for this
injunctive relief vis-a-vis the recent decision of the Federal High Court,
Lagos per Oweibo, J. in the case of Intels & Anor v. Nigerian Ports
Authority.[2] The writer is mindful of the
fact that the decision is currently a subject of appeal hence, this commentary
shall be limited to the law, arguments of parties in the matter and the
eventual decision of the learned trial Judge. The issues submitted for
determination at the appellate court are deliberately excluded from this
article while ending the piece with some recommendations for law reform.
2. The use of Injunction pending
arbitration under the Nigerian law.
Injunctions are equitable
reliefs that are granted solely at the discretion of the court. They are to be
issued only when the court is presented with cogent, peculiar or relevant facts
capable of convincing the court that it is an appropriate case in which an
injunction should issue and of course upon settled principles of law and
justice. This discretion, like all judicial discretions are to be exercised
judicially and judiciously.
The Federal substantive law
that governs arbitration under the Nigerian jurisprudence is the Arbitration
and Conciliation Act.[3] The preamble to that law states
clearly that it is intended to provide a unified framework for the fair and
efficient settlement of commercial disputes in Nigeria and making applicable
Conventions for the recognition of awards arising out of international
commercial arbitration.
Generally, there are two
ways in which injunction pending arbitration may be construed under the
Nigerian law. First, is where the applicant seeks a stay of proceedings pending
arbitration in a matter already instituted before a competent court. The second
scenario is where the Applicant has commenced arbitration proceedings against
the opponent, but the Respondent is taking steps that may foist a situation
of fait accompli on the Arbitral Tribunal. The Applicant
therefore approaches a competent court of law to seek an injunction in aid of
the on-going arbitral proceedings. In each of these scenarios, the writer is of
the view that different considerations will apply.
Statutorily, by virtue of
Sections 4 and 5 of the Arbitration and Conciliation Act, a court of competent
jurisdiction is empowered to order a stay of proceedings in a matter brought
before it and to direct parties to pursue arbitration as contractually agreed.
This power vested in the court is a discretionary one, which like all judicial
discretions must be exercised judicially and judiciously.[4]
Similarly, – Article
26 (3) of the Arbitration Rules,[5] provides that “A request for
interim measures addressed by any party to court shall not be deemed
incompatible with the agreement to arbitrate, or as a waiver of the
agreement.” In essence, a party may on showing special circumstances
approach the court to seek a preservatory order from court, and such move by
that party shall not be deemed to be inconsistent with the agreement to submit
to arbitration. In this piece, we shall also be discussing each of these cases
briefly.
The law is that where a
contract provides that all disputes arising from a commercial transaction are
to be first referred to arbitration, courts will normally be disposed to
staying the proceedings unless the Plaintiff can establish that it is just and
proper to allow proceedings to continue by showing exceptional circumstances.[6] In COTECNA DESTINATION
INSPECTION LIMITED v. BOYSON NIGERIA LIMITED,[7] the Court of Appeal per Ikyegh,
Pemo, and Abubakar JJCA held:
“In considering an
application for stay of proceedings brought pursuant to Sections 4 and 5 of the
Arbitration Act, the sanctity of the contract between the parties is usually of
paramount importance to the Court. So long as there is a contract agreement
which contains the terms which the parties freely and mutually adopt, sign and
is not illegal or contrary to public policy, the Court would respect their will
and grant the application as prayed. Ipso facto where an agreement made and
signed by the parties stipulates that any dispute arising from it must first be
referred to a referee none of the parties has a right to go to Court first
before the dispute between them is referred to arbitration as provided in the
agreement. But the Court can only give effect to what is legal in its basis.”
Thus, the court’s
disposition to ordering a stay of proceedings is a derivative of the principle
of sanctity of contract. OGAKWU, JCA puts this position clearer in the case
of SACOIL 281 (NIG) LTD & ANOR v. TRANSNATIONAL CORPORATION OF
(NIG) PLC[8] where he held as follows:
“…I only wish to say a few
words on the settled legal position on sanctity of contracts. The abecedarian
principle of law in respect of contracts and agreements is expressed in the
Latinism pacta convent quae neque contro leges neque dolo malo inita sunt omni
modo observanda sunt, more commonly expressed as pacta sunt servanda, meaning
that agreements which are neither contrary to the law nor fraudulently entered
into should be adhered to in every manner and in every detail… The parties in
their agreement provided for reference of any dispute to arbitration. In
violation of this provision, the Respondent commenced an action at the lower
Court. The Respondent cannot be heard to so do; it is bound to keep to the pact
to which it voluntarily entered into, id est, reference of any dispute to
arbitration. That is the bargain to which the Respondent must be held. The
lower Court was therefore wrong when it dismissed the Appellants’ application
for stay of proceedings pending arbitration. The Appellants had not taken any
steps in the proceedings before they applied for stay of proceedings pending
arbitration and the Respondent did not depose to any counter affidavit in
opposition to the application giving sufficient reasons why the dispute should
not be referred to arbitration in line with the agreement between the parties.
Section 5 of the Arbitration and Conciliation Act preserves the power of the
Court to stay proceedings in order for a matter to be referred to arbitration
and the lower Court was in error when it failed to exercise the said power.”
It is therefore in exercise
of this bona fide powers that the various courts have
formulated various principles to guide a court considering a grant or refusal
of an application for stay of proceedings pending appeal.[9]
The second variant of this
interim relief is when the Applicant simply seeks a preservatory order so that
the Respondent does not deal with the subject matter inappropriately before the
Arbitration Tribunal has had an opportunity of looking at the issues. In this
instance, Applicant seeks injunction in aid of arbitration.
A review of all the reported
cases by the appellate courts on this principle of injunctions pending
arbitration reveal that most of them relate to the first category; applications
for stay of proceedings in a pending lawsuit. Upon a review of a few cases,[10] it can be safely concluded that so
far, the appellate courts have only had the opportunity of pronouncing on the
state of the law where the injunction is sought to halt an on-going
proceedings.
The question then is, what
happens when for instance, the Arbitral panel is yet to be constituted after
the commencement of arbitration proceedings?[11] This was the scenario in Intels v.
NPA.
3. Brief facts of Intels & Anor v.
Nigerian Ports Authority (NPA)
Intels Nigeria Limited
entered into a contract with the NPA and was appointed the Managing Agent in
some of the pilotage districts of the Exclusive Economic Zone of the Federal
Republic of Nigeria, to monitor and supervise oil industry related activities
with a view to earning more revenue. By the agreement of parties, the contract
was to last for ten (10) years between August 2010 and August 2020. By the parties
agreement, Intels is entitled to withhold its commission from the revenue
before remitting the balance to the NPA. During the pendency of the agreement,
however, NPA as an agency of the Federal Government of Nigeria keyed into the
Treasury Single Account (TSA) of the Federal Government of Nigeria which
required all revenue generated to be first paid into that account. Therefore,
by a Supplemental agreement, parties agreed to treat Intel’s commission
payments as priority and take reasonable steps to ensure prompt payment of
Intels’ invoices.
At about the same period, an
associated company of Intels, Deep Offshore Services Nigeria Limited, had
entered into an agreement with NPA as a contractor to develop One Ports Complex
under the “Phase 4B” Agreement. Deep Offshore invested a sum in excess of two
billion dollars ($2 Billion) in that project. The security for the repayment of
the debt owed Deep Offshore is the amortization from the service Boats
Operations revenues by virtue of the continued role of Intels as the Managing
Agent of the NPA.
Despite several defaults in
paying its invoices raised, NPA went on to advertise in several newspapers a
notice calling for the tender of Intels’ role. Irked by the notice, Intels
wrote several protest letters to NPA (including pre-action notices) and
thereafter commenced arbitration proceedings against the NPA.
While the Arbitral body was
yet to be constituted, Intels and Deep Offshore by an Originating Motion
commenced an action at the Federal High Court, Lagos seeking an interim
injunction restraining the NPA from giving effect to its Public Notice of
tender of Intels’ role and from appointing a new Managing Agent in the areas
being managed by Intels. Its argument before the court was that once NPA has
succeeded in throwing Intels out, there is no longer security for the debt owed
to Deep Offshore because the subject agreements are interdependent.
In NPA’s response at the
trial court, it alleged that the Applicants were unwittingly seeking an
extension of its contract which was contractually agreed to end on 8th August
2020. It further alleged that Intels had no legal right capable of any
protection and as such, the injunction sought ought to be refused in line with
the settled position regarding grant of interlocutory injunctions.
During the hearing of the
matter, Intels’ counsel distinguished this case from the regular matters in
which interlocutory injunctions are sought. In this case, the substantive
matter is before the Arbitration Tribunal, not the Federal High Court. Also, at
the time of these proceedings the arbitral panel had not been constituted, but
there was evidence before the court that arbitration proceedings had indeed
commenced in accordance with the agreement of parties and the law. What was
being sought therefore was an interim order to restrain NPA from taking steps
that will foist a fait accompli on the Arbitral Tribunal.
NPA’s counsel
submitted per contra that Intels was merely trying to extend
its contract through the backdoor using the court and urged the court not to be
a willing tool for such alleged illegality. They also argued that the balance
of convenience was not in favour of the Applicants and that granting the
prayers of the Applicant would translate to the court restraining a statutory
body from a lawful exercise of its duties under the enabling law.
In his decision delivered on
the 24th July 2020, the learned trial Judge first heeded the
warning of both parties not to descend into the arena of the substantive
dispute at the interlocutory level. The Court then held: “Both sides
have warned of the danger of the court getting into the substantive areas of
dispute between the parties, which I have taken note of. In this respect, I
have taken note of the fact that much of the affidavit evidence deals with the
substance of the dispute now before the Arbitral body.”
From the above findings of
the court above, it is crystal clear that the Court is mindful of the fact that
it is not seised with the substantive disputes between the parties. Conversely,
it is only expected to be bound by the affidavit evidence vis–a-vis the relief
being sought to determine whether it was a proper case to exercise its
discretion in favour of the Applicants. Since it is settled law that
injunctions are discretionary in nature and that one case cannot be a good authority
for another when it relates to exercise of discretion,[12] it only comes to reason that in the
peculiar circumstances of this case, the court would formulate issues it
considers to be apposite to the exercise of its discretion and not to be
strictly bound by some established rules.
Following this reasoning,
the learned trial Judge formulated three issues for determination in the
matter, to wit:
a. Is there an arbitration
proceeding pending between the parties?
b. Is the arbitration
proceedings related to the Managing Agent Agreement?
c. Is the arbitration proceedings
likely to be affected by the action of Respondent which is sought to be
restrained?
The court examined all three
questions and answered them in the affirmative. Of particular interest is issue
three (3) on whether the arbitration proceedings will likely be affected by the
actions of NPA sought to be restrained. This is important because the court
found that the issue of interdependency of the agreements is one of the issues
submitted to arbitration. The court thus found that a furtherance of the
actions of the NPA in the manner complained of would substantially adversely
affect the arbitration proceedings.
Upon that premise therefore,
the court found that it was a proper case where an injunction should issue
against the NPA and the prayers of Intels were granted in its entirety.
It is important to note that
the court formulated the issues for determination in a manner that would best
aid its exercise of discretion. It is not unknown in our jurisprudence for a
court to formulate issues different in wordings from that submitted to it by
the parties,[13] where it believes that such issues
formulated by the court would better serve the ends of justice.[14] In this writer’s view, if the court
had allowed itself to be dragged into the murky waters of determining those
factors to be considered in the grant of an interlocutory injunction,[15] the convolution could have led it
to make pronouncements on some of the issues already submitted before the
Arbitral Tribunal.
4. Conclusion
The law regarding the
factors to be considered in an application to court seeking interim injunction
pending arbitration is still in a somewhat imprecise state in Nigeria today.
The rules and factors formulated by Honourable Justice Oweibo in the Intels case,
in the writer’s view, ought to set the tone for law reform in this regard.
Since the matter is currently on appeal, the appellate courts will have a good
opportunity of either agreeing with the trial Judge’s exercise of discretion in
the light of the peculiar facts of the matter or not.
It is submitted that
whichever line the appellate court decides to tow regarding the appeal before
it will definitely set a new tone for the use of injunctions pending
arbitration in Nigeria. The writer is also of the view that the provisions of
Article 26 (3) of the Arbitration Rules upon which Intels anchored its case
before the court needs revisiting to provide in more precise terms the right to
seek preservatory orders pending the proper constitution of an Arbitral Tribunal.
[9]
M. V. Lupex v. N.O.C. & S. Ltd (supra) pp. 484-486, paras F-A.
[10]
NV. SCHEEP v. MV. “S. ARAZ” (2000) 15 NWLR (Pt. 691) 622; (2000) LPELR 1866
(SC), M. V. LUPEX v. N.O.C. & S. LTD (2003) 15 NWLR (Pt.844) 469 MARITIME
ACADEMY v. A. Q. S. (2008) ALL FWLR (Pt. 406) 1872 at 1889, PARAS A-F, per
OWOADE JCA and L.A.C. v. A.A.N. LTD (2006) 2 NWLR (Pt. 963) 49.
[11]
Section 17 of the Arbitration and Conciliation Act provides that unless
otherwise agreed by the parties, arbitration is deemed to have commenced on the
date the request for arbitration is received by the other party.
[12]
AMAECHI v. OMEHIA & ORS (2012) LPELR 20603 (SC) per NGWUTA, J.S.C (p. 21,
paras. D-E).
[13]
NYAVO v. ZADING (2018) LPELR 44086 (CA) per HUSSAINI, J.C.A (pp. 14-15, paras.
A-F).
[14]
UNITY BANK PLC v. BILWADAMS CONSTRUCTION CO. (NIG.) LTD & Ors. (2019) LPELR
49290 (CA) per ADEJUMO, JCA p. 29, paras C-D.
[15]
AKAPO v. HAKEEM-KABEEB (1992) 6 NWLR (Pt.247) 266 SC at 289 per KARIBI-WHYTE
JSC.
The rationale behind the
signing of international treaties is to foster peace, unity and cooperation
amongst member states, each member state is expected to enforce the provisions
of the treaties in accordance with the modalities prescribed by their laws.
However, some state parties have devised a scheme of ratifying international
agreements without taking the necessary internal steps to ensure the
enforcement of their treaty obligations, while continuing to derive various
benefits from these multilateral arrangements. The stringent requirement of
domestication of international treaties before enforceability was introduced
into the laws of some dualist state parties like Nigeria, causing a hindrance
to the speedy enforcement of treaty provisions and also creating a leeway for
member states to evade their international obligations.
Nigeria is a signatory
to several international agreements but only a fraction of such agreements have
been domesticated in our laws.[2] In Nigeria, ratifying or signing a
treaty is insufficient to obtain the force of law, there is a requirement for
domestication of such treaty before it can be enforceable. Arguments have
arisen on the propriety of such actions by state parties as amounting to a breach
of international obligations since those same state parties enjoy the benefits
of being signatories to international treaties in the territory of other member
states but in turn block the enforcement of the provisions of those
international treaties in their jurisdiction using the excuse of
non-domestication.
Understanding Domestication
of International Agreements
International agreements are
formal understandings between contracting state parties with an intention to be
legally bound. They are governed by international law and are codified into
single or multiple legal instruments. They could be bilateral or multilateral
and are usually arrived at after series of negotiations among member states. A
variety of nomenclature has been used to describe international agreements.
Some of which include: Treaties, Conventions, Protocols, Pacts, Accord etc.[3]
Domestication of an
international agreement is the process of incorporating the provisions of a
treaty into the extant laws of a country to give it force of law in that
country. It is not all countries that adopt the dualist system of domestication
of international agreements before enforceability. For some countries operating
a monist system like France, Switzerland and the Netherlands, there is no
provision for domestication before enforceability of a treaty.[4] In fact, in France, ratified
treaties upon publication prevail over their domestic laws.[5]
In Nigeria, international
agreements do not automatically have the force of law after ratification; there
is a constitutional requirement for every international treaty to be
domesticated before it can have the force of law. Section 12 of the 1999 Constitution
of the Federal Republic of Nigeria (as amended) stipulates that: “No
treaty between the Federation and any other country shall have the force of law
except to the extent to which any such treaty has been enacted into law by the
National Assembly.” As a result of this constitutional provision the
figurative hands of justice have been held captive, as judges are usually
reluctant to deliver decisions which directly conflict with the provisions of
the constitution and would generally refrain from enforcing the provisions of
international treaties which have not yet been domesticated. In Abacha
v Fawehinmi,[6] the Nigerian Supreme Court held
that: “It is therefore manifest that no matter how beneficial to the
country or the citizenry, an international treaty to which Nigeria has become a
signatory may be, it remains unenforceable, if it is not enacted into the law
of the country by the National Assembly.”
Some Relevant Provisions in
the Vienna Convention on Compliance with Treaty Obligations
Nigeria is a signatory to
the Vienna Convention on the Law of Treaties (VCLT)[7] which regulates international
agreements between states.[8] Membership of this convention
symbolizes Nigeria’s intention to be bound by its provisions, yet it is quite
surprising that Nigeria engages in actions that are geared at defeating the
objectives of the VCLT by its unreasonable delay or failure to domesticate some
of its international treaties. The principle of pacta sunt servanda as
incorporated in the VCLT requires that “every treaty in force is binding
upon the parties to it and must be performed by them in good faith.”[9] This raises a thought provoking
question: can the prolonged delay or failure by state parties in
domesticating international treaties be termed as actions amounting to bad
faith however good their reasons may be? The VCLT provides state
parties an opportunity to make reservations if they do not agree with any
provision in a treaty.[10] It is therefore quite baffling that
a state party would go through the entire process of becoming a party to a
treaty only to end up dumping the treaty in its archives under the guise of
non-domestication.
Also, Article 27 of the VCLT
precludes a party from invoking the provisions of its internal law as
justification for its failure to perform a treaty. In this regard, it could be
argued that the failure to enforce the provisions of a treaty on the ground of
non-domestication amounts to a breach of this provision and a material breach
of the treaty in its entirety. Article 60 of the VCLT provides for termination
or suspension of the operation of a treaty as a resulting consequence of its
breach. It provides that when a material breach of a multilateral treaty by one
of the state parties occurs, the other state parties through a unanimous
agreement, may suspend the operation of the treaty in whole or in part or
terminate it either between themselves and the defaulting State or between all
the parties.[11] Though state parties are often
reluctant to enforce this provision owing to the length of time required to
obtain signatories to most treaties, yet if such measures aren’t enforced
against defaulting states, such habits that tend to frustrate the purpose and
intention of a treaty would not be discouraged.
Some Challenges Caused by
Non-Domestication of a Treaty
Failure of a state party to
domesticate a treaty causes unreasonable hardship on other member states, as
the provisions of the treaty cannot be enforced in the domestic courts of the
defaulting states. It not only discourages corporate migration and investment
into affected states, it also stunts the growth of the law in the defaulting
state. For instance, in the terrain of tax laws, a number of
international double taxation treaties have been signed by Nigeria with other
state parties principally to avoid double taxation and prevent evasion of tax
obligations, but a handful of them are yet to be domesticated.[12] The resultant effect of this is
that persons and entities from those territories who transact business with
Nigerian companies or are situated in Nigeria cannot enjoy the privileges and
benefits of Nigeria’s treaty with their country for the avoidance of double
taxation. They would still be burdened with payment of higher taxes even though
Nigeria has signed a treaty with their country to reduce such burden.
In the field of intellectual
property law, Nigeria has signed several international IP treaties that are yet
to be domesticated. For instance, the WIPO internet Treaties, made up of the
WIPO Copyright Treaty[13] and WIPO Performances and Phonograms
Treaty[14] were signed since 1996 but have not
yet been domesticated. Asides from these, there are still other IP treaties
awaiting domestication, like the Beijing Treaty on Audio-Visual Performances,[15] the Marrakesh VIP Treaty.[16] Some of these treaties were signed
not only to facilitate access to published works for persons who are blind,
visually impaired or print disabled[17] but to also improve the growth of
the IP sector in Nigeria, unfortunately they are yet to be domesticated.
Also, in the terrain of
immigration law, Nigeria joined other African nations since 2012, to sign and
approve the ratification of African Union’s Kampala Convention for the
Protection and Assistance of Internally Displaced Persons (IDPs) in Africa to
address refugee problems and internal displacement,[18] yet as at the time of writing this
article, this convention is yet to be domesticated[19] regardless of the vulnerability of
IDPs who became displaced as a result of natural or man-made disasters like
armed conflicts, climate change, negative impact of large-scale development
projects in Africa etc.
The Attitude of
International Courts
The International Court of
Justice (ICJ) has long frowned at the use of the defence of domestic law as the
reason for a state party’s non-performance of its obligations under a treaty.
It has become much tougher for member states to evade their liabilities under
international law by invoking the provisions of its municipal law as a
justification for failure to perform an obligation under a treaty. This was the
rationale behind the birthing of section 27 of the VCLT. This principle was
further emphasized in the advisory opinion of the Permanent Court of
International Justice in Treatment of Polish Nationals and Other
Persons of Polish Origin or Speech in the Danzig Territory,[20] it was emphatically stated
that: “It should, however, be observed that…a State cannot adduce as
against another State its own constitution with a view to evading obligations
incumbent upon it under international law or treaties in force.”
Conclusion
The relevance of
international agreements to the rapid growth and development of any nation
cannot be over emphasized. No state can effectively succeed independently
without requiring the assistance of other nations and it is on this premise
that bilateral or multilateral treaties are formulated. Over the years, Nigeria
has actively participated in the signing of international treaties, but lesser
attention has been given to the domestication of such treaties and performance
of its obligations under those treaties. As a developing nation, it needs the
support of other nations to maintain a robust economy and enhance its
development. Therefore, its failure or prolonged delays in domesticating
international treaties is a move in the wrong direction and a constructive
breach of its treaty obligations. Rather than chickening out of a treaty with
the excuse of non-domestication, state parties like Nigeria, should ensure that
proper consultations with relevant stakeholders are made before the signing of
any treaty. Peradventure, it is interested in signing a treaty that would
largely benefit the country but contains some provisions against its interests,
it could explore the option of tabling its reservations, as provided under the
VCLT[21] before the appropriate bodies,
before embarking on signing the treaty to avoid its continuous refusal to
domesticate international treaties.[22]
International organisations
also share some part of the blame for the habitual misconduct of dualist state
parties in failing to domesticate a treaty. Their supervisory bodies need to
exert more efforts in ensuring the rapid domestication of treaties by member
states. Reasonable country-specific timelines should be set for member states
operating the dualist system to domesticate treaties and stiffer penalties
should be imposed on defaulting states to discourage misconducts geared at
defeating the objectives of international treaties.
[4]
In these countries, ratification of international agreement makes such treaties
enforceable without the condition for domestication, however in most cases,
treaties are ratified after approval has already been obtained from the
parliament.
[5]
See Article 55 of the 1958 French Constitution.
[12]
Nigeria is a party to about 22 Double Taxation Treaties (DTT) out of which only
15 have been ratified. These include DTTs with United Kingdom, Netherlands,
Canada, South Africa, China, Philippines, Pakistan, Romana, Belgium, France,
Mauritius, South Korea, Sweden, Italy, Slovakia. The other treaties with UAE,
Kenya, Poland, Spain, Qatar, Cameroon and Ghana are yet to be ratified.
[13]
Adopted on 20th December 1996 and entered into force on March 6th 2002,
available at:
[18]
The Convention was adopted in October 2009 and as of 2015 it had been signed by
40 member states and
ratified by 24 of the 54
member states of the African Union.
[19]
ECOWAS recently begun a two-day in-country engagement meeting with
stakeholders to promote the
domestication and
implementation of the African Union (AU) Kampala Convention for the protection
and
assistance of Internally
Displaced Persons (IDP)s in West Africa. The engagement was flagged of
virtually on the 11th of November 2020 and piloted in three West African States
of Burkina Faso, Mali and Nigeria with sensitization and advocacy on the
domestication and implementation of the Convention in Nigeria. See “ECOWAS
Engages Stakeholders on Domestication of the Kampala Convention on Internally
Displaced Persons” available at: https://www.ecowas.int/ecowas-engages-stakeholders-on-domestication-of-the-kampala-convention-on-
internally-displaced-persons/ accessed 27th November
2020.
[22]
See generally John Onyido, “Impediments to the Reception of International
Treaties and Unintended Impact on the Growth of Nigeria’s Intellectual Property
Regime”, (unpublished book chapter, September 2020) [on filewith author].
The National Industrial
Court (“NIC”) has been listed as one of the superior courts of record in
Nigeria by the third amendment to the 1999 constitution. Hence it has full
constitutional capacity at par with any High Court in Nigeria.[2] Garnishee proceedings is one of the
ways (and a generally preferred one) monetary judgments can be enforced in
Nigeria and our jurisprudence is rich with the interpretation of the provisions
of the Sheriff and Civil Processes Act, (the overriding and generally
applicable law), decided cases and even commentaries of legal scholars and
authors.
However, unlike the
procedure for garnishee proceedings adopted by the High Courts of the various
states, and the Federal High Court, there are some differences in the way the
National Industrial Court Civil Procedure Rules 2017 prescribes that garnishee
applications should be handled at the NIC which is considered worthy of this
commentary. These procedural differences recently impacted a successful
litigant,[3] who was seeking to reap the fruit of
litigation via garnishee proceedings at the NIC, with very unpleasant
consequences, hence this critique.
Procedural differences in
the garnishee application proceedings at the NIC compared to that of the High
Courts.
Relevant Facts:
After obtaining a monetary judgment at the NIC, Lagos and at the expiration of
the of 30 days grace period that the Honourable Judge gave the judgment debtor
to pay the judgment sum and following the judgment debtor’s failure to pay the
judgment sum as ordered by the Court, an application for garnishee proceedings
was filed, pursuant to the Sheriff and Civil Processes Act. Upon filing the
application, counsel followed up with the registry of court with a view to
obtaining a date for the hearing of the said application – ostensibly before
the same judge that delivered the judgment. It was after mounting pressure with
a view to obtaining a hearing date for the garnishee proceedings that the
registrar called the attention of counsel to the fact that the case file had
not been assigned to a judge. Upon that information, further enquiries were
made whereupon the registrar took time to explain the garnishee application
procedure at the NIC in detail.
Order 47 rule 19 of
the NIC Civil Procedures Rules 2017 provides that “any proceedings initiated
as a Post Judgment proceeding or any application brought or filed as a post
Judgment proceedings shall be given a new Suit Number”. By virtue of this
provision, the first thing to note is that the NIC considers a garnishee
application as a post-judgment application for which a new file must be created
unlike the practice at the High Courts where the same case file in which the
monetary judgment was delivered is utilised for the garnishee proceedings.
Secondly, the garnishee application will be given a new motion number and a new
file number comprising of the old case number but with additional designation
of letter ‘m’ to indicate that it is a new process entirely and in compliance
with order 47 rules 18, 19 and 20 of the
rules of court. This is unlike the practice at the High Courts which continue
the use of the same old case file and number. The third difference is that the
new garnishee application file will have to go through re-assignment procedure
where it may or may not be assigned to the same judge that heard and delivered
the monetary judgment. This also is unlike the practice in the High Courts
where the same judge that heard and delivered the judgment will usually hear
and determine the garnishee application.
It should be noted though,
that Order 47 Rule 21 of the NIC Civil Procedures Rules 2017 provides
that “any application filed as post-judgment proceedings shall unless
otherwise directed by the President of the Court be heard and
determined by the Judge who heard the substantive suit” but the effect of
the preceding provisions of rules 18, 19, and 20 renders the benefit of the
rule 21 ineffectual in practice as experienced in the case under reference.
Critique of the provisions
of Order 47 Rules 18, 19, and 20 of the NIC Civil Procedure Rules 2017 with
respect to garnishee application.
The practice of having the
trial court return the case file to the Registry of the Court’s Division and
creating separate case file for garnishee application can extend the
turn-around time of the garnishee proceedings itself as was experienced in the
case referenced herein. The new post-judgment application file could not be
created timely as the court ran out of branded file jackets with which to
create the new case file. The registry too could not create a temporary file
jacket for the application despite several pressures mounted on them.
Considering how fast such an application should be heard, the bureaucracy of
creating a fresh case file for an application that should be determined quickly
could significantly reduce the effectiveness of deploying a garnishee
proceedings to enforce a monetary judgment at NIC.
Secondly, the practice of
giving a new motion number comprising of the old case number but with
additional designation of letter ‘m’ to it is an unnecessary surplusage that
tends to waste time. Though a post-judgment application, a garnishee
application is still an application in the cause in which judgment has been
delivered. For example, an application to correct clerical error in a judgment
is not normally given a fresh file number (at least at the High Courts), so why
does a garnishee application require that fresh case numbering.
The third critique concerns
practice of possibly having a garnishee application file re-assigned to another
judge. The new file stands the risk of not being reassigned on time along with
suffering from other vagaries of the officials who have the responsibility to
ensure quick reassignment of the case file. In the case under reference, the
additional excuse from the registry, after mounting pressure on them, was that
the registry was out of stock of the branded file jacket in which they place
new matters before sending the new case file for assignment. Consequently, the
new garnishee application file was not assigned to a judge for hearing until at
least 3 months after the application was filed. This practice, which is
understood to have been put in place to ensure that another judge is able to
attend to the new motion case file on time in the event of retirement or
transfer of the judge who delivered the judgment, and to avoid other
administrative bottleneck that may arise after the judgment has been delivered,
has not worked out well. In fact, the opposite of the intended results were the
consequences that attended the experience narrated above.
Recommendations
Enforcement of judgment via
garnishee proceedings is a veritable means through which a successful litigant
in a monetary judgment can reap the fruits of a favourable decision, but when
the proceedings takes so long to commence after filing the application, the
very aim of the proceedings is defeated. It is important that the President of
the NIC reviews this rules of practice at the next review of the rules of
court. The present rules of court also make provisions for enforcement of
judgments through garnishee proceedings in Order 51. We recommend that the
present practice of processing, assigning, and handling the case file in which
a judgment or order has been delivered in line with Order 47 Rules 18, 19 and
20 of the Rules of court should be discontinued while the case file in which
there is a garnishee application immediately, and by default, be brought to the
attention of the judge that delivered the judgment or order as is the practice
in the High Courts. It is only if such judge is otherwise unavailable that the
hearing of the application should be assigned to another judge for speedy
hearing and determination of the application. This way, the provisions of
Orders 47 Rule 21 and 51 of the NIC Civil Procedures Rules 2017 will be
effectively deployed to satisfactory effect in garnishee proceedings before the
NIC in favour of successful monetary judgment litigants and creditors.
Since the present practice
is based on the rules of court and the next round of review of the rules of
court may take some years to be done, my Lord the President of the NIC is urged
to issue a practice direction to effect the required changes in the meanwhile.
[1]Notary
Public for Nigeria and Senior Associate with the Dispute Resolution
Department of S. P. A. Ajibade & Co., Lagos Office, Nigeria.
[2]
See sections 6 (5) (cc); 84 (4); 240; 243 (2 & (4) and 254 (A), (B), (C),
(D), and of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended by Third Alteration 2010, Act No. 3).
[3]
The monetary judgement was delivered on Friday 22nd November
2019 by His Lordship Hon. Justice Elizabeth A Oji, Phd in Suit
No: NICN/LA/464/2016 Prof. Dr Mansi El-Mansi v. Elizade University,
accessible athttps://judgement.nicnadr.gov.ng/details.php?id=3955.
On
26th Nov, 2020, a video of Miss Giwa went viral when her friend and
popular comedian, Woli Arole, shared a video to promote her new food business. What
caught the attention of many was that Miss Giwa is a lawyer who passed both the
Nigerian Law School and her University degree with a 2nd Class Upper
grade.
The
NBA President, Mr. Olumide Akpata in response to the video and due to his
passionate interest on the general welfare of lawyers, instituted a Fact
Finding panel to meet with Miss Giwa.
Members
of the panel included Mr. Tolu Aderemi as Chairman, Mrs Funmi Roberts as
Honourary Member, Mr. Kanu Stephen and Mr. Jonathan Agbo as members as well as
the NBA YLF Ibadan Branch Chairman, Mr. Sile Obasa. The members were able to
meet with Miss Giwa and her former employers, Mr. and Mrs. Seun Falade, with
the aim of identiying how the Bar could be of support to her.
The
Committee resolved to report its findings to the NBA President and key amongst
its recommendations is whether
the NBA should propose an Articleship arrangement and also, the
establishment of a framework for the welfare of young lawyers.
The
Committee also recommended that upon the conclusion of Miss Giwa’s Masters
programme, she should be assisted in getting a lecturing job.
Imagine
being arrested for making a tweet on twitter or making an instagram post. The
Federal Government is attempting to legalise the prosecution of anyone who they
believe posts any statement on social media which they deem as hateful or fake.
The “Hate Speech”and “Social Media Bill” have been a major issue for debate
ever since the legislative arm of government introduced these billsin 2019 as
an attempt to put a restriction to the use of social media in Nigeria. To
justify theseproposed bills by the legislature, the President refused to sign
the Digital
Rights Bill which was a bill to protect the rights of Nigerians in the
digital space.
These bills drew massive criticisms from all
sectors in Nigeria with the hashtag #SayNoToSocialMediaBill
trending on Twitter as a result, the implementation of both bills were put on
hold. However it gained a new momentum shortly after the #EndSars Protest when the
Minister for Information stated that there is no going back on the Social Media
Bill.
The
Social MediaBill formally called “Protection
from Internet Falsehood andManipulation Bill 2019”which aims to “prevent
the transmission of false statements/declaration of facts in Nigeria and to
enable measures to be taken to counter the effects of such transmission”” (see
Section 1). It prohibits statements on social media deemed “likely to be
prejudicial to national security” (Section 3 (b) (i), “those which may diminish
public confidence” in Nigeria’s government (Section 3 (b) (vi). The Bill
proposes these offenses be punishable by a fine between 200,000 Thousand Naira
to 10 Million Naira and/or a prison sentence of 3 years (Sections 3-5). The bill
seeks to permit law enforcement agencies to order internet service providers to
disable internet access to customers (Section 12 (3).
The
Hate Speech Bill criminalises what the government perceives as hate speech
particularly in Section 4 which
provides for sanctions of life imprisonment and the death penalty if that supposed
hate speech resulted in the death of another.
CONTRAVENTION OF BOTH BILLS TO THE CONSTITUTION
The
Nigerian Constitution is supreme to any other law and any law that is in
contravention with the Constitution shall be deemed null and void. The Social
Media Bill and the Hate Speech Bill appears to be a threat to freedom of
speech, freedom of the press, and right to private life as enshrined in Sections 37 and 39 of the Constitution.The
United States courts have reiterated their stance against the enactment of laws
that criminalises hate speech as such laws are in violations of the right to
free speech to the United State Constitution. An example of such ruling is the case of Matel v Tam (2017) No. 15-1293.
In
addition, Section 26 of the Cybercrimes
(Prohibition, Prevention) Act 2015 makes similar provision to the hate
speech bill but with lesser punishment such as 10 Million Naira fine or 5 years
imprisonment so of what use is the creation of another law relating to hate
speech so of what use is the creation of another law relating to hate speech.
The
punishments contained in both bill are totally extreme moreso as the term “hate
speech” is subjective. Legislatorsadvocating for the bill claim it is necessary
in the interests of security, peace and unity but the language of the bill is
one that creates discomfort and vague criminal offenses that would allow the
authorities to prosecute peaceful criticism of the government.
CONCLUSION
With
about 29.3 million users across Nigeria, social media is a critical tool for
shaping public communication and enlightenment. It is true that social media could
be misused at times however, everything in life has its advantages and
disadvantages. The implementation of these bills would violateinternational laws
protecting freedom of speech.
Some
have used China as an example on their justification in supporting the bill.
One thing they should realize is that China is not a multi-party democratic
country like Nigeria is supposed to be. Threatening the freedom of its citizens
is threatening the peace of the country.
Also,
the lack of sincerity of this government is another reason for the massive
rejection of these bills. You may recall that this administration is the
biggest beneficiary of this purported hate speech as they were unfiltered with
the heavy criticism of former President Goodluck Jonathan’s administration.
One
of the pillars of rule of law in a democratic society is the enforcement of
Fundamental Rights of which Freedom of Speech is inherent. Regulating social
media is like limiting freedom of speech which is antithetical to democratic
society. Nigeria’s constitution, like African and international human rights
laws protects the right to freedom of expression and provides that any
restriction to this right must be justifiable in a democratic society. If these
bills are passed, the government will be empowered to shut down the internet as
what they will deem hate speech or false news may be subjective or relative.
Freda Odigie is a Legal Practitioner at E.A
Otokhina& Co.
Agriculture largely contributes to the Nigerian economy accounting
for over 25% of the Nation’s Gross Domestic Product(GDP), it is also
responsible for 30% of the existing employments in the country. However, the
country remains behind its counterparts in developed countries as it still
relies on crude implements and obsolete technology in the agribusiness, a
practice fuelled by Nigerian farmers opting for subsistent agriculture as a
means of survival and not with the goal of contributing to the nation’s
economy.
Therefore, the “International Bar Association, 2020: Virtually
Together Global Influential Session”hosted by Omaplex Law Firm was indeed
timelyas it provided an avenue for speakers from various sectors of the
Nigerian economy to speak on the modalities necessary to make agribusiness in
Nigeria technology driven.It is indeed against the backdrop of this
enlightening session that this article is written with a view to ensure that
innovative ideas do not terminate at the point of mere intellectual
discussions, rather, that they are to be dissected and elucidated for proper implementation.
This article shall be giving an insight into the transformation of
the Nigerian agricultural sector from ‘cutlasses to drones’as expounded by the
speakers in the convention, highlighting the challenges the sector faces and
finally making recommendations on probable steps required to develop an
agricultural sector that can compete globally.
Some challenges
faced by Agriculture in Nigeria
Africa indisputably has the largest arable land in the world. It
is therefore rather surprising that more than 50% of Africans go to bed hungry.
The reason for this sad reality is not farfetched: a lot of indigenous farmers
are still confined to the use of ancient farming tools used by their forefathers.
In the opinion of Mr. Kingsley Okorie, the Deputy Governor on Economic Policy
of the Central Bank of Nigeria (CBN), the deplorable state of the Nigerian
agricultural sector, has prompted CBN to developprograms and projects geared
towards empowering local farmers and those interested in using technology to
improve agriculture in other to develop a system of farming that can compete favourably
globally.
Dr. Manzo Daniel Usman, the Director General, Nigeria Agribusiness
Group when speaking at the convention pointed out in detail the failure of
Nigeria as a country to meet up with international best practices in
Agriculture globally. As a country, Nigeria is far from where it ought to be as
a leading country in agriculture despite having at its disposal favorable climatic
conditions and massive lands good for crop production and animal husbandry. The
country suffers a majorsetback because of its failure to harness these God
given blessings optimally. A lot of countries with smaller lands for
agriculture like Thailand, Vietnam and Indonesia are thriving in world markets
through rice production and other countries like Libya, although located in a
desert region dominates the wheat and barley market by employing irrigation. It
therefore rests withNigeria as a country to set standards that in turn form
specifications across the boardthat can be certified as the ideal to which
every agribusiness enterprise must attain in order to scale this industry to a
more befitting place in the agribusiness world over.
In Africa, agriculture is approached merely as a means of
survival. Small scale farmers that make up 80% of farmers in Nigeria engage in
farming as an avenue to feed themselves and their immediate families and
sometimes in good seasons of harvest, to sell what is left. This is however a
very myopic approach to agriculture. According to Dr IkechukwuKelikume, the
Programme Director, Agribusiness Management, Lagos Business School, agriculture
is a business and farmers are to see themselves as entrepreneurs who must
approach the business of farming as such.He further reiterates that 50% of the
output gotten yearly from crop farming in Nigeria is lost to postharvest
mishaps because the 80% of farmers that makeup the upstream of the Nigerian
agricultural sector are small scale farmers who are not enlightened or welcoming
of the basic technologies necessary for preserving their crops. Regrettably,
farmers in this part of the world have not fully accepted the use of technology
in agriculture for two major reasons namely: illiteracy and lack of capital.
Law is an important factor in any thriving sector. It is the laws
and policies available that gives any sector in which it operates the leverage
to grow and expand. Lamentably, majority of the Nigerian lawyers have failed to
make their input in boosting the country’s agricultural sector which has
resulted in the stagnant growth currently plaguing the sector. In the opinion
of Mrs. OnyinyeChikwendu-Ikechebelu, International Trade and Commerce Expert of
O. M. Atoyebi, SAN (Omaplex Law Firm),lawyers play a key role in using their
legal and business know-how in bringing policy makers, agribusiness
owners and end-users together to match value and in that wise arrive at the
desired goals of each stakeholder.
A lawyer is properly placed amongst other
agriculture industry professionals to understand the agricultural industry, and
the value chain that it operates under. We understand the need for finance and
favourable governmental policies, and the indisputable role of technology to
increase productivity while also being cognisant of the role of education and
knowledge sharing to ensure that the ultimate purpose of growing the
agricultural industry, is achieved.
Our role is vital not only because we
understand the challenges that the sector faces but we have the legal
proficiency to provide and create solutions to these challenges which we have
done in the Oil and Gas
sector, as a result of which the industry has seen tremendous growth over the
years because of the input of lawyers, while the agricultural sector has been
relegated to a pastime for the uneducated and elderly.
The Future of
Agriculture inNigeria
It is certainly not implausible to desire a nation with an economy
empowered by different sectors. Agriculture has proven in the years past and
even in present times to hold amazing potential if adequately harnessed. The deplorable
state of the agricultural sector in Nigeria currentlydenies Nigeriansthe opportunity
to harness the boundless possibilities within the sector. Indeed, agriculture
in Nigeria has the capacity to become a profitable and powerful sector with the
capability to feed the nations ever growing population and significantly
contribute to global trade.
The future of the Nigerian agricultural sector as such is one which
ought to be characterized by policy adaptation and technological improvements
that will transcend the present reality of things, literally taking it from an
era of cutlasses to one of drones. An age where there will be increased
productivity through the use of technology. Some instances that comes to mind, is
the use of technology to prevent postharvest losses by monitoring climate
change, using drones for soil and field analysis by producing precise maps for
early soil analysis, using drones to plan seed plating and gathering data for
managing irrigation.
The future of the Nigerian agricultural sector can be one in which
our youths develop genuine interests in farming, availing the industry of the manpower
and innovation that comes with the input of the young and wecan harness the
diversity in growing this sector of the Nigeria economy.
Recommendations
No doubt, turning back the clock by embracing agriculture is one
of the best solutions that can help reposition Nigeria’s fragile economy. With
food insecurities on the rise in Nigeria, small scale farmers are encouraged to
accept technology in improving their products. With global population predicted
to grow by 2 billion in 2050 and with more than half of that growth from
Sub-Saharan Africa, it a necessity to improve food production through the use
of technology in agriculture.
If the nation continues in the use of hoes, cutlasses and other
crude implements, it will one day ultimately depend entirely on other countries
to feed.For this reason, there is an urgent need to embrace technology. Dr.
Francis DubemChizea, the Acting Director General National Space Research and
Development Agency (NARSDA), in making his contributions to the convention,
encouraged the government to relax the strict rules and policies surrounding
the use of drones, so that farmers can enjoy the benefits drones and technology
in general can offer agriculture.
Agriculture remains one of the most unregulated industries in
Nigeria, in the circumstance, the need has arisen for lawyers to make their
input in facilitating the growth of the sector. In this regard, Mr. Kingsley
Okorie in sharing his thoughts emphasized the need for lawyers to look into the
legal aspects of agriculture by developing effective legal frame work to ensure
data privacy/security and intellectual property protection to budding
technology driven agricultural start-ups which is necessary in safeguarding and
promoting investor interests in the agribusiness.
Lawyers have a role to play in stabilizing the agricultural sector
in numerous ways which include: obtaining licensing and permits that
agricultural entitiesmay need to
operate, such as setting up corporations and partnerships; assisting in
succession planning to help preserve agribusinesses for future generations,
provide information to those in agriculture on labour and employment laws;
provide guidance to ensure regulatory compliance; give general legal counsel to
individuals, companies and organizations on agriculture related matters
etcetera.
In the opinion of Mrs. OnyinyeChikwendu-Ikechebelu, the time has
come for lawyers to input their expertise to ensure that Nigeria’s agricultural
sector grows into one capable of competing globally.
Additionally, it is necessary for the upstream stakeholders in the
agricultural sector, namely government and policy makers to develop policies
that are not only workable but also in tandem with modern realities. In the
opinion of Dr.Monzo Daniel Usman,such policies should be developed to encourage
cost sharing and clustering because it is more beneficial and ensures the
increase in co-operation as well as competition amongst farmers.
Lastly, itis pertinentto buttress the growth and innovation the
active participation of youths in the agricultural sector can bring. Youthscan
be encouraged to invest in activities that support agricultural production,
capacity building and the improvements of goods and services in the
agricultural sector.
This can however not be achieved in isolation, therefore, it lies
on the government to develop incentives to attract the youths to this growing
sector. It is also necessary to fuel as well as build the drive and enthusiasm for
agriculture from the early years of education by inculcating in the formative
years of the Nigerian child,the importance of agriculture as well as providing
avenues for them to practice agriculture and agribusinesses.
Some decades ago, Agriculture was central to Nigeria’s Economy,
until the oil boom in the 1970s. However, the time has come to create a stable
economy that thrives on various sectors,since the Nigerian economy cannot
thrive on one sector, there is an urgent need to develop a system of
agriculture that can be welcomed by all and sundry.
Written by:OyetolaMuyiwa Atoyebi, SAN.
Mr.
OyetolaMuyiwaAtoyebi, SAN is the Managing Partner of OMAPLEX Law Firm, he is
one of the leading Senior Advocates of Nigeria in Information Technology, Cyber
Security, Fintech and Artificial Intelligence (AI). He is the youngest in the
history of Nigeria to be elevated to the rank of a Senior Advocate of Nigeria.
At age 34, he was conferred with the prestigious rank in September, 2019. He
has a track record of being diligent and he ensures that the same drive and
zeal is put into all matters handled by the firm. He is also an avid golfer.
The perception of the Nigerian cyber infrastructure
and the legal apparatus for the sustenance and governance of the cyber space,
is one which has been largely left in the dark, as such enough misconceptions
abound as to trending legal and socio-economic issues arising in respect of
cyber security.
One of such misconceptions, presently rocking
the Nigerian social corridors is whether or not the average IT enthusiasts and
IT professionals walking our streets, who concern themselves with digital
technologies, coding, web development, software development, ethical hacking,
graphic designs, and a host of others are cyber criminals within the context of
the Nigerian laws?
It is kindly observed, that although a host
of handlers of the cyber space in Nigeria employ their level of technological expertise
to indulge the cyber environment in furtherance of their malicious intent and
purposes, to commit frauds and other unlawful acts, this should not make the
entirety of our IT professionals criminals under the intentions of our laws.
Are Cyber Space Operators, Criminals in the Eyes
of the Law?
To set this discuss in the right perspective,
it is imperative to state clearly that social opinions and perceptions do not amount
to what is legally right or wrong, as the above is strictly within the confines
of cold laws and fact, and as such, are not subject to the dictates of social
opinions, assertions, arguments and conclusions. They are governed by the
provisions of the laws in force, which govern such areas of humanity and the
ability of the Courts, to give meaning to the relevant laws, in the light of
facts before it thereby determining the fate of the individuals before it and
doing justice.
The issue of whether or not, a cyber-operator
is a criminal, or guilty of a crime or not, is strictly governed by the
existing laws, enforcement processes and legal frameworks. The provision of the
Constitution of the Federal Republic of Nigeria,1999(as amended), being a chief
actor in the totality of Nigeria’s Criminal justice administration, has laid
the above to rest, where it provides quite unequivocally under Section 36 (5)
that:
“Every person who is charged with a criminal
offence shall be presumed to be innocent until he is proved guilty.”
And Section 36 (11) of the Constitution, where it states clearly:
“a person shall not be convicted of a
criminal offence unless that offence is defined and the penalty therefore is
prescribed in a written law, and in this subsection, a written law refers to an
Act of the National Assembly or a Law of a State, any subsidiary legislation or
instrument under the provisions of a law”.
By the combined construction and deduction of both provisions above, a
person, can only be declared a criminal,
when the Courts make a pronouncement to that effect, in the light of the
relevant statutory provision, defining such act, as an offence and punishing
it.
In addition to the above existing legal
foundations for criminal enforcement in Nigeria, our criminal justice
administration, has laudably evolved to meet the demands of cyber security,
through the recent enactment of the Cybercrimes (Prohibition, Prevention, Etc.) Act, 2015,
which has clearly defined and punished a wide variety of cyber-offences, all in
a bid to make the cyber space a better place, including but not limited to
cyber stalking, bullying and terrorism, to mention but a few.
In recent days, the Court of Appeal, in the case of Solomon Okedara V. AGF (2019)
LCN/12768 (CA), had to consider the Constitutionality of Section 24 of the Cybercrimes Act to determine whether or not such
was inconsistent with the overriding provisions of the Constitution.
The above Section, provides:
“A person
who knowingly or intentionally sends a message or other matter by means of
computer systems or network that is grossly offensive, pornographic or of an
indecent, obscene or menacing character or causes any such message or matter to
be sent, or he knows to be false, for the purpose of causing annoyance,
inconvenience danger, obstruction, insult, injury, criminal intimidation,
enmity, hatred, ill will or needless anxiety to another or causes such a
message to be sent, commits an offence under this Act and is liable on
conviction to a fine of not more than N7,000,000.00 or imprisonment for a term
not more than 3 years or both.”
In determining the constitutionality of the above provision, The Court reasoned from the above provision that the legislature has the
power to enact laws that are reasonably justifiable in a democratic society and
that such laws shall not be declared invalid merely because they appear to be
in conflict with the rights and freedom extended to citizens under the
Constitution. However, the Court noted, for example in the case at hand, that
the right of freedom of speech guaranteed under Section 39 cannot be taken away “except for the purposes of
preserving the interest of defense, public safety, public order, public
morality, public health or for the purpose of protecting the rights and freedom
of other persons.”
Thus, the question of whether a person is a
cyber-criminal or not, is exclusively determinable by the Courts, when the Courts
breathes life into the provisions of the Cybercrimes Act and other existing
legal frameworks relevant to the Nigerian cyber space. Today, the Act, has
defined and punished several acts which are capable of being committed on the
online space, including:
· Section
18, Cyber
Terrorism,
· Section
22, Identity
Theft and Impersonation
· Section
23, Child
Pornography and Related Offences,
· Section
23(2) Cyber
Bullying
· Section
24, Cyber
Stalking,
· Section
25, Cybersquatting,
to mention but a few.
It is therefore clear, that IT gurus and Fintechs,
are not cybercriminals within the ambit of our laws, in the event that the
society wrongly terms them as such, they only become criminals, when the Courts
pronounces them as such and does justice in the light of relevant and pre-existing
legal frameworks.
Cyber
Space Operators and Law Enforcement Agencies: Towards a Mutually Beneficial Partnership
As the Fin-Tech and IT
industry continues to grow and develop, so does the opportunities for criminals
to exploit such systems meant to foster innovation as well. Thus, it is
important to have that trust and collaboration between regulators, enforcement
agencies and Fintech companies through establishing better lines of
communications and also getting involved in their regulations by reporting
violators, operate according to standards and confines of the law, host
workshops and symposia regularly.
Establishing an open channel
of communication, is imperative to enhancing legal collaborations and
partnership, which helps to secure productive platforms of curbing the events
of criminality in our cyber space, For the following reasons;
1. The availability of the
requisite skills and technical know-how among cyber space operators, could help
beef up the apparatus of the Nigerian law enforcement agencies, towards better
cyber space policing.
2. The operators of the
Nigerian cyber space, could help make reports of any suspicious occurrences
among the cyber space operators, capable of evolving into cybercrimes.
3. The Nigerian law enforcement
agents, can better leverage on indigenous cyber space organisations, bodies and
associations, to report acts of misconduct or ethical breaches, among their
members, thereby curbing potential threats to the security to the Nigerian
cyber space.
4. The law enforcement agents,
could better curb the menace of cybercrimes, by engaging cyber operators within
their ranks thereby enhancing the efficiency of cyber policing.
The Emerging
Fields of Cyber Threats: A Wake up Call for Nigerian Cyber Space Protection.
While it is laudable, that the Nigerian
criminal justice system has set in motion a legal framework for managing and
controlling the events of cyber-crimes within her borders, through her
recognition and enactment of the Cyber
Crimes Act, 2015, it is imperative to note that law exists as a tool of
social engineering and must continually evolve to meet the emerging curves that
hampers man’s existentiality, by the constant review, amendment and if need be,
enactment of new and relevant laws, which tackle emerging trends in crime
commission in the cyber space.
It is also important for cyber space law
enforcers, to be fully abreast with this emerging tendencies and potentials in
the cyber space today to adequately build capacity and enforce sanity in the
cyber space. Among the emerging areas of cyber threats are:
a. Identity
Theft: This
has become very prevalent in Nigeria. Identity theft is the crime of obtaining the personal or financial
information of another person to use their identity to commit fraud, such as
making unauthorized transactions or purchases. Identity theft is committed in
many different ways and the end result is that victims are typically left with
damage to their credit, finances, and reputation.
b. Ransomware: This is
a form of malware (malicious software) that attempts to encrypt (scramble) your
data and then extort a ransom to release an unlock code. Most ransomware is
delivered via malicious emails.
c. Hackers: Gaining
access to IT systems from outside an organisation still offers rich pickings
for criminals. Traditionally they have attempted to gain access to bank account
information or credit card databases. However, intellectual property is another
source of value. The use of social engineering, tricking staff into revealing
user names and passwords, remains a threat.
d. Data
leakage:
While cyber security in the office may seem challenging, it is essential to
understand that security extends well beyond the office these days. The use of
smart phones and tablets has become widespread. The ubiquitous and cheap nature
of portable storage devices makes them a useful tool for the backup and
transportation of data. Those features mean they are also a target for data
thieves.
e. Malware on
Mobile Apps: Mobile devices are vulnerable to malware attacks just
like other computing hardware. Attackers may embed malware in app downloads,
mobile websites or phishing emails and text messages. Once compromised, a
mobile device can give the malicious actor access to personal information, location
data and financial accounts.
f. Phishing: An
email-borne attack that involves tricking the email recipient into disclosing
confidential information or downloading malware by clicking on a hyperlink in
the message.
g. Spear
Phishing:
A more sophisticated form of phishing where the attacker learns about the
victim and impersonates someone he or she knows and trusts.
h. Cyber
Espionage:
Both large and small organizations are beginning to store at least some of
their data in the cloud. Right Scale recently found that private cloud adoption
increased to 77% among organizations; hybrid cloud computing increased as well.
Whether the thief is coming from the inside or outside, attacking private,
public or hybrid cloud technologies, trade secrets and other valuable
intellectual properties are at risk. This is, of course, in addition to
valuable customer data.
Conclusion.
Conclusively, it is
kindly observed that the Nigerian cyber policing infrastructure, must develop
competence, in the light of the recent emerging issues and threats which are
presently exasperating the Nigerian cyber space. It is in not enough that there
are laws, and legal frameworks recognising and curbing the events of cybercrimes
in Nigeria. Our cyber security enforcement frameworks, must treat the
commission of cyber offences differently in the light of enabling legislations,
expertise, technical know-how and experience, and awake to the demands of cyber
security, policing and enforcement, when this is done, the issues of cyber
security will be brought to a definite rest.
Written by:Oyetola Muyiwa Atoyebi, SAN.
Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of
OMAPLEX Law Firm, he is one of the leading Senior Advocates of Nigeria in
Information Technology, Cyber Security, Fintech and Artificial Intelligence
(AI). He is the youngest in the history of Nigeria to be elevated to the rank
of a Senior Advocate of Nigeria. At age 34, he was conferred with the
prestigious rank in September, 2019. He has a track record of being diligent
and he ensures that the same drive and zeal is put into all matters handled by
the firm. He is also an avid golfer.
Christmas has come early; Greysage consulting will host a webinar that adequately caters to lawyers, law graduates, and law students who are enthused and fascinated by the global entertainment industry.
The webinar will be held on the 12th of November, 2020, via zoom, at 11am – 1pm and Greysage has recruited famed Nigerian entertainment lawyer, Akinyemi Ayinoluwa, to share important tips that would help guide Nigerian lawyers to explore, pursue an interest, and build a practice area that caters to the entertainment industry.
In recent times, there have been countless credible reports from many institutions who have conducted extensive research on the economic viability of the Nigerian entertainment industry.
Greysage Consulting believes that Nigerian lawyers have significant roles to play with helping to build the burgeoning Nigerian entertainment scene. With their mastery of law and eye for detail they are well equipped to take on responsibilities that would provide them professional and economic gratification.
This webinar would lay bare the world of possibilities available to lawyers in the entertainment industry.
To attend, reserve a spot at https://greysagehq.com/createyourfuture/
The zoom link will be shared after notification of payment.
Get ready for this webinar, if you miss it…you may have to wait till the next time we re-launch it again and that might be next year.
The webinar is supported by Legal Naija and Lawyard. Have a wonderful week.
With Love, Opeyemi Akanni GreySage Consulting Ltd.
National Information
Technology Development Agency (NITDA) is a public service
institution established by NITDA Act 2007 as the ICT policy implementing arm of
the Federal
Ministry of Communication of the Federal Republic of Nigeria. It has
sole responsibility of developing programs that caters for the running of ICT
related activities in the country. NITDA is also mandated with the
implementation of policies guideline for driving ICT in Nigeria. The Board
shall have power to formulate overall policy for the management of the affairs
of the Agency; and manage the National Information Technology Development Fund
established under Section 12 of the Act including;
(c) Appoint, promote,
terminate, dismiss and exercise disciplinary control over the principal
officers and senior staff of the Agency;
(d) Structure the Agency
into such number of departments as it deems fit for the effective discharge of
the functions of the Agency; and
(e) Exercise such powers as
are necessary of expedient for giving effect to the provision of this Act.
The functions of the Agency as
provided in Section 6 of the NITDA Act include:
(a) Create a frame work for
the planning, research, development, standardization, application, coordination,
monitoring, evaluation and regulation of Information Technology practices,
activities and systems in Nigeria and all matters related thereto and for that
purpose, and which without detracting from the generality of the foregoing
shall include providing universal access for Information Technology and systems
penetration including rural, urban and under-served areas.
(b) Provide guidelines to
facilitate the establishment and maintenance of appropriate for information
technology and systems application and development in Nigeria for public and
private sectors, urban-rural development, the economy and the government.
(c) Develop guidelines for
electronic governance and monitor the use of electronic data interchange and
other forms of electronic communication transactions as an alternative to
paper-based methods in government, commerce, education, the private and public
sectors, labour, and other fields, where the use of electronic communication
may improve the exchange of data and information.
(d) Develop guidelines for
the networking of public and private sector establishment.
(e) Develop guidelines for
the standardization and certification of Information Technology Escrow Source
Code and Object Code Domiciliation, Application and Delivery Systems in
Nigeria.
(f) Render advisory services
in all information technology matters to the public and private sectors.
(g) Create incentives to
promote the use of information technology in all spheres of life in Nigeria
including the setting up of information technology parks.
(h) Create incentives to
promote the use of information technology in all spheres of life in Nigeria
including the development of guidelines for setting up of information technology
systems and knowledge parks.
(i) Introduce appropriate
regulatory policies and incentives to encourage private sector investment in
the information technology industry.
(j) Collaborate with any
local or state Government, company, firm, or person in any activity, which in
the opinion of the agency is intended to facilitate the attainment of the
objective of this act.
(k) Determine critical areas
in Information Technology requiring research intervention and Development in
those areas.
(l) Advice the Government on
ways of promoting the development of information technology in Nigeria
including introducing appropriate information technology legislation, to
enhance national security and vibrancy of the industry.
(m) Accelerate internet and
intranet penetration in Nigeria and promote sound internet Governance by giving
effect to the Second Schedule of this Act; and
(n) Perform such other
duties, which in the opinion of the Agency are necessary or expedient to ensure
the efficient performance of the functions of the Agency under this act.
Everyone
that has read Social Media For Lawyers has found the book useful for creating
online visibility for their law practice, and they also say they will recommend
the book to a colleague, but don’t just take our words for it, read some of
their remarks below;
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Media for Lawyers is a book every 21st century lawyer needs to read especially
in a digital competitive world”.
– Oluwatobiloba,
Lawyer
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for corporate bodies and Professionals and not necessarily lawyers alone. I’m
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media to not only amplify our voices, but carve a niche for ourselves in the
legal market. “Social Media for Lawyers” is without a doubt, the
perfect tool for lawyers in this regard. I recommend this for not only lawyers,
but professionals from every discipline.”
– Charles, Lawyer
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