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.


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.



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.



– 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.



Francis Igho Erhiakporeh, Esq.


On May 24, 2019, the Court of Appeal (the Court) in the case of Al-Maseer Law Firm v Federal Inland Revenue Services , held in a unanimous decision that lawyers in private practice are under a legal obligation to collect Value Added Tax (VAT) from clients and remit same to the Federal Inland Revenue Services (FIRS).

The Court further held that registration under the Value Added Tax Act, Cap VI, LFN 2004 (as amended) (VAT Act or the Act), is not per se a precondition for payment of VAT.

The implication of this decision is that the FIRS may issue a demand notice on a legal practitioner or any other taxable person to make returns on VAT; it is immaterial whether the taxable person is registered as a VAT collection agent and/or collected VAT from the consumers of his goods and services.

In arriving at its decision and dismissing the Appellant’s appeal, the Court, like the Federal High Court (the Lower Court), failed to consider the issue of registration which formed the fulcrum of the Appellant’s application challenging the demand notice issued on her by the FIRS.

The Appellant had argued that being a legal practitioner, the Act does not apply to her, and that assuming but without conceding that the provisions of the Act applied to her, having not registered with the FIRS as a VAT collection agent; it was illegal for the FIRS to serve on her a demand notice for VAT return.

This, therefore, raises certain questions as to whether the Court was right:

a) In failing to consider the issue of registration raised by the Appellant and consequently holding that registration per se is not a precondition for payment of VAT

b) In holding that a resolution of the issue of registration was not necessary for the determination of the Appellant’s liability to VAT return?

Summary of the Court of Appeal’s Decision in Al-Maseer Law Firm v. Federal Inland Revenue Services

The Appellant was served with a Best of Judgment (BOJ) Assessment by the FIRS for the return of VAT collected by her from her clients for the period covered by the demand notice served on her. Upon been served with the BOJ assessment, the Appellant objected to this assessment and subsequently filed an action at the Federal High Court, seeking via an Originating Summons the determination of the following questions:

1. Whether or not by virtue of the provisions of Section 8 of the VAT Act Cap VI 2004 (as amended) legal practice is a business venture and thus required to register with the Federal Inland Revenue Service Board for the purpose of collecting tax as its agent and remitting the amount collected on a monthly basis?

2. Whether or not a legal practitioner duly called to the Nigerian Bar and who practices as such falls within the class of person’s contemplated under Section 46 of the VAT Act to bring her under any obligation to render VAT returns in compliance with Section 15 of the Act?

3. Whether or not the purported letters served on the Plaintiff demanding it to render monthly VAT returns not being a business venture is irregular and of no legal effect whatsoever?

It was the case of the Appellant that she never registered as a VAT collection agent for the Respondent as she does not engage in business for the purpose of making profit, and thus she does not need to register as a VAT collection agent to the Respondent.

The Appellant also stated that the provisions of the VAT Act have no relevance to the Appellant, being a legal practitioner and do not affect her in anyway.

In defence of its BOJ assessment served on the Appellant and in opposition to the Appellant’s application, the Respondent filed a counter affidavit outlining the details of the Appellant’s registration with the Respondent and the consequent generation of a VAT Identification Tin Number for the Appellant.

The Respondent also stated that it was the failure of the Appellant to file her VAT returns that necessitated the service on her of the BOJ assessment.

The FIRS further contended that the provisions of the Act are applicable to the Appellant since her services are not amongst the services exempted under the Act. The Appellant, however, denied the fact of her registration as alleged by the Respondent by filing a further and better affidavit.

The Lower Court in its Judgment agreed with the Respondent’s position that the Appellant is a taxable person within the contemplation of the Act and consequently dismissed the Appellant’s case. Dissatisfied with the Judgment, the Appellant appealed to the Court of Appeal on three grounds from which two issues were distilled for determination to wit:

a. Whether the trial court was right when it held that she is not exempted from registration with the Respondent for the purpose of charging or collection of value-added tax on the professional fees she collects from her clients?

b. Whether the trial court was right when it held that Respondent had statutory power to demand payment of VAT from her?

In resolving the issues against the Appellant & dismissing the appeal, the Court of Appeal affirmed the decision of the Lower Court holding that the Appellant is not exempted from registration, and being a taxable person under the VAT Act, she is liable to VAT returns under the Act as the FIRS had the statutory power to demand payment of VAT from the Appellant. The Court held further that:

“As for the issue of the lower court’s alleged failure to decide whether Appellant actually registered with the Respondent, I do not see how that impacts negatively on the decision of the lower court in real terms, for there is nothing in the Vat Act that suggests that registration by a taxable person per se is a precondition for payment of VAT and or that the duty to pay VAT does not arise until a taxable person is registered. Besides, a resolution of that “issue” was not even necessary for a proper determination of the three questions Appellant posed in her originating summons for determination”.

The Law on Liability to VAT Collection and Return

Section 1 of the VAT Act provides that:

“There is hereby imposed and charged a tax to be known as the value-added tax (in this Act referred to as “the tax”) which shall be administered in accordance with the provisions of this Act”.

Section 2 of the VAT Act provides that tax shall be charged and payable on the supply of all goods and services otherwise referred to in the Act as “taxable goods and services” other than those goods and services listed in the first schedule to the Act.

By virtue of Section 3 of the Act, goods and services listed in the First Schedule to the Act are expressly exempted from the application of the Act. In effect, VAT is payable on the supply of all other goods and services not listed in the First Schedule. A taxable person is defined under Section 46 of the Act as:

“taxable person include an individual or body of individuals, family, corporations sole, trustee or executor or a person who carries out in a place an economic activity, a person exploiting tangible or intangible property for the purpose of obtaining income therefrom by way of trade or business or a person or agency of Government acting in that capacity.”

A review of the aforestated provisions of the VAT Act reveals that the Court was right in holding that legal services by a private legal practitioner, not being amongst the goods and services exempt under the Act is not exempted by the provision of the Act. It is my considered opinion that the contention of the Appellant in that regard was rightly rejected by the Court.

The second limb of the Appellant’s appeal hinged on the BOJ assessment served on her by the FIRS demanding that she make returns on the VAT collected from her clients.

It was the argument of the Appellant that she never registered with the FIRS as a VAT collection agent, and that having not registered, the FIRS cannot legally issued a demand notice on her to make a return on what she had not collected.

In opposing the Appellant’s contention that she did not register with the Board, the Respondent stated that the Appellant did register with the Board consequent upon which a VAT Identification Tin Number was generated for her.

Unfortunately, in the instant case, the Court did not consider the issue of registration raised by both parties but rather, hastily dismissed the Appellant’s appeal, thereby abdicating from its primary duty.

It is trite that the role of a court is to try all issues, evaluate the evidence, make findings and come to a conclusion one way or the other. A court of law ought to guard against the abandonment of its traditional and constitutional role of being an umpire between parties to a dispute.

In the paragraphs below, I shall consider the issue of the requirement of registration by a taxable person as a precursor to the collection of VAT on behalf of the taxing authority

Requirement as to Registration

Section 8 of the VAT Act provides that:

1. A taxable person shall within six (6) months of the commencement of this Act or within six months of the commencement of business whichever is earlier, register with the Board for the purpose of the tax.

2. Without prejudice to the provisions of section 32 of this Act, a taxable person who fails or refuses to register with the Board within the time specified in subsection (1) of this section shall be liable to pay as penalty, an amount of

(a) N10, 000 for the first month in which the failure occurs, and
(b) N5, 000 for each subsequent month in which the failure continues.

Furthermore, whilst Section 9 of the VAT Act requires Government Ministries, etc. to register as an agent of the Board for the purpose of the tax; non-resident companies are by Section 10 of the VAT Act mandated to register with the Board for the purpose of the tax. The law requires a taxable person who makes a taxable supply, to in respect of that supply; furnish the purchaser with a tax invoice containing certain information amongst which are: taxpayers identification number (this is issued by the FIRS upon registration by a taxable person) and VAT registration number.

By the provisions of the Act, a tax invoice is to be issued on supply whether or not payment is made at the time of supply. Consequently, a taxable person is required to render to the Board returns on all taxable goods and services purchased or supplied by him.

Where a taxable person fails to render returns or renders incomplete or inaccurate returns, the law empowers the Board to assess, to the best of its judgment, the amount of tax due on the taxable goods and services purchased or supplied by the taxable person.

The provisions of the VAT Act reproduced below give a clear idea as to the intendment of the Act with respect to registration by a taxable person.

Section 29 provides that:

“A person who fails to issue a tax invoice for goods sold or services rendered, is guilty of an offence and liable on conviction to a fine of 50% of the cost of the goods or services for which the invoice was not issued”.

Section 31 provides that:

“A person who, other than-
(a) a person registered under this act; or
(b) a person authorized to do so under this Act;

issues an invoice purporting to be attributable to tax, is guilty of an offence and is liable on conviction to a fine of N10, 000 or imprisonment for a term of six months”.

Section 32 provides that:

“A taxable person, who fails to register under the Act, is guilty of an offence and liable on conviction to a fine of N5, 000 and, if after one month, the person is not registered, the premises where the business is carried on shall be liable to be sealed up”.

In broad strokes, a combined reading of Sections 13, 29, 31 and 32 of the Act, evinces that only a taxable person registered under the Act can legally collect VAT for goods and services supplied and make returns to the FIRS.

Where a taxable person fails to register after the commencement of business, such a person is liable, upon conviction, to the penalties stipulated under the Act, to wit: payment of a fine of N5, 000 and the sealing of the business premises, where the taxable person fails subsequently to register after one month.

The Act does not in any way empower the FIRS to issue a BOJ assessment on an unregistered taxable person under the Act; especially where the collection and/or return of VAT charged on goods and services supplied is in issue.

It is my view that the Court of Appeal ought to have resolved the issue of registration raised by the parties before proceeding to determine the liability of the Appellant to the notice served on her by the FIR.

It is also my considered opinion that contrary to the view expressed by the Court, the issue of registration as canvassed by the Appellant was very much relevant in the determination of her liability to VAT return.

It is not a recondite principle of law that the provisions of a statute should not be read in isolation of the other parts of the statute. This is because in order to determine the intendment of the makers of a statute, the statute should be read as a whole, and each clause construed together in ensuring the discovery of a consistent meaning of the whole.

Extrapolating from the foregoing, the decision of the Court of Appeal in Al-Maseer Law Firm v. FIRS, to the effect that registration per se is not a pre-condition for VAT collection and return is founded on a sinking and hasty construction of the intendment of the VAT Act.

Under the VAT Act, whereas registration is not a precondition for payment of VAT, it is, however, a precondition for VAT collection and returns by a taxable person, which was an issue in the case under review.

It is hoped that if and when the Supreme Court is called upon, the apex Court would answer this question definitively and leave no room for doubt or speculation as the decisions of the Lower Court and the Court of Appeal have done.


Silence of the Lambs

The Silence of the Lambs – Is a Judgment Debtor not meant to be heard in Garnishee Proceedings?

Written by:
Esosa Omo-Usoh
Ucheawaji Aganin
Francis Erhiakporeh

Of all judgment enforcement procedures available under civil law, garnishee proceedings is, arguably, the most straightforward and less stressful or so it would seem. It essentially involves attaching monies belonging to a judgment debtor in the possession of a 3rd party to satisfy a judgment debt that remains unsettled by the judgment debtor.

That seems pretty straightforward, right? Not quite. Virtually every time a garnishee matter comes up in court, scenarios arise that just complicate an otherwise straightforward procedure.

One time, in a garnishee proceeding before a Magistrates’ Court, the Presiding Magistrate, in his ruling refusing an ex parte application for a garnishee order nisi, ordered that the other parties on record be put on notice.

His Worship’s reason for refusing to grant the application for a garnishee order nisi was that “they said we should not be granting ex parte applications. So, put the other party on notice”.

Another time, during proceedings to show cause in a garnishee suit before a Magistrates’ Court, Counsel drew the Presiding Magistrates’ attention to the fact that from the judgment debtor’s statement of account attached to the Garnishee Bank’s affidavit to show cause, the Garnishee Bank had allowed withdrawals from the account on the day the order nisi was served on the Bank as well as the next day.

Responding to Counsel’s observation, the Presiding Magistrate replied “So, what do you want me to do? You can’t blame them. By the time the branch where it was served sends the order to the Bank’s headquarters and waits for further instructions from them, the Judgment Debtor may have made withdrawals from the account”.

It is arguable that the withdrawal made on the day the bank was served could have been made before the order was served. Even then, the Court could have asked the Bank to provide evidence of the time the withdrawal was made and match it against the time the order was served from the Bailiff’s affidavit of service in the Court’s record.
However, the withdrawal made a day after the order was served on the Bank provided incontrovertible proof that the Bank had acted in contempt of the order of court by allowing the second withdrawal.

There has even been an occasion where Counsel to a Garnishee Bank refused to serve Counsel to the Judgment Debtor with processes filed on behalf of the Garnishee Bank because, as the Garnishee Bank’s Counsel put it “ the judgment debtor is not a party to the suit”.

Unarguably, the biggest issue that throws a monkey wrench into the works in garnishee proceedings is the widely-held notion amongst judges and counsel alike that a judgment debtor is not meant to be heard in such proceedings.

This is the biggest hurdle that typically confronts counsel for a judgment debtor in defending a garnishee suit. Although a named party in the suit, a judgment debtor is usually said to be meant to be seen only and not heard.

A judgment debtor is typically regarded as a meddlesome interloper and not a necessary party in a garnishee suit as same is considered to be one essentially between the Judgment Creditor/Garnishor and the Garnishee.

Not only is he stripped of the privilege to be heard in the proceedings, he is even denied the right to appeal against the decision of the court making the order nisi absolute as of right. He is expected to first seek leave of court to do so as an interested party.

Legal justification for this curious assertion (despite its negation of one of the twin pillars of justice; the doctrine of audi alteram partem) is typically premised on the decisions in a plethora of decided cases.

Curiously, this seemingly immutable legal assertion is worlds apart from express statutory provision to wit: the Sheriffs and Civil Process Act (the SCPA), particularly Section 83 (2) which places a mandatory obligation on the Garnishor to serve the order nisi on both the Garnishee and the Judgment Debtor.

In line with the above provision, Order VIII Rules 6 and 8 of the Judgment Enforcement Rules made pursuant to the SCPA, expressly requires the Court, before making an order in respect of the judgment debt, to not only hear the Garnishor and Garnishee but also the Judgment Debtor.

Why then the widely-held notion that a judgment debtor is not a necessary party in a garnishee proceeding and therefore not entitled to be heard?

Whether or not a judgment debtor is a necessary party, preventing him from being heard infringes on his Constitutional right to fair hearing in a proceeding in which he is a named party on record.

The beacon to arriving at the right conclusion should be whether the interest of a judgment debtor is affected in the garnishee proceedings. If the answer to the question is in the affirmative, then why shouldn’t he be heard? If no, why does the law make him a party? Certainly not to be a nominal onlooker, waiting and watching with keen indifference how his money will eventually be carted away.

For too long, our Courts, with respect, have conducted and a seeming majority of them continue to conduct garnishee proceedings with the misconception that a judgment debtor is merely a nominal party or not even a party in the proceedings, and as such ought not to be heard. This is coupled with the illusionary distinction created between garnishee proceedings and other forms of judgment enforcement procedure.

In Re Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) at 120, the Court held categorically that:

“garnishee proceedings are separate proceedings, between the judgment creditor and the person or body who has custody of the asset of the judgment debtor, even though it flows from the judgment that pronounced the debt owing. Further to that, it is only the garnishee being in custody of the assets of the judgment debtor who can appeal against the order absolute as he was the other party to the dispute and not the judgment debtor.”
The above position was equally reiterated in Purification Techniques Nig. Ltd. v. A.G. Lagos (2004) 9 NWLR (Pt. 879) Pg. 665 and, Denton-West v. Muoma (2008) 6 NWLR (Pt. 1083) Pg.418 at 440,442.

Sadly, the Court in PPMC v. Delphi Petroleum Inc. (2005) 8 NWLR (Pt. 428) Pg. 488 seemingly made garnishee proceedings a sacred ground to be trod on only by the Garnishor and permissively by the Garnishee, but never by the Judgment Debtor.
In that case, the Judgment Debtor (the Appellant) though not made a party to the garnishee proceedings at the trial Court, appealed against the decision of the trial court. The Appellate Court held that a garnishee proceeding is purely and distinctly a matter between the body in custody or possession of the Appellant’s assets, (i.e. the Garnishee) and the Judgment Creditor, they (the Judgment Debtor) cannot qualify as an aggrieved party entitled to appeal.

In UBA Plc v. Hon. Iboro Ekanem (MD Paragon Eng. Ltd.) & Anor (2009), the Court Per Omokri, JCA held that the judgment debtor is merely a nominal party in the garnishee proceedings and since it is only the garnishee that is required to show cause, it is only the garnishee (and not the judgment debtor) that can react to an order nisi.

In addressing the issue of whether in a garnishee proceeding a judgment debtor is a necessary party or not, it is hard to fathom why anyone would consider one whose money is about to be carted away (albeit in satisfaction of a judgment debt) as merely a nominal party who should only be seen and not heard in the proceedings.

Black’s Law Dictionary 9th ed. at Pg. 1232, defines a nominal party as a party to an action who has no control over it and no financial interest in the outcome; especially a party who has some immaterial interest in a lawsuit and who will not be affected by any judgment, but who is nonetheless joined in the lawsuit to avoid procedural defect.
Is this really who a Judgment Debtor is?

Given a judgment debtor’s obvious pecuniary interest in a garnishee proceeding, credence ought to be given to the assertion that a judgment debtor is a necessary party to a garnishee proceeding bearing in mind the locus classicus of Green v. Green (1987) LPELR (1338) wherein the Court defined necessary parties to mean, those who are not only interested in the subject-matter of the proceedings but also who, in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.

On the illusionary distinction created between garnishee proceedings and other forms of judgment enforcement, it may not be far-fetched, that one of the reasons why over the years our courts have wallowed in this misconception is in their attempt at using a theodolite to create a distinction between the various modes of execution of judgment and garnishee proceedings. This is without prejudice to Section 19 of the SCPA which in defining what a writ of execution is, excluded garnishee proceedings.

This, perhaps, is the basis of the Court’s reasoning in Purification Techniques Nig. Ltd. v. A.G. Lagos (supra), wherein the Court held, albeit wrongly, with due respect, that there is a clear distinction between execution of judgments and other methods of enforcing judgments, such as garnishee proceedings.

In Denton-West v Muoma (supra), the word “execution” was given a restrictive meaning within the confines of the definition of “writ of execution” in Section19 of the SCPA; and the word “enforcement” was given a broader meaning.

The resultant implication of this faulty distinction is that while stay of execution can apply to the modes of execution of judgment listed in the above Section as to stop the Judgment Creditor from executing the judgment, it does not apply to those not listed therein i.e. garnishee proceedings, hence the wrong conclusion that enforcement of judgment via garnishee proceedings cannot be stayed.

Section 19 of the SCPA, in interpreting what a writ of execution means, uses the word “includes”.

On the meaning of “include”, the Court in P & CHS Co. Ltd. v. Migfo Nig. Ltd. (2012) 18 NWLR (Pt. 1333) Pg.555, abiding by the doctrine of stare decisis held that:

“‘includes’, when used in a statute or written enactment can enlarge the scope of the subject matter it qualifies or tends to qualify, only to an extent permitted by law.”

Therefore, it presupposes that the definition is not restricted to those items expressly listed therein, and by that fact; garnishee proceedings is arguably one of the modes of execution of judgment.

Having established that garnishee proceedings is one of the various forms of execution of judgment, it will therefore amount to approbating and reprobating to contend that while a judgment debtor can bring an application to stay the execution of judgment via any of the modes listed in Section 19 of the SCPA, the same judgment debtor is not only barred from bringing a similar application in a garnishee proceeding, but even more egregiously, he is not entitled to audience therein.
In the expectation that the foregoing have provided some clarity on the age-long misconception which rightly equates the refusal of audience to a judgment debtor in a garnishee proceedings with the silence of a lamb being led to slaughter, the next port of call is to proffer an answer to a pertinent question to wit: whether it is still the law that a judgment debtor is not entitled to be heard in a garnishee proceeding?

Lately, it seems that the legal assertion that a judgment debtor is not to be heard in a garnishee proceeding has lost its seemingly immutable status.

It is trite that the law requires that a judgment debtor in a garnishee proceeding must mandatorily be served with the order nisi. The Court in Wema Bank Plc. v. Brastem Sterr (Nig.) Ltd. (2011) 6 NWLR (Pt. 1242) at pages 80-82 in stating the consequence of such service on the judgment debtor held that:

“In my view the consequence of such service avails the judgment debtor the right to be heard as to whether the order nisi ought to be made absolute. This would be in consonance with the constitutional provision of fair hearing enshrined in Section 36(1) 1999 CFRN.”

In 2015, the Court of Appeal finally severed the umbilical cord which tethered the Courts to the misconceived notion in times past (albeit still widely believed till date) that a judgment debtor is not to be heard in garnishee proceedings.

In Nigerian Breweries Plc v. Chief Worhi Dumuje & Anor (2015) LPELR-25583(CA), the Court clinically questioned the rationale behind the assertion that a judgment debtor is not entitled to be heard and more importantly; departed from the long conga-line of decided cases caroling the refrain that a judgment debtor is not to be heard in garnishee proceedings.

Giving its reason for going against the grain of previous decisions on the point, the Court held that:

“if as contended that it isn’t necessary to have the Judgment Debtor as a party in the garnishee proceedings, what is the essence of the provision for the order nisi to be served on him, is it merely for his information or for him to attend court as a spectator to applaud and cheer on the judgment creditor and garnishee in the contention on the destination of funds which belong to him? The Latinism is natura non facit vacuum, nec lex super vacuum – nature does not admit of a vacuum and the law does nothing purposeless.”

In a bid to finally put an end to this age-long misconception of the law, the Court held further that:

“The wisdom of the law in stipulating that the order nisi be served on the judgment debtor is definitely not for idle purposes. It is not floccinaucinihilipilification. It is not worthless, neither is it valueless. It has to be emphasized that in the light of the clear provisions of Order VIII Rules 6 & 8 of the Judgment Enforcement Rules, which make provisions for “hearing the judgment creditor, the garnishee and the judgment debtor” in a situation where the garnishee either pays the judgment sum into court or disputes his liability; there is no justifiable legal basis for shutting out a judgment debtor from garnishee proceedings subsequent to service of garnishee order nisi or treating him as a stranger thereto, which evidently he is not; the enquiry ought to be on what the judgment debtor should be heard to say in the proceedings and not whether he can be heard at all, on the premise that the garnishes order nisi is not directed at him but at the garnishee.”

In the same case, the Court also held that:

“If after hearing the three parties-judgment creditor, judgment debtor and garnishee in the proceedings, the trial court decides to make the order nisi, absolute, or to discharge or vacate same, any of the parties has a right of appeal against that decision.”

Although this is not a decision of the apex Court on the subject, it has clinically interpreted the law in line with the twin pillars of natural justice, particularly audi alterem partem which is well-enshrined in Section 36 of the Constitution and same is worth applauding.

It is also worthy of note, that the Court relied on the opinion of learned Silks and Senior Counsel who aided the Court as amici curiae in arriving at this well-informed decision.
Given the conflicting Court of Appeal decisions on the point pre and even post the Nigerian Breweries Plc v. Chief Worhi Dumuje & Anor (Supra) seminal decision, it was therefore a welcome development when recently, the Supreme Court finally weighed in with a decision that settles this rather thorny legal point with soothing finality.

On February 15, 2019, the Supreme Court in Unreported Appeal No. SC/595/2018 – Jenkins Duvie Giane Gwede v. Delta State House of Assembly & Skye Bank Plc held inter alia per Okoro JSC that:

“There appears to me that by a combination of Section 83(2) of the Sheriffs and Civil Process Act and Order VIII Rule 8 of the Judgment Enforcement Rules, a judgment debtor, after being served with order nisi can be heard by the court only of or where he observes irregularities in what is presented before the court by the judgment creditor… In other words, it is not cast in stone that a judgment debtor cannot be heard in garnishee proceedings. It is the court that will determine he should be heard or not. If the application of the judgment debtor before the court is to reopen issues settled in the judgment, he cannot be heard. But if the application is to draw the attention of the court to misleading facts put forward by the judgment creditor, there is nothing wrong in him being heard. I am persuaded by some Court of Appeal authorities in this matter including but not limited to Barbedos Ventures Ltd. V. Zamfara State (2017) LPELR – 42499, CA, Nigerian Breweries Plc v. Dumuje (supra).”

It is therefore expected that with the issue of whether or not a judgment debtor is allowed audience in a garnishee proceeding having been settled with finality by this recent Supreme Court Decision, Judges, Magistrates and Counsel representing judgment creditors/garnishors (and even sometimes, garnishees) have been properly advised that unlike the silence of a lamb being led to slaughter, a judgment debtor is entitled to and must be accorded every right of audience in garnishee proceedings.



By Blessing Udo

Technology has in the last decade impacted significantly on Intellectual Property rights especially across the various social media platforms available today.

We are confronted with salient questions such as:

If A makes an unauthorised video of B and puts it up on Gofundme, and the said video attracts gratuitous donations to B, is A, being the maker of the video, entitled to the gratuitous donations?

Would such a video constitute commercial purpose in the circumstance?

Would the answer differ if an advert company uses the video for a television commercial?

The recent story of the viral video of little Success Adegor typifies these and more.


One of such technological impacts on copyright played out recently in Delta State when a viral video of seven-year old Success Adegor emerged online.

In the video, the precocious little girl who had been sent away from school on account of non-payment of school fees, boldly stated that she would have preferred being flogged to being sent home from school.

Impressed by her boldness which belied her age and touched by the obvious financial challenges facing her parents, efforts were made to contact her parents and philanthropic donations poured in torrents.

Shortly after donations came pouring in, news reports made the round alleging that Stephanie Idolor (maker of the viral video) was making monetary demands from the family of little Success Adegor, and asserting that it was her viral video upload which led to the popularity of little Success and the monetary donations which attended its upload on social media.

It is therefore in light of the above that this article seeks to examine the possible legal consequences bordering on intellectual property rights which could arise by virtue of the alleged right by Stephanie Idolor over the monetary benefits accruing therefrom.


Under the Copyright Act, for an author to be eligible for copyright protection with regards to literary, musical or artistic works, such work has to be the original work of the author (qualified person as provided under the Act) fixed in any tangible medium of expression, from which they can be perceived, reproduced, or otherwise communicated.

For a work to be considered original it must be independently created by the author and it must possess some minimal degree of creativity. Where all these requirements are met by an eligible work, copyright automatically vests in it.

However, the Act has not stipulated such specific requirements for cinematograph works, which is the focus of this article, but it goes without saying that it has to be the original work of the author in a fixed medium.

Copyright in film protects the author’s exclusive right to make a copy of their film, make it seen or heard in public, and distribute commercially. These rights have a term of fifty years after the end of the year it was first published. The author also has the right to authorise the doing of these acts by other persons as well as the right to claim authorship.

Film and video in the context of this article refer to “cinematograph film” as defined in the Copyright Act to include the “first fixation of a sequence of visual images capable of being shown as a moving picture and of being the subject of reproduction, and includes the recording of a soundtrack associated with the cinematograph film”.

It is pertinent to state that with emerging technological trends, we now have viral videos which have been made possible as a result of the various social media platforms.

However, viral videos still remain a puzzle when it comes to intellectual property, as they are often shot without any creative intent or just for the fun of it.

In some cases, viral videos also tend to implicate other people or the property of others, or are shot without the subjects’ awareness or knowledge. Hence, a fundamental question to consider when discussing viral videos in relation to intellectual property rights is: who truly owns the copyright in such video?

Notwithstanding the intricacies associated with viral videos in relation to intellectual property, the copyright in a viral video vests in the maker of the video as provided in Sections 1(1)(d), 2(1), 3(1)(a) and 39 of the Copyright Act.

A person who feels such viral video is an invasion of his/her privacy or that it was shot without his/her consent, can at best, institute an action in Court to remedy such wrong, as the right to privacy is a right guaranteed under section 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

This is an issue which will be discussed subsequently in this work.

It is also the contemplation of the Act that the maker of an eligible work of intellectual property should also have such rights as are necessary to exclude others from appropriating such work without permission or proper remuneration.

In this regard, the Copyright Act particularly in Section 5 thereof confers on a copyright owner the exclusive right (subject to the exceptions in the second Schedule of the Act) to control in Nigeria the reproduction, broadcasting, or communication in any material form, the whole or substantial part of the copyright property either in its original form or any other form recognisably derived from the original work and to gain and receive royalties for any exploitation of the said copyrighted work.

Although the Act provides no definition of royalties, Black’s Law Dictionary defines it as a payment made to an author or inventor for each copy of a work or article sold under copyright or patent.

Investopedia dictionary defines royalty as a payment to an owner for the ongoing use of his assets or properties, such as patents, copyrighted works, franchises, or natural resources.

In most cases, royalties are designed to compensate the owner for the asset’s use, and they are legally binding. Within the context of the above definitions, there is no contemplation or provision for donations or gratuitous payments to constitute royalty.

In the instant case, the acts of the donors obviously did not go beyond the donations as to constitute an exploitation of the copyrighted work. Therefore, by no stretch of the law can such donations constitute royalties of which Stephanie Idolor would be entitled to.

This therefore clarifies the issue as to whether the donated sums should be regarded as royalties derived from the copyrighted video of Stephanie Idolor.

Deducing from the foregoing, it is well-settled that with regard to the monies donated, those monies were gratuitous payments made to finance the education of little Success and were not proceeds from any form of exploitation of the said video or direct payment for its usage.

Therefore, while copyright in the viral video vests in Stephanie Idolor, the monies donated in reaction to the viral video belong to Success Adegor, and Stephanie Idolor is not legally entitled to any sum therefrom as royalty.

It would have been a different case if both parties had agreed on a sharing formula prior to the making or uploading of the video on social media. In that situation, the agreement of both parties would have been binding. Such agreement must, however, be in writing.

Note that Success Adegor, being a minor, would lack the requisite legal capacity to make such contract. However, her parents or guardian would have been in a position to make such contract on her behalf.

Meanwhile, if there is to be any form of exploitation of the said video by any user (not within the exceptions stipulated in the second Schedule of the Act), then the consent of Stephanie must first be sought and obtained, and such consent may be given subject to such conditions and to the payment of such compensation as may be prescribed.

For instance, if a Company/Organisation intends to use little Success Adegor’s video for a television commercial, they must seek and obtain Stephanie Idolor’s permission with agreed royalties as copyright over the video vests in her.


Bearing in mind that there was an intrusion of privacy or personality right, it is pertinent to ascertain the legal implication as to whether a person can assert complete right over a copyrighted work despite infringement on the rights of others.

An analysis of the Nigerian Copyright Act shows that once the requirements have been fulfilled for the copyright to be vested in an eligible work, same is complete in itself.

However, if there were any rights infringed upon in the process of making such work, that itself can be an impairment to such copyrighted work, as an injunction can be obtained against such work.

For example, if the parents of little Success decide to institute an action in Court against Stephanie Idolor for infringing on the privacy of their little daughter Success and for the said video to be taken down, in the event that such action succeeds, the video in question will no longer be available for public viewing, and Stephanie will not be able to derive any royalty from the exploitation of the said video.

In Nigeria, where a person’s image is used without consent, at best such a person can sue for infringement on his/her right to privacy as there is no known law specifically governing personality rights in Nigeria, but a right to privacy is guaranteed under Section 37 of the 1999 Constitution(as amended).

For purposes of clarity, it is expedient to reproduce the said section below. It states thus:

“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”

It goes without saying that any intrusion into another’s personal life by whatever means or form, such as photography, videotaping, written articles or caricatures, may be ground for an action for breach of privacy as the right to privacy is a right guaranteed under Section 37 of the Constitution.

However, despite the provision in the Nigerian Constitution guaranteeing the right to privacy, Nigerian legal jurisprudence on the point has remained largely undeveloped (or perhaps more appropriately; largely underdeveloped) as other climes have moved forward to also make provisions for personality and image rights which cover situations such as the one in consideration.

In the United States of America where some States have developed a robust legal framework to prevent the exploitation of the economic benefits attached to the use of a person’s image, there is a specific provision for situations of privacy breach. One can sue for a breach of personality rights or image rights.

Image rights (known as the right of publicity in the United State of America) refer to a person’s right to commercialise aspects of his personality and also the right to prevent other people from commercially making use of them.

The case at hand involves a minor. Therefore, it raises the issue of infringement of the privacy of a minor. Specifically, Section 8 of the Child Rights Act guarantees a child’s right to privacy, subject to the parents’ and guardians’ right to exercise supervision and control over the child’s conduct.

Furthermore, Article 10 of the African Charter on the Rights and Welfare of the Child provides the right to privacy for children (the Charter has been ratified in Nigeria).

Therefore, in the instant case, where a video recording of little Success was made without the knowledge and consent of her parents, an action can be maintained on her behalf for breach of her guaranteed right to privacy.


The reverberation of technology has spurred several copyright issues which have exposed a yawning gap in our Copyright Law as regards Personality Rights.

The proposed Copyright Bill in Part VII thereof makes provision relating to online content. However, there are other issues that need to be considered, such as:

• There should be an explicit provision for personality rights in the Copyright Act or a new legislation should be enacted to address the issues arising from personality and image rights.

• A definition of royalties should be captured in the Copyright Act, in order to ascertain what it entails.

On the whole, it is important to fill the lacuna in the current Copyright Act and decipher ways to harmoniously implement same. Meanwhile, periodic amendments and reviews of the Copyright Act are imperative to ensure that it is on par with emerging technological trends in a rapidly evolving world.



– 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.



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.



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.



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.