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Law Enforcement Agencies And Debt Recovery| Eberechi May Okoh

Law Enforcement Agencies And Debt Recovery| Eberechi May Okoh

by | Nov 1, 2018 | Uncategorized

“It is important for me to pause and say here
that the powers conferred on the EFCC to receive complaints and prevent and/or
fight the commission of Financial Crimes in Nigeria pursuant to section 6(b) of
the EFCC Act does not extend to the investigation and/or resolution of disputes
arising or resulting from simple contracts or civil transactions in this
case… Alas! The EFCC is not a debt recovery agency and should refrain from
being used as such[1]”.
Per Sidi Dauda Bage, J.S.C

The
Supreme Court recently delivered a judgment[2] which touched, among other things, on the role of
the Nigerian police and other law enforcement agencies in debt recovery. 


The
history of the case dates to a banking transaction that went sour between a
commercial bank and its customer. The bank had granted a loan to a company,
guaranteed by the Managing Director (MD) of the company. The loan was secured
by a lien over original payment vouchers, debentures over the floating assets
of the company, a legal mortgage over the property of the guarantor and a lien
over three Fiat trucks and three Fiat tractors. Over time, the company and its
MD suspected the bank was charging excessive interests on the account and
employed a banking consultant to audit the account. 

The consultant found that
excess charges were indeed levied on the company’s account and wrote the bank
asking for a refund of the excess charges. The bank disagreed with the
consultant’s findings and the matter was referred to the Chartered Institute of
Bankers’ Sub-Committee on Ethics and Professionalism for arbitration. While the
matter was pending before the Committee the bank made a demand on the company
and its MD for payment of the debt and interest. It subsequently reported the
company to the Financial Malpractices Investigation Unit of the Nigeria Police
Force, C.I.D. Acting on this report, policemen arrested and detained the MD of
the company and did not grant him bail until cash and cheque payments totaling
N2,000,000 (Two Million Naira) were paid to the bank.

The company and MD
subsequently filed a fundamental rights enforcement action at the Federal High
Court. While the suit was pending, the bank made a further complaint of bank
fraud and diversion of depositors’ money to the Economic and Financial Crimes
Commission (EFCC). Based on this complaint, the EFCC sent an invitation letter
to the company and its MD. The latter promptly filed another fundamental rights
enforcement suit against the bank and the EFCC seeking a declaratory relief
that the invitation by EFCC was unlawful and a violation of the MD’s
fundamental right to liberty and dignity of his person and a continuation of
the harassment by the bank. The trial court dismissed the suit of the company
and its MD. On appeal, the Court of Appeal held that the multiple complaints by
the bank to different law enforcement agencies amounted to harassment and a
violation of the MD’s fundamental human right. Dissatisfied, the bank appealed
to the Supreme Court. The Supreme Court upheld the decision of the Court of
Appeal. 

The
Supreme Court considered the statutory powers of the EFCC and noted that such
powers do not extend to investigating disputes which arise from simple
contracts or civil transactions. It further held that the EFCC must scrutinize
petitions and advise complainants on the appropriate route to resolve their
disputes and refrain from being used as a debt recovery agency. It also noted
that the Police ought not to have allowed themselves be used to recover any sums
from the MD in exchange for bail. The court held that the bank’s remedy for
default in repaying a loan was to write a demand letter to the company and
subsequently invoke its power of sale under the mortgage deed. It cautioned
that detentions by law enforcement agencies over purely commercial disputes
could amount to bad publicity for future investors.

This
case has revisited the issue of the involvement of law enforcement agencies in
simple contracts. It is pertinent to note that the present case was adjudged to
be a pure commercial transaction. The Supreme Court has by this decision
provided clarity that the role of law enforcement agencies in society does not
extend to resolving commercial disputes where no fraud or criminality can be
established. 

There
exists a distinction between a commercial dispute and a criminal conversion of
funds. A cursory look at the Criminal Code Act[3] will reveal that offences related to cheating and
obtaining by false pretense must be preceded by the mens
rea
of “intention to defraud”. Therefore, where a person with intent to defraud,
obtains money by false pretenses, he/she would be accused of having committed a
crime. A simple contract that results in a debt or a dispute as to the measure
of indebtedness between two contracting parties is a purely civil matter and
ought to be resolved by the civil courts or through alternative dispute
resolution. 

Persons
reporting matters to the Police or other law enforcement agencies must take
cognizance of their powers. The general duties of the Police are:

“The police shall be employed
for the prevention and detention of crime, the application of offenders, the
preservation of law and other, the protection of life and property and the due
enforcement of all laws and regulations with which they are directly charged,
and shall perform such military duties within or without Nigeria as may be required
by them by, or under the authority of, this or any other Act.[4]”

The
EFCC Act[5] defines an economic and financial crime as follows:

“the non‐violent
criminal and illicit activity committed with the objectives of earning wealth
illegally either individually or in a group or organized manner thereby
violating existing legislation governing the economic activities of government
and its administration and includes any form of fraud, narcotic drug trafficking,
money laundering, embezzlement, bribery, looting and any form of corrupt
malpractices, illegal arms deal, smuggling, human trafficking and child labour,
illegal oil bunkering and illegal mining, tax evasion, foreign exchange
malpractices including counterfeiting of currency, theft of intellectual
property and piracy, open market abuse, dumping of toxic wastes and prohibited
goods, etc.”[6]. 

These
provisions clearly exclude civil disputes arising out of simple contracts from
the statutory powers of the law enforcement agencies under review. However,
many citizens consider law enforcement agencies as a faster route to debt
recovery than the civil courts. The Supreme Court has now shown that such
practices amount to an abuse of process.

[1] DB Plc v. Opara
[2018] 7 NWLR (1617) 92

[2] ibid

[3] Cap C 38 LFN
2004

[4] Section 4 Police
Act, Cap P19 LFN 2004

[5] Economic and
financial Crimes Commission (Est, etc.) Act Cap E1, LFN 2004

[6] Ibid, section 46

Eberechi May Okoh 

Senior Associate at Streamsowers & Kohn
Source: LinkedIn 

Exploring The Freedom Of Information Act, 2011 As A Tool For Holding Government And Public Institutions Accountable | By Henry Chibuike Ugwu

Exploring The Freedom Of Information Act, 2011 As A Tool For Holding Government And Public Institutions Accountable | By Henry Chibuike Ugwu

by | Nov 1, 2018 | Uncategorized

INTRODUCTION:

How much does a Nigerian
senator earn as monthly salary? What are the allowances such a senator is
entitled to? How many Nigerians know the amount of money spent on the health of
the President annually? Can you state with certainty the total amount of money
recovered from corrupt public officials so far by the Economic and Financial
Crimes Commission (EFCC)? What is security vote and how much is a Nigerian
governor given as security vote? Are Nigerians afforded a breakdown of the
expenditures of such security votes by Nigerian governors? Sadly these are some
of the many questions that Nigerians cannot answer about the government and its
agencies. They are questions that require many months of exercise, prayers and
strategy to commence the voyage of discovering their answers irrespective of
the fact that they involve public servants and public funds, and which
information ordinarily should be easily accessible by all Nigerians.

The issue of holding the
government accountable to Nigerians with regards to how its arms and agencies
disburse and use public funds, is very key if all Nigerians are to enjoy the
dividends of democracy; and witness the prudent application of our resources
for economic and infrastructural growth of the country.

More so, Nigerians must be
able to demand from every public institution, information bordering on the
workings and finances of such institutions and have these information supplied
to them with dispatch. This should be the beauty of practicing a democracy- a
system of government where the people, as the sovereign, elect political
leaders to supervise public institutions and disburse public funds on their
behalf.

With the kind of powers
and obligations entrusted to government and its agencies by the sovereign- the
people, it is, to say the least, extremely important that the people hold these
officials of government accountable for all their activities in either the
government or in public service.

Officials of the Nigerian
government cannot be held accountable if the government is run by stealth, or
its activities, policies, expenditures, etc, are unascertainable by the people.
This is where the Freedom of Information Act (FOIA) 2011[1], comes in very handy.

Prior to the enactment of
the FOIA, it was virtually impossible for ordinary Nigerians and
Non-governments Organisations to demand from public institutions any
particulars of their activities and secure the information sought. The people
were incapable of ascertaining what their monies were used for, the particulars
of disbursement and expenditure of public funds and the manner and basis in
which recruitments for public service were conducted. We were left at the mercy
of the media which in many circumstances provided us with inadequate or
unreliable news.

OVERVIEW
OF THE ACT:

Section 1 of the FOIA
establishes the right of all Nigerians to have access to all information or
records of public nature that emanates from or is in the custody or possession
of any public official. The Section goes on to provide that an applicant for
any such public information need not demonstrate any specific interest in the
information sought and can proceed to a competent court to ensure such a
request is complied with. This therefore removes all erstwhile embargoes with
regards to locus standi that may have
existed in the past against any such applicant for public information.

The FOIA in its section 2
imposes on all public institutions the obligation of recording and storing
information about its activities, operations and businesses. The Act also directs
all such institutions to publish certain information[2] in such a way that the
information “is widely disseminated and
made readily available to members of the public through various means,
including print, electronic and online sources; and at the offices of such
public institutions”.[3]

The framers of the FOIA
intended that access to public information should be made as easy and simple as
possible. This is why under the Act, an applicant can make an oral application
for information of a public nature and the authorized official of such public
institution to which such an oral application is made is required by law to
reduce the application into writing, and afford the applicant with a copy of
the written application.[4]

More so, illiteracy and
other forms of disability that preclude a person from making an application in
person for public records or information does not ipso facto  disentitle such a
person from accessing such information under the Act. This is so because the
law allows such a person to make application under the Act through a third
party.[5]

The Act also stipulates a
timeframe of seven (7) days within which an applicant’s request for information
is to be attended to by a public institution. The seven (7) days begins to run
from the moment an institution or public official receives an application for
information. The public institution is to make available the information sought
by an applicant or communicate to such an applicant via written notice, its
reasons for refusing to afford the applicant with part or all the information
requested for.[6]

Where a public
institution receives an application for access to information and which
information it considers another public institution to have greater interest
in, the former shall transfer the application for such information to the
latter and the applicant shall be notified of such transfer via a written
notice in accordance with the FOIA.[7]

Also imperative to note
is the fact that under the FOIA, where a case of wrongful denial of access to
public information is established, the defaulting officer or institution
commits an offence and is liable on conviction to a fine of five hundred
thousand (N500,000.00) naira.[8]The FOIA also makes it a
criminal offence punishable with a minimum sentence of one year imprisonment
for any officer or head of any government or public institution to which it
applies, to willfully destroy any records kept in his custody or attempt to
doctor or otherwise alter same before they are released to any person, entity
or community applying for it.[9]

 It is also important to observe that access to
public information under the FOIA is not absolute. As such, the Act prescribes
circumstances when a public official or institution will be permitted, or is
mandated to deny an applicant access to information.

Accordingly, where an
applicant requests for information that may be injurious to the conduct of
international affairs and the defence of Nigeria, the public official or
institution to which the request is directed may decline to grant the request.[10] More so, a request under
the Act may be rightfully refused where the information sought for borders on
law enforcement and investigation that pertains to, is authorized by, or
pursuant to the administration or enforcement of any Act, Law or Regulation.[11]Certain information
requested for may also not be availed the applicant where such information is
of a personal nature and is exempted under the Act.[12]

A public official or
institution is also obligated to deny request for information that relates to
trade secrets and commercial or financial information where such disclosure may
cause harm to the interests of a third party;[13] or where such information
sought can be reasonably expected to interfere with contracts or negotiations
of a third party;[14]
or information with regards to proposals and bids for any contract, grants, or
agreement, and information which if disclosed is capable of frustrating
procurement or give unfair advantage to any person.[15]

Exemptions with respect
to information accessible by the public also include professional and
privileged communications protected by law,[16] and information which
contains course or research materials prepared by faculty members.[17]

A public institution may
also deny an applicant’s request where information sought includes test
questions, scoring keys or other examination data used to administer an
academic examination or determine the qualifications of an application for a
license or employment;[18] or architects’ and
engineers’ plans for buildings not constructed in whole or in part with public
funds and for buildings constructed with public funds, to the extent that
disclosure would compromise security;[19] and library circulation
and other records identifying library users with specific materials.[20]

The rights created for
members of the public with respect to access to public information do not
extend to certain documents and materials. That is to say all published
materials or materials available for purchase by the public; library or museum
materials made or acquired and preserved solely for public reference or
exhibition purposes; or materials placed in the National Library, National
Museum, or non-public section of the National Archives of the Federal Republic
of Nigeria on behalf of any person or organization other than a government or
public institution.[21]

It would seem that
irrespective of all the exemptions to access to public information provided for
under the FOIA, a public institution or official who a request for information
is directed to under the Act is still obligated to afford such an applicant
with the information sought as long as the public interest in disclosing the
information outweighs whatever injury that disclosure would cause.[22]

It is also imperative to
express that where an applicant requests for information which is partly
constituted of information exempted from disclosure under the FOI Act, any part
of the information sought which is not exempted shall be disclosed by the
public institution or official.[23]

The beauty of access to
information under the FOIA is that the framers of the law were at all times
conscious of the fact that obtaining certain public information may prove to be
very difficult for applicants especially as public institutions and officials
may put obstacles on the road to access such information where the information
may expose fraud, financial recklessness or other forms of illegality committed
by a public institution or official. As such, it is a criminal offence to
willfully destroy or doctor any public records requested for by an applicant;[24] and where a case of
wrongful denial of access to information is established, the defaulting officer
or institution is liable to conviction for a criminal offence.[25] More importantly, any
applicant who has been denied access to any public information may apply to the
High Court for judicial review.[26]

The FOIA also makes
provision for the protection of public officials from any criminal or civil
liabilities that may arise from the disclosure, in good faith, of any
information pursuant to the Act.[27]

With the enactment of the
FOIA, a subtle but extremely significant protection seems to have come into
existence in favour of whistleblowers[28] who, without
authorization, disclose to any person an information which is reasonably
believed to show a violation of any law; mismanagement, gross waste of funds,
fraud, and abuse of authority; or a substantial and specific danger to public
health or safety.[29]
This protection also extends to any person who receives such information
disclosed by such a public official without authorization, even where the
receiver further discloses the information, as no civil or criminal proceedings
can lie against such a person.[30]

The hub of the FOIA is to make information in institutions where
public funds are expended or in which the public has other forms of interests,
easily available to the public. Under the FOIA therefore, private institutions
that utilize public funds also fall under the definition of “public
institution”.

Section 31 of the FOIA defines a public institution as “any legislative, executive, judicial,
administrative or advisory body of the government, including boards, bureau,
committees or commissions of the State: and any subsidiary body of those bodies
including but not limited to committees and sub-committees which are supported
in whole or in part by public-fund or which expends public fund and private
bodies providing public services, performing public functions or utilizing
public funds.” (Underlining mine for emphasis).

It therefore follows that institutions like the Nigerian Bar
Association, Nigerian Medical Association, Nigerian Labour Congress etc, are
public institutions under the FOIA as they provide public services or perform
public functions or utilize public funds. The writer therefore commends the
erudite and distinguished Professor of law- Ernest Ojukwu SAN for recently
taking the bold step to make a freedom of information request to the NBA in
respect of information that should be ordinarily available to all legal
practitioners in Nigeria and indeed the general public.[31]If
all Nigerians are on the qui vive and
learn to probe the finances and workings of public institutions, the country
would be better-off.

IS
THE FREEDOM OF INFORMATION ACT, 2011 APPLICABLE TO STATES?

The Constitution of the
Federal Republic of Nigeria (CFRN)[32] provides that the
legislative powers of the Federal Republic of Nigeria shall be vested in the
National Assembly, while that of a State of the Federation shall be in the
House of Assembly of such a State.[33]

Accordingly the National
Assembly is empowered by the grundnorm to
make laws for the peace, order and good government of the Federation with
respect to any matter included in the Exclusive or Concurrent Legislative List
set out in Part I and Part II of the Second Schedule to the CFRN respectively,
while a House of Assembly of a State has the imprimatur to legislate on all
matters outside the Exclusive Legislative List, or those contained in the
Concurrent Legislative List.[34]

It goes without saying
therefore that both the National Assembly and State House of Assembly are
competent to make legislations on matters as per the items contained in the
Concurrent Legislative List. However, if any Law made by a House of Assembly is
inconsistent with an Act of the National Assembly, the Act of the National
Assembly shall prevail and the inconsistent Law of such a House of Assembly
shall be null to the extent of its inconsistency- this is the core of the well
established doctrine of covering the field. [35]

The FOIA was enacted by
the National Assembly in line with its powers derived from the CFRN and
particularly over the item in Paragraph 4, Part II of the Second Schedule to
the CFRN. The said Paragraph of the Concurrent Legislative List provides that:

“The National Assembly may make laws for the Federation or any part
thereof with respect to archives and public records of the Federation.”

Worthy of note also is
that Paragraph 5, Part II of the Second Schedule to the CFRN reads as follows:

“A
House of Assembly may, subject to paragraph 4 hereof, make laws for that State
or any part thereof with respect to archives and public records of the
Government of the State.”

A
number of commentators have postulated that by the provisions of the CFRN, the
FOIA having been validly made by the National Assembly covers the field for all
States in the Nigerian Federation, and it would be superfluous for any State to
embark on a process of enacting any law in respect of matters covered by the
FOIA as such a law would be subordinate to the FOIA, and indeed inoperative
wherever it conflicts with the said Act. By this position, an applicant for
information can direct his request to a State Government or any of its agencies
and any of those public institutions will still be mandated to avail the
applicant with the information sort under the FOIA. The Court of Appeal has
also ruled that the FOIA applies to all States of the Federation.[36]

However, the above
argument did not find favour with the Court of Appeal in EDOSACA v. Osakue & Ors
(2018) LPELR-44157(CA) where, in an apparent volte-face, it held that:

“All
said and done, a perusal of the Freedom of Information Act will not, in my
humbly view, project the intention that it is meant to cover the field. In
other words, it is nowhere indicated or prescribed in the whole gamut of the
Act that it shall apply both to the central and State governments…This no doubt
presupposes that the Freedom of Information Act, though a noble and worthwhile
piece of legislation, does not have automatic application to the states as
submitted by learned counsel for the Respondents. It therefore behoves any
State interested in adopting the provisions of the Act in its territory to set
the necessary machinery in motion for the enactment of a similar law by the
House of Assembly of the State.” Per Oseji, JCA (Pp.21-24, paras. D-C).  

This
writer’s opinion in respect of the Court of Appeal decision in EDOSACA
v. Osakue & Ors (supra) is consistent with the dissenting view
expressed by Justice Moore Aseimo Abraham Adumein JCA, especially as he held
that the Freedom of Information Act, 2011 has already covered the field in
respect of access by ‘any member of the public’ to public records, subject to
the exceptions set out in the Act. He therefore invoked and relied on the
doctrine of covering the field in giving his dissenting opinion to the extent
that the FOIA is applicable to all States of the Federation.

We
are hopeful that at least one of the conflicting decisions of the Court of
Appeal will be tested at the Supreme Court so this issue would be laid to rest.

CONCLUSION:

With the advent of the
FOIA, all Nigerians can request from any public institution, any statistics or
information they require, and this demand must be attended to by the said
institution. In fact any public official who denies affording any Nigerian with
any public information requested for in a manner inconsistent with the Act
risks being convicted for a criminal offence.

The Nigerian people have
therefore been given a platform to contribute to the fight against corruption
in government and its agencies. We can now engineer the change we want to see
in our society via appraising the actions of public institutions and public
servants, and blowing whistles where there seems to be any form of corruption
of public office.

While we await the
verdict of the apex Court on the issue of applicability of FOIA to States,
perhaps it may be wise for all well-meaning Nigerians and non-profit
organizations interested in securing accountability from government and its
proxies to lobby State Houses of Assemblies across the Federation in a bid to
ensure they adopt and enact the FOIA at their State levels so one can be
certain the objective and spirit of passing the Act is not limited by any
technical application of the law or misinterpretation of the extant laws.

Henry
Chibuike Ugwu Esq.,


[1] Act No. 4
of 2011.
[2] Ibid, s.
2(3)(a)-(f). Worthy of note also is the fact that a person entitled to access
information under the Act can institute proceedings in court to compel a public
institution to publish all information required by section 2 and in the manner
consistent with the Act. See s. 2(6) of the Act.
[3] Ibid, s.
2(4).
[4] Ibid, s.
3(4).
[5] Ibid, s.
3(3).
[6] Ibid, s.
4(4)(a) & (b).
[7] Ibid, s.
5.
[8] Ibid, s.
7(5).
[9] Ibid, s.
10.
[10] Ibid, s.
11(1).
[11] Ibid, s.
12.
[12]Ibid, s.
14. Personal information exempted under this section are information that
include files and other particulars maintained with respect to clients,
patients, residents, students, or other individuals receiving social, medical,
educational, vocational, financial, supervisory or custodial care or services
directly or indirectly from public institutions; personnel files and personal
information maintained with respect to employees, appointees or elected
officials of any public institution or applicants for such positions; files and
personal information maintained with respect to any applicant, registrant or
licensee by any government or public institution cooperating with or engaged in
professional or occupational registration, licensure or discipline; information
required of any tax payer in connection with the assessment or collection of
any tax unless disclosure is otherwise requested by the statute; and
information revealing the identity of persons who file complaints with or
provide information to administrative, investigative, law enforcement or penal
agencies on the commission of any crime. See generally, s. 14(1)(a)-(e) of the
FOI Act, 2011.
[13]
Ibid, s. 15(1)(a).
[14]
Ibid, s. 15(1)(b).
[15]
Ibid, s. 15(1)(c).
[16]
Ibid, s. 16.
[17]
Ibid, s. 17.
[18]
Ibid, s. 19(1)(a).
[19]
Ibid, s. 19(1)(b).
[20]
Ibid, s. 19(1)(c).
[21]
Ibid, s. 26(a)-(c).
[22]
See sections 11(2), 12(2), 14(3), 15(4) and 19(2) of the FOI Act. It is however
arguable that the exemptions provided in sections 16 & 17 of the Act are
absolute (as there are no specific qualifications or limitations to the
exemptions in the Act) and disclosure ought not to be made to any applicant
requesting for information covered by those exemptions. The writer is however
of the humbly view that the tenor of the FOI Act, 2011, suggests that the
public should have access to all forms of public information, irrespective of
the exemptions, so long it is in the overriding interest of the public to have
such information disclosed.
[23]
Ibid, s. 18.
[24]
Ibid, s. 10.
[25]
Ibid, s. 7(5).
[26]
Ibid, s. 20. See also sections 21-25 of the FOI Act.
[27]
Ibid, s. 27(1).
[28] A
whistleblower is an employee who reports employer wrongdoing to a government or
law enforcement agency. Definition culled from B.A. Garner, Black’s Law
Dictionary, 9th edn., p. 1734.
[29]
Ibid, s. 27(2)(a)-(c).
[30]
Ibid, s. 27(3).
[32]
Constitution of the Federal Republic of Nigeria, Cap. C23, Laws of the
Federation of Nigeria, 2004.
[33]
Ibid, s. 4(1) & (6).
[34]
Ibid, s. 4(2), (4)(a), (7)(a) & (7)(b).
[35]
Ibid, s. 4(5). See also AG Lagos State v. Eko Hotels LTD & Anor (2017)
LPELR-43713(SC); INEC v. Musa (2003) LPELR-1515(SC); & Osun State
Government v. Estisione H. Nigeria Limited & Anor (2012) LPELR-7936(CA).
[36] See
Martins Alo v. Speaker, Ondo State House of Assembly & Anor (unreported)
Appeal No: CA/AK/4/2017 available at http://www.dropbox.com/s/d8zzu85j54lknj9/ONDO%20STATE%20COURT%20OF%20APPEAL%20JUDGEMENT%20ON%20FOI%202018.pdf?dl=0
last accessed 01/11/2018. See also the following online newspaper publications-
http://tvcnews.tv/2018/04/appeal-court-mandates-all-states-to-adhere-to-foi-act/
last accessed 01/11/2018 & http://www.thisdaylive.com/index.php/2018/04/25/acourt-brings-states-under-foi/?amp
last accessed 01/11/2018.

Chartered Institute of Arbitrators (UK) Vs. Chartered Institute Of Arbitration (Nigeria) LTD/GTE

Chartered Institute of Arbitrators (UK) Vs. Chartered Institute Of Arbitration (Nigeria) LTD/GTE

by | Oct 31, 2018 | Uncategorized

The
Federal High Court sitting in Lagos on Monday, October 22, 2018, in a Judgment,
found the Chartered Institute of Arbitrators (Nigeria) LTD/GTE, a registered
Nigerian organisation liable for the Tort of ‘Passing Off’, thereby restraining
the Nigerian registered entity from using its logo and membership grades. The
suit referenced FHC/L/CS/341/2009 was instituted by the Chartered Institute of Arbitrators
of the United Kingdom alleging that the Nigerian Institute, which has been
incorporated in Nigeria since 1988, was ‘passing off’ the Institute of the
United Kingdom. Although the Plaintiff (Chartered Institute of Arbitrators, UK)
is a foreign organisation registered in the United Kingdom and has not been
registered under Nigerian Laws, it however carries out, through its Nigerian
Branch all of its activities within Nigeria without complying with the laws of
the Federal Republic of Nigeria.


An Appeal
has however been filed at the Court of Appeal, Lagos Division by the Defendant
(Chartered Institute of Arbitrators (Nigeria) LTD/GTE) against the decision of
the Federal High Court delivered by Honourable Justice C.M.A. Olatoregun on the
grounds that the Plaintiff is not an organisation registered in Nigeria nor is
it an entity known to law and as such has no such rights as conferred and
protected by the Federal High Court in its Judgment. Also filed by the
Chartered Institute of Arbitrators Nigeria is a Motion to stay the Execution of
the Judgment of the Federal High Court, pending the determination of its Appeal
before the Court of Appeal.

Stakeholders
continue to watch the development as it remains to be seen which stand the
Court of Appeal would take on this fundamental policy issue which seeks to
answer whether a Non-Registered foreign Entity would have rights over a duly
Registered Nigerian Entity. As this seems to imply that the Federal
High Court Awarded Judgment To A Non-Registered UK Organisation Over A
Registered Nigerian Organisation.

Photo Credit – www.google.com 

Legally Engaged Mentorship Programme

Legally Engaged Mentorship Programme

by | Oct 26, 2018 | Uncategorized

The Legally Engaged Mentorship Programme is open for applications, and it’s Nigeria’s no 1 mentoring programme for lawyers.
 
The mentors are drawn from Nigerian and international law firms, companies and agencies and are highly regarded as experts in their various fields.
 
Some of the benefits of the Programme are –
 
✔ Direct access to a successful legal practitioner for one-on-one mentoring.
 
✔ Exclusive webinars and chat sessions with legal luminaries – home and abroad.
 
✔ Chance to win tickets for trainings and other events.
 
✔ Access to a wide network of fellow mentees
 
Best part? It’s all free! Apply now at www.legallyengaged.com.ng/mentorship as spaces are filling up fast!
 
Young Lawyers Must Seize Their Destiny And Create It 

Young Lawyers Must Seize Their Destiny And Create It 

by | Oct 21, 2018 | Uncategorized

 

 

As the legal profession welcomes an influx of new starry-eyed wigs estimated at about 4,000 every year, their chances of securing juicy opportunities in existing law firms are few and far between. The labour shortfall in addition to the worrisome number of disillusionment among young lawyers is a burden that GreySage Consulting, a Lagos-based legal seeks to bear.

 

With hands on approach, GreySage Consulting has teamed up with experienced and dynamic attorney, Akinyemi Ayinoluwa, for exclusive an session with young lawyers. The session is scheduled for December 7 at a special location in Lagos.

 

Willing participants will leverage an opportunity to learn to create career enhancing tips. With keen understanding of the dynamics of the terrain as a professional who has continued to make a huge impact, Akinyemi will beam his lazer on four important topics areas: 

1. How to build a Community that supports your law practice; 

2. What you must do before starting a practice in Nigeria; 

3. How to cultivate a Personal Brand that supports your career and; 

4. How Nigerian lawyers can leverage content in a digital world.

 

Akinyemi revealed, “Having studied industry trends and the effects of globalization, we want to equip young lawyers with affordable vital information and resources that can acquaint them with entrepreneurial skill set, a Do-It-Yourself approach to career development, and creating a prosperous and fulfilling work life.”

 

“Among some of the issues young Nigerian lawyers grapple with are such issues as low Remuneration, unbearable work environments, unemployment, lack of Opportunities for growth and promotion, as well as lack of healthy Work/Life balance. We assure that we will help move your career and practice forward, and you will have fun doing it,” he added.

 

To book a spot, click on the link below, or send an email to greysagelaw@gmail.com or call +2349098028375

 

https://docs.google.com/forms/d/e/1FAIpQLScRlu1dM0guZyPWwlUbFhPQTnxe0yJ9ZC0XFqRtrBWoyXLJSw/viewform

 

About GreySage Consulting

 

GreySage Consulting Ltd. is a new consulting company headquartered in Lagos, Nigeria. The firm is dedicated to empowering practitioners in the Creative and Legal industry, via trainings, seminars, advisory services, industry-specific events, mentorship, and Network events.

 

IP ABC—Does a registered trademark automatically die upon non-use for a long period? | Infusion Lawyers

IP ABC—Does a registered trademark automatically die upon non-use for a long period? | Infusion Lawyers

by | Oct 20, 2018 | Uncategorized


Question

Hello, I am Ofure Ighalo, CEO of EduBit, an edutech startup. Six
years ago I had the idea of an edutech product, ‘Aunty’. We registered the name
and logo as trademark of EduBit. But after over 6 years of designing and
redesigning the idea, ‘Aunty’ wasn’t launched. After finally getting venture
capital for Aunty, we were about to launch on 18/08/2018 when a friend of ours
in the startup space drew our attention to a similar product also named
‘Aunty’. Considering that this could jeopardize our launch plans and investment
drive, we quickly contacted the company behind this ‘Aunty’ to desist from
further use of our registered trademark. But to our shock, the company,
Tekwando, claimed that regardless of EduBit’s registration of the mark,
‘Aunty’, EduBit has no right to stop their company from using the mark!
According to them, while EduBit may have the trademark certificate, it is mere
paper because they are the ones who have been in the edutech market, using the
name for over 3 years. This sounds crazy! Please tell us this is not true! Is
it true that we have lost the registered mark?

Answer

The Answer is No. The owner of a registered trademark does not
automatically lose the right to the mark due to non-use. A party relying on
non-use of a mark must have successfully applied to the Federal High Court or
trademark registrar to expunge the registered trademark from the register on
the ground of non-use. Without this, the mark is presumed to be alive and
active, and consequently unauthorized use of the trademark may amount to
trademark infringement.






Non-use of a registered trademark is dangerous to the health of
a trademark and may eventually kill it.

Although
a registered trademark is valid for 7 years and renewable from time to time, it
must at least be alive and active at any point within any 5-year periods
otherwise it may die.

Trademarks
die when they are either registered without any bona fide intention on the applicant’s part
to use the mark in relation to the applicant’s goods or services or when they
are not in use for a continuous period of 5 years. This is the position of the
law under section 31(2) of Nigeria’s Trademarks Act.

In your
case, EduBit came up with the idea and name for its ‘Aunty’ edutech app.
Although you registered it as trademark, for over 6 years you failed to neither
launch the app nor put it to use. Consequently, ‘Aunty’ was born but never
lived fully due to non-use.

As long as EduBit failed to use its ‘Aunty’ trademark for more
than a minimum period of 5 years, this is a ground for losing the mark.
Therefore, section 31(2)(b) of the Act specifically applies—your ‘Aunty’
trademark is ripe for removal from the trademark register.

 

But a
trademark does not automatically elapse upon non-use. It must be taken off the
trademark register by a court of law or the trademark registrar upon
application by a “person concerned”.

Although
trademarks do die, it is not at the discretion of any person to declare the
death of a trademark for any reasons and then begin to use the trademark. If it
were so, business competitors may become even more desperate in killing their
competitors’ brands. This would amount to unfair competition.

So
rather than allow any “person concerned” to declare the death of a trademark on
the ground of non-use and the same person resurrects the dead trademark for his
or her own use, the law requires such “person concerned” to either apply to the
Federal High Court or trademark registrar. This enables the court or registrar
have the opportunity of determining the status of the trademark.

This is
why section 31(1) of the Trademarks Act requires that a registered trademark
may be taken off the register in respect of the goods or services it is
registered “on the application made by any person concerned to the court”. If
the matter is not already pending in court, an applicant has the option of
bringing the application before the trademark registrar. If the applicant
chooses to apply to the trademark registrar, the registrar’s decision is
subject to appeal to the court.

Therefore, Tekwando has no right to simply start using EduBit’s
allegedly unused ‘Aunty’ by relying on non-use. Tekwando must first apply to
either the trademark registrar or Federal High Court. Until Tekwando does so
and gets a favourable decision, its act amounts to trademark infringement. It
is tantamount to burying a trademark alive, regardless of the fact that the
mark has been in a 5-year coma. Tekwando must allow either the trademark
registrar or court do the mercy killing, if the allegation of non-use of the
mark is proven.

Finally,
only a “person concerned” is entitled to apply to the trademark registrar or
court to expunge a registered mark from the register for non-use.

The applicant must be a concerned person. This implies legal or equitable
interest.

Section 31(1) of the Act refers to the applicant as a “person concerned”. This
is not any person. Is Tekwando a “person concerned”?

Tekwando has interest in the
use of ‘Aunty’ for a similar edutech product in the Nigerian market where
EduBit’s ‘Aunty’ product is registered as trademark. Use of the same ‘Aunty’
mark by both parties for similar products may infringe on the right of the
other. Tekwando is therefore a “person concerned”. It is qualified
to bring the statutory application against EduBit’s ‘Aunty’ mark.

Always
put your registered mark to use, otherwise they risk being expunged and may end
up in the hands of your competitor.

Contact
an IP lawyer or law firm for professional guidance and legal assistance.

IP ABC

Best
wishes


Follow-up questions, if any, are
welcomed.

Nigerian Senate Takes Action On Illicit and Excessive Bank Charges

Nigerian Senate Takes Action On Illicit and Excessive Bank Charges

by | Oct 17, 2018 | Uncategorized

Today, 17th October, 2018, the Nigerian Senate passed a resolution calling on the Central Bank of Nigeria (CBN) to suspend the excessive ATM card maintenance charges being deducted from customers. This resolution came as part of a motion on the illicit and excessive bank charges on customers accounts, sponsored by Senator Olugbenga Ashafa (Lagos East, APC).

The Senate also called on commercial banks operating in the country to configure their machines to dispense up to N40,000 per withdrawal pending the outcome of the investigation by the Senate committees tasked with investigating the excessive and illicit bank charges.

Speaking on the Motion, the President of the Senate, Dr. Abubakar Bukola Saraki said: “This is a motion that affects the lives of every Nigerian — irrespective of what part of the country you come from or whatever political affiliation you might have. This is why we are here: to always defend and protect the interests of the Nigerian people.”

The Senate President stated that the Senate must work to ensure that the Senate’s resolutions on the excessive bank charges goes beyond the debate stage, so that whatever action the Upper Legislative Chamber takes, would come into effect.

“This Senate has done this many times before; when there was a hike in the mobile telecommunication data charges, we intervened and put an end to that. When there were discrepancies and increases in electricity prices, we also took action. We have done this on a number of similar cases. Therefore, on this, I want us to take effective resolutions,” Saraki said.

Other Senators who contributed to the debate, called on banks to review their charges.

“The common man is also a victim,” said Senator Emmanuel Bwacha, “Banks declare profits and you wonder where these profits are coming from — it’s from the sweat of the common man. Let us come up with a law that puts banks on their toes.”

“It won’t be out of place to institute a committee that will call on the CBN to tell us what these charges are about. The Senate by fiat should abolish charges if they can’t be verified,” said Senator Bala Ibn Na’Allah.

“The Senate must take a serious stand on this issue. Nigerians are really suffering. The banking system is not encouraging. I had an issue, took it to the bank and was refunded but how many Nigerians can do this? The issue needs to be addressed,” stated Senator Kabiru Gaya.

“For me, this is a major step that we are taking. This is because I introduced the first ATM machine that came into Nigeria over 25-years ago,” the Senate President, Dr. Saraki told his colleagues, “Now, after 25-years, we should have grown out of these excessive charges and moved on. So, I believe that this something that we must address to create an environment that protects all Nigerians, because these kind of charges in this economy affects everyone.”

The Senate further directed its Committees on Banking, Insurance & other Financial Institutions and Finance to conduct an investigation into the propriety of ATM card maintenance charges in comparison with international best practices and report back to the Senate.

The Senate also directed the aforementioned committees to invited the Governor of the CBN to appear before it to explain why the official charges as approved by the CBN are skewed in favour of the banking institutions as against the ordinary customers of the banks.

Finally, the Senate called on the Consumer Protection Council to look into the various complaints of excess and unnecessary charges by Nigerian Banks.

Bill Tracker: National Student Financial Aid Scheme Bill

Bill Tracker: National Student Financial Aid Scheme Bill

by | Oct 16, 2018 | Uncategorized

If you are a Nigerian undergraduate studying in Nigeria or abroad, you might have at some point wondered why government scholarships and bursaries to students in tertiary institutions have all but dried up. Well, there is a reason why.

Upon assuming office, the Buhari-led administration pulled funding for many government scholarships and bursaries leaving many students distraught and unable to complete their studies. In 2017, the President of The Senate, Dr Bukola Saraki, on the sidelines of the 137th Assembly of the Inter-Parliamentary Union, met with Nigerian students in Russia to hear first-hand the plight of those whose scholarship funding had dried up. Most of them felt abandoned by Nigerian authorities and had become stranded; barely able to make ends meet.

Speaking with them, Dr Saraki noted that the feeling of abandonment must be quickly dissipated by working urgently to alleviate the difficulties faced by these students. According to him “we must look for ways to reestablish the pipelines and remove the bottlenecks, so that our students who went abroad with the promise and assurance of scholarship funding, will get their stipends as at when due” .

Back here in Nigeria, parents and guardians find that they cannot rely on government awarding scholarships or bursaries to students of public tertiary institutions as a means of supporting the education of their wards. It has become critical to come up with solutions to the problems of financial aid being faced by Nigerian students both locally and internationally.

It was in response to this that Senator Isah Misau (Bauchi Central) sponsored the Student Financial Aid Scheme Bill. The Bill seeks to provide for the granting of loans to eligible students at higher institutions and repeal the provisions of the Nigerian Education Bank Act 2004.

The Student Financial Aid Scheme Bill went for the first reading in the National Assembly on the 20th of October, 2015 and second reading on the 15th of November, 2017. Lending support to the bill, Senator Sam Egwu (Ebonyi South) recalled that he benefited from scholarship in the old Anambra state and that the scheme would help indigent students studying in higher institutions.

The function of the bill shall be to:

– Develop criteria and conditions for the granting of loans and bursaries to eligible students in consultation with the Minister of education.
 – Raise funds in  accordance to section 13 (1) of the bill.
  – Recover loans
    – Maintain and analyze a database and undertake research for the better utilization of financial resources
    
– Advise the Minister on matters relating to student financial aid
    
– Perform other functions assigned to it by this Act or by the Minister.

The power of the scheme includes the power to:

 –  Promote and control staff as may appear to the scheme necessary and expedient
    

– Dismiss, terminate, consider the resignation or withdrawal of appointment and exercise disciplinary control over the staff of the scheme, other than the Director-General.

The Student Financial Aid Scheme Bill shall maintain a fund which will consist of:

 – Money appropriated by the National Assembly
    

– Foreign aid and assistance from bilateral and multilateral governments and agencies;
    
– Interests repaid or repayable by borrowers
   
– Any other assets that may from time to time accrue to the scheme.

The Bill as of now has been referred to the Committee on Tertiary Institutions and TETFUND.

Source: www.thepublicsenate.com.ng