Publications

Ending Gas Flaring in the Niger Delta — Why is the Nigerian Government Continually Shifting the Goal Post?

By Francis Igho Erhiakporeh

The debate on gas flaring in Nigeria dates as far back as when the Nation joined the ranks of oil producing Countries in 1958, when its first oil field came on stream, producing 5,100 barrels per day. As far back as 1960, there were already concerns expressed about the dangers of flaring gas, and the need to put same in check. Following these concerns, the Government fixed the initial deadline for ending gas flaring for January 1984. That target was never achieved and over the years, it has been shifted successively to 2007, 2008, 2010 and 2020. Here we are now, midway into the 2020 deadline and nowhere near achieving conclusion.

Data from the Nigeria Ministry of Environment indicate that oil companies in Nigeria flare over 313.0m scf of gas annually, which results in about 16.5m tonnes of CO2 emitted into the atmosphere. This is without prejudice to the effort of the Nigerian LNG Limited which is the Nation’s arrowhead in the attempt to curb gas flaring, as it is reported to have helped reduce Nigeria’s gas flaring profile from 65.0% to below 25.0%. However, Nigeria remains among the top gas flaring countries in the World. The World Bank’s Global Gas Flaring Reduction Partnership recently ranked Nigeria as the 6th largest gas flaring country globally.

It is arguable that gas flaring is inevitable in any oil field that has gas associated with the crude extracts from those oil fields. Under such circumstances, the associated gas is usually vented or flared in order to avoid uncontrollable buildup of pressure within such platforms. It is common practice for flares from oil fields to be lit occasionally and then put off until the pressure mounts again, during expropriation activities. However, it has been reported that the gas furnaces that have ravaged the Niger Delta are not out to relieve pressure from the oil fields in the affected areas. They are simply lit to waste the gas, because no one cares to complain over the waste or poisonous fumes emanating from such oil fields.

Some oil companies, rather than flare the gas way up into the atmosphere to prevent the pollution of the air directly inhaled by inhabitants of host communities and environs, negligently flare the gas into the earth surface confined only by concrete earthing perimeter built to contain the fire from spreading beyond the perimeter. The implication is that these inhabitants, in addition to the destruction of their source of livelihood, inhale air already contaminated by uncontrolled gas flaring. Apart from the negative impact of gas flaring on host communities, gas flaring is also a source of major economic loss to Nigeria. Nigeria is reported to have lost potential income estimated at US$ 770.0m (#281.1bn) to gas flaring in 2016 alone.
The Federal Government in its usual ostrich-with-its-head-buried-in-sand approach, signed into law the Flare Gas (Prevention of Waste and Pollution) Regulation, 2018. This Regulation, in a classic give-with-one-hand-and-take-back-with-the-other, purports to prohibit gas flaring. However, the Regulation allows for gas to be flared, provided a permit is obtained from the President who doubles as the Minister of Petroleum, and a fine not exceeding $2.0 (approximately #700 depending on the prevailing exchange rate) per 1000 scf of gas flared is paid, in the case of an oil company producing more than 10,000 bpd. Whilst a company producing less than 10,000 bpd shall be liable to a flare payment of $0.5 (less than #200) per 1000 scf of gas flared.

Curiously, the relevant government agencies are unable to ascertain the level of gas being flared by the oil companies. The oil companies are the determinants of the volume of gas flared by them. In effect, it is what the oil companies report that qualifies as the volume of gas flared.
The 2018 Regulations provide penalties for failure to disclose the exact quantity of gas flared. However, because these companies make outrageous amounts of money from oil exploration, it will be foolhardy for them to under-report the amount of gas flared by them, when they can easily pay the paltry fine attached to gas flared by them without ever having to under-report same.

Given the very obvious dangers to the environment and human health occasioned by gas flaring, the question that begs for answer is: why is the Nigerian government continually shifting the deadline to end gas flaring in Nigeria since 1984?

The question becomes even more agitating when you realize that expropriation of crude oil is achievable with minimal flaring of gas or without flaring gas at all. The only reason it would seem most of the oil companies continuously flare gas rather than toe the path of reinjecting same or channelling it into more productive use, is down to the cost of acquiring the needed equipment and/or facility to trap the gas with a view to using same for more productive venture.

Apparently, the cost of acquiring the needed equipment/facilities to trap gas rather than flare it is too much of a sacrifice to make even after over 60 years of oil exploration. The opportunity cost seems to be the welfare and wellbeing of the millions of people in host communities whose lives and means of livelihood are being destroyed by the constant flaring of gas.
Perhaps, it makes sense to keep flaring the gas so long as the monies keep flowing in and the wheel of the economy is constantly greased, regardless of the cost to lives and the environment being devastated. If there were ever any doubts, it is now obvious that the 2020 deadline set by the Federal Government to end gas flaring in Nigeria was merely hot air not backed by political will. Whilst it is hoped that the Nigerian Government, being a signatory to the Global Gas Flaring Partnership (GGFP) principles aiming at a flare-out date of 2030, will not in its shifting spree, shift the deadline to end gas flaring in Nigeria beyond 2030, however, going by the antecedent of previous unachieved deadlines, it is safe to say that gas flaring will not be over in Nigeria until the gas flaring actually stops.

References
Gas Flaring: A never ending dark tunnel – published on Nairametrics on February 18, 2020, by CSL Stockbrokers.

Nigeria: 35 years After Gas Flare Ban, Nigeria 2020 Deadline unattainable. Published on Daily Trust on November 27, 2019 by Nnimmo Bassey.

Publications

Navigating Attendance of Annual General Meetings in the Time of COVID-19

by Oluwajoba Odefemi

As mid-year 2020 approaches, many companies are stepping into the end of Annual General Meeting (AGM) season – the period of time between March and June when limited liability companies would typically meet to discuss developments over the course of the previous fiscal year, approve dividends as may have been advised by the directors, ponder on ways to make progress and generally cater for the ordinary businesses of an AGM[1] as provided under the Companies and Allied Matters Act (CAMA).

However, these are no ordinary times. The outbreak of the novel Coronavirus (COVID-19) and its subsequent spread across the world has altered how different aspects of society are organized, particularly the business world. Companies have had to adopt novel means of carrying on their usual activities, or in some cases, putting a total stop to business, in the wake of various governments’ lockdown of non-essential movement and introduction of social distancing measures.

While public companies registered in Nigeria are required to hold their AGM within nine (9) months from the end of their financial year[2] or within such extended period as may be approved by the Corporate Affairs Commission (CAC), no such rule applies to private companies save that a maximum period of 15 months is allowed between one AGM and the next.

In the wake of the global pandemic, Companies have the primary responsibility to map out ways to organise their AGMs for the year 2020. However, this must be within the bounds of the law, CAMA in particular. Failure to organize AGMs within the confines of the law may expose a company to possible court actions by disgruntled shareholders, which will invariably render the AGM (and the resolutions therefrom) void.

Section 216 of CAMA makes it mandatory for all statutory and general meetings (in this case AGMs) of companies registered in Nigeria to be held in Nigeria. However,  there is currently in place a restriction on movement of international flights into Nigeria in line with the directives of the Nigerian Civil Aviation Authority (NCAA)[3] with the exception of emergency and essential flights. This restriction was extended from April 23 to May 7, 2020, via a Circular issued by the NCAA on April 20, 2020[4].

On May 6, 2020, the Federal Government further extended the closure of Nigeria’s airspace and ban on all commercial flight operations for an additional period of four (4) weeks[5]. Clearly, companies whose shareholders were outside the country at the time the restriction was placed will not be able to comply with the provisions of Section 216 of CAMA as shareholders cannot return to the country.

There is also the restriction on intestate movement imposed by the Federal Government in March 2020[6]. The effect of this on shareholders who are potential attendees of AGMs is the inability to be physically present at such AGMs, except they are resident within the State where the AGM is being held.

The foregoing has raised questions on the best way(s) to comply with the mandatory requirement of holding AGMs while ensuring that the rights of shareholders and all stakeholders (to attend and participate) are protected.

Appointment of Proxy

One available option is provided explicitly in CAMA-appointment of proxy. Section 230 of CAMA provides that shareholders of a company unable to attend meetings may appoint other persons to attend and vote on their behalf. The said provision vests on proxies all the rights ordinarily exercisable by a shareholder entitled to attend a meeting, including voting and speaking at meetings. So long as a quorum is duly formed in line with the Articles of Association of the company or Section 232 of CAMA, any business deliberated upon and resolutions reached at such meeting is valid.

The foregoing provisions of Section 230 of CAMA have been further emphasized by regulatory agencies during this period of uncertainties. CAC[7] and the Securities and Exchange Commission have published advisories  emphasizing the provisions of Section 230 of CAMA while providing further guidance on compliance.

It would appear that the above provision of CAMA and the Guidelines issued by CAC solve two challenges confronting shareholders at this time- the inability to attend AGM owing to travel restrictions (both international and local travels) and complying with government directive on social gatherings[8].

Deferring the AGMs

Another option is for companies to apply to CAC for an extension of time to hold their AGMs. While CAMA provides a maximum period of fifteen (15) months between one AGM and the next, CAMA gives CAC power to extend the time for the holding of AGM, by a period of not more than three (3) months9.

Companies exploring this option will be doing so with the hope that the pandemic would have become a thing of the past and normalcy restored to the world has returned to normal.

Other Options- Virtual Meetings

The advancement in modern technology brought in its wake, a new normal for businesses, particularly in developed climes. The world has since moved with the advancement in technology in the last decade. Meetings in developed countries that would otherwise have required long-distance travel are being held remotely with the aid of video conferencing facilities. This global pandemic presented an opportunity for Nigeria to go the way of the developed nations in this regard; unfortunately, this was not explored/considered by CAC in the Guidelines issued. Perhaps, this can be included in the draft CAMA Bill.

It is instructive to note that neither Section 216 nor any other section of CAMA requires that company meetings to be held in Nigeria must be physical meetings. Section 216 simply reads

“All statutory and general meetings shall be held in Nigeria”.

A liberal and most innovative approach to interpreting the provision of the aforementioned section of CAMA would allow for the virtual holding of meetings. It is, therefore, safe to say that while CAMA does not provide for the holding of virtual meetings, it also does not prohibit the holding of same.

Taking advantage of this gap, several companies have already held general meetings remotely on various virtual platforms (such as Zoom, Skype, Microsoft Teams), with some attendees participating from their various locations within the country through dial-in video and audio devices and being recorded as present.

Indeed, this approach accords with recommendations from several corporate associations such as the Institute of Chartered Secretaries and Administrators of Nigeria (ICSAN). In its recent Guidance Note issued on April 24, 2020, ICSAN emphasized the preference for virtual meetings at this time, adding that same is set to become an entrenched practice in Nigeria. It then recommended that companies consider amending their Articles of Association to include provisions for holding of virtual meetings where physical meetings would be impossible. It concluded by recommending that for uniformity, the CAMA Amendment Bill should accommodate the present reality of holding meetings virtually.

While waiting for the amendment of CAMA, perhaps, it is now left for the courts to give judicial backing to the virtual holding of meetings of companies in the event the validity of such virtual meetings convened is challenged by an aggrieved shareholder of a company.


References

[1]Section 214 of CAMA (CAP C20 Laws of the Federation of Nigeria 2004) lists the ordinary business of an Annual General Meeting as declaring a dividend, presentation of the financial statements and the reports of the directors and auditors, the election of directors in the place of those retiring, the appointment and fixing of the remuneration of the auditors and the appointment of members of the audit committee. All other businesses conducted at an AGM are deemed to be special.

[2]Rule 19.4 (d), Responsibility of the Directors/Trustees in Relation to General Meetings, Rulebook of the Exchange, 2015 (Issuers’ Rules)

[3] See Circular issued on March 21, 2020: “Update on Flight Restriction into Nigeria” [Online] Available:  https://ncaa.gov.ng/documents/advisory-circulars/covid-19-advisory/update-on-clarification-on-flight-restriction-into-nigeria-due-to-covid-19-pandemic/

[4] See “Update on Clarification on Flight Restriction” [Online] Available: https://ncaa.gov.ng/media-center/news/update-on-clarification-on-flight-restriction-into-nigeria-due-to-covid-19-pandemic/

[5]See FG extends suspension of flight operations by another 4 weeks Available:https://nairametrics.com/2020/05/06/fg-extends-suspension-of-flight-operations-by-another-4-weeks/

[6]Aljazeera: Nigeria announces lockdown of major cities to curb coronavirushttps://www.aljazeera.com/news/2020/03/nigeria-announces-lockdown-major-cities-curb-coronavirus-200330095100706.html?utm_source=website&utm_medium=article_page&utm_campaign=read_more_links?utm_source=website&utm_medium=article_page&utm_campaign=read_more_links

[7] Guidelines on holding of Annual General Meetings of Public Companies Using Proxies Available: https://www.cac.gov.ng/3956-2/

[8] Premium Times: Coronavirus: Stay at home, Nigerian govt advises Lagos, Abuja residents

https://www.premiumtimesng.com/coronavirus/383490-coronavirus-stay-at-home-nigerian-govt-tells-lagos-abuja-residents.html
Publications

The Guarantors’ Prayers — Why a Contract of Guarantee is not a Mere Formality

– Francis Igho  Erhiakporeh

Do not be one who shakes hands in pledge or puts up security for debts; if you lack the means to pay, your very bed will be snatched from under you.” Proverbs 22, Verses 26-27.

It is often the general rule, rather than the exception, that most people who hold themselves out as guarantors are ignorant of the implication of signing a guarantee form/contract. Most people’s perception of a guarantee is that it is merely a formality incidental to the consummation of a contractual agreement. While there may be few with actual knowledge of the implication of holding oneself out as a guarantor, such persons, however, do so with the belief that their liability will never crystallize.

People who hold themselves out as guarantors either in a loan agreement or for the performance of an obligation under a contract, see it as doing a favour for a friend or family member, without any idea of the consequences and the liabilities that could arise therefrom. Some obligees are equally ignorant as they, more often than not, go after the obligor without recourse to the guarantor who had committed to performing the obligation in the event of failure by the principal obligor, or undertook to compensate the obligee accordingly.

The outbreak of COVID-19 has made the performance of some contractual obligations impossible. Also, some contractual agreements which, but for the pandemic, would have enjoyed seamless performance, may be breached and thus trigger the liability of guarantors.

As the world cautiously attempts a return to some form of normalcy, legal hatchets hitherto buried are likely to be exhumed and contractual agreements excavated with a view to determining the likely exposures arising from the non-performance of obligations arising from such contracts.

This article discusses the liability of a guarantor who, though not a party to a contract, may nonetheless bear eventual liability for the breach of any obligation under such contract, the performance of which he guaranteed, and when the liability of such guarantor arises.

Liability of a Guarantor for Breach of a Guaranteed Contractual Obligation
A guarantor is a person who guarantees or gives assurance for the performance of an obligation. By guaranteeing the performance of a contractual obligation, a guarantor takes the position of the principal obligor where the principal obligor fails in the performance of his/her obligation under a contract. In effect, a guarantor becomes the secondary obligor whose liability to the obligee arises immediately the principal obligor fails in the performance of his obligation under the contract.

It is common practice in contractual agreements (especially where monies are to exchange hands) for the performance of an obligation, for the party advancing the money to require that monies advanced be secured by a guarantee issued, in most cases, by a financial institution . In the event of breach by the principal obligor of its obligation under such contract or failure to perform a duty as stipulated under the contract for which the monies were advanced, the financial institution, being the guarantor, will be liable to pay the obligee, subject to the terms of the guarantee, the amount so guaranteed by the financial institution.

It is also common practice in the grant of loans by financial institutions or money lenders (both individuals and corporate bodies) for the party advancing the loan to request that the repayment of such loan be secured either by the borrower’s property/chattel or guaranteed by a third party who, by such guarantee, undertakes to pay the total sum repayable where the borrower fails to repay by the due date.

Furthermore, it is also common to have inserted in a contract involving the provision of services, a clause that the party who guarantees the provision of certain services under the contract, shall be liable to the obligee for an agreed sum in the event of a breach by the party whose obligation under such contract was guaranteed.

In the above instances, the liability of the guarantor to the obligee in the event of failure by an obligor to perform his obligation under such contracts forms the basis of another contract distinct from the contract wherefrom the obligor’s obligation arose. In most cases, there is a different body of agreement between the guarantor and the obligee which may be written or parole; while in some other cases, the agreement is embodied in the contract from which the obligor’s obligation arose.

Therefore, where an obligor fails in the performance of his obligation under a contract after the due date stipulated under the contract, a breach of that contract has occurred, and the liability of the guarantor is triggered. When this happens, especially in cases involving payment of money or repayment of loan, the guarantor becomes the debtor while the obligor becomes the creditor by virtue of the guarantee.

The liability of a guarantor and when same arises were well-captured by the Supreme Court of Nigeria in the case of C.B.N. v. Interstella Comm. Ltd. wherein the Apex Court held thus:

“A guarantor is technically a debtor because where the principal debtor fails to pay his debt, the guarantor will be called upon to pay the money owed. However, the fact that the obligations of the guarantor arises only when the principal debtor has defaulted in his obligations to the creditor does not mean that the creditor has to demand payment from the principal debtor or from the guarantor or give notice to the guarantor before the creditor can proceed against the guarantor; nor does the creditor have to commence proceedings, whether criminal or civil, against the principal debtor unless there is an express term in the contract requiring him to do so.”

From the forgoing, an obligee can, without recourse to the obligor and/or without a demand issued to the guarantor , proceed to file a law suit against the guarantor for the fulfillment of his obligation under the guarantee agreement. As a matter of law, the obligee need not commence legal proceedings against the obligor for failing to perform his obligation under the contract before proceeding against the guarantor for the fulfillment of his obligation as guaranteed.

The implication of the foregoing is that an obligee is ordinarily expected to proceed against the guarantor, who, by the guarantee agreement, has held himself out as a person of better means than the obligor.

Thus, where there exists a contractual agreement between two or more parties before the advent of COVID-19 and the duration of the execution of such contract or the performance of any obligation under such contract crystallizes during the ensuing lockdown period without the contract being executed or the obligation performed, a breach of the contractual agreement has occurred. Consequently, and subject to the terms of the guarantee, the obligee may choose to proceed against the guarantor for the performance of his obligation under the guarantee agreement.

However, and without prejudice to the foregoing, where an action is brought against a guarantor to enforce a guarantee, the guarantor can invoke the defences available to the principal obligor under the principal contract. For instance, where the non-performance of a guaranteed contract was due to the outbreak of the pandemic, the obligor may plead force majeure or the common law doctrine of frustration as the reason for the non-performance. Thus, the guarantor can invoke the defences referenced above, even where same is not inserted in the contract, as the guarantor is not by law, restricted only to the defences available to the principal obligor, since a contract of guarantee is distinct from the principal contract.

Furthermore, where an obligee proceeds against the guarantor and succeeds, the guarantor may exercise his right of subrogation against the obligor, by instituting an action to recover the monies expended in satisfaction of his obligation to the obligee.

Conclusion
The non-performance of a contractual obligation is a foreseeable event in every contractual agreement, hence the requirement of a guarantor to shoulder the associated liability that may arise therefrom.

A guarantee is therefore not a mere formality. It is a commitment by the guarantor to the obligee, that he, the guarantor, is willing to perform the guaranteed obligation in the event of failure by the obligor to fulfill the obligation owed the obligee under the contract on or before the due date. Where the obligor fails to perform the guaranteed obligation, the obligee can immediately proceed against the guarantor without recourse to the obligor under the principal contract, for the performance of the guaranteed obligation.

Where the obligee proceeds against the guarantor, the guarantor can invoke all the defences available to the principal obligor under the contract. The guarantor may also exercise his right of subrogation by proceeding against the principal obligor to recover what was paid the obligee, where the obligee succeeds in enforcing the guarantee against the guarantor.
So, when next you are called to act as a guarantor to any party in a contract/agreement, don’t just put pen to paper. Read the document and be sure you can bear the liability that might arise therefrom in the event that the obligor fails in the performance of his obligation under the contract.

Endnotes

1 As defined by the Merriam-Webster Dictionary.
2 The person originally responsible for the performance of an obligation under a contract.
3 One to whom another is obligated under a contract.
4 After the due date for the performance of such obligation
5 Usually between two corporate entities
6 Advanced Payment Guarantees.
7 Be it the provision of services, performance of an act, repayment of loan or even payment of a judgment debt.
8 (2018) 7 NWLR (Pt. 1618) 294 @ 338, para. B
9 Once the due date for the performance of the obligation has lapsed
10 The obligor may however not proceed against both the obligor and guarantor simultaneously
11 if inserted in the contract
12 By taking the position of the obligee under the principal agreement.
13 or whatever was forfeited in satisfaction of the guarantee
14 including those not so contemplated under the contract

Publications

THE ROLE OF DATA PROTECTION COMPLIANCE ORGANIZATIONS UNDER THE NIGERIAN DATA PROTECTION REGULATION

– Abraham Omoufoma Aigba

Introduction

With advancement in technology came a manual-to-digital shift in the collation and processing of personal data by data controllers. Whilst this may have eased the burden on data controllers, it has made data subjects more susceptible to abuse and breach of privacy by unauthorized persons.It therefore became necessary that appropriate mechanism be put in place to regulate the handling of data subjects’ personal information.

Following global trend, the National Information Technology Development Agency (the NITDA), pursuant to the powers conferred on it by the National Information Technology Development Agency Act (the NITDA Act) issued the NigeriaData Protection Regulation, 2019 (the Regulation) to safeguard the rights of natural persons to data privacy, foster safe conduct of transactions involving the exchange of personal data, prevent manipulation of personal data as well as ensure that Nigerian businesses remain competitive in international trade through the safeguards afforded by a just and equitable legal regulatory framework.

Personal data means “any information relating to an identified or identifiable natural person….such as a name, an identification number, location data, an online identifier…address, a photo, an email address, bank details, posts on social networking websites, medical information, and other unique identifier such as, but not limited to MAC address, IP address, IMEI number, IMSI number, SIM, Personal Identification Information (PII) and others” See Section 1.3 of the Regulation.

The Regulation applies, in the main, to data subjects, data controllers and data administrators. It also applies to any transaction in which the personal data of natural persons residing in Nigeria, or residing outside Nigeria but of Nigerian descent is intended to be processed by whatever means.

Section 1.3of the Regulation defines a “data subject” as “any person, who can be identified, directly, or indirectly, by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity”.

“Data Controller” is defined as “a person who either alone, jointly with other persons or in common with other persons or a statutory body determines the purposes for and the manner in which personal data is processed or is to be processed”. See Section 1.3 of the Regulation.
“Data Administrator” on the other hand is defined as “a person or organization that processes data” See Section 1.3 of the Regulation.

Data Protection Compliance Organizations

As one of the mechanisms for the implementation of the Regulation, provisions were made for the registration and licensing of Data Protection Compliance Organizations (DPCOs) by NITDA to perform certain duties.

Who is a DPCO?

A DPCO is defined by Section 1.3 of the Regulation to mean “any entity duly licensed by NITDA for the purpose of training, auditing, consulting and rendering services and products for the purpose of compliance with this Regulation or any foreign Data Protection law or regulation having effect in Nigeria”

Who needs a DPCO?

The Regulation requires Data Controllers to designate Data Protection Officers(DPO) to ensure adherence to the Regulation.Under the Regulation and the Data Protection Implementation Framework (issued pursuant to the Regulation by the NITDA), Data Controllers may outsource the role of the DPO to a verifiably competent DPCO. Organizations whomust designate a DPO are Government organs, ministries, departments, institutions or agencies, organizations whose core activities involve the processing of large sets of personal and sensitive personal data and organizations processing critical national databases consisting of personal data. Rather than appoint a DPO, these organizations may outsource data protection to a verifiably competent firm or person (DPCO).

The list of organizations that must designate a DPCO is not exhaustive. Any organization that is required to comply with the provisions of the Regulation requires a DPCO. This can be deciphered from the provisions of Section 3(1)(5) of the Regulation which require an organization to conduct and submit to the NITDA a detailed audit of its privacy and data protection practices within 6 months of the issuance of the Regulation; Section 3 (1) (6)&(7), which require data controllers processing the personal data of more than 1000 and 2000 data subjects within a period of six months and twelve months respectively to audit itself and submit to the NITDA a summary of its data protection audit.

There is no doubt that the expertise needed in data auditing which most data controllers may not be familiar with or accustomed to,informed the inclusion of DPCOs under the Regulation. A DPCO may be any of: professional service consultancy firm, IT service provider, audit firm or law firm with requisite data processing certification or experience in data protection services.

Given the broad definition of personal data and the requirement of auditing the number of personal data processed within a specific period, Data Controllers such asfinancial institutions, telecommunication companies, hospitals, airlines, airport authorities, transport companies, many private/public companies/firms,crowd funding platforms, churches, schools, websites/blogs, etc. will most certainly require the services ofDPCOs, depending on the amount of data processed within the specified period.

The Roles of DPCOs

By Section 3(1)&(4) of the Regulation, a DPCO shall on behalf of the NITDA monitor compliance with the Regulation byData Controllers so as to ensure that Data Controllers do not breach the provisions of the Regulation.

The Data Protection Implementation Framework sets out clearly the role of a DPCO as follows:

a) Data protection regulations compliance and breach services for Data Controllers and Data Administrators;
b) Data protection and privacy advisory services;
c) Data protection training and awareness services;
d) Data Regulations Contracts drafting and advisory;
e) Data protection and privacy breach remediation planning and support  services;
f) Information privacy audit;
g) Data privacy breach impact assessment;
h) Data Protection and Privacy Due Diligence Investigation;
i) Outsourced Data Protection Officer etc.

Risk Associated with Non-appointment of DPCOs

As it is with every system, international best practice dictates that qualified and experienced professionals (preferably independent of the engaging entity) are engaged to provide specific professional services and not look in-house for such role. This will save the organization needless financial and negative exposure in the long run.

Organizations who attempt to undertake the functions of DPCOs run the risk of breach of the Regulation and where this happens, such organizationsstand the risk of being prosecuted.

Also, a Data Controller which processes the data of more than 10,000 data subjects, shall be liable to a fine of 2% of the Annual Gross Revenue of the preceding year or payment of the sum of 10 million naira whichever is greater, while a Data Controller which processes the data of less than 10,000 data subjects, shall pay a fine of 1% of the Annual Gross Revenue of the preceding year or payment of the sum of 2 million naira whichever is greater for breach of data privacy rights of data subjects.

There have been instances where the NITDA threatened to issue noncompliance notices to organizations in breach of the Regulation. This does not only put such organizations in bad light to the general public and investors (both local and foreign), but also makes them susceptible to enforcement actions by NITDA.

Conclusion

The role of DPCOs cannot be overemphasized. From personal data auditing, to filing, to training of personnel, consultancy services, to general compliance with applicable legislation and ultimately attracting investors, the DPCO is a necessary companion in this business of protecting personal information.

Publications

A REVIEW OF THE NATIONAL JUDICIAL COUNCIL GUIDELINES FOR COURT SITTINGS AND RELATED MATTERS IN THE PANDEMIC PERIOD (Part One)

– Abraham Aigba & Henry Madukolu

Covid-19 pandemic continues to disrupt traditional modes of doing things the world over; thereby bringing about a new normal. Following the need to adapt to the challenges posed by the pandemic and prevent a total shutdown of the nation’s administration of justice, the Nigerian judiciary has introduced a complementary procedural regime.

On May 7, 2020, the National Judicial Council (the NJC) released Guidelines for Court Sittings and Related Matters in the Covid-19 Period (the Guidelines). The Guidelines are intended to aid the various courts conduct proceedings remotely in order to meet the ends of justice, particularly with respect to time bound cases, matters not requiring oral evidence (except where those of extremely urgent nature)and matters ripe for judgment, whilst ensuring the safety of judicial officers and workers, legal practitioners, litigants and the general public.

However, the Guidelines do not stand alone and are not in any way meant to replace the Rules of Court or existing Practice Directions but to complement same. The Guidelines can also be modified by Heads of Court to fit the needs of particular courts. Whilst part one of this article looks at pertinent provisions of the Guidelines relating to remote sittings (or virtual sittings) and some issues that may arise therefrom, Part two will subsequently examine the provisions of the Guidelines relating to the conduct of physical court sittings.

Filing and Service of Court Processes

Filing of court processes is the life wire of litigation, without which a suit cannot be commenced or any application or response made thereto. While the Guidelines have not dispensed with the traditional hardcopy filing of processes, the Guidelines envisage that court processes, including Hearing Notices should only be filed traditionally “where there is no electronic filing system and pending the institution of such electronic filing system”. Hence, as much as it is practicable, filing of court processes are required to be done electronically using the Legal Mail, emails, WhatsApp enabled phone numbers amongst others.

To achieve the above, the Nigerian Bar Association is to liaise with Heads of Court for the publication of counsel directory which shall contain counsel’s addresses, emails and telephone numbers (including WhatsApp enabled telephone numbers) for service. Respective counsel are also required to indicate their email addresses (where counsel has no Legal Mail, any functioning email address will suffice) and WhatsApp enabled phone numbers on all filed processes.

Where for want of electronic filing system hardcopy of processes are to be filed, Item B of the Guidelines stipulate that such processes should be sanitized with alcohol-based hand sanitizer by dedicated court officials and be further subjected to a 96-hour quarantine period in a secured facility before the processes are processed. Parties are enjoined to monitor the process up to completion.

Upon filing of processes, the party filing is obligated to scan and send the filed processes in PDF form to the other party. The court reserves the right to direct parties to send the filed processes in PDF form to the court via email. By Item D.6 of the Guidelines, it shall be unprofessional and deserving of disciplinary proceedings for counsel to variously send different versions of the filed processes to the court and the other party.

Whilst these provisions are commendable and seem to take care of the potentiality of the spread of Covid-19, there is however the concern of the sustainability of the recommended/prescribed safety regime in all our courts, particularly regarding sanitizing hardcopy of processes to be filed. This is in light of the fact that the foregoing requires increased funding to all courts, whereas one constant complaint of the judiciary has been lack of adequate funds.

Moreover, to ensure the long term safety of hardcopy of processes, particularly in line with the provisions of Item D(a)(ii) of the Guidelines admonishing utmost care in handling these processes, it is important to avail the designated staff the relevant and necessary training to forestall the potential of a compromise of the nature, quality and substance of processes due to exposure to chemical/alcohol based sanitizers.

Content and Service of Hearing Notices

With respect to hearing notices for virtual proceedings, Item E.8 (a-c) of the Guidelines stipulates that the notices expressly state that hearing shall be virtual, indicate the time of hearing and relevant details (such as passwords, links, IDs, etc.) that would enable the parties join in the sitting as well as the details of the platform through which the court’s sitting would be streamed to the public.

The court shall also publish on a weekly basis, matters to be heard remotely and shall ensure a live streaming of all court remote sittings through whatever website or platform which shall be publicized in order to satisfy the constitutional requirement of public hearing of proceedings.

Apparently, this is quite laudable. Thus, to avoid any confusion on the part of counsel or the parties, there should be strict adherence to the weekly publication of the cause list. This will afford both counsel and the parties a window to resolve issues of omission of matters scheduled for a certain day during the week and misrepresentation as to the business of the day, amongst other associated issues.

E-Payment of Filing Fees

Under Item C of the Guidelines, while assessments of filing fees are still to be done by designated court officials, parties are to send electronic copies of their processes to the registry for assessment of fees payable. Upon payment of fees, evidence of payment shall be sent to court nominated officials.

It is the duty of the court to encourage electronic payment of filing fees as well as publish acceptable method of sending evidence of payment of filing fees.

Remote Sittings

The court shall hear remotely those matters which are time bound or urgent as may be determined by the head of that court in a list to be published to the judicial officers of that court, litigants and their counsel and to the general public. Only judgments, rulings, applications and other matters that do not require taking of evidence are to be heard remotely in the immediate, until proficiency is attained in remote court sittings, by which time evidence of witnesses may be taken virtually, save that extremely urgent and time bound matters which requires calling of witnesses may be heard remotely.

While conducting remote hearings, only judicial officers and security personnel shall be allowed into the courtroom except where the court grants leave for parties whose matter is being heard virtually to be in the courtroom. Virtual proceedings may also be conducted in Chambers with approval of the head of court.

In consideration of judges with time bound judgments and/or rulings to deliver but are isolated from the location of their courts due to government imposed lockdown, the Guidelines permits such judges to conduct virtual proceedings from their location and where impossible, deliver such judgment or ruling in the courtroom of any of the divisions of his court closest to him, upon obtaining a fiat from the head of his court.
Under Item E6 of the Guidelines, the courts shall ensure that the respective locations where the judicial officers and court officials are located are provided with fast-speed electronic internet, electronic devices like desktops, ‘collaborative platform’ such as MS365, Zoom, etc., and other ancillary equipment during the course of the hearing.

Here lies the major challenge this attempt (or rather a quest) to go virtual with court proceedings will face in Nigeria. Internet connectivity is a major challenge in Nigeria even in our big cities. Virtual proceedings may be made tedious and wearisome by this fact alone. A number of our High Courts are located in remote places, some counsel also reside in remote places with worsened connectivity. In other instances, an unprepared counsel may decide to be unscrupulous and feign poor connectivity thereby stalling proceedings.

Akin to the issue of connectivity is the restrictive capacity of some of the recommended/prescribed collaborative platforms. Thus, there may be situations where litigants and/or their counsel are unable to attend/participate in these proceedings owing to the collaborative platform reaching its capacity. Furthermore, electricity continues to be a major challenge in Nigeria.

Beside the hurdle of connectivity and electricity, there is also the aforementioned issue of funding or lack of adequate funding. The conduct of virtual proceedings comes with its additional cost. We hope that there will be increased budgeting for the judiciary by the different tiers of government to cater for the extra costs that are attendant with these innovations.

Meanwhile, we think that in the circumstance, it would be helpful to dispense with the need/requirement for the court to sit particularly with respect to innocuous and unchallenged applications. We think that it would make mockery of the intentions of the NJC where hearing of an application is stalled because counsel who is unopposed to an application is unable to connect with the court. In this light, we propose that applications properly filed and served on the adverse party, and to which application no opposition was filed (as contemplated by the relevant rules of court) should be heard and granted in Chambers without the necessity of the court ‘sitting’ or the presence of counsel or the parties. In this instance, the Court is only obligated to communicate its ruling/decision to the respective counsel. The underlining principle of the foregoing is akin to that behind Item G.2 of the Guidelines wherein the courts are encouraged to dispense with physical or remote court sittings for adoption of addresses proceedings, where the respective addresses have been filed and the relevant rules allow for the deeming of such addresses by the court.

Proceedings at Remote Sittings

The court shall be fully in control of proceedings notwithstanding that it is conducted remotely and the assistance of IT experts is employed. Proceedings of the court shall be recorded using the features of the collaborative platforms and the records shall be given to the parties upon application. This is without prejudice to any other means of recording a particular court may wish to deploy.

Although counsel may with leave of court record proceedings conducted remotely, as with physical court sittings, the records of the court is superior under the Guidelines. The Guidelines deem leave given to a party to record proceedings as leave given to all other parties in the proceeding to record same.

Interestingly, Item E (10)(h) makes it mandatory for counsel to be fully robed and address the court on his feet in virtual sittings except with leave of court.

While we appreciate the intention to make virtual sittings retain the seeming seriousness and sobriety of physical court sittings, we find this provision rather impracticable, particularly in light of the peculiarities of these gadgets driven proceedings/sittings. Usually, users of these collaborative platforms are required to take a rather defined physical position vis-à-vis their enabling gadgets throughout the session, because of the need to always remain visible to the participants. Moreover, many will adjudge Item E (10)(h) as a miss of a rare opportunity to jettison the vestiges and antique of the colonial legal system we inherited. Clearly, being fully robed have no practical effect have on the proceedings. It is hoped that courts would exercise their discretion in this regard in consideration of peculiar circumstances, for example – counsel marooned from their wigs as a result of the lockdown.

Publications

Validity of Virtual Marriages Under Nigerian Law- Another View

by Francis Igho Erhiakporeh

Introduction

One of the many consequences of the COVID-19 pandemic and the lockdown measures that attended it is the indefinite postponement of previously scheduled wedding plans.  However, there are optimists amongst those whose marital plans were affected who chose to make lemonade from the lemons of the pandemic.  

To get around the challenges posed by the lockdown, some intending couples took advantage of the alternative provided by virtual platforms to contract their marriages. This alternative came with an added cost-cutting bonus as they were able to avoid the associated expenses that would have attended the traditional forms of contracting marriages.  

In the wake of this development,  views have been expressed  on the propriety or otherwise of celebrating a marriage via online platforms. In one of such views, Dennis Real Daniel, Esq.1 opined that such virtual marriages may be invalid under Nigerian law in the absence of a license issued by the Minister in accordance with the provisions of the Marriage Act, authorizing the solemnization of such marriages on virtual platforms.

He  also posited that such marriages may, however, remain valid in the absence of a license issued by the Minster in the manner aforementioned, if, and only if, the parties can establish that they were ignorant that such online celebration is not recognized by law.2  He concluded that pending an amendment to the Act with a view to giving legality to marriages solemnized via online platforms in Nigeria, the Minister may issue licenses for the solemnization of marriages on  virtual  platforms.   

In response to this view,  this article aims at providing a different perspective on the subject of discourse  vis a vis the provision of the Marriage Act. The article will outline the condition for a valid solemnization of marriage properly so called under the Act, and will posit that whilst virtual/online solemnization of marriages may be alien to Nigerian law, and may not (save for  an outright amendment to the Act) have any semblance of legality by any means under our current legal framework, the validity or otherwise of such marriages will depend on the circumstance of their  solemnization. The article will conclude with an advice to intending couples to consider deferring their marriages until after  the restrictions on public gatherings are lifted, where it is impracticable to have the marriage celebrated within the confines spelt out in  the Marriage Act.

Solemnization/Celebration of Marriage under the Marriage Act

Without prejudice to the provision of the Act with respect to  preliminaries steps before the celebration of a marriage2,  the solemnization of marriage under Nigeria law is directly governed by Sections 21-29 of the Act. These Sections center on the place/venue and manner of the solemnization of marriages under the Act, which is the subject of discourse in this article. The combined implication of Sections 21-29 of the Act is that marriages can only be celebrated:

  • In a licensed place of worship by a recognized minister of a Church, denomination or body to which such licensed place of worship belongs; provided the marriage is celebrated with open doors between the hours of eight o’clock in the forenoon and Six o’clock in the afternoon, in the presence of two or more witnesses besides the officiating minister. 4
  • Before the Registrar of marriage, in the presence of two witnesses in his office, with open doors, between the hours of ten o’clock in the forenoon and four o’clock in the afternoon.5
  • In any other place as may be licensed by the Minister (other than a licensed place of worship or a registrar’s office), by a minister or registrar.6

Section 23 of the Act prohibits a minister from celebrating any marriage except in a building which has been duly licensed by the Minister, or in such place as the license issued under Section 137 of the Act, may direct. It is also the requirement of the Act that immediately after the celebration of any marriage by a minister/registrar, a certificate shall then be signed in duplicate by the officiating minister/registrar, by the parties, and by two or more witnesses to the marriage.8 

From the foregoing provisions of the Act, it is apt to say the following are the indicators of a marriage validly celebrated under the Act:

  • It must be celebrated by a recognized minister or registrar;
  • It must be celebrated in a licensed place of worship, or in the registrar’s office, or in a place9 authorized by the Minister under a license (other than a licensed place of worship or the registrar’s office);
  • The doors of the venue must be opened and the celebration must be done during day time;
  • The minister/registrar, parties and witnesses must all be physically present at the place where the marriage is to be celebrated;
  • The signing of the marriage certificate by the minister/registrar, the parties and witnesses must be done immediately after the celebration of the marriage;
  • In the case of a marriage celebrated by a minster, the duplicate copy of the marriage certificate must be delivered to the registrar within Seven days after the celebration of the marriage.

Extrapolating from the foregoing, any marriage so celebrated in the absence of any of the stipulations of the Act  listed above, except where excused by the Act, is  void or voidable.

Moreso, from the provisions of the Act, it is without doubt that one of the fundamental determinants of a valid marriage is the place of celebration. As a matter of law, the place of celebration is so fundamental that failure to adhere to the provisions of the law in that regard renders the marriage void ab initio, except the parties can, as a matter of fact, establish that they were not aware that the place was not so licensed for the celebration of  marriage.

Section 33 of the Act provides thus:

33 (2)- “A marriage shall be null and void if both parties knowingly and willfully acquiesce in its celebration-

(a) in any place other than the office of a registrar of marriage or a licensed place of worship (except where authorized by the license issued under section 13 of this Act);

Section 33 (3)- But no marriage shall, after celebration, be deemed invalid by reason that any provision of this Act other than the foregoing has not been complied with”.

It should be noted that in the provisions of the Act dealing with solemnization of marriage10, the requirement that the solemnization be done in a licensed place/building/offices also contemplates the physical presence of the minister/registrar, the parties and witnesses at the licensed place of the celebration. A place11 is a building or area that is used for a particular purpose; or a building, part of a building, or area that is used for shelter. It is therefore submitted that “place” as used under the Act, contemplates a building or a structure with doors for easy ingress and egress.

In effect, the Minister in exercise of his power under the Act, can only issue a license for the celebration of a marriage in a place where people can physically converge with doors for ingress and egress. Thus, the Minister may, in the exercise of his power to issue license for the celebration of a marriages other than in a licensed place of worship or registrar’s office, issue a license for a marriage to be celebrated in the intending couples living room or the pastor’s living room, provided the parties and the witnesses are physically present there, and in such instance, the power would have been validly exercised. However, the Minster cannot, in exercising his power, issue a license for the celebration of marriage in cyberspace, even where same is practicable. If he so does, such exercise of power will be illegal, because  cyberspace is not a “place” as contemplated by the Act.

Are Virtual Marriages valid under the Act?

The question of validity or otherwise of virtual celebration of marriages may depend12 on the physical location of the minister/registrar, the parties and the witnesses13at the time of such celebration. Most church services are now conducted online with the pastors/ministers and few members of the choristers/instrumentalist physically present in the church building while other members of the congregation participate in the service by watching on television or on various online platforms.14  

The question then is; in light of the provisions of the Act, do  marriages contracted via online platforms such as Zoom, Instalive, Webex meeting, etc meet the requirement of the Act with respect to “place of celebration” for same to be valid? It is submitted that the answer to the above question depends on the physical location of the necessary parties at the time of the solemnization.

The referenced online platforms are merely virtual mediums of communication and do not literarily house people. Instead,  people are required to be physically present at a particular location/place. With this in mind and taking into consideration the requirement of the Act with respect to the physical presence of the necessary parties at the licensed place for the celebration, the validity or otherwise of such marriages will depend on the ability of the necessary parties to the marriage to converge at the licensed place for the celebration.

As it is the case with church services conducted online, a marriage may also be celebrated online with the necessary parties physically present at the licensed place of worship, while family, friends and well-wishers may join in the celebration from the comfort of their homes or wherever they are, other than the place of celebration. Where this is the case, the celebration of the marriage will be valid as same would have complied with the requirement of the law with respect to the physical presence of the necessary parties at a licensed place.

However, a virtual marriage will be invalid if celebrated under any of the following circumstances:

  • Where the minister/registrar is physically present in a licensed place while  the parties and witnesses are in another location (it does not matter if the other location is also a licensed place), the marriage will be void.
  • Where the minister/registrar and the parties are in a licensed place whereas the witnesses are in another location, the marriage will be  void.
  • Where the parties and witnesses are in a licensed place while the minister/registrar is in another location, the marriage will be  void
  • Where the necessary parties are not  in a licensed place but merely connect via online platform from different locations, the marriage will be  void.

The marriages celebrated under the foregoing circumstances will be void for failing to meet the requirement as to the physical presence of the necessary parties at the licensed place during the celebration. It should be noted that the requirement that the necessary parties sign the marriage certificate immediately after the celebration of the marriage, is also impracticable under any of the circumstances listed above.15

The provision of Section 33(2)(a) which operates to save an otherwise void marriage on account of ignorance of the fact that the place where the marriage was celebrated was not licensed, may not avail parties who sit in their house while the minister joins them via Zoom or Instalive.  It is a question of fact, and each case will be treated on the basis of its  peculiar  circumstance. In all the cases where the courts declined to void  marriages premised on the provision of Section 33 (2) (a) of the Act, such marriages were solemnized in an unlicensed place with the necessary parties physically present during celebration,16 they were not celebrated via online platforms.

Conclusion

There are calls for amendment of the Marriage Act to accommodate the celebration of marriages without strict compliance with the requirement as to the physical presence of the necessary parties at the licensed place of celebration. However, virtual marriages, though alien to Nigerian law, could be validly contracted within the confines of the law.

It is understandable that most Nigerians will prefer contracting their marriages with crowds in attendance. However, the need to consider virtual celebration of marriage may be informed by diverse reasons other the conditions imposed by the outbreak of COVID-19, and same may still be a viable option post COVID-19.  

Until an amendment is made to the Act, intending couples desirous of celebrating their marriages despite the current realities, may explore the only valid virtual celebration option which involves the presence of the necessary parties at the licensed place while other persons may join in via any of the online platforms. Where this is impracticable, it is advised that intending couples wait until after the restrictions on public gatherings are lifted before contracting their marriages. To do otherwise will render void such marriages contracted via any of the online platforms in violation of the provisions of the Act.

Endnote

1. In his article titled “Validity of Virtual Marriages under the Nigerian Law” published on the NigeriaLawyer.com on April 29, 2020

2.  Section 33(2) of the Marriage Act is an exception to the general rule that ignorance of the law is not an excuse.

3 Section 7-14 of the Act

4. Section 21 of the Act

5. Section 27 of the Act

6. Section 29 of the Act.

7. This section deals with the issuance of license by the Minister authorizing the celebration of marriage by a minister or registrar in a place other than the a licensed place of worship or the registrar’s office.

8. See section 25 & 28 of the Act

9. Hereinafter generally referred to as licensed place.

10. Including marriage involving Nigerians in foreign land under Sections 49 & 50 of the Act

11. According to the Meriam-Webster Dictionary 

12. without prejudice to other formalities stated under the Act

13. hereinafter jointly referred to as the necessary parties.

14. There are also virtual lectures and virtual court sittings.

15. There is no provision either on e-marriage certificate or on e-signature by celebrants.

16. Obiekwe v Obiekwe (1963) ENLR 196

Publications

COVID-19 PANDEMIC: THE AFTERMATH – INTELLECTUAL PROPERTY, NEW PLANT VARIETIES AND THE OPPORTUNITY TO DIVERSIFY THE NIGERIAN ECONOMY

by Abraham Aigba

In the wake of the COVID-19 pandemic, global economy has been a major casualty.  The International Monetary Fund has projected that global economy will contract by 3% in 2020. To bounce back, economies all over the world (particularly developing economies) will have to diversify and be innovative. New Plant Varieties (NPV) may well be the much-needed diversification.

NPV presents a unique tool for economic diversification and growth for a developing country like Nigeria. It also presents an avenue for breeders to exert their intellectual efforts towards the nation’s economic viability while also ensuring theirs.

The concept of NPV is not entirely new in Nigeria (although not referred to as ‘NPV’). What has been missing is a proper legal framework for its protection and regulation to meet with international best practices and satisfy Nigeria’s international commitments.

Nigeria has no legislation defining or protecting NPV. There is also no legislation conferring intellectual property rights on breeders of NPV. The closest laws in this regard are the National Crop Varieties and Livestock Breeds (Registration, etc) Act (NCV Act) and the National Agricultural Seeds Act (NAS Act).

These Acts are inadequate for the following reasons: firstly, they regulate “crop varieties” and “agricultural seeds” rather than “New Plant Varieties”. Secondly, while the Acts make provision for the registration and certification of seeds, they neither define nor vest any right on “breeders” or farmers. Put differently, the Acts do not acknowledge the intellectual efforts of breeders/farmers and so do not protect them. The concept of NPVs is also different and broader than that of crop varieties under the Acts under reference. Thirdly, under the 2016 Guidelines for Variety Registration in Nigeria (the 2016 Guidelines) small-scale farmers and private individuals are not qualified to develop new crop varieties/farmer’s varieties. See also Section 22 of the NAC Act which places limitations on persons who can produce and market seeds for commercial purposes in Nigeria.

Basically, there are two international regimes for the regulation and protection of NPV: the 1991International Convention for the Protection of New Varieties of Plants (the UPOV Convention) and the Convention on Biological Diversity (the CBD) (under the CBD, the object of protection is the ‘farmer’s right’).

Both regimes, though with largely similar aims, are distinct and appear to have incompatible concepts. Although Nigeria is a signatory to the CBD, her policies on this subject seem to tilt towards the UPOV Convention (to which it is not a signatory).

One would expect that were Nigeria to enact laws on the subject, the provisions of those laws would draw from the provisions of the UPOV Convention notwithstanding arguments that the tenets of the CBD are more suited to Nigeria’s socio-economic realities.

The point needs to be emphasized that the missing piece in Nigeria is the recognition and vesting of intellectual property rights on breeders of NPVs. Article1(iv) of the UPOV Convention defines “breeder” to mean either “the person who bred, or discovered and developed, a variety, or the person who is the employer of the aforementioned person or who has commissioned the latter’s work, where the laws of the relevant Contracting Party so provide, or the successor in title of the first or second aforementioned person, as the case may be.”

The protection of breeders is imperative and is justified by a number of considerations: a lot of research goes into the development of a plant variety which takes between 10-15 years to develop. Following this is the intellectual skills and efforts needed. For instance, where a farmer exerts intellectual efforts in breeding and genetic engineering processes bringing about new varieties with peculiar characteristics (such as drought resistant and high yielding varieties) the breeder is entitled to recover the costs and efforts expended.

 Also, the breeding of plant varieties involves the use of vast expanse of land and investment in specialized scientific and agricultural equipment which, given the poverty and illiterate levels in Nigeria, are not easily within the reach of the average Nigerian farmer(the fact that most farmers in Nigeria are in the rural communities has to be borne in mind in this discourse) and so when these farmers go out of their way to breed new varieties, their rights over such varieties should be protected to secure their investment in respect of the varieties and ensure that others do not reproduce such varieties without their authorisation. This will engender the breeding of other varieties, the development of rural communities and a reduction in rural to urban migration.

The rights vested on breeders under the UPOV Convention in respect of propagation and harvested material include the right to production or reproduction (multiplication), conditioning for the purpose of propagation, offering for sale, selling or other marketing, exporting, importing, etc. unless the breeder has had reasonable opportunity to exercise his right in relation to the said propagation or harvested material. See article 14 of the UPOV Convention.

The UPOV Convention also places the traditional IP restriction of acts done privately and for non-commercial and experimental purposes on the breeder’s right in Articles 16 and 17 of the Convention. These restrictions are aimed at balancing the competing interests of breeders to the exploitation of their intellectual exertions and those of the public to having access to the varieties.

To qualify for protection as NPV, the variety sought to be protected must satisfy certain conditions which appear to be more stringent than those of conventional IP rights. Articles 5-9 and 20 of the UPOV Convention list these requirements as: novelty, distinctiveness, uniformity, stability and variety denomination. (it should be noted that under the 2016 Guidelines, for a new crop variety to be registered in Nigeria, it must be distinct, uniform and stable). However, the Industrial Property Bill which seeks to harmonize extant industrial property laws in Nigeria contains different conditions.

Protection of NPV in Nigeria

As a founding member of the World Trade Organization, under Article 27.3 (b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), Nigeria has an obligation to provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof before January 1, 2000. Unfortunately, Nigeria is yet to fulfil this obligation.

The TRIPS Agreement gives Contracting Parties the latitude to protect NPV by whatever system that suits their socio-economic realities; hence, States can protect NPV using a sui generis system.

In Nigeria, NPVs cannot be protected under the Patent and Designs Act by virtue of the express wordings of Section 1(4) of the Patent and Designs Act. A preferred option would be for Nigeria to adopt the CBD regime (as opposed to the UPOV) for the protection of NPV given our socio-economic realities. However, protection by way of a sui generis system drawing from the UPOV Convention, (though not as favourable to Nigeria as it would be under the CBD) would not be wide off the mark. Nigeria can also choose to toe the line of countries like India and South Africa who have successfully married both legal regimes (the CBD and the UPOV).

Whatever model Nigeria eventually adopts, the point is that Nigeria is in urgent need of a robust and comprehensive legislation recognising and protecting the intellectual rights of breeders/farmers over plant varieties developed by them.

Economic Prospects of NPV

From 2010 till date, successive Nigerian governments have realized the importance of the agricultural sector to the diversification of Nigeria’s economy and have introduced various programmes aimed at incentivising national and multinational agribusiness investments, encouraging small-scale farmers et al. such that as of 2014, about 134 companies were registered as certified seed producers in Nigeria.

While the debate as to the best form of protection is likely not to end soon, there is no debate as to the importance of the development of new varieties of plants and crops both in terms of their commercial and economic value. Apart from the revenue accruable from their exportation, their sales, marketing and reproduction can be a source of internal revenue generated for government. Furthermore, with the right system in place, NPV is a good means of emancipation from poverty for rural communities in Nigeria. Food security equals economic stability.

Conclusion

At a time like this when the economy is in need of a boost (considering the global pandemic and downward fall in oil prices), it is important to look within and diversify our economy. Within Nigeria are vast expanse of arable land and a good farming population in need of that extra motivation. This motivation may well come by way of a reward for the intellectual efforts put into the development of NPV. Recognising this, the Industrial Property Bill was introduced to the National Assembly for debate, the passage of which would fill some of the gaps identified above. The earlier this Bill is passed into law, the better for Nigeria’s economy in these very challenging times.

Publications

INCLUDING ARBITRATION CLAUSES IN CONTRACTS OF EMPLOYMENT IN NIGERIA: A CASE OF CARRYING COAL TO NEWCASTLE?

By Nelson Onuoha, Associate at Solola & Akpana

1.0 Background

In a bid to quickly resolve and determine employment claims, some employers in Nigeria have taken the initiative of including arbitration clauses in contracts of employment designating arbitration as the sole means of resolving any dispute arising from such contracts, and that the decision of the arbitrator shall be final, binding and conclusive of that dispute.

This epiphany could not have come at a better time as most employers, especially corporate bodies, have always disliked the idea of having employment/labour claims drag on in court for years. Most corporate bodies would also prefer that certain information remain confidential and not exposed to public access by litigation, hence the preferred choice of arbitration as a faster and more discreet means of resolving employment disputes.

In Nigeria, it remains the position of the Courts that where the award to be made in arbitration is agreed by the parties as final and binding on them, no court shall have the powers to sit on appeal over that award. A court can only hear and determine applications to have the award set aside for misconduct of the arbitrator(s) or for being improperly procured. A court cannot review, reassess or vary the findings or conclusions of the arbitrator in making the award. The only discretion the court can exercise over an award is to determine whether or not the arbitrator applied proper methods in arriving at the award. See Baker Marine Nigeria Ltd. v. Chevron Nigeria Ltd. (2000) 12 NWLR (Pt. 681) 393. This position is apt for commercial arbitration but does not appear to be applicable to employment/labour disputes’ arbitration in light of the provisions of the Nigerian Constitution.

2.0 Appellate Jurisdiction of the National Industrial Court of Nigeria over Arbitral Awards on Employment/Labour disputes and its Implications

In Nigeria, jurisdiction (whether original or appellate) is conferred on a court or tribunal by the Nigerian Constitution or some other statute. See Garba v. Mohammed (2016) LPELR – 40612(SC). It is against this background that the Nigerian Constitution (Third Alteration) Act, 2010 was passed into law on March 4, 2011, effecting alterations to Sections 243, 254, 287, 289, 292, 294, 316 and 318 of the 1999 Nigerian Constitution, establishing the National Industrial Court of Nigeria (NICN) and conferring it with exclusive original jurisdiction over labour/employment-related disputes inter alia. The new provisions of the Constitution introduced by the Third Alteration Act which are relevant to arbitration in Nigeria are Sections 254C (3) and (4) of the Nigerian Constitution (as amended). While Section 254C(3) provides that the NICN may establish an Alternative Dispute Resolution Centre in respect of Labour/Employment disputes, Section 254C(4) provides that the NICN exercises jurisdiction over the enforcement of arbitral awards made in respect of labour/employment-related disputes.

However, the critical provision to this discourse is the proviso to Section 254C(3) of the Nigerian Constitution (as amended) which confers the NICN with appellate jurisdiction to hear and determine appeals against any award made by an arbitral tribunal in respect of labour/employment-related disputes or any other matter over which the NICN exercises original jurisdiction. For clarity and ease of reference, Section 254C (3) of the Nigerian Constitution (as amended) is reproduced hereunder as follows:

“(3) The National Industrial court may establish an Alternative Dispute Resolution Centre within the Court premises on matters which jurisdiction is conferred on the Court by this Constitution or any Act or Law:

Provided that nothing in this subsection shall preclude the National Industrial Court from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal or commission, administrative body, or board of inquiry in respect of any matter that the National Industrial Court has jurisdiction to entertain or any other matter as may be prescribed by an Act of National Assembly or any Law in force in any part of the Federation. (Underlined for emphasis)

It is clear from the above provision that the Nigerian Constitution (as amended) has conferred the NICN with the powers to sit on appeal over any arbitral award made in respect of labour/employment disputes or any other subject matter within the NICN’s exclusive original jurisdiction. The NICN has the constitutional powers to review the merits or otherwise of the findings and/or conclusions reached by an arbitrator(s) in making an award over a labour/employment dispute.

The ultimate implication of the foregoing is that any party to employment/labour dispute arbitration, who is dissatisfied with the award made thereon, can engage litigation by lodging an appeal against the award at the NICN to have same reviewed, upturned, varied or set aside. This right of appeal is applicable even where the arbitration clause has stated the award to be final and binding on the parties.

Inevitably, the right to appeal an arbitral award made over a labour/employment dispute displaces or defeats the comparative advantages of speed and confidentiality which arbitration generally bears over litigation. This is because even after the dispute is resolved by arbitration, an appeal to the NICN and a further appeal to the Court of Appeal protracts the dispute and brings all facts and documents relating to the dispute to public access. Recall that all decisions of the NICN, both in its original or appellate jurisdiction, can be appealed against to the Court of Appeal. See Section 240 of the Nigerian Constitution (as amended); Skye Bank v. Iwu (2017) 16 NWLR (Pt. 1590) 24. Even more, these appeals would definitely bring about more cost on the parties in addition to the cost they bore during arbitration. Inexorably, the perceived reasons or benefits for including an arbitration clause in a contract of employment and ultimately engaging arbitration instead of litigation to resolve employment disputes, are completely undone by the right of either party to the arbitration to appeal the award to the NICN and to further appeal the NICN’s appellate decision to the Court of Appeal.

Given the above, one is left wondering whether there is any need engaging arbitration to resolve an employment/labour dispute in Nigeria. It would appear that it is perhaps a faster, more cost-effective and neater process to litigate employment disputes directly at the NICN instead of engaging arbitration, as appeals against the decision of the NICN on employment/labour disputes can only be made to the Court of Appeal. The decision of the Court of Appeal thereon is final and conclusive, as no party would have a right of further appeal to the Supreme Court. The decision of the Court of Appeal on civil appeals against the decision of the NICN is final. See Section 243(4) of the Nigerian Constitution (as amended).

3.0 Recommendation/Way Forward

Many Jurists and Arbitrators have proposed that in order to circumvent the constitutional right of appeal against arbitral awards made in respect of employment/labour disputes, parties should include in the arbitration clause that the award shall not be subject to appeal. Including the foregoing in an arbitration clause presupposes that parties have agreed to waive their constitutional right to appeal the award and by ultimate implication divested the NICN of jurisdiction to hear and determine any appeal against the award.

However, it is humbly submitted that this strategy is untenable in law. It is the settled position of Nigerian Law that parties cannot by their agreement confer or divest a Court of original or appellate jurisdiction. See Eligwe v. Okpokiri (2014)LPELR – 24213(SC). It is also the settled position of Nigerian Law that the provisions of the Constitution are supreme and binding on all persons and authorities. See Section 1 of the Nigerian Constitution (as amended). Where the Constitution has conferred certain powers on any Court or Tribunal, no person, agreement or authority can oust such powers. Thus, no provision in an arbitration clause can stop the NICN from exercising its constitutionally conferred appellate jurisdiction over arbitral awards made in respect of labour/employment disputes.

It is rather suggested that in order to obviate the right to appeal the arbitral award, parties should nominate a seat of arbitration that is not Nigeria or any other country that provides for the right to appeal arbitral awards made in respect of labour/employment disputes. The ‘seat of arbitration’ is the particular country (system of laws) with the responsibility to administer and control the arbitration as opposed to the ‘venue of arbitration’ which simply refers to the physical location where the arbitration will be conducted. Thus, where parties chose a seat of arbitration that is not Nigeria, the provisions of the Nigerian Constitution, including provisions conferring the NICN with appellate jurisdiction over arbitral awards made in respect of labour/employment disputes, will not apply to the arbitration or the resultant award even if the venue of the arbitration is in Nigeria.

Unless the above step is taken, it would appear that including an arbitration clause in a contract of employment, and ultimately engaging arbitration instead of litigation to resolve employment disputes in Nigeria, is as needless as carrying coal to Newcastle.

Publications

CASE REVIEW: NIGERIAN PORT AUTHORITIES V. AMINU IBRAHIM & CO. & ANOR – (2018) LPELR – 44464(SC)

– Nelson Onuoha

1.0 Summary of Facts
The Respondents, as Plaintiffs, instituted an action at the Federal High Court, Lagos against the Appellant under the undefended list procedure, seeking monetary reliefs and pre-judgment interest thereon. The reliefs sought were based on the Appellant’s alleged failure to pay the Respondents the agreed fees in respect of professional services the Respondents rendered to the Appellant despite the Respondents’ repeated demands for same.

Following the hearing, the trial Court found in favour of the Respondents and granted all the reliefs sought.

Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court of Appeal which dismissed the appeal and upheld the decision of the trial Court.

Further aggrieved with the decision of the Court of Appeal, the Appellant appealed to the Supreme Court, the appeal leading to the decision under review. At the Supreme Court, amongst other issues, the apex Court was called upon to decide: whether in the absence of any specific agreement or evidence of custom or trade usage in support of the Respondents’ claim for pre-judgment interest, and considering the unliquidated nature of a pre-judgment interest claim; the Court of Appeal was right to affirm the decision of the trial Court with respect to the grant of pre-judgment interest under the undefended list procedure?
2.0 Decision of Court
In its Judgment, the Supreme Court resolved all the issues in the appeal in favour of the Respondents, and dismissed the appeal.

In upholding the propriety of the award of pre-judgment interest by the trial Court, it was the reasoning of the Court that although a party seeking pre-judgment interest must prove the basis for his entitlement to same by showing that it is supported by either statute, contract between the parties or that it is based on trade usage or custom or on some principle of equity; it is, however, valid for a Court to still grant pre-judgment interest on a monetary sum awarded to a successful party even in situations where that party failed to plead or adduce any evidential basis in support of the pre-judgment interest claim. The learned Justices further held that such an award of unproven pre-judgment interest naturally accrues from the failure or refusal of the Defendant to pay the subject amount owed to the Plaintiff over a long period of time, thereby depriving the Plaintiff the use of and/or enjoyment of the sum owed.

Regrettably, the Supreme Court did not resolve or make any pronouncement in respect of the Appellant’s contention as to the impropriety of granting a pre-judgment interest claim in a matter determined under the undefended list procedure.

3.0 Analysis/Comments on Decision of Court
It has always been and still remains the position of Nigerian evidential law that pre-judgment interest can only be awarded to a party where that party has pleaded sufficient facts and led credible evidence to show that he is entitled to pre-judgment by virtue of statute, contractual terms, trade usage or custom or any equitable principle of contract. See Habib Nig. Bank Ltd. v. Gifts Unique (Nig.) Ltd. (2004) 15 NWLR (Pt. 896) 408; E.I.B. Building Society Ltd. v. Adebayo (2003) 11 NWLR (Pt. 832) 497.

Recently, in Julius Berger (Nig.) Plc v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219 at 257, paras. D- G, the same Supreme Court, in setting aside an award of pre-judgment interest for failure to plead or prove the basis of same, held as follows:

“With respect to the power to award interest before judgment, it is to be reiterated that it is based on statute or a right based on common law or some equitable principle of contract. It is because of the peculiar or special nature of this interest that it is mandatory that before such an award can be claimed, the facts in support must be pleaded and evidence led to support the head of the claim and in the same vein the rate being the prevailing rate of bank interest at the time of judgment or award. That is to say, that the need for evidence establishing that rate cannot be overemphasized. Therefore, in the instant case where the respondent neither pleaded nor led evidence to show any custom, agreement or statute under which it founded its claim of interest against the appellants, the trial court erred in awarding the pre-judgment interest against the appellants”

By the very nature of pre-judgment interest (i.e. interest accruing on a judgment sum before judgment is entered), it presupposes that a party claiming it must place sufficient materials before the court to show why he is so entitled. He must lead evidence not only to show that he is entitled to such interest but to show that the interest rate which he is claiming is the proper one. A court cannot on its own without any reason or basis sufficiently established by a plaintiff, proceed to award pre-judgment interest at any rate in favour of that plaintiff. To do so would appear arbitrary and antithetical to the role of a Judge as an unbiased umpire who is to dispassionately resolve the dispute between parties based on the facts and evidence presented before it by the parties.

It is settled Nigerian evidential law that a court can only resolve the disputes of parties before it based on credible and cogent evidence placed before it by the parties. A court cannot proceed to speculate or assume that a party is ordinarily entitled to relief. That party must plead sufficient facts and adduce credible and cogent evidence before the court can award such a relief. See Ladoja v. Ajimobi (2016) 11 NWLR (Pt. 1519) 88 at 173 para G., Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113 at 157 para. A. Sections 131, 133 and 134 of the Evidence Act, 2011 provide that in all civil proceedings, the burden of proving a fact is only discharged on the balance of probabilities or the preponderance of evidence. Before a court can award any relief claimed or asserted by a party, the court must be satisfied that the party has led preponderant evidence establishing that party’s entitlement to such a claim. See Interdrill (Nig.) Ltd. V. U.B.A. Plc (2017) 13 NWLR (Pt. 1581) 52 at 75 paras. C-D. Claims, more especially special claims like pre-judgment interest, are not awarded by a court willy-nilly.

It is therefore submitted, with due respect, that the learned Justices of the Supreme Court unwittingly upturned our evidential legal order when they held that the trial Court was right to award pre-judgment interest even when same was not proved. Before a court can award pre-judgment interest, the party seeking the same must place before the court credible and cogent evidence evincing any statutory or contractual provision or any trade usage/custom or equitable principle establishing that party’s right to pre-judgment interest at the rate claimed. A court cannot in the guise of attempting to do substantial justice, award to a party what he has not adequately shown to be entitled to.

Given that it was established that the Respondents did not adduce any evidence establishing the basis for their claim for pre-judgment interest, the trial Court ought not to have awarded it and the Court of Appeal and the Supreme Court ought to have set aside the award.

With all due respect, the learned Justices of the Supreme Court were also wrong in failing or omitting to pronounce on the Appellant’s contention on the impropriety of awarding a pre-judgment interest claim in a suit determined under the undefended list procedure. It is the position of Nigerian law that a court has a duty to consider and resolve all issues raised before it by parties in litigation as failure to do so could amount to a denial of fair hearing and could occasion a miscarriage of justice. See Brawal Shipping Ltd. vs. F.I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) 387 at 403 para E-F; E.F.C.C v. Akingbola (2015) 11 NWLR. (Pt. 1470) 249 at 301 paras. C-D.

Since it was indeed very contentious that the trial Court ought not to grant a pre-judgment interest in a suit decided under the undefended list procedure, the Supreme Court ought to have particularly considered and resolved that issue. The Court’s failure to pronounce on that contention was fatal to that aspect of the appeal.

In Nigerian civil litigation procedure, a plaintiff who reasonably believes that the defendant has no defence to the plaintiff’s liquidated money demand claim, can proceed to institute an action to enforce that claim under the undefended list procedure. Where the court is satisfied that the defendant has no reasonable defence to the plaintiff’s claims, the court will proceed to award the reliefs sought by the plaintiff provided that they are in respect of claims for liquidated money demand. The Courts have defined a liquidated money demand claim, which a court is capable of awarding under the undefended list procedure, to mean “a debt or specific sum of money usually due or payable which is ascertainable or calculable by arithmetic or mathematical precision without any further investigation” See Micmerah Int’l Agency Ltd. v. A-Z Petroleum Products Ltd. (2012) 2 NWLR (Pt. 1285) 564.

It has also remained the position of the Courts that a claim for interest is not a liquidated money demand claim and as such, a court cannot award it under the undefended list procedure. The assessment or grant of interest is unknown and inapplicable to the undefended list procedure. See Gombe v. PW (Nig.) Ltd. (1995) 6 NWLR (Pt. 402) 402; Ekerete v. UBA Plc (2005) 9 NWLR (Pt. 930) 401 at 414.

It follows therefore that the trial Court was wrong to have awarded pre-judgment interest since the suit was heard and determined under the undefended list procedure. Apparently, this was a weighty issue which the Supreme Court ought not to have glossed over or abandoned. It was an issue that was clearly crucial to the part of the appeal against the award of pre-judgment interest. It, therefore, beggars belief that the Supreme Court failed to pronounce on it or resolve it.

Given that the apex Court is the last bus stop in the litigation dispute resolution process, it is imperative that in resolving disputes submitted to it by litigating parties, all issues raised therein are pronounced on with finality as no other avenue exists thereafter to determine any issue left unresolved. In the eternal words of Late Justice Chukwudifu Oputa (JSC), our Supreme Court Justices are indeed not final because they are infallible but infallible because they are final.