by Legalnaija | Feb 17, 2020 | Uncategorized
The Doctrine of Competence-Competence (Kompetenz-Kompetenz) is a unique and exceptional feature of arbitration. The doctrine is now a foundational principle of modern law of arbitration. It postulates that the arbitral tribunal (a sole arbitrator or a panel of arbitrators) has the power to decide on its jurisdiction when such is challenged by any of the parties to an arbitration proceeding.
There is a view that challenge on the ground of bias does not go to jurisdiction in order for it to come within the doctrine of competence-competence.
It is the writer’s opinion that challenge on the ground of bias goes to the issue of jurisdiction in arbitration taking into account its peculiarity. See Nigerian National Petroleum Corporation (NNPC) v. Total E & P Nigeria Ltd & 3 Ors, suit no.FHC/ABJ/CS/390/2018.
This means that the doctrine of competence-competence has its root in both sections 12(1) and 9(3) of the Arbitration and Conciliation Act (hereinafter referred to as ‘the Act’).
Hence, section 12 (1) of the Act is an extension of section 9(3) of the Act or vice versa.
This doctrine applies generally to an arbitration agreement entered into pursuant to the provision of a Statute. The foundation of this power can be found in section 12(1) of the Act.
This section provides thus:
‘An arbitral tribunal shall be competent to rule on questions pertaining to its own jurisdiction and on any objection with respect to the existence or validity of an arbitration agreement’
In support of the foregoing, Article 21 Rule 1 of the UNCITRAL (United Nations Commission on International Trade Law) Rules also provides that:
‘The arbitration tribunal shall have the power to rule on objection that it has no jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement’.
In confirmation of similar provision in the ICC Arbitration Rules, the court in Dalmia Diary Industries Ltd. v. National Banks of Pakistan [1978] 2 Lloyd’s Rep 223, had this to say;
“We have no doubt, from the words used in those paragraphs, and from the general purpose and intents shown by the rules as a whole in respect of international arbitration, that the correct intention to be attributed to these rules is that a very wide jurisdiction is to be given to the arbitrator to decide on his own jurisdiction when that jurisdiction is challenged. We see no reason why, as a matter of construction of the words used, the court should be alerted to try to cut down the width of the intended meaning”
This doctrine of competence-competence will be more understood by making reference also to sections 8 and 9 of the Act.
Section 8 provides that any person who knows of any circumstances likely to give rise to any justifiable doubts as to his impartiality or independence shall, when approached in connection with an appointment as an arbitrator, forthwith disclose such circumstances to the parties.
The writer is concerned with what happens when such Arbitrator refuses to disclose such circumstances as mentioned above to the parties and there is a later challenge to his impartiality or independence.
Section 8(3) of the Act states grounds for such challenge thus:
“An Arbitrator may be challenged-
a) if circumstances exist that give rise to justifiable doubts as to his impartiality or independence; or
b) if he does not possess the qualifications agreed by the parties.
Pursuant to section 9 of the Act the parties may determine the procedure to be followed in challenging an arbitrator. Where no procedure is determined under subsection (1) of this section, a party who intends to challenge an arbitrator shall, within fifteen days of becoming aware of the constitution of the arbitral tribunal or becoming aware of any circumstances referred to in section 8 of this Act, send the arbitral tribunal a written statement of the reasons for the challenge.
The interesting part of this section can be found under the subsection (3) which provides that:
Unless the arbitrator who has been challenged withdraws from office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
Section 12(3) of the Act provides that a party is not precluded from attacking the jurisdiction of the Arbitrator by reason that he has appointed or participated in the appointment of an arbitrator and this ‘may’ be raised not later than the time of submission of the points of defence. However, such challenge may be admitted if it (the arbitral tribunal) considers that the delay was justified.
Subsection (4) further provides that the arbitral tribunal may rule on any plea referred to it under subsection (3) of this section either as a preliminary question or in an award on the merits; and such ruling shall be final and binding.
It is worthy to point out that section 34 of the Act provides that a court shall not intervene in any matter governed by this Act except where so provided in this Act.
Hence, the court will be reluctant to remove an arbitrator. See NNPC v. Total E & P Nigeria Ltd & 3 Ors (supra). This is because in the Act there is no replica of section 24(1) (a) of the Arbitration Act 1996 of England, which provides for the removal of an arbitrator by the court where circumstances exist that give rise to justifiable doubts as to his impartiality. See Cofely Ltd v. Bingham & Knowles Ltd [2016] EWHC 240 (Comm).
Flowing from the foregoing, the writer is basically concerned with where there is a sole arbitrator, and wishes to take a pause at this juncture to ask some questions that can naturally flow from the above provisions:
1. What happens when bias is the ground for the challenge of the jurisdiction of the Arbitrator and he rules that he is not biased and continues, or he deliberately refuses to rule on it as a preliminary question but delays it to the time of the delivery of the Award pursuant to section 12(4) of the Act?
2. In view of the fact that the parties to arbitration have certain liberties, can a party affected by the ruling renege from the proceeding having lost interest in its impartiality?
It is the writer’s view that the affected party has no readily available solution.
In the traditional court setting, whenever the impartiality of the Judge is in issue, there is usually an application to the Head of the Court seeking for transfer of the suit to another Judge. However, in arbitration there is a violation of the principle of Nemo judex in causa sua, since the Arbitrator becomes a Judge in his own case and his decision is final, pending when he hands down an Award (which can then be challenged on the ground of Misconduct pursuant to section 30 of the Act).
Notwithstanding that the doctrine of competence-competence appears to be a violation of one of the principles of natural justice (nemo judex in causa sua) and limits some liberties of a party to arbitration, it is however justifiable for the following reasons:
Firstly, the competence-competence approach is done to avoid additional costs and burdens often involved in standard court proceedings. The juridical basis for the support of this statutory provision is that the arbitration agreement of the parties is given preeminence over any other position, i.e., an arbitral tribunal is bound by the agreement of the parties. Arbitration is a mechanism arising out of the parties’ agreement. It is a well-known principle of law that volenti non fit injuria. Hence, since a party has voluntarily submitted or has agreed beforehand to submit his dispute to arbitration, he is deemed to have accepted all the incidents of arbitration.
Secondly, taking into account the option for the impeachment of an award on ground of misconduct under section 30 of the Act; a party who has been affected by the bias of the arbitrator could still apply to the court for the award so given to be set aside on that ground. This was given judicial celebration in A. Savoia v. A.O. Sonubi (2000) 12 NWLR (Pt. 682) 539.
Hence the jurisdiction of the court is not ousted from entertaining such application. The fact that a tribunal can determine its own jurisdiction does not give it exclusive power to do so and certainly does not prevent an enforcing court from re-examining the tribunal’s jurisdiction. See section 30 of the Act.
Thirdly, arbitration is a mechanism devised for easy settlement of dispute between parties to avoid going through the rigors of the conventional court. If the arbitrator is not given the power to entertain challenge as to his jurisdiction; it will defeat one of the advantageous features of arbitration which is for speedy settlement of disputes.
Thus, if such challenge is referred to court, it may take unnecessary time for the court to give its ruling as the court is faced with other pressing matters. The parties may at the end of the day spend more than they had anticipated as they may need the services of lawyers and solicitors.
It is observed that if arbitrators could not determine questions as to their own jurisdiction, a recalcitrant party could easily frustrate the parties’ agreement to have their dispute decided by arbitration or at least create considerable delay merely by contesting a frivolous application or the existence or validity of the arbitration agreement in court.
Further observation also shows that such a situation would seriously undermine arbitration as an effective means of private dispute resolution and deprive it of its attraction.
In conclusion, having regard to the above reasons and many more, the doctrine of competence-competence is a desirable one. Also, on the flipside, though it appears confusing when the doctrine is compared the principle of Nemo judex in causa sua, the express provisions of the Arbitration and Conciliation Act make it undesirable to invoke the strict application of the principle of Nemo judex in causa sua in this situation in arbitration matters.
REFERENCES:
1. Greg G. Nwakoby, The Law and practice of commercial Arbitration in Nigeria (Enugu: Iyke Ventures Press, 2nd edn., 2004) p.79
2. www.lexology.com/library/detail.aspx?g=70303764-71b7-4352-babb-6c8c8d399190 accessed on 10th February, 2020.
3. http://www.bukisa.com/articles/27372_what-is-doctrine-of-competence-competence accessed on 10th February, 2020.
Chinedu Innocent Nwobodo, Esq.
Associate at Chris Ogunbanjo LP (Chrisco)
chineduinnocentnwobodo@gmail.com
08165191968
by Legalnaija | Feb 16, 2020 | Uncategorized
I wonder at some sons of Yoruba race and their penchant for self destruction, deceit and falsehood. I also wonder where to locate the fault? In them or in their stars? When will patriotism begin to guide our aspirations? Lies, lies and deliberate lies all because of politics!!! Where lies our integrity and honour not just as Lawyers but more importantly as “omoluabis”?
I just read the post by one Adebayo Orekoya titled “NBA 2020 Elections: Why the lopsided adoption by a faction of Egbe Amofin does not represent the decision of majority of the South West Bar”. It is very saddening that Mr Orekoya intentionally fabricated lies about the Egbe Amofin Oodua’s meeting of December 14th, 2019 and deliberately mis-informed his readers just to achieve a selfish and pre-determined intention. Few questions for you my dear Mr Orekoya.
1) Where were you in August 27th, 2019 when both leaders and followers of Egbe Amofin resolved unanimously at their lkoyi Lagos meeting that they were going to field ONLY one candidate for the 2020 NBA Presidential election to remedy the mistakes of 2014?
2) Where were you in October 26th, 2019 when Egbe Amofin congregated at Aare Afe Babalola SAN Bar centre lbadan and after exhaustive deliberation resolved and constituted the 26 Chairmen of the South West NBA branches into a Committee headed by Chief Niyi Akintola SAN to screen and recommend one person in accordance with the earlier decision of August 27th 2019?
3) Were you aware that 4 people indicated their interests to run for the office of NBA President at the meeting and that all of them supported the setting up of the Committee with clear undertaking by each of them to abide by the decision of the Committee and the house on the matter?
4) Are you aware that in line with the undertakings, some aspirants, men of honour and integrity in the over all interest of Yoruba Lawyers have stepped down in honour of their promise?
5) You said the Committee members were handpicked. Are you aware branch Chairmen were elected by members of their branches and that they were members by virtue of being the Chairmen of their branches?
6)You talked about a faction of Egbe Amofin, but you failed to name the other faction nor present any fact to substantiate your false and fertile imagination
7) You said very few lawyers were present at the Egbe Amofin Oodua’s meeting of December 14th, 2019, how many were they? Do you know that the members of Egbe Amofin that were present at the meeting in 2008 Were less than 50% of those present in December 14, 2019?
8) Are you aware that all the branches of Nigeria Bar Association in South West were present at the meeting including Yoruba lawyers practising outside the South West region?
.
9) From the Body of your write up, you were no doubt happy at the similar decision of 2008. Do you remember that the 2008 decision was based on the recommendation of a Committee composed of only 3 members under the Chairmanship of Chief Bayo Aluko-Olokun SAN?
10) You probably chose not to remember that in 2002 a similar Committee was composed of 3 members with Chief Adigun Ogunseitan as Chairman and their decision was respected by Yoruba lawyers. The other aspirant Mr Segun Onakoya who rebelled against the decision failed woefully at the poll.
YORUBA RONU.
LET OUR CONSCIENCE BE OUR COMPANION.
Prince Kunle Adetowubo.
Past Chairman,
NBA, Ondo Branch.
by Legalnaija | Feb 14, 2020 | Uncategorized
Dele Adesina SAN was the special guest at the 2nd Legal Workshop of the Young Lawyers Forum (YLF), Nigerian Bar Association, Ikeja Branch, with the theme – “Drafting and Review of Commercial Agreements.” The facilitator of the Training, Mr. Chisom Obiokoye, from the law firm of Perchstone & Graeys, took the room of over a hundred Lawyers on the principles of drafting and review of Contracts.
According to Mr. Adesina, SAN, he was optimistic that Mr. Chisom’s lecture was an investment into the lives of the young lawyers who participated in the Workshop and was a worthy initiative by the Young Lawyers Forum.
Mr Adesina, SAN, also stated that it is trite that no court of law, no matter how powerful can make contracts for parties and further stressed on the importance and need for lawyers to pay critical attention when drafting contracts for their clients because if a contract is poorly drafted, it could expose their clients to risks in the future.
According to Mr. Adesina, SAN, “these things cannot be taken for granted, as the Courts will only interprete the terms stated in the contract and would not substitute its reasoning with the agreement of the parties.”
Mr. Adesina appreciated Mr. Chisom’s words that “parties are the masters of the facts” and lawyers should ensure that their clients always produce the facts of every matter in writing, a principle he mentioned applied to litigation as well.
He advised the young lawyers to never believe contractual relationships between parties will go on smoothly and caution must be made not to expose thier clients to risk. He further advised the young lawyers that their relevance was in their ability to anticipate possible problems that may occur and to make provisions for same in the agreement.
Mr. Adesina, SAN, further reiterated the suggestions he made to the leadership of the Young Lawyers Forum, Nigerian Bar Association, Ikeja Branch, a year ago and pledged that at least once a year he would sponsor one of such Workshops organized by the Young Lawyers Forum, Nigerian Bar Association, Ikeja Branch.
Mr. Adesina ended his address by thanking the Chairman of the Young Lawyers Forum, Nigerian Bar Association, Ikeja Branch, Mr. Ezekiel Bodunde and his Executives for the invitation.
by Legalnaija | Feb 13, 2020 | Uncategorized
Recently, the news of Lawyers being assaulted by security agents has flooded the media space. Instances include the incident in Asaba, where a Police officer attached to the convoy of the Commissioner of Police slapped a Lawyer, Samson Okehielem. Also, the Police invasion of the WACOL Office and the assault on Miss Patience in Enugu; the action of the Police was reported to have sent Miss Patience to a state of coma.
There are some other incidents to the annoyance and discomfort of lawyers. These incidents must not be allowed to continue. Lawyers and the Legal Profession are special stakeholders in a constitutional democracy and they deserve respect from our law enforcement agents. Like other climes, lawyers must be seen and accepted as strategic partners in progress in the business of maintaining law and order in the society.
Interestingly, many candidates vying for various offices within the Nigerian Bar Association also made public statements denouncing these unlawful acts and providing some comfort to members of the Bar by promising to go hard on security agencies that breach the rights of lawyers.
I know many of these statements are only for campaign purposes as many of these candidates did not release any of such statements in the past, neither is it on record that they have ever been committed to protecting the rights of lawyers. Well, except one. Many lawyers will know of Mr. Dele Adesina, SAN but not many lawyers remember some of the selfless actions he undertook alongside other Executives of the Nigerian Bar Association while he was and after he was the General Secretary.
I am sure many will recall that two days after the Nigerian Bar Association Elections on the 29th of August, 2002, the Chairman of Nigerian Bar Association Onitsha Branch, Barnabas Igwe Esq., and his pregnant wife were dastardly and brutally murdered in cold blood on the streets of Onitsha, Anambra State. It will be recalled that events leading to the murder had seen Barnabas Igwe Esq. assuming the leadership position of the hapless and helpless, oppressed and defenceless workers in and outside the Civil Service of Anambra State. Workers salary was unpaid for over six (6) months by a Government supposed to provide and cater for the social, economic and political needs of its citizens. The Bar in Onitsha under the leadership of Barnabas Igwe Esq. had called on the government of Mr. Mbadinuju to resign, having failed in its constitutional responsibilities. One thing led to the other and the gentleman was murdered with his wife. Mr. Dele Adesina, SAN as General Secretary of the Nigerian Bar Association and other Executives and Members of the Nigerian Bar Association rose up stoutly against what was described as a callous and dastard act of barbarism and fought very hard to ensure that the Governor under whom this act was perpetrated failed to get second term in office.
by Legalnaija | Feb 11, 2020 | Uncategorized
Originating processes
and Notices of appeal can no longer be deemed validly filed and served; a
precis of the Supreme Court’s decision in Ani v Otu (2017) 12 NWLR (Pt. 1578)
30 @ 71
From time immemorial,
various appellants have inundated the appellate courts with applications for
extension of time to appeal together with ‘preemptive’ deeming orders
regularizing their notices of appeal filed prior to the grant of such leave.
The apex and court of
appeal are wont to deeming such notices of appeal as valid, subject to
satisfaction of settled factors as laid down by the courts over the years. With
the age long precedents on deeming of notices of appeal, the question of its
propriety seemed settled so much that it didn’t attract any special attention
from the courts. Unequivocally, in Incar Nigeria Plc v Bolex
Enterprises Nig. Ltd (2001) 12 NWLR (Pt. 728) 646, the Supreme Court appeared
to have impliedly approved of the practice thus:
“A notice of appeal
filed out of time will require a prayer for enlargement of time within which to
file such notice of appeal. It is only after that prayer is granted that the
Court may deem the notice of appeal already filed as duly and properly filed.”
This remained the
judicial consensus/norm on deeming of notices of appeal until the 2017 decision
of the same supreme court to the contrary in Anthony Asuquo Ani v Ekpo Okon Abasi Otu (2017) 12 NWLR (Pt.
1578) 30 @ 70.
In that case, the appellants
filed a suit at the high court of Cross River State challenging the nomination
and selection of the Ekpo Abasi Otu (1st respondent) as Obong of Calabar. The high
court found in favour of the appellant and granted all the reliefs sought. On appeal,
the Court of Appeal set aside the decision of the High Court and that
necessitated another appeal to the Supreme Court.
Consequent upon filing a
notice of appeal against the judgement of the court of appeal, the appellants
filed an application at the Supreme Court for (1) an order extending time to
seek leave; (2) leave to appeal; (3) order extending time within which to
appeal; (4) leave to Appeal of grounds of mixed law and facts; (5) order
deeming the record of appeal as valid; (6) order deeming the notice of appeal
as valid; (7) order deeming the appellants’ brief as valid.
In addition to their
respective counter affidavits to the appellants’ motion, the two sets of
respondents filed preliminary objections to the hearing of the appeal (which
notice of appeal hasn’t even been regularized at the time of the objections).
In the leading ruling
read by Amina Adamu Augie, JSC, the Apex court granted only the four reliefs
seeking extension of time and leave to appeal while the three prayers seeking
deeming orders were refused.
Emphatically, Paul Adamu Galinje, JSC at page 70- 71
para H- B held that:
“However, the deeming order sought by the applicant in respect of
the record of Appeal, notice of Appeal and brief of argument cannot be granted.
A notice of appeal cannot be deemed as having duly filed and served because it
is a document which by definition commences an appeal. The documents which a
court can deem are those which parties exchange between themselves during the
course of proceedings, such as statement of claim or defence and briefs of
argument and not those which require
the signature of the registrar for their validity. The time for
transmission of the record of Appeal and the filing of briefs of argument can
only begin to run after the appeal is filed.”
Although a concurring
judgement, it possesses the force of the leading judgement. See the Supreme
court’s statement on concurring judgement in Ziakade Akpobolokemi v
Capt. Emmanuel Iheanacho (2016) LPELR -40563(CA) thus:
“A concurring judgment complements, edifies and adds to the
leading judgment. It could at times be an improvement of the leading judgment
when the justices add to it certain aspects which the writer of the leading
judgment did not remember to deal with. In so far as a concurring judgment
performs some or all the above functions, it has equal force with or as the
leading judgment in so far as the principles of stare decisis are concerned.
It is now no longer in
doubt that, the recent supreme court’s decision in Ani v Otu (supra) represents a paradigm shift from, not only the
procedural possibility/practice of deeming notices of appeal as valid but also
all other originating processes including writs of summons, originating
summons/motions and petitions, what however remains unclear is the effect of
the courts’ subsequent reliance on such deemed originating processes during
trial or further proceedings.
Conclusively, there’s no
gainsaying that the decision of the apex court is final, however in the
author’s respectful opinion, if it could be shown at the time of adoption of
addresses on the deeming prayer that, the said originating process was in fact,
signed by the registrar upon filing, then such a process ought to be taken to
have passed the test laid down in his lordship’s concurring judgement since the
whole essence of a deeming order is to expedite proceedings and downplay
technical justice in favour of substantial justice.
On the whole, until the
apex court takes another look at the erstwhile convenient and expedient
practice of deeming originating processes as valid, it remains inarguable that a
notice of appeal, like its counterpart originating processes cannot be deemed
validly filed and served.
Olumide Babalola, managing partner,
Olumide Babalola LP.
by Legalnaija | Feb 11, 2020 | Uncategorized
Dear IP ABC
I am James Bede, MD of WOKE Animations, a leading animation company in Nigeria. Recently, my company was in negotiations with Maxwell Obi, a renowned cartoonist and creator of the very successful comic book, ‘Nigerian Mom.’
After weeks of negotiation to obtain an exclusive licence to adapt Nigerian Mom into an animated comedy TV show, we finally reached an agreement. All that was left was to sign the licensing contract by both parties. On the morning of the scheduled date to sign the contracts, we received terrible news that Maxwell Obi was involved in a fatal motor accident. It was a shock to us. While we sincerely mourn the loss of Maxwell Obi, we wish to know if from the current circumstances, we have a deemed exclusive licence from late Maxwell Obi?
Answer
Dear James Bede
You want to know if WOKE Animations has a ‘deemed’ exclusive licence of copyright from late Maxwell Obi since he intended to enter the licence agreement but could not sign the agreement before his sudden death.
The answer is NO.
Maxwell Obi, before his death, had copyright in his work, ‘Nigerian Mom’. By section 6 of the Nigerian Copyright Act, he had the exclusive right to control reproduction of the work in any material form; publication of the work; performance of the work in public; translation of the work; making of any cinematographic film or record in respect of the work; distribution of the work to the public for commercial purposes by way of rental, lease, hire, loan or any similar arrangement; adaptation of the work; reproduction, publication, performance, making of a cinematographic film or record, and distribution for commercial purposes any translation or adaptation of the work.
Under copyright law, when a person has passed away, his or her copyright does not immediately become public domain. In Nigeria and most countries, copyright lasts 70 years after the year of the author’s death. If the copyright was owned by an organization or corporate entity, copyright lasts 70 years after the end of the year the work was first published.
Copyright is an intangible property and it is a type of personal property because it attaches to the creator or author. This makes copyright transferable.
Section 11(1) of the Nigerian Copyright Act provides that “copyright shall be transmissible by assignment, by testamentary disposition or by operation of law as, movable property.”
An exclusive licence as defined in the Act means “a licence signed by or on behalf of a copyright owner, authorizing the licensee to the exclusion of all other persons (including the person granting the licence), to exercise any right which would otherwise be exercisable exclusively by the copyright owner.” Because of the decisive nature of an exclusive licence, it cannot be inferred but has to be in writing. Section 11(3) of the Act provides that unless in writing, no assignment of copyright and no exclusive licence to do an act, the doing of which is controlled by copyright, shall have effect.
For the above reasons, even if your company had made necessary preparations to go on with the production of the TV Show, your company does not yet have the exclusive right to do so.
Is there a way forward for WOKE Animations?
Yes, there is.
When an author dies, copyright ownership changes. Copyright is personal property, so the person who created the work could choose whom to pass ownership of copyright. This means that ownership in a copyright can be passed to an heir or to a third party via a will.
Like any other asset in the estate, it would pass in accordance with the will of the copyright holder. If the holder died intestate (without a will), then it would pass in accordance with the laws of intestacy of that state.
If your company still wishes to proceed with the production of the TV show, you would then have to find out who Late Maxwell Obi’s copyright has devolved to either by express transfer or by operation of law. Whether his heir or other third party, you will need to re-negotiate with the new copyright holder.
Can a copyright owner transfer some or all of his or her specific rights?
Yes, a copyright owner can transfer some or all of his or her rights.
If a copyright owner transferred all of his rights unconditionally, it is generally termed an ‘assignment’.
When only some of the rights associated with copyright are transferred, this is a ‘licence’.
An exclusive licence exists when the transferred rights can be exercised only by the owner of the licence (licensee) and no one else—including the person who granted the licence (licensor).
If the licence allows others (including the licensor) to exercise the same rights being transferred in the licence, the licence is said to be ‘non-exclusive’.
Authors or creators can (and should) prepare for the future.
Copyright lasts 70 years after the death of the author or creator of a work of copyright. An author or creator who would like his or her copyright to go to a choice beneficiary or person—say a family member—it is important that this instruction is included in the author’s or creator’s will. If there is no will, the author or creator is considered to have died intestate and his or her estate would be distributed in accordance with the rules of intestacy in the author’s or creator’s state. Even when there is a will but the will fails to specify who will receive copyright in the author’s or creator’s works, copyright would be distributed along with the ‘residue’ or remainder of the estate among the beneficiaries of that residue.
Because most often beneficiaries intangible assets by operation of law fail to exploit the IP in these intangible assets, the author’s or creator’s work almost always suffers neglect. Consequently, the deceased author’s or creator’s loved ones are unable to benefit or fully benefit from the deceased author’s or creator’s creative industry.
In other to find out how to best navigate copyright in testacy or intestacy state, consult an IP lawyer firm to arrange your affairs before it’s too late.
IP ABC
by Legalnaija | Feb 11, 2020 | Uncategorized
It is common occurrence in the Nigerian
football industry for Footballers to be heavily owed salaries. In fact, it has
almost become the norm. That is saddening, but even more saddening the manner
the footballers in the Nigerian leagues go about the recovery of salaries being
owed them by the football clubs they play(ed) for; usually known as “overdue
payables“.
It is baffling why most of them go about
begging their Club Chairman, the Governor and/or Commissioner for Sports of the
state? Why do they beg for the money like it were some loan or gift they are
asking for?
Players having a sit-out to protest
non-payment of their salaries.
This article seeks to address this perception
of players, especially the mindset that sports employment-related disputes
cannot be tabled before civil courts.
Below is what players can do:
1. Non-Nigerian Players in the Nigerian
league.
For a non-Nigerian player owed by a Nigerian
football club, his or her claim can be filed at the Dispute Resolution Chamber
(DRC) of FIFA. The DRC will accept such a case because it is of “international
dimension”, as stated in Article 22 (b) of the Regulations on the Status and
Transfer of Players (RSTP).
It may interest you to know that the DRC does
not charge players filing fees for such employment disputes. The only cost the
player may incur is the professional fess the Attorney or Representative may
charge; which is sometimes paid after judgement has been obtained – known as
“contingency fees”.
Our firm has had the opportunity to be
involved and/or personally represent a few players from countries such as
Ghana, Mali, Benin Republic, etc; so it can be recommended as a reliable avenue
to recover the entitlements of players. (Note that such a claim must be filed
within two (2) years of the cause of action, to avoid it being statute barred).
After the player has obtained judgement
against the Nigerian club, the DRC gives the club an ultimatum (usually 30
days) within which the club must pay the judgement sum (money). Before now, in
the event that the club fails to pay within that period, the defaulting club
used to be referred to the FIFA Disciplinary Committee which may then fine the
cub, ban the club from signing players, deduct points from the club’s accumulated
points, or even ban the club from football competitions until the club
complies.
However, pursuant to the latest RSTP which became effective from June 2018, the
DRC now has the power to include sanctions in its decisions without the need to
refer the case to the Disciplinary Committee upon the non-compliance of a club.
2. For a Nigerian player who has a
claim against a Nigerian club, the DRC would reject it as it is expected to
be adjudicated on by the NFF Arbitration Committee; being an “internal
dispute”.
Thus, such a case can be submitted to the NFF Arbitration Committee which would
give an arbitral Award (a decision) and order the defaulting club to pay the
player, or face sanctions similar to those earlier-mentioned that FIFA dishes
out.
However, in reality, many Nigerian players at
left stranded because the NFF often fails to enforce the decisions, by
sanctioning defaulting clubs.
In fact, there are arbitral awards that were
delivered as far back as 2010 which have not been complied with by Nigerian
clubs till now.
So if a player has, or is subsequently able
to get an arbitral award at the NFF Arbitration Committee, he/she can approach
the regular court (National Industrial Court) to have it enforced.
Note that this must be done within 6 years from the date the arbitral award was
obtained. There are players who have lost their entitlements because they
failed to enforce such arbitral awards within 6 years as stipulated by the
Statute of Limitation. It is better to enforce compliance rather than beg.
Meanwhile, Some may ask the question of what
to do in the face of inefficiency by the NFF Arbitration Committee; especially
that the committee is not constituted at the moment.
In this circumstance, a player may get an
Attorney to file an employment dispute on his or her behalf at a civil court.
The civil court vested with jurisdiction on employment disputes is the National
Industrial Court (NIC). This is by virtue of the provisions of Section 254 (c)
of the 1999 Constitution (as amended) and the National Industrial Court Act
2006.
You may wish to note that although Article 68
Para 2 of the FIFA Statutes stipulates that recourse to ordinary (civil) courts
of law as regards disputes is prohibited, employment disputes do not fall under
this prohibition.
A player can decide to file an
employment-related dispute at a competent ordinary court, because the choice of
judge is a fundamental right that cannot be denied. (See FIFA Commentary,
explanation Article 22, page 64)
In fact, there are some employment disputes
which the FIFA DRC rejected on the ground that the parties had already
submitted the dispute before the regular courts in their country, and that such
courts have jurisdiction to hear the cases.
Thus, except the contract a player signed
with a club expressly states that disputes cannot be referred to
ordinary courts, or it states that the NFF Arbitration Committee/FIFA DRC/Court
of Arbitration For Sport shall have jurisdiction on disputes; then a player can
approach the National Industrial Court to recover his/her entitlements.
Written by:
Tosin Akinyemi, Esq.
by Legalnaija | Feb 11, 2020 | Uncategorized
If you have ever clamoured against the
increasing socio-economic and environmental problems in Nigeria or wondered how
you can generate profitable returns from your investments while simultaneously
contributing to the development of the society, you should consider impact
investment.
With a population of over 190 million people,[2] the second largest and fastest
growing economic market in Africa, Nigeria is an ideal place for impact
investment. The socio-economic and environmental challenges in Nigeria create
an opportunity for impact investors.
What is Impact Investing All About?
Impact investing refers to an investment that
aims to generate measurable beneficial social or environmental returns in
addition to financial gain.[3] It is centred on making a positive
impact through investments in projects that better the community.[4] Impact
investing is usually categorised under sustainable investing, which also
encompasses socially responsible investing (SRI).[5]
The role of the impact investor is
different from a classic investor. Firstly, the impact investor expects real
and tangible social impact from its investments, without which the goal of
financing won’t be achieved.[6] Secondly,
unlike the classic investor who is motivated by maximization of profit and
therefore anticipates returns above market average on capital invested, an
impact investor is driven by the need for a significant social impact. An
impact investor may accept below market returns – provided the projects
invested in follow through on their promises of social and environmental
change.[7]
The development of impact investment was
necessitated by the Sustainable Development Goals,[8] adopted by the United Nations in
2015 which called for a collaboration of the private, public, and philanthropic
sectors to end poverty and ensure environmental sustainability by 2030.
Legal Regime for Investing in Nigeria
There are a plethora of laws and regulations
governing investments in Nigeria. They include: The Companies and Allied
Matters Act,[9] the Nigerian Investment Promotion
Act,[10] the Investments and Securities Act,[11] Consolidated Rules and Regulations
of the Securities and Exchange Commission, the Foreign Exchange (Monitoring and
Miscellaneous Provisions) Act,[12] the Industrial Inspectorate Act,[13] National Office for Technology
Acquisition and Promotion Act,[14] the Rulebook of The Nigerian Stock
Exchange 2015 etc.
The Corporate Affairs Commission (“CAC”) oversees
the formation and administration of all business entities in Nigeria. Every
investor who seeks to set up a business in Nigeria which does not fall under
any of the categories of business exempted from registration must register
his/her business in Nigeria with CAC. The Nigerian Investment Promotion
Commission (“NIPC”) is the principal body that regulates all foreign
investments in the country and a foreigner seeking to invest in Nigeria is also
required to register with the NIPC.
Due to the number of regulatory compliances
expected to be met by a foreigner who seeks to do business in Nigeria, there is
a One Stop Investment Centre (OSIC),[15] which houses all the relevant
regulatory bodies.[16] Prospective investors who wish to
do business in Nigeria can visit the OSIC to obtain all regulatory permits and
registrations required to invest in Nigeria.
Operating Principles for Impact Investing
The International Finance Corporation, World
Bank Group, recently launched some operating principles for Impact Management.
The nine (9) principles identify the key characteristics of investment fund
management, with the aim to positively contribute to measurable socio-economic
or environmental impact.[17] The goal behind the principles is
to ensure that investing decisions are made with consideration to
socio-economic impact.[18] The principles include: definition
of strategic impact objective(s) consistent with the investment strategy;
management of strategic impact on a portfolio basis; establishment of the Manager’s
contribution to the achievement of impact; assessment of the expected impact of
each investment, based on a systematic approach; assess, address, monitor, and
manage potential negative impacts of each investment. Others are: monitoring of
the progress of each investment in achieving impact against expectations and
respond appropriately; conducting exits considering the effect on sustained
impact; reviewing, documenting, and improving decisions and processes based on
the achievement of impact and lessons learned; and publicly disclosing
alignment with the Principles and provision of regular independent verification
of the alignment.[19]
Why Impact Investment Matters in Nigeria
Nigeria is a country faced with an avalanche
of socio-economic challenges like hunger, poverty, unemployment, poor
healthcare, poor/inadequate infrastructural facilities, illiteracy, among
others, which largely affects its growth and development. However, these
challenges create an opportunity for impact funds and impact investment.
Some distinctive attempts at impact investing
in Nigeria can be seen in the growing focus of the Federal and State government
on bond issuance projects centred on solving socio-economic and environmental
challenges and the increasing emergence of small and medium scale enterprises
(SMEs) which are significant contributors to social and economic growth and
development. Entrepreneurs are more aware of social and environmental challenges
and are innovating ways to tackle them. Examples include LifeBank, an SME that
saw an important opportunity in making sure patients who need blood can get it
in due time. LifeBank developed proprietary software to tackle blood shortages
and quick access to medical products in hospitals in Lagos.[20] Wecyclers, a company that powers
social change in the environment, provides household recycling services with
the use of low-cost cargo bikes, which allowes people in low-income communities
to capture value from their waste.[21] Andela, a technology company,
recruits and trains local software developers at little or no cost, who in turn
work remotely for them for various international companies, thereby generating
employment opportunities for thousands of the unemployed populace in Nigeria.[22]
Furthermore, a good number of impact
investing funds have been made available by some foreign development
institutions and bodies. For instance, the African Development Bank invested in
the Africa Food Security Fund (AFSF) to boost agri-business SMEs and enhance
food security in some African countries like Nigeria.[23] Also, the International Finance
Corporation made an investment in Hygeia Nigeria Limited to improve the
healthcare infrastructure in Nigeria and to facilitate access to quality
healthcare services.[24] Locally, the Nigerian Capital
Development Fund (NCDF) launched an Impact Investment Note and Fairshares
investment platform to enable impact investors make investments and become
stakeholders in NCDF, to drive sustainable impact projects in the country.
A couple of Federal and State government
bonds which can be characterised as social impact bonds are additions to impact
investment funds in Nigeria. For example:
1. Issuance of Sukuk
(Islamic Bonds)
Sukuk or Islamic bonds are structured in such
a way as to generate returns to investors without infringing the tenets of
Islamic law that prohibits “riba” (interest). As an investor your money is put
into the assets of a project or investment in order to generate profits and not
interests. However, the Federal Government of Nigeria and a State government
have been involved in the successful issuance of Sukuk Bonds as impact
investment. Osun State government through a wholly owned Special Purpose
Company, (Osun Sukuk Company Plc) was the first in sub-Saharan Africa to issue
Sukuk bonds worth N11.4 billion as an education project to finance construction
of some High Schools in the state.[25] More recently, the Federal
government issued a N100 billion Sukuk bond for the construction of federal
roads across the six geopolitical zones in Nigeria.[26]
2. Issuance of Sovereign
Green Bonds
A sovereign green bond is a debt security
issued by a national government for climate and environmental projects. They
can be denominated in a foreign currency or the government’s own domestic
currency. In 2017, the Federal Government of Nigerian issued a climate bond
certified sovereign green bond worth N10.69bn, making it the first issuer of
sovereign green bonds in Africa and the 4th in the world.[27] The bond was issued to finance
three (3) major projects: the energy education programme, renewable energy
micro utilities, and afforestation.[28] In 2019, a second tranche of the
bond was issued.[29]
3. Euro Bonds
Eurobonds are bonds that are issued in a
currency not native to the country where it is issued, e.g., where the Federal
Government of Nigeria issues a bond denominated in US Dollars in Nigeria and
invites investors from all over the world to subscribe to it. Nigeria issued
its 6th Eurobond in 2018 worth $2.86 billion, following
issuances in 2011, 2013, and 2017 in different tranches.[30] The Eurobond was issued to help
fund Nigeria’s budget deficit, reduce the risk of inflation and to improve the
financial health of the country. Its sale was said to have been three times
oversubscribed.
4. Corporate Green Bonds
A corporate green bond is a bond issued by a
corporation other than a government or municipality, in order to raise
financing for climate and environmentally friendly projects. In March 2019,
Access Bank Plc., issued a 5-year fixed rate senior unsecured green bond,
making it the first ever Climate Bonds Standard Certified Corporate Green Bond
to be issued in Africa.[31] The bond issued was worth N15bn and
was for the financing of new loans and refinancing of existing loans in
accordance with the Bank’s Green Bond Framework and the Climate Bonds
Initiative standards, and to support projects directed at flood defence, solar
generation facilities and agriculture.[32]
5. Housing Funds
These are funds established by private or
government agencies to support the preservation and production of affordable
housing, particularly for low income earners to access decent and affordable
homes. A good example is the National Housing Fund and Family Homes Fund. The
Family Homes Fund is a social intervention program that provides access to
affordable housing, home loan assistance funds, rental housing funds and
infrastructure development funds for millions of Nigerians within the low to
medium income bracket, through strategic partnerships with various categories
of investors.
From the foregoing, it can be deduced that
the future of impact investing in Nigeria is very bright. More recently, the
Bank of Industry, African Capital Alliance, Business Day Media Limited, Ford
Foundation and Dalberg Advisors formed the Impact Investors Foundation (IIF).
The foundation was registered as a non-profit entity to foster the development
of impact investing in Nigeria and promote cooperation amongst relevant
stakeholders active in the sector.[33] It is anticipated that this
strategic collaboration would boost the growth of impact investing in Nigeria.
Challenges Faced by Impact Investors
Regardless of the potential to boost the
development of critical infrastructure and supplement government spending,
several fundamental challenges exist that have slowed investment activity. To
grow the sector in Nigeria, these obstacles would need to be addressed. Some of
these challenges include: difficulty sourcing viable investments that meet both
financial and social or environmental objectives; negative perception about
sustainable investing that value must be sacrificed for profit and that these
funds underperform compared to traditional funds; shortage of high-quality
investment opportunities with strong track records; limited innovative funds
and deal structures; lack of appropriate capital across the risk/return
spectrum; difficulty exiting investments due to foreign exchange control, are
some of the major challenges.
Conclusion
While impact investments have continued to
grow in Nigeria, its impact might not be significant amidst the plethora of
challenges faced across the country. This myriad of challenges impedes the
expansion and maximum realisation of its potential to deliver social, economic
and environmental returns at scale.
Nevertheless, these perceived challenges
shouldn’t serve as an excuse to bury the idea of impact investment. On the
contrary, it is a time for us to revaluate our guiding principles and
collaborate to build a strong socio-economic society. We need to consider
impact investment and ask ourselves these questions: What if we redefine wealth
and prosperity not in terms of how much money we are able to amass but how much
positive impact we are able to make in our community and in the lives of
others? What if we changed our perception of investment from a principal goal
of yielding profit to one of contributing to reduce deficits in social
infrastructure? The new world we have dreamt about is possible; one where
impact investing provides some of the answers to changes we have long desired.
For further information on this article and
area of law, please contact Sandra Eke at: S. P.A. Ajibade &
Co., Lagos by telephone (+234 1 472 9890), fax (+234 1 4605092)
mobile (+234 8112491286) or email (seke@spaajibade.com).
[1] Sandra
Eke, Associate Intellectual Property & Technology Law, SPA Ajibade &
Co., Lagos, Nigeria.
[4]
Investopedia, “What is impact investing” available at:
accessed on 18th April 2019.
[9]
CAP C20 Laws of the Federation of Nigeria 2004.
[20]
Desola Ososami, “How Impact Investments can develop Nigeria?” available
accessed 8th November 2019.
Source: SPA Ajibade & CO.
