Publications

HIGHLIGHTS OF THE NEW LAGOS STATE HIGH (CIVIL PROCEDURE) RULES 2019

– By Ekene Okwumo

Hon. Justice Opeyemi Olufunmilayo Oke, the Chief Judge of Lagos State, recently unveiled the Lagos State High Court (Civil Procedure) Rules, 2019 (the Rules) which took effect from January 31, 2019.

The Rules was birthed as a solution to the incessant delays in the dispensation of justice in the State and to facilitate the just and expeditious resolution of the real issues in civil proceedings at minimal expense.

To ensure that the purpose of the Rules is achieved, the Rules imposes an undertaking on parties to proceed in an expeditious way and authorises the Court to either dismiss a proceeding or impose a sanction as to cost, if, in breach of the undertaking, a Party fails to proceed as required by the Rules or an order of the Court.

The Rules amends the Lagos State High (Civil Procedure) Rules, 2012 and is to apply to all civil proceedings in the High Court of Lagos State including part-heard matters.

We have reviewed the provisions of the Rules and provide hereunder the major highlights of the Rules:

1. Form of Commencement of Action: Order 5 of the Rules:

Order 5 makes provision for the Form of commencement of an action at the Lagos State High Court. Unlike Order 3 Rule 1 of 2012 Rules which authorised the Registry to refuse to accept an originating process (Writ of Summons) filed without compliance with the Rules on forms of commencing an action, the Rules specifically stipulates that failure to accompany the Writ of Summons with the necessary documents (Statement of Claim, List of Witness(s), Witness Statement on Oath, List of Documents and Pre-action Protocol Form 1) shall nullify the action.

Also, by the provision of Order 5 Rule 4 of the Rules, failure to attach an Originating Summons with the other accompanying documents shall nullify the action.

With respect to actions transferred to a Lagos State High Court, Order 5 Rule 7 stipulates that where an action is transferred from a Court of competent jurisdiction to the Lagos State High Court, any of the parties shall re-file the suit.

2. Substituted Service via email: Order 9 Rule 5:

It is refreshing to see the Lagos State Judiciary take advantage of the use of technology and the internet in ensuring the speedy dispensation of justice in the State as Order 9 Rule 5 (1) authorises a Judge to make an order for substituted service as he deems fit including service by electronic mail.

We believe a lot of lawyers would take advantage of the use of email as a means for substituted service which is relatively faster and takes away the attendant cost if a Bailiff were to effect the service (via pasting the originating process on the Defendant’s last known address) or making a publication in a newspaper.

3. Default Fees: Order 11 Rule 5 and Order 48 Rule 4:

Where a Defendant fails to enter an appearance within the period stipulated by the Rules for entering an appearance, the Defendant shall be liable to pay N1,000.00 for each day of default, this is against the sum of N200.00 (Two Hundred Naira) previously provided in the 2012 Rules. Also, any Party who fails to perform an act within the period authorised by a Judge or the Rules shall be liable to pay N1,000.00 for each day of default. Although there has been a lot of controversy on the amount of the new default fee, we believe this would make lawyers more diligent in prosecuting their matters in Court and ultimately curb incessant delays.

Order 48 Rule 1 lays to rest the controversy with regard to computation of time (whether Saturdays should be included when computing time). Specifically, Order 48 Rule 1 provides that when an act is to be done within a period which does not exceed six (6) days, Saturdays and Holidays (defined as Sundays and Public Holidays) shall be excluded.

4. Alternative Dispute Resolution:

With the growing popularity of alternative dispute resolution mechanisms, the Rules provides for alternative dispute resolution proceedings in Order 28 (as a new provision) to give parties an opportunity to resolve their dispute expeditiously via ADR without the unreasonable delay associated with litigation.

Order 28 applies to (i) matters screened for ADR, (ii) matters referred to ADR during Case Management Conference, and (iii) applications for enforcement of Arbitral Awards.

It must be noted that, where an action is not resolved via ADR, the ADR Judge shall issue a status report and the matter subsequently remitted for assignment to a trial judge

5. Issues, Inquires, Accounts and References to Referees:

Order 30 Rule 1 of the Rules provides for a period of fourteen (14) days after close of pleadings for each Party to define and file its issues of facts. Order 27 Rule 1 of the 2012 Rules on Issues, Inquires, Accounts and References to Referees provided for a period of seven (7) days.

6. Diligent Prosecution:

Order 34 Rule 2 of the Rules contains a similar provision with Order 30 Rule 19 of the 2012 Rules which authorises a Judge to strike out an action for want of diligent prosecution.

However, by the provision of Order 34 Rule 2, where it appears to a Judge that there is undue delay in the prosecution of any proceeding, the Judge may require the particular party causing the delay to explain the reason for the delay and may make such order with regard to expediting proceedings.

If no proceeding is held or application filed in a case for a period of twelve (12) months, the Court is mandated to suo motu strike out the suit.

The introduction of a new provision on ADR would encourage Parties to take advantage of ADR which is comparatively faster and more cost effective in the resolution of their disputes ultimately resulting in the expeditious dispensation of justice in consonance with the overall objective of the Rules.

Publications

TOWARDS A BETTER REGULATION OF INTERNET-BASED COMPANIES RENDERING OTT SERVICES TO NIGERIANS

By Allen Uche Amadi

1.0 Background

Sometime in 2018, Mobile Network Operators (MNOs) in Nigeria approached the Nigerian Communication Commission (NCC) to subject to regulation, over the top (OTT) services rendered by some internet-based companies. The reason for this approach was predicated on the loss of revenue of Telecommunication companies to internet calls. These Internet-based companies do not incur running cost in Nigeria similar to the MNOs hence can render internet call services at “no cost”. The NCC declined that request citing the public policy against stifling of technology and the internet neutrality code as reasons.

I do not propose a stifling of technology. I merely argue that the definition of communication services under the Act when properly construed, admit of OTT services. If it is illegal to render communication services without a licence, then OTT service providers not operating in Nigeria should be banned till licenced. A new legislation to amend the Act is not necessary.

Alternatively, should the above position be jettisoned, I am of the firm view that real data protection will be impossible without regulating these OTT service providers. My view is that MNOs should be given a fighting chance by the recognition and consequent regulation of OTT service providers by the NCC. What’s more, the Nigerian State can also earn revenue from tax of OTT services providers given that data is now more valuable than crude oil. For one thing, some OTT service providers make money off Nigerian consumers via collection and resale of data, or collection and use of data for targeted advert and even outright commerce with Nigerian consumers; hence these services are not free to Nigerians.

A school of thought predicts doom for Nigeria if all Internet-based companies should boycott Nigeria hence a relaxed or no regulatory regime over them. To this, my reply is that the world is going “Nationalistic” again. China has successfully implemented the above. The EU has a data legislation to protect her own; same with the United States of America and lately, Indonesia has expressed such intention. Nigeria, having the population and market, should not be an exception.

It should worry us all what would happen if this regulation is not in place. It might defeat the Network Neutrality Code for Internet Service Providers –allegedly it is already happening as internet calls often hardly connect and not without unstable internet signals.

If some of the terms used above are ambiguous, do not leave yet. The definition of terms is under the next heading. To these we now turn.

2.0 Definition of Terms

In the course of this article, certain jargons and terms would recur. For consistency and clarity;

Application Services shall mean “services involving short messages, voice call, electronic mail, online conversation, financial transactions service, commercial transactions, digital platform, data storage and mining, search engine, game, social networking and media, whether these services are offered via the internet based company’s internet, the internet of a telecommunication company in Nigeria or even a software.

Content Services shall mean “the provision of digital information in form of text, sound, image, animation, animation music, video, movie, game, or combination of some and/or all, including streaming or download by utilizing internet access service through telecommunication network operator”

Cookies shall mean “that program that holds your identity when you visit a website with a view to identifying you again when you revisit the same website. It often takes tally of the words you use frequently on search engines and predicts them to you when you type some letters”

Over the Top Services (OTT) shall mean “Application services and/or Content services via the internet. OTT service providers are companies engaged in rendering OTT services whether directly in a country or indirectly through an agent.

Bandwidth Management shall mean “a process conducted by Telecommunication operators to manage internet traffic which includes service traffic quota, priority access for certain service on certain time, and/or other traffic engineering.

3.0 The Nigerian Communication Commission Act

The objectives of the Act include:

• To promote the implementation of the national communications or telecommunications policy as may from time to time be modified and amended;

• To promote a regulatory framework in the Nigerian Communication sector committed to effective, impartial and independent regulatory authority;

• To encourage local and foreign investments in the Nigerian communications industry and the introduction of innovative services and practices in the industry in accordance with international best practices and trends;

• Ensure fair competition in all sectors of the Nigerian Communication industry and also encourage Nigerian participation and ownership, control and management of communications companies and organisations;

• Protect the interest of service providers and consumers within Nigeria

By Section 31(1) of the Act, it is unlawful to operate a communications system or facility or provide a communications service in Nigeria unless authorized to do so under a communications licence or exempted under regulations made by the Commission under this Act.
Section 157 of the Act defines communication service to mean any communication, whether between persons and persons, things and things, or person and things, or persons and things, in the form of sound, data, text, visual image, signals or any other form or any combination of those forms.

Internet messages are stored and transmitted in data units of bits, byte, mega and gigabytes. They are a form of data but translated into text, images and/or signals on the device they are viewed with. The MNOs are conduit pipes for these data transmission but do not generate the content or applications. It is clear enough that OTT service providers providing either the content or applications are the real persons rendering communication service and are already caught up by a combined reading of Sections 31(1) and 157 of the Act.

It is incumbent on MNOs and interested parties to take out a mandamus application to compel the NCC to do the needful.

4.0 Regulation of Internet Based Companies

The popularization of the internet in the late 90’s led to a proliferation of IT and internet-based companies’ often nicknamed “Silicon Valley Hub” companies. These companies earn huge revenues and remit substantial amounts in taxes to their domicile countries.

4.1 The Indonesian Approach

Indonesia embarked on an expression of intention to regulate Over the Top services not domiciled in Indonesia. We shall examine their strategies with a view to adopting some. The proposed regulation would be made to provide legal certainty, foster healthy competition, protect the consumers and preserve the sovereignty of the country. We need a comprehensive Data Protection Law, fair playing field between Telecoms companies and Internet -based companies as well as a robust Antitrust law between players in the sector. Given that a huge amount of data gets exchanged on this internet based companies, it has become inevitable to regulate them.

Interestingly, the Proposed Indonesian Regulation states that recognition shall only be given to OTT service rendered either by individuals, business and public institution in Indonesia. By this provision, any entity desirous of having its OTT services operate in Indonesia must be an Indonesian or an Indonesia registered business or company. The same goes for OTT service providers, whether foreign or National. The provision of OTT services in Indonesia is preceded by a registration. Some of the documents accompanying a registration include a Tax Identification Number, a list of the types of OTT services rendered as we as well as an information call center.

The obligations imposed on the OTT service provider would, if enacted in Nigeria, midwife the solution to a lot of National problems. It reads:

Article 5

(1) OTT Service Provider shall:
a. complies to rule of regulation in:

i. prohibition of monopoly practice and unhealthy business competition;
ii. trade;
iii. consumers protection;
iv. intellectual property right;
v. broadcasting;
vi. film;
vii. advertisement;
viii. anti-pornography;
ix. anti-terrorism;
x. tax;
xi. transportation and logistics;
xii. tourism and hospitality;
xiii. finance;
xiv. health; and/or
xv. other rule of regulations.

b. conducts data protection and data privacy;
c. conducts content filtering and censor mechanism;
d. utilizes national payment gateway, particularly for paid OTT Service;
e. guarantees access for lawful information interception and evidence collection for investigation or inquiry needs for criminal case by law enforcement;
f. lists information and/or guidance of service in Bahasa Indonesia; and
g. gives statement letter/information/data in Provision of OTT Service upon request from the Minister.

(2) Obligations as intended in paragraph (1) letter b through letter f shall follow rules of regulation.

Interestingly, OTT service providers will be mandated to operate a bank account with a bank in Indonesia where the sales and delivery proceeds from their operations in Indonesia are held as well as maintain the services of Indonesian lawyers. With regard to data storage, the regulation will mandate OTT service providers to keep a transaction of records of data and traffic of OTT services of the preceding 3 months and whenever a law enforcement request for trial process is made, the OTT service provider shall keep records of data that is directly relevant to the request until trial process is ended and/or court decision has permanent legal power.

OTT service providers can enter a Joint Venture with a Telecommunication Operator in organizing provision of OTT services. Interestingly, Indonesians could claim damages from OTT service operators for loss suffered by users for failure and/or negligence of OTT service provider. I wish to point out here that I do not subscribe to the over-involvement of the Indonesian government in the regulation of the OTT service sector. I believe market forces should determine the tariff.

As a positivist, I believe that law without the pain of sanction is something short of law –perhaps quasi morality. Article 18 of the regulation provides for sanctions. The veritable tool for sanction is Bandwidth Management Sanction. When an OTT service provider violates the regulation, the Minister may impose bandwidth management sanction, or the Telecommunication operator involved in a Joint Partnership with the OTT service provider may impose the sanction. The OTT service provider affected can appeal to the Minister in writing within a stated period. With due respect, I do not subscribe to this approach. The Minister is too powerful to administer and also adjudicate on compliance of requirements under the Act. If I were to suggest to Nigeria, I would suggest that a special tribunal be set up or that the Federal High Court be vested with the only and final power to adjudicate on Bandwidth sanctions.

5.0 Way forward

An Originating summons at the instance of the MNOs should be filed before the Federal High Court seeking interpretation of the NCC Act along the lines of the argument canvassed in this article. An expert opinion should be led to show that Over the Top Services are Communication services. It should be strongly canvassed that if they are to be rendered to Nigerians within Nigeria, then the OTT service providers should either have a Permanent Establishment or a Service Contract with the MNOs as doing otherwise would be illegal. The “same service, same licensing” principle should ensure that OTT service providers be regulated as MNOs incur costs providing machinery in Nigeria, employment, tax revenue to the government as well as Corporate Social Responsibilities. The solution lies in recognizing OTT companies as Telecom companies and insisting they get Nigerian licenses to operate in Nigeria. In the alternative, MNOs can be given the freehand to bill OTT services as regular calls or video messages or place a higher tariff to data. Further, OTT companies might be mandated to sign a revenue sharing agreement with MNOs in Nigeria for interconnectivity. MNOs are also encouraged to descend into the OTT arena and render combined voice, short message, video as well as IPTV services at competitive prices for sustainability.

Publications

CASE LAW REVIEW: SHOULD PHOTOCOPIES OF PUBLIC DOCUMENTS ATTACHED TO AN AFFIDAVIT AS EXHIBITS BE CERTIFIED? By Henry Chibor

The prevalent view amongst legal practitioners is that it is erroneous to raise an objection concerning documents attached to an affidavit as exhibits, particularly where the document is a photocopy of a public document. This view appears to have drawn judicial inspiration from the case of Adejumo & Anor. vs. Governor of Lagos State (1970) All NLR, 187 reiterated in Nwosu vs. Imo State Sanitation Authority (1990) 2NWLR Pt. 135, 688.

Publications

A REVIEW OF THE COMPANIES AND ALLIED MATTERS ACT (CAMA), 2004 (REPEAL AND RE-ENACTMENT) BILL, 2018

1.1 On the 15th day of May, 2018, the Nigerian Senate passed the Companies and Allied Matters Act (CAMA), 2004 (Repeal and Re-enactment) Bill, 2018 (“the Bill”) into law. The Bill which seeks to repeal and re-enact the existing Act, the Companies and Allied Matters Act, 2004, is aimed at addressing the shortcomings of the said existing Act, and when assented to by the President, is expected to promote the ease of doing business in Nigeria.

Publications

LAGOS STATE ELECTRIC POWER SECTOR REFORM LAW, 2018: HIGHLIGHTS

The Lagos State Governor, Governor Akinwunmi Ambode recently signed the Lagos State Electric Power Sector Reform Bill into Law (the Law) making Lagos State the first state in Nigeria to enact a Power Sector Reform Law. The main objective of the Law which seeks to give legal backing to the Embedded Power Scheme (launched by the state government in 2017) is to improve electricity supply, power generation and distribution through the Embedded Power Scheme and the enforcement of Consumer Rights and Obligations.

Publications

NATIONAL IDENTIFICATION NUMBER REGULATIONS, 2017 – What You Need To Know?

The National Identity Management Commission (the “Commission”) has as part of its mandate the creation, management, maintenance, and operation of a National Identity Database established under Section 14 of the National Identity Management Commission Act, 2007 (the “NIMC Act”), including the harmonization and integration of existing identification database in government agencies and integrating them into the National Identity Database.