Nigeria - Legalnaija

OFFENCES & PENALTY ON PUBLIC HEALTH IN NIGERIA

by Legalnaija | Dec 8, 2014 | Uncategorized

The public health of a society or community
is very important to the general welfare of everyone in that society or community.
A good example that depicts the importance was the recent Ebola outbreak in
certain African countries, if you followed the news and updates from neighboring
countries who were worst hit by the virus, you must have observed their
respective governments instituting policies and measures to control the
breakout such as issuing directives that certain areas be quarantined and
placing curfews to prevent movement and spread of the virus. Such instances show
how important governments work hard to ensure the health of its citizenry is
protected and you will always find an abundance of laws which aim to punish and
prevent exposing the public to health hazards, for instance the Nigerian
Criminal Code Act.

Section 243 of the Act provides that –

Any person who sells, as food or drink, or
has in his possession with intent to sell it as food or drink, any article which
has been rendered or has become noxious, or is in a state unfit for food and
drink, knowing or having reason to believe that the same is noxious as food or
drink, or is in a state unfit for food or drink is guilty of a misdemeanor, and
is liable to imprisonment for one year. Examples of these are merchants who
sell expired drugs and food items.
Any
person who adulterates any article of food or drink, so as to make such article
noxious as food or drink, intending to sell such articles as food or drink is
guilty of a misdemeanor, and is liable to imprisonment for one year.
Also, anyone who with intention to sell or
provide for public consumption any carcass of any animal which has died of any
disease is guilty of a misdemeanor and is liable to imprisonment for one year
(Section 244).
Furthermore, anyone who corrupts or fouls water from any spring,
stream or river which renders it less fit for the purpose for which it is
ordinarily used is guilty of a misdemeanor, and is liable to imprisonment for
six months (Section 245).
It is also a misdemeanor to bury a corpse in a house
without the consent of the President or Governor and such person is liable to
imprisonment for 6 months.

It should be noted that anyone who vitiates
the atmosphere so as to make it noxious to the health of persons in general or
spreads any infectious disease dangerous to life is guilty of a misdemeanor and
liable to 6 months in prison.

Adedunmade Onibokun

@adedunmade

dunmadeo@yahoo.com

CONSTITUTIONAL REQUIREMENTS OF CONTESTING GOVERNORSHIP ELECTIONS

by Legalnaija | Oct 24, 2014 | Uncategorized

Cross-section of Nigerian Governor Forum (From vangaurdngr.com)

This is the second post in a
series of articles informing about the requirements for contesting elections in
Nigeria. Last time, I wrote on the requirements for contesting presidential elections in Nigeria, while this post will be treating the constitutional
requirements for contesting Governorship elections in Nigeria.

The position of a State of
Governor is provided for by the Constitution in Section 176. It provides that –
there shall be for each State of the Federation a Governor and the Governor
shall be the ~~Don Dada~~ Chief Executive of that State. The only persons
qualified to be Governors are- Citizens of Nigeria by birth; persons who have
attained the age of 35 years; members of a political party & sponsored by
that party; and such candidate that has been educated to at least School
Certificate Level or its equivalent.

It should also be noted that the
following persons are not qualified for election to the position of the
Governor-

Persons who have voluntarily
acquired the citizenship of another country;

He has elected to the position 2
previous times;

A lunatic or person of unsound
mind;

Persons under a death sentence;

Persons who have been convicted
and sentenced for an offence involving dishonesty within the past 10 years of
the election or has contravened the Code of Conduct;

An undischarged bankrupt;

Persons employed in public
service;

Member of a secret society;

Persons who have been indicted
for embezzlement or fraud; and

Persons who presented a forged
certificate to INEC.

It is the duty of INEC to appoint
the date for the elections though such elections must be held on a date not
earlier than 60 days and not later than 30 days before the expiration of the
term of office of the last holder of the office. Section 178 states that a candidate
for the Governorship elections shall be deemed to have been duly elected where,
being the only candidate nominated for the election –

He has a majority of YES votes
over NO votes cast at the election; and
He has not less than one-quarter
of the votes cast at the election in each of at least two –thirds of all the
local government areas in the State, but where the only candidate fails to be
elected in accordance with this provision of the law, then there shall be fresh
nominations.

Where there are 2 or more
candidates, one will be deemed duly elected if –

He has the highest number of
votes cast at the election; and

He has not less than one –quarter
of all votes cast in each of at least two-thirds of all the local government
areas in the State.

If no candidate is elected by
virtue of the foregoing provisions, there shall be a second election at which
the only candidates shall be – the candidate who secured the highest number of
votes and one among the remaining candidates who secured majority of votes in
the highest number of local govt areas.

Section 185 states that the
Governor shall not begin to perform the functions of office until he has
declared his assets/liabilities and subscribed to the oath of allegiance and
Oath of office.

Adedunmade Onibokun, Esq.

@adedunmade

dunmadeo@yahoo.com

#OPINION #BRINGBACKOURGIRLS: TO WHAT EXACTLY?! by Chika Maduakolam

by Legalnaija | Oct 23, 2014 | Uncategorized

Credit- Google

As I am prone to do with my opinion pieces, I state a disclaimer; these are simply ramblings of an overworked lawyer who gets her brain fried under the hot Lagos sun daily. Permit me to exercise my inherent right of freedom of expression.

Having gotten that out of the way, I will dive straight in; this piece is not to remind us about the length of time the abducted Chibok girls have been gone, neither is it about how well or not the Nigerian government has performed or even about all the humanitarian and human rights activists’ efforts that have been contributed towards ensuring their freedom by various organisations. Far from it, I have an impression that we have all been inundated with the on-goings of all the above;

This piece is simply an avenue to air out a gnawing train of thought that has made this writer have stray thoughts one time too many- We all clamor for our girls to be brought back altruistically and nobly, however, I would like to ask a question many of us do not think is important: Bring back our girls to what exactly?!!!!

Credit – amnestyinternational.org

Before I have the crowd calling for my head, take a minute and think:

It will be agreed, myself being female, that the predicament of women is somewhat fragile in the society, this has nothing to do with the strength or mental acuity of women; it is a simple fact of being! Bearing this in mind, we have a group of young girls, unprotected, impressionable, young in soul and mind in an environment such as a terrorist camp; it can only be imagined the extent of horror to which they are prone to; rape, slavery, mistreatment and all sorts of inhumane treatment. Some of them will be pregnant, some of them will have their once innocent souls ripped out, replaced by hardened minds and spirits that have been molded different either through false doctrines or untold psychological hardship!

The girls who were taken away, I assure you, are not the same girls who are to be brought back.

Now, stating the stark reality before us as a nation: We are simply not equipped to handle this situation! What institution has been set up to provide the requisite psychological, physiological and mental support that these girls require? What schools will these girls attend when they return to us; a school that will nurture them, cocoon them, recalibrate their minds, a school that we will all admit we need because their impression of what a school was before they were taken, I assure you, is not the same impression they have now!! What medical help and assistance is on ground to provide healthcare to these girls? Who will stitch those who have been sore, who will give the requisite medication if they arise to treat any ailments, what tests will be carried out to ensure that the good health of these ladies have not been compromised?

Most importantly, to cut my ramblings short; to what society are you bringing them back to? I am sorry to say but as much as I am Nigerian, I do not have the requisite faith in Nigerians to say we can shoulder the necessary responsibility of providing a supportive society to cushion the effects of the trauma these girls must have been through; our society is prone to creating stigmas and labels, this is not to say we are not empathic people, we just have not learnt to be any better; if your son says he has found a wife who was a victim of the chibok kidnap ,would the average Nigerian parent embrace his decision? The community to which these girls will return, will they treat them like outcasts? What of the children of these girls for those who are pregnant or are mothers, will they be embraced wholly? Will the very relatives of these girls be patient and empathetic enough to accommodate any of the girls who have been radicalized bearing in mind that only time can heal deep wounds?

I could go on and on but I believe enough is contained here to foster a train of thought as to the structural aid we need to rehabilitate these girls and indeed, rehabilitation is what is required. To not be a doomsayer, I will attempt to voice out a solution I harbor in mind no matter how implausible it may seem: If we cannot provide the requisite structure to restore these girls, can we at least agree that we should invest in moving these girls to an environment where this can be provided? I already foresee the unpleasant reactions to this piece. Nonetheless, the truth is the truth!! We have cried #BRINGBACKOURGIRLS, let’s begin to also cry, more importantly: #RESTOREOURGIRLS!!

INSURBODINATE BEHAVIOUR IN THE MILITARY

by Legalnaija | Oct 14, 2014 | Uncategorized

Credits – sunnewsonline.com

This is the 3^rd
article in a series of posts relating to offences under the Nigerian Armed
Forces Act, the first was an article on the law on “Mutiny
under the Armed Forces Act” while the second was about “Disorderly
behaviour among Soldiers/Service men”.

If you have
ever lived in a military barracks, attended a military school or know a thing or
two about the military, you will know the rule that the chain of command is
unbreakable and anyone who breaks it, gets broken, lol. The chain of command or
respect to seniority is sacred and it’s a big deal. Now imagine if a service
man strikes his superior officer, wow, ~~make we just talk say him own don end~~
such soldier will definitely be
disciplined.

I attended a military
high school, Nigerian navy to be precise and I remember a day I was beating for
no reason by a senior student, I was so sure I didn’t deserve the treatment I
got and angrily walked off to report the senior student to one of the military
officers on deck. The military officer listened and asked me to go call the ~~wicked~~
senior, he berated the senior for beating me for no apparent reason and asked
me to give the said senior 6 strokes from a horse whip. Oboy, did I gladly lash
the senior’s buttocks. After acting out my vengeance, the military officer asked
the senior to get up and said “this boy could come and report you to me because
you did not beat him well enough, now take him away”. Immediately I
heard those words, I knew it was time to draw up a will and last testament, I was
definitely going to die, the senior student just looked and said “follow me” as
he walked off to the senior dormitory.

I didn’t die
that day, obviously, else I won’t be typing this article many years after but
let’s just say, I have never forgotten that experience and I doubt if I ever
will. If my secondary school could be that devoted to the chain of command
without minding if a senior student had killed me that day, imagine what it
must mean to actually strike a superior officer in the military, serious
gbege i am sure.

Imagine a
scenario where a Major barks orders at a Sergeant to carry out a directive,
only for the Sergeant to slap the Major because the Major is his younger
cousin. Obviously, that will happen only in a Nollywood movie because Insubordinate
behaviour is completely frowned upon by the military; Section 54 of the Armed
Forces Act states that-

“Any person subject to service law
who strikes or otherwise uses violence to, or offers violence to, his superior
officer; or uses threatening or insubordinate language to his superior officer,
is guilty of an offence under this section and liable, on conviction by a court
– martial, to imprisonment for a term not exceeding two years or any less
punishment provided by the Act”.

It states further in subsection 2
that a person convicted for the offence stated above shall only be liable to be
imprisoned for no more than two years if the offence was committed on active
service or involved the striking or other use of violence, to the superior
officer exercising authority as such. A superior officer means an officer, a
warrant officer or its equivalent in rank, non – commissioned officer subject
to service law under the Act of superior rank, and includes an officer, a
warrant officer or its equivalent rank,or non – commissioned officer so subject
of equal rank but greater seniority while exercising authority as that person’s
superior.

Adedunmade Onibokun

@adedunmade

dunmadeo@yahoo.com

MUTINY UNDER THE ARMED FORCES ACT

by Legalnaija | Oct 6, 2014 | Uncategorized

Scenario

Its 4am at the military base in the northern part of Borno
state, the camp commander has just received intelligence that heavily armed
insurgents have been spotted advancing into a neighbouring town. The commander immediately
rallies the troops and orders an immediate assault on the convoy of insurgents.
However, several soldiers in the battalion refuse to engage the enemy because
they believe the insurgents have superior fire power and refuse to obey the commander’s
orders. Tempers flare, a brawl ensues among the troops and the commander is
shot at by a junior officer spear heading the conflict. The military police
have however calmed the situation and the officer who shot the pistol during
the brawl has been arrested and will be facing a Court-Martial.

THE LAW

This blog post is the first of a series relating to crimes
and punishment under the Armed Forces Act, Cap C20, Laws of the Federal Republic
of Nigeria (2004). Currently, over 200
Military personnel are undergoing a Court-Martial for several offences including
mutiny, assault, misconduct and tampering with military property. Though some
are being tried for lesser offences, about 12 have been found guilty of the act
of mutiny and sentenced to life imprisonment, a punishment that was commuted
from the initial death sentence handed down for shooting at a vehicle conveying
their commander.

Mutiny is provided for
under Section 52 of the Armed Forces Act. According to the law mutiny means a
combination between 2 persons who are subject to service law to

Overthrow
or resist lawful authority in the Federation.
Disobey
authority in such circumstances as to make the disobedience subversive of
discipline, or with the object of avoiding any duty or service against, or in
connection with operations against the enemy; or
Impede
the performance of any duty or service in the Federation or in any arm of
service of the Armed Forces or in any force cooperating with the armed forces
or in any part of the armed forces.

The law further provides in the same section that any person
who takes part in a mutiny involving the use of violence or the threat of the
use of violence or having as its object or one of its objects the refusal or
avoidance of any duty or service against, or in connection with operations
against the enemy, or the impeding of the performance of that duty or service
or anyone who incites other persons who are also subject to service law to take
part in a mutiny, whether actual or intended is guilty of an offence under the
law and liable on conviction by a Court-Martial to suffer death.

Furthermore, any person not falling under the above, who
takes part in a mutiny, or incites any person subject to service law to take
part in a mutiny, whether actual or intended is guilty of an offence and liable
on conviction to life in prison.

Adedunmade Onibokun, Esq

@adedunmade

TWO YEAR JAIL TERM FOR WITCHES & WIZARDS

by Legalnaija | Sep 23, 2014 | Uncategorized

If you have lived in Nigeria for
a while then you must know how religious Nigerians can be, a visit to a church
or mosque will prove same and before the introduction of Christianity and
Islam, indigenous Nigerians also had their gods which they worshipped. One more
thing about Nigerians is that the relics of the ideas behind our superstitions
still live among us. Don’t be surprised if a misfortune befalls a Nigerian you
know and such person begins to ~~skabbash~~ pray against evil spirits whom
he believes may be after him, the news have in the past been filled with
stories of people who attacked their relations and claim such relation was the
witch or wizard behind their misfortune.
Anyway, Nigerians have been like this for a long time and even the law
recognizes that some people use charms and juju, that’s why the Criminal Code
provides for offences in relation to witchcraft and juju.

Section 210 of the Criminal Code, Cap C38 of the Laws of the federal
Republic of Nigeria provides that;

Any person who –

(a)
By his
statements or actions represents himself to be a witch or to have the power of
witchcraft; or

(b)
Accuses
or threatens to accuse any person with being a witch or with having the power
of witchcraft; or

(c)
Makes or
sells or uses, or assists or takes part in making or selling or using, or has
in his possession or represents himself to be in possession of any juju, drug
or charm which is intended to be used or reported to possess the power to
prevent or delay any person from doing an act which such person has a legal
right to do, or to compel any person to do an act which such person has a legal
right to do, or to compel any person to do an act which such person has a legal
right to refrain from doing, or which is alleged or reported to possess the
power of causing any natural phenomenon or any diseases or epidemic; or

(d)
Directs
or controls or presides at or is present at or takes part in the worship or
invocation of any juju which is prohibited by an order of the President or the
governor of a state; or

(e)
Is in
possession of or has control over human remains which are used or are intended
to be used in connection with the worship of invocation of any juju; or

(f)
Makes or
uses or assists in making, or has in his possession anything whatsoever the
making, use or possession of which has been prohibited by an order as being or
believed to be associated with human sacrifice or other unlawful practice;

Is guilty of a misdemeanor, and is liable to
imprisonment for two years.

Thus, if you
fly on a broom at night persons who are identified as witches can be
prosecuted in the court of law. However, I am yet to witness anyone being
prosecuted under this law, I wonder if with the superstitious nature of
Nigerians any policeman will like to be the prosecutor or if the Judge will be
reluctant to take the matter in court. Who want make winsh come meet am for
night. Furthermore,
Section 213 states that-

Any person who –

(a)
Makes,
sells or keeps for sale or for hire or reward, any fetish or charm which is
pretended or reputed to possess power to protect burglars, robbers, thieves or
other malefactors, or to aid or assist in any way in the perpetration of any burglary,
housebreaking, robbery or theft, or in the perpetuation of any offence
whatsoever, or to prevent, hinder or delay the detection of or conviction for
any offence whatsoever; or

(b)
Is found
having in his possession without lawful and reasonable excuse (the proof of
which excuse shall lie on such person) any such fetish or charm as aforesaid;Is guilty of a felony, and is liable on
imprisonment for five years.

This relates to persons who use
charms to perpetuate criminal activities.

Adedunmade Onibokun

@adedunmade

Adedunmade is legal practitioner
in Lagos, Nigeria. He holds a Masters in International Business Law from the
University of Bradford and published the law blog lealnaija.blogspot.com

MOB JUSTICE IS A CRIME

by Legalnaija | Sep 19, 2014 | Uncategorized

It was
a sunny Saturday afternoon, I was about 8 and mum was making lunch in the
kitchen while I watched T.V, the house was filled with aunts and uncles who had
come to visit and dad was playing host. Suddenly we heard the shouts from a
large crowd on the street and instinctively we all rushed out to find out what
was going on. Initially, it was hard to figure out what was happening in the
midst of all the people and their different excited voices until we were able
to see ahead to where the crowd had gathered around a middle aged man who was
stark naked, bleeding from different parts of his body and was seriously pleading
for his life, his face covered in tears/blood/sand/.

Information
quickly reaching me stated that the victim of this mob action had been accused
of stealing hence the inhuman treatment. He was paraded from one end of my street
to the other, accompanied by area boys wielding sticks, whips or whatever they
could get their hands on and not in the least hesitating to use it on the victim’s bare skin. I wanted to follow
the mob but my parents were having none of it, I was directed to go into the
house and took position by the window trying to see what happened next. Eventually,
the mob moved from the front of our house and half-beat/half – dragged the
alleged thief with them. Later on I learnt the man was forced to drink a
mixture of cement and he was left by the road to die while his insides
solidified as the cement in his lungs and stomach choked him to death. That was
my first experience of mob justice and I still remember it after over 20 years.

Mob
justice is when a large angry mob takes justice into their own hands and it
usually ends with someone getting beating to a pulp, paraded naked in public
and even set on fire or killed. It refers to a situation in which a large
disorganized crowd of people resort to violence and destruction in an attempt
to ensure fairness and equity for themselves without recourse to the
institutionalized public bodies entrusted with this responsibility. It’s a very
barbaric way of dispensing justice and should have no place among common folk.

Mob
justice is not however unique to Nigeria and it would be unfair to characterize
it as such. One infamous lynching in particular that really shocked the world
and helped to spark the civil rights movement in the United States was in
August 1955, when 14-year-old Emmett Till was beaten, his eyes gouged and shot
in the head. His body was then thrown in the Tallahatchie River with a 70-pound
cotton gin tied around his neck with barbed wire. His crime? Allegedly
whistling at a white woman.

Mob action
can be attributed to ineffective prosecution, a weak judicial system and
evidence of a culture of impunity. In addition, this judicial failure is prompting
the security agencies to join mob action through the shoot and kill policy.
Factors that contribute to the escalation of mob action include an
under-resourced police personnel, growing crime rate, poor police-civilian
relations as well as impatience on the part of people to wait for the law to
take its course.

LAW

Most
justice or mob lynching is a crime and must be castigated. Section 33(1) of the 1999 Constitution tells
us that “[E]very person has a right to life and no one shall be deprived
intentionally of his life, save in execution of the sentence of a court in
respect of a criminal offence of which he has been found guilty in Nigeria.”

Every
individual according to Section 34 of the Constitution is also entitled to
respect for the dignity of his person and no person shall be subject to torture
or inhuman or degrading treatment; neither shall any person be held in slavery
or servitude; and no person shall be required to perform forced or compulsory
labour. Also, Section 36 of the Constitution provides that “every person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. Mob justice is a violation of these rights, so also is torture by the
Nigerian police or any other member of the armed forces/security agencies that
use such ineffective tactics of investigation.

Furthermore,
Section 315 of the Criminal code, Cap C38, LFN
provides that “Any person who unlawfully kills another is guilty of an
offence called murder or manslaughter, according to the circumstances of the
case.” Setting a person on fire or beating a person to a pulp till they die in
the name of mob justice is cold blooded murder and punishable by law. Other elements
of crime involved in mob justice include: assault and battery as stated in
Sections 351-356. Chapter 54 also tells us that it is a criminal offence to
conspire with other persons to commit a crime. Grievous harm (i.e. “bodily hurt
which seriously or permanently injures health, or which is likely so to injure
health, or which extends to permanent disfigurement or to any permanent or
serious injury to any external or internal organ, member, or sense)is an
offence under the criminal code.

People
who participate in mob actions either by jeering the crowd or participating in
the actual acts of violence are not left off the hook as Section 7 of the
Criminal Code is very clear that:

“When an offence is committed, each of the
following persons is deemed to have taken part in committing the offence and to
be guilty of the offence, and may be charged with actually committing it, that
is to say-

(a) every person who actually does the act
or makes the omission which constitutes the offence;

(b) every person who does or omits to do any
act for the purpose of enabling or aiding another person to commit the offence;

(d) any person who counsels or procures any
other person to commit the offence.”

Putting
an end to mob justice will take a collective effort from all levels of
government in sanitizing and informing the public about its ills and the
punishment involved in participating in such acts. Also, effective
public-police relations, strong police accountability and a swift
administration of justice in criminal cases should be maintained. This means the
government should undertake a broad popular education campaign aimed at
improving public understanding of the criminal justice system and discouraging
mob justice. The government should also address the failings in the police and
judicial system.

Adedunmade
Onibokun, Esq.

@adedunmade

Adedunmade
is a legal practitioner in Lagos, Nigeria. He holds a Masters degree in
International Business Law from the University of Bradford and publishes the
Legalnaija law blog

RIGHT TO THE DIGNITY OF OUR HUMAN PERSON

by Legalnaija | Sep 18, 2014 | Uncategorized

source: newsexpressngr.com

It is quite sickening when I watch
videos, see pictures or read stories of people who are victimized for one
reason or the other by members of the public on the pretext that such people
have been accused of committing crimes.
It is more troubling when such acts are carried out without referring
the accused to a court of justice or at least to the police because most times,
the allegations are usually false. A case
in point is the Aluu4 tragedy where four students were falsely accused of being
thieves by a debtor who was trying to avoid paying his debt and the community
gathered a mob who beat, set ablaze and killed the four promising youths in
cold blood or the woman accused of stealing in a popular Lagos market and was
stripped naked, beating, sexually assaulted and paraded by the hoodlums in the market.
It’s funny how most Nigerians look away or join the fun rather than fight to
protect the rights of the Nigerian being breached and probably save them from
the violent implications of mob justice.

Security agencies are also not
absolved from inflicting acts of inhuman and degrading treatment on accused
persons held being bars, it’s not unusual to see policemen beating, slapping
and man-handling citizens because they refuse to follow the policeman’s orders.
It’s a rule of thumb that you wouldn’t want to cross a solder or you may as
well be ready for ~~maximum shishi~~ a torrent of blows and cracks from a
horse whip. It sickens me when I come across instances where Nigerians are
treated like second-class citizens in their country by the very agents employed
to protect them. This is an act that cannot continue with impunity, the
provisions of the Constitution cannot continue to be trampled on.

Every individual according to
Section 34 of the Constitution is entitled to respect for the dignity of his
person and no person shall be subject to torture or inhuman or degrading
treatment; neither shall any person be held in slavery or servitude; and no
person shall be required to perform forced or compulsory labour. Mob justice is
a violation of this right, so also is torture by the Nigerian police or any
other member of the armed forces that use such ineffective tactics of
investigation.

source: Google

It is important to note that, any
labour required in consequence of the sentence or order of a court or any labour
required of members of the armed forces or the police force in pursuance of
their duties do not come under this rule. Neither does any communal service,
civic obligation to a community or act of compulsory National service come
under this rule.

The National Human Right
Commission is saddled with the responsibility of protecting the rights of
Nigerians and investigating/prosecuting cases of inhuman and degrading
treatment against Nigerians. Lawyers
also have a duty to protect the sanctity of the law and the promotion of the
Rule of Law in the country by standing up for the rights of the common Nigerian.
We need to do more as a people and as a Nation to promote the fundamental human
rights of everyone.

Do you know any instances where
people have been subjected to degrading treatment, lets here it in the comment
box.

Adedunmade Onibokun, Esq.

@adedunmade

Adedunmade is a legal practitioner
in Lagos, Nigeria. He holds a Masters degree in International Business Law from the University of Bradford and
publishes the Legalnaija law blog.

EXPROPRIATION OF FOREIGN INVESTMENTS IN NIGERIA

by Legalnaija | Sep 4, 2014 | Uncategorized

Source: Google

One major fear every foreign investor has is the stability of government in the investment destination and the security of investments. Many times, investors have been short changed due to National policies that take away their wealth by the governments of the investment state.

As part of the efforts to provide
an enabling environment that is conducive to the growth and development of
industries, inflow of foreign direct investment (fdi), shield existing
investments from unfair competition, and stimulate the expansion of domestic
production capacity; the federal government of Nigeria has developed a package
of incentives for various sectors of the economy. These incentives, it is
hoped, will help revive the economy, accelerate growth and development and
reduce poverty.

Expropriation or “wealth
deprivation” could take different forms: it could be direct where an investment
is nationalized or otherwise directly expropriated through formal transfer of
title or outright physical seizure. Expropriation or deprivation of property
could also occur through interference by a state in the use of that property or
with the enjoyment of the benefits even where the property is not seized and
the legal title to the property is not affected.

Section 25 of the Nigerian Investment Promotion Act guarantees against expropriation of foreign investments, it provides that:

(1) Subject to subsections (2)
and (3) of this section-

(a) No enterprise shall be nationalized or
expropriated by any Government of the Federation; and

(b) No person who owns, whether wholly or in
part, the capital of any enterprise shall be compelled by law to surrender his
interest in the capital to any other person.

(2) There shall be no acquisition
of an enterprise to which this Act applies by the Federal Government, unless
the acquisition is in the national interest or for a public purpose and under a
law which makes provision for-

(a) Payment of fair and adequate
compensation; and

(b) A right of access to the courts for the determination of the investor’s
interest or right and the amount of compensation
to which he is entitled.

(3) Any compensation payable
under this section shall be paid without undue delay,and authorisation for its repatriation
in convertible currency shall where applicable, be issued.

Criteria for determining indirect expropriation

i)
The degree of interference with the property
right,

There is broad support for the
proposition that the interference has to be substantial in order to constitute
expropriation, i.e. when it deprives the foreign investor of fundamental rights
of ownership, or when it interferes with the investment for a significant
period of time. Several international tribunals have found that a regulation
may constitute expropriation when it substantially impairs the investor’s economic
rights, i.e. ownership, use, enjoyment or management of the business, by
rendering them useless.

Source: Google

ii)
the character of governmental measures, i.e.
the purpose and the context of the governmental measure,

A very significant factor in characterizing a government measure as falling within the expropriation sphere
or not, is whether the measure refers to the State’s right to promote a
recognised “social purpose” or the “general welfare” by regulation. “The
existence of generally recognised considerations of the public health, safety,
morals or welfare will normally lead to a conclusion that there has been no
‘taking’”. “Non-discriminatory measures related to anti-trust, consumer protection,
securities, environmental protection, land planning are non-compensable takings
since they are regarded as essential to the functioning of the state”.

iii)
the interference of the measure with
reasonable and investment-backed expectations.

Another criterion identified is
whether the governmental measure affects the investor’s reasonable
expectations. In these cases the investor has to prove that his/her investment
was based on a state of affairs that did not include the challenged regulatory
regime. The claim must be objectively reasonable and not based entirely upon
the investor’s subjective expectations.

However, international law also
sets circumstances for the legitimacy of expropriation of foreign
investors‘assets. Essentially, it would appear that under international law,
foreign investors should only be deprived of their property rights for a public
purpose, in a non-discriminatory way, on the condition that there is payment of
compensation and upon the basis of due process.

Adedunmade Onibokun Esq
@adedunmade

Adedunmade Onibokun is a legal practitioner, publisher and blogger. He
holds an LLM in International Business Law from the University of
Bradford and publishes the Nigerian law blog Legalnaija.

WHY YOU SHOULD NOT BUY/SELL PIRATED CDS & ARTIST WORKS

by Legalnaija | Sep 2, 2014 | Uncategorized

The Copyright Act was promulgated in 1988 as the Copyright Decree (No.
47) of that year. It repealed the Copyright Decree (No 61) of 1970. With the
revision of all existing federal legislation, the Decree was re-designated the
Copyright Act and contained in Cap. 68, Laws of the Federation of Nigeria,
1990. The Act was amended by the Copyright (Amendment) Decree (No. 98) of 1992
and further amended by the Copyright (Amendment) Decree (No. 42) of 1999. It
became part of the codification of Nigerian Law done in 2004 and is presently
referenced as Cap 28 Laws of the Federation of Nigeria, 2004.

How will you feel if you were Tuface Idibia, driving through
the Lagos traffic on a lovely and bright Saturday afternoon and to your sudden
dismay, you see this ~~thief~~ audio cd vendor hawking pirated copies of
your ~~sweat and blood~~ CDs to willing buyers in traffic, won’t that make
you want to ~~break someone’s head and beat the shit out of him~~ call the
attention of the police to such a vendor. Grooming a talent takes years of training
and commitment to an artist’s passions, dreams and aspirations, it’s a great
loss to have all that work going down the drain while ~~some stupid children~~
pirates make illegal copies of your work and make undeserved profits from your
work, it’s a crime that’s killing our talent industry and must really be stopped.

Nigerian Copyright law in Section 1
of the Copyright Act, Cap 28, LFN 2004 states that the following shall be
eligible for copyright‐ literary works; musical works; artistic works; cinematograph
films; sound recordings; and broadcasts. However, a literary, musical or
artistic work shall not be eligible for copyright unless‐ (a) sufficient
effort has been expended on making the work to give it an original character; (b) the
work has been fixed in any definite medium of expression now known or later to
be developed, from which it can be perceived, reproduced or otherwise
communicated either directly or with the aid of any machine or device.

Copyrights are conferred on every
work eligible for copyright of which the author or, in the case of a work of
joint authorship, any of the authors is at the time when the work is made, a
qualified person, that is to say‐ (a) an individual who is a citizen of, or is
domiciled in Nigeria; or (b) a body corporate incorporated by or under the
laws of Nigeria.

INFRINGEMENT OF COPYRIGHT

Section 15 of the Copyright Act states that a Copyright is
infringed by any person who without the licence or authorization of the owner
of the copyright‐

(a)
does, or causes any other person to do an act, the doing
of which is controlled by copyright;

(b) imports or causes to be imported into Nigeria any copy of a work
which if it had been made in Nigeria
would be an infringing copy under this section of this Act;

(d) distributes by way of trade, offers for sale, hire or otherwise or
for any purpose prejudicial to the owner of the copyright, any article in
respect of which copyright is infringed under paragraph (a) of this subsection;

(e) makes or has in his possession, plates, master tapes, machines,
equipment or contrivances used for the purpose of making infringed copies of
the work;

(f) permits a place of public entertainment or of business to be used
for a performance in the public of the work, where the performance constitutes
an infringement of the copyright in the work, unless the person permitting the
place to be so used was not aware, and had no reasonable ground for suspecting
that the performance would be an infringement of the copyright;

(g) performs or causes to be performed for the purposes of trade or
business or as supporting facility to a
trade or business, any work in which copyright subsists.

Infringement of copyright shall be
actionable at the suit of the owner, assignee or an exclusive licensee of the
copyright, as the case may be, in the Federal High Court exercising
jurisdiction in the place where the infringement occurred; and in any action
for such an infringement, all such relief by way of damages, injunction, accounts
or otherwise shall be available to the plaintiff as is available in any
corresponding proceedings in respect of infringement of other proprietary
rights. This means the owner of licensee of a copyright can sue any person whom
infringes on the copyright and can claim damages or ask the court to stop the
act of infringements.

Criminal
liability

(1) Any person who‐

(a) makes or causes to be made for sale, hire, or for the purposes of
trade or business any

infringing
copy of a work in which copyright subsists; or

(b) imports or causes to be imported into Nigeria a copy of any work
which if it had been

made in
Nigeria would be an infringing copy, or

(c) makes, causes to be made, or has in his possession, any plate,
master tape, machine, equipment or contrivance for the purposes of making any
infringing copy of any such work; shall, unless he proves to the satisfaction
of the court that he did not know and had no reason to believe that any such
copy was an infringing copy of any such work, or that such plate, master tape,
machine, equipment or contrivance was not for the purpose of making infringing
copies of any such work, be guilty of an offence this Act and shall be liable on
conviction to a fine of an amount not exceeding NI,000 for every copy dealt
with in contravention of this section or to a term of imprisonment not
exceeding five years, or to both such fine and imprisonment.

(2) Any person who‐

(a) sells or lets for hire or for the purposes of trade or ‘business,
exposes or offers for sale or

hires any
infringing copy of any work in which copyright subsists; or

(b) distributes for the purposes of trade or business any infringing
copy of any such work; or

any such
work,

(d) has in his possession, sells, lets for hire or distribution for
the purposes of trade or business or exposes or offers for sale or hire any
copy of a work which if it had been made in Nigeria would be an infringing
copy, shall, unless he proves to the satisfaction of the court that he did not
know and had no reason to believe that any such copy was an infringing copy of
any such work, be guilty of an offence under this Act and shall be liable on conviction
to a fine of N100 for every copy dealt with in contravention of this section,
or to a term of imprisonment not exceeding two years or in the case of an
individual to both such fine and imprisonment.

(3) Any person who, without the consent of the owner, distributes, in
public for commercial purposes, copies of a work in which copyright subsists by
way of rental, lease, hire, loan or similar arrangement, shall be guilty of an
offence under this Act, and shall be liable upon conviction to a fine of N 100
for every copy dealt with or imprisonment for six months or to both such fine
and imprisonment.

(4) The court before which any
proceedings are taken for any offence under subsections (1), (2) and (3) of
this section, whether the alleged offender is convicted or not, may order all
copies of the works, plates, master tapes, machines, equipment and contrivances
in the possession of the alleged offender, which appear, to be infringing
copies, of the works, to be destroyed or delivered up to the owner of the
copyright or otherwise dealt with as the court may think fit.

(5) Where an article has been seized by a police officer or an
authorised officer in connection with a suspected offence under this Act, a
court may on the application of the Attorney‐General of the Federation or owner
of the copyright in connection with which such offence is suspected to have
been committed, order that the article be destroyed or delivered up to the
owner of the copyright or otherwise dealt with as the court may think fit,
notwithstanding that no person has been charged with the suspected offence.

Offence by
bodies corporate

(1) Where an offence under this Act has been committed by a body
corporate, the body corporate and every person who at the time the offence was
committed was in charge of, or was responsible to the body corporate for the
conduct of the business of the body corporate shall be deemed to be guilty of
such offence and shall be liable to be proceeded against and punished
accordingly: Provided that nothing contained in this subsection shall render
any person liable to any punishment, if he proves that the offence was
committed without his knowledge or that he exercised all due diligence to
prevent the commission of such offence.

(2) Notwithstanding anything contained in subsection (1) of this
section, where an offence under this Act has been committed by a body corporate
and it is proved that the offence was committed with the consent or connivance
of, any director, manager, secretary or other officer of the body corporate
such director, manager, secretary or other officer shall also be deemed to be
guilty of that offence and shall be liable to be proceeded against and punished
accordingly.

(3) For the purposes of this section‐ “body corporate”
includes a firm or other association of persons;
and “director” in relation to a firm includes a partner in the firm.


Source: www.copyright.gov.ng

Adedunmnade Onibokun

@adedunmade

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