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Companhia Brasifeira De Infraestrutura (INFAZ) v. Companhia Brasileira De Entrepostos E Commercio (COBEC Nigeria Limited) [2018] 12 NWLR (Pt. 1632) 127 at 132, paras. E-F, per Aka’ahs, JSC:

“This Court decided in Saeby jernstoberi Maskinfabric A/S v. Olaogun Enterprises Ltd. (1999) 14 NWLR (Pt. 637) 128 which was cited to the court below that the principle of law that a foreign corporation, duly created according to the laws of a foreign state recognized by Nigeria, may sue or be sued in its corporate name in our courts is part of the common law. The Court per Ayoola, JSC at p. 146 para. G went further to state: “It suffices to say that the Appellant Company which was admitted by the respondent to be a limited liability company with its registered office in Copenhagen properly sued in its corporate name.”

Notes:

The Appellant was a Brazilian company formerly known as Companhia Brasileira De Entrepostos E Commercio (“COBEC of Brazil”) at the time. It thereafter changed its name to Companhia Brasifeira De Infraestrutura (“INFAZ of Brazil”). The Respondent was its Nigerian partners.

It happened that the relationship between the Appellant, Respondent and the Respondent’s Chairman broken down as a result of which the Appellant filed a petition for winding up of the Respondent at the Federal High Court. In compliance with the Winding Up Rules, the Appellant filed an application seeking for an order to advertise the Petition. The Respondent opposed the application and also filed a motion seeking to have the Petition dismissed on the ground that the Appellant was an unknown legal entity and was neither a creditor nor a contributory. The Respondent however conceded that COBEC of Brazil was the only foreign shareholder known to the Respondent.

The trial Court upheld the contentions of the Respondent and struck out the Petition and the application to advertise the Petition for being illegal. The Court of Appeal dismissed the Appellant’s appeal and further held that there was no evidence of compliance with the Brazilian law governing change of name of the company.

The Appellant’s appeal to the Supreme Court was allowed. Aka’ahs, JSC clarified the position of the law as quoted above, holding that the Appellant had the locus standi to institute the action. According to him: “If COBEC in Brazil was changed to INFAZ it follows that INFAZ is a contributory shareholder of the Respondent company and therefore has the locus standi to apply for the winding up of COBEC (Nigeria) Limited.”

His Lordship further held that since there was evidence, that is, documents showing the change of name from COBEC of Brazil to INFAZ of Brazil, there was a presumption under Section 149 of the Evidence Act that the evidence represent the position of the law in Brazil on the change of name of the Appellant until the contrary is proved by the Respondent who did not challenge the authenticity of the documents. According to the Court, “In view of the finding of the trial Court that exhibits AA-AA2 accorded with Brazilian law on the change of name, it was wrong for the Court of Appeal to embark on a futile exercise seeking evidence of compliance with the Brazilian law governing change of name of the company…”

The position of the Supreme Court is supported as same is good for the advancement of international trade. As Ayoola, JSC reasoned in Saeby jernstoberi Maskinfabric A/S v. Olaogun enterprises Ltd. (supra), such restrictions on foreign companies, if allowed, “is too preposterous and patently inimical to international trade to merit any prolonged or serious consideration.”

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U.B.A. Plc v. Ujor [2001] 10 NWLR (Pt. 722) 589 at 603, para. B, per Opene, JCA:

“When a litigant files a document in the court Registry and pays all the fees, it is not his duty to pay the bailiff any money for transport or otherwise so that he could effect service on the other party…”

Notes:

The above statement by the Court of Appeal is actually not saying anything new. In general sense, a litigant has no duty to pay any court official money outside the official fees paid to the government through the courts. The question is, why then is the payment of money to court bailiff (outside official fees) prevalent? We shall show below that, considering the current state of affairs, failure to pay court officials unofficial monies to do their jobs is detrimental to a litigant.

In commencing a court action, the filing and service of court processes by the sheriff and other internal arrangements leading to the assignment of the case to a particular Judge and subsequent giving of date for mentioning of the case are all administrative processes which a litigant and his lawyer ordinarily have no control over. In the case of Ede v. Mba [2011] 18 NWLR (Pt. 1278) 236 at 267, the Supreme Court noted:

“By our law and practice, once a prospective party has properly made his claim as required by law and delivered same in the Registry, what is left to be done such as sorting out of the processes, giving them identification numbers for ease of reference; distributing such processes to the various Justices, is the domestic responsibility of the Registry. The party has no more say on it except what the court/Registry requires of him to do.”

However, in practice, a litigant and his counsel have much bigger role to play to PUSH virtually each and every official at the court registry to do his or her job, as it is customary for them to do little or nothing except when pushed. This is contrary to what is naturally expected of a court registry staff who, “by nature of their job, ought to always be meticulous, sober and dedicated” (Ede v. Mba (supra) at 267) – as well as disciplined.

How is the pushing done? To understand this, one needs to understand an unwritten ‘rule of procedure’ called “Mobilization and Facilitation” or “Doing the Needful”. In the entire Nigerian civil service, the concept of “Mobilization and Facilitation” or “Doing the Needful” is common and smoothly practiced. It is only sad that such exists too in the judicial system. In tracing the history of this development, one cannot rule out the fact of honest show of appreciation by some people who simply give monetary gifts to these officials for doing their work. These generous givers sometimes reckon with the poor salaries of these officials and the fact that some suffer months of unpaid salaries. In this historic development is also the fact that some impatient people want to do everything to jump the queue and fast-track the process, hence, the term – “Facilitation”. There is also the issue of slow disbursement of funds by the officials in charge due to bureaucratic bottlenecks to help these officials like the sheriffs, for instance, to do their work timeously. This brought about the need by litigants to assist them with quick funds to mobilize them. This is called, “Mobilization”. Taking the issue of service of process by court bailiff as an instance, in U.B.A. Plc v. Ujor (supra), the Court of Appeal acknowledged that giving money to a bailiff “is only to speed up the service on the other party.”

All these finally gave birth to a system where many court officials now see “Mobilization and Facilitation” as a right. They demand for it openly and sometimes rudely. You’ll hear questions like, ‘have you done the needful’? And responses like, ‘I’ll do the needful…’ or ‘I’ve done the needful’. The term – “Needful” is a ‘clean word’ used to express the ‘trade’. In fact, in U.B.A. Plc v. Ujor (supra), the court bailiff expressly stated it in his Report of Service letter that he approached counsel in the matter for transport money to enable him effect service.

Unfortunately, the situation today is that it is absolutely difficult to drive one’s matters with deserving speed (not necessarily jumping queues) without doing the “Needful”. Did I mention that subsequent to filing, service and assignment of the case, you’ll continue to do the “Needful” when you need to secure certified copies of court orders, hearing notices, enquiries, further filings, etc. Otherwise, cases of litigants might suffer. This is notwithstanding the trite principle that the tardiness or failure by court officials in the discharge of their duties is not to be visited on the litigant (Shanusi & ors v. Odugbemi & Anor (2017) LPELR-43377(CA)). The suffering that might befall the litigant however need not necessarily flow directly from the court (Judge) e.g. by way of either striking out or dismissal orders but same may manifest in other forms such as undue and harmful delays and damage.

Our policy makers and stakeholders need to urgently look into this issue in order to ensure that all that is necessary is done towards sanitizing the system for a better and reliable administration of justice.

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Emechebe v. Ceto Int’l (Nig.) Ltd. [2018] 11 NWLR (Pt. 1631) 520 at 534, paras. B-C, per Abubakar, JCA:

“The originating processes were duly signed and stamped by the learned counsel for the Respondent, and a stamp of the legal practitioner affixed even though expired, in my view, there is no sufficient basis to strike out the said processes. So doing in my view will amount to pushing technicalities too far.”

Notes:

What happened in the case was that the Respondent, as Plaintiff, filed an action at the Federal High Court, Lagos against the Appellant on claims bordering on unauthorised use of a registered trademark. The Respondent secured some restraining orders against the Appellant following which the Appellant appealed against the Ruling granting the said orders at the Court of Appeal, Lagos Division. Among other contentions of the Appellant’s counsel was the argument that the stamp and seal of the Respondent’s counsel affixed to the Respondent’s originating processes had expired and that the implication is that no stamp or seal was affixed, and therefore the said processes were irregular. He concluded that the lower court lacked jurisdiction to entertain the suit. In response, the Respondent submitted that the use of the expired seal was an error by counsel and that the counsel had unexpired seal in existence as at that time as evidenced by a subsequent application filed by the Respondent’s counsel. The Appellant further argued that at the time of filing the appeal whereupon the objection was raised, the Respondent never filed an application to affix a valid seal in order to regularise the anomaly and that as such, the suit ought to be struck out or dismissed.

Abubakar, JCA, in delivering the Leading Judgment, took time to consider the submissions. His Lordship made the above quoted remarks and reiterated that it is settled that failure to even affix the approved seal and stamp of the NBA on a process does not render the process void as same is an irregularity which can be regularised by an application for extension of time and a deeming order (Nyesom v. Peterside [2016] 7 NWLR (Pt. 1512) 452). His Lordship further reasoned at p. 534, paras. E-F:

“Since the originating processes contain a stamp which bears the name and number of the counsel who filed the said processes and it is not that the Respondent had failed to affix any stamp at all, and even if the Appellant’s contention is upheld herein, it is at best an irregularity, which can be remedied by affixing the unexpired stamp and seal, which from the records before us, learned counsel for the Respondent no doubt has, having been clearly affixed to other applications filed at the lower court. Since the material constitutes part of the records before us, I am bound to take judicial notice and hold that the submission of learned counsel for the Appellant on this point lacks merit and must be and is hereby discountenanced by me.”

Other Justices on the panel (Ikyegh and Ogakwu JJCA) agreed with the Lead Judgment.

Thus, as clearly seen from the above, the Court of Appeal recognised the fact that if there are other processes in the court’s file or record having a valid unexpired stamp affixed, the court is bound to take judicial notice of same. In commending the Court of Appeal in this case, it is our position that the Court showed its full grasp of the true rationale behind the stamp and seal in the first place which, as clearly identified by Abubakar, JCA, is:

“To ensure that legal practitioners who file processes in court have their names on the roll of legal practitioners in Nigeria and that quacks, impostors and meddlesome interlopers do not infiltrate the legal profession and present themselves to litigants as legal practitioners.”

Therefore, it is submitted that an expired stamp does not defeat this purpose as same still undoubtedly identifies the legal practitioner. As such, it would amount to allowing the undue triumph of technicality if the use of an expired stamp is held to nullify a court process altogether. It should not be so.  

It is must be noted that, on a careful look, the Court has not by this decision encouraged the use of expired stamp without more, counsel must ensure that remedial steps are taken where necessary, ex abundanti cautela.

It is our view that this case further calls to question the practice of the NBA in issuing stamps which are capable of expiration to legal practitioners in Nigeria. There is no where in the Rules of Professional Conduct where it was provided that the stamp to be issued should be meant to expire. The NBA came up with the initiative as, perhaps, the easiest means of ensuring that legal practitioners pay their practising fees and dues and of course, to generate revenue for the Association.

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Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd [2018] 9 NWLR (Pt. 1623) 138 at 176, paras. B-C, per Augie, JSC:

“…Where there is any inconsistency between a concurring and a lead judgment, the law says that the former would give way to the extent of the inconsistency”.

Notes:

Augie, JSC relied on the Supreme Court case of O.S.I.E.C. v. A.C. [2010] 19 NWLR (Pt. 1226) 273 at 337-338, paras. H-A, where it was stated that: “It is settled law that dissenting judgments are not binding and also that the lead(ing) judgment of an appellate court constitutes the judgment of the court concerned and that where there is any inconsistency between a concurring and a lead judgment, the law says that the former would give way to the extent of the inconsistency”.

However, notwithstanding the above statement of the law, it is settled that any decision contained in the lead judgment on a particular issue which is contrary to the opinions expressed in the majority of the concurring judgment, automatically becomes a minority decision and must thereby give way to the concurring decisions. This was the position in O.S.I.E.C. v. A.C.

In taking the above position, the Supreme Court in O.S.I.E.C. v. A.C was considering an unusual situation as found in the Supreme Court case of A.G. Abia v. A.G. Federation [2002] 6 NWLR (Pt. 763) 264 which presents an interesting scenario that throws more light on the foregoing. In that case (A.G. Abia v. A.G. Federation), the Supreme Court (full Court) unanimously held that the National Assembly has power to legislate on registration of voters and the procedure regulating elections to a Local Government Council.

However, one of the issues canvassed in the case concerned the constitutionality of Section 23 of the then Electoral Act, 2001 which provides for the publishing of notice of election including elections into Local Government Councils in Nigeria. Four out of the seven Justices of the Supreme Court (i.e., Uwais CJN (as he then was), Ogundare, Ogwuegbu and Ejiwunmi, JJSC) held that Section 23 of the Electoral Act, 2001 was constitutional as same clearly deals with part of the procedure regulating elections including elections to a Local Government Council. On the other hand, Kutigi, JSC in his leading Judgment had held that Section 23 of the Electoral Act, 2001 was unconstitutional. Mohammed and Kalgo, JJSC agreed with him.

What then should form the decision of the Court on the issue? Is it the position held by Kutigi, JSC (being the leading Judgment) and the two other concurring Justices or the position held by the four other concurring Justices? Going by the statement of law that where there is any inconsistency between a concurring and a lead judgment, the law says that the former would give way to the extent of the inconsistency, one might be tempted to say that the position of Kutigi, JSC should hold sway being the leading Judgment.

However, that will be clearly wrong. Onnoghen, JSC (as he then was) in O.S.I.E.C. v. A.C (supra) at 338, paras. A-F, while commenting on the situation in A.G. Abia v. A.G. Federation succinctly stated the position thus:

“We have a situation in which the concurring Judgments of four of the seven Hon. Justices held a contrary view on a particular point – the validity of Section 23 of the Electoral Act, 2001 as against the lead Judgment and two other concurring Judgments. Does this mean that the lead Judgment remains inviolate even on the point in which it holds a contrary view as against the majority of the Justices who sat on the appeal? I do not think so particularly as the contrary view of the majority in the concurring Judgments is completely in accord with the earlier holding in the lead Judgment that the National Assembly has power to legislate on registration of voters and the procedure regulating elections to a Local Government Council coupled with the fact that the said Section 23 of the Electoral Act, 2001 deals clearly with part of the procedure regulating elections including elections to a Local Government Council. I hold the considered view that with regard to the issue of the validity of Section 23 of the Electoral Act, 2001, the authority to be followed is that expressed by the majority of the concurring Judgments earlier reproduced in this Judgment, and that the opinion on the point expressed in the lead Judgment together with those who agreed with it become the dissenting opinion on the particular point. I therefore hold the considered view that the principle of a concurring Judgment not being in accord with the lead Judgment being regarded as a dissenting Judgment equally applies to the lead Judgment where it fails to agree on a particular point with the majority of the Justices who concurred with the lead Judgment. The principle cuts both ways to ensure substantial justice.”

After due consideration, Tabai, JSC expressed his views at p. 347 as follows:

“…Although Kutigi’s Judgment is the lead Judgment, his decision on the validity of Section 23 of the Electoral Act [2001] is a minority opinion which therefore does not represent the Judgment of the Court…”

Notably, Section 23 of the Electoral Act, 2001 is in pari material with Section 31 of the Electoral Act, 2006. The latter statute was subject of controversy in O.S.I.E.C. v. A.C as the Supreme Court had to decide whether Section 10 of the Osun State Electoral Law, 2002 applies as against Section 31 of the Electoral Act, 2006 which has similar provision but for the length of notice provided in both statutes. The Supreme Court held that Section 31 of the Electoral Act, 2006 is constitutional and is the applicable law and therefore nullified Section 10 of the Osun State Electoral Law, 2002 for being inconsistent with the former.

The position of the Supreme Court is quite commendable as it meets the ends of justice. It is in accord with the underlying principle that in an appellate court with plurality of Judges, the opinions of the majority of the Judges on a particular issue form the judgment of the court on that issue. To hold otherwise is to put on the head of a Lead Judgment an undeserving crown of superiority for all purposes.

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Madukaegbu v. State [2018] 10 NWLR (Pt. 1626) 26 at 63, paras. E-F, per Eko, JSC:

“The office of the Attorney-General enures for the protection of the rights of all citizens. The hallowed office cannot, and should not, be seen as a champion law breaker. The assumption is that the Attorney-General knows all the laws made or deemed to have been made or enacted by the Government he is an officer in, and therefore should not be seen to selectively comply with and/or break the laws he was appointed to enforce as the Chief Law Officer of the State.”

 Notes:

The above observation of Eko, JSC is as captured in his dissenting Judgment in the case. Regardless, it has the necessary weight and should be adhered to by Attorney-Generals of the States and the Attorney-General of the Federation. Indeed, the office of the Attorney-General is a hallowed office constitutionally provided for and as such must be manned by persons of proven intellectual standards and of course, impeccable pedigree. The calibre of persons who served as the Attorney-General of the Federation in the early history of Nigeria will shed more light on this. For instance, Hon. Justice Taslim Olawale Elias (of blessed memory), the first Nigeria’s Attorney-General and later Chief Justice of Nigeria was an outstanding Scholar of international repute who contributed immensely to the development of law in Nigeria and beyond. So too, Dr. Nabo Graham-Douglas (of blessed memory), Hon. Justice Augustine Nnamani and others in those early times.

What happened in the instant case was that the Appellant and others were charged for the offences of conspiracy to commit murder and attempted murder. During the trial, it was realised that there were some statements of certain witnesses not included in the proofs of evidence. The Appellant’s counsel wrote several letters directly to the office of the Attorney-General of Anambra State demanding for the said missing statements as it was the Appellant’s belief that the statements will exculpate him. The Attorney-General discourteously ignored the letters. The Appellant’s counsel thereafter filed a motion seeking to quash the charges against the Appellant. The motion was dismissed by the trial Court and Court of Appeal. The Appellant’s appeal to the Supreme Court was dismissed by a majority of 4 to 1, Eko, JSC dissenting. Nweze, JSC who delivered the leading Judgment reasoned that the proper thing was for the Appellant to apply to the Court, either orally or in writing, for the prosecution to supply the needed documents (or facilities needed for defence) and not to write the letters. The Court took the position that, effectively, the motion ought not to pray for the quashing of the charges but for an order directing the prosecution to produce the statements.

Eko, JSC in his dissenting views took the position that the said missing statements were statutorily required to accompany proofs of evidence (Section 146, Administration of Criminal Justice Law, Anambra State). Thus, “Proceedings founded on a process, like proofs of evidence, that is a nullity for non-compliance with mandatory statutory provisions or pre-condition for initiating or activating the process or the proceedings are incompetent and a nullity.” As compelling as this argument is, the writer is more persuaded by the majority decision to the effect that the Appellant ought to have simply applied to the Court to compel the prosecution to produce the needed statements. More so, as Kekere-Ekun, JSC stated in his concurring Judgment, “It was speculative at that stage for the Appellant to complain of lack of fair hearing, as he still had an opportunity to object to the tendering of the statements of any witness whose statement was not made available for inspection as per his request.” (See p. 54 of the report). However, considering that there is a presumption that the statements in question were left out because they might exculpate the Appellant as alleged, they may not be tendered eventually (especially where the prosecuting authority acts more like a persecutor rather than a prosecutor). The important point therefore is that the Appellant’s counsel ought to have applied to the Court for an order compelling the prosecution to produce the needed documents instead of seeking to quash the charges and the proceedings.

Above all, there is nothing in the leading Judgment that excuses the office of the Attorney-General from the unprofessional and unacceptable conduct of ignoring the Appellant’s counsel’s letters. Sadly, this has become typical of some government offices and agencies in Nigeria that abuse their offices and powers. As Eko, JSC puts it: “Accordingly, when the office of the Attorney-General, in order to oppress the accused and to put him to prejudice, files grossly incompetent and defective proofs of evidence, the Court can intervene in the interest of justice.” (See p. 62 of the report). Even the majority Judgment agrees that the Court should intervene. They only differ as to how the Court would intervene in the instant case. As stated, the majority was of the view that the intervention would be by an order directed to the prosecution following a motion filed by the Appellant in that regard but not by quashing the charges altogether. Eko, JSC believes the charges deserve to be quashed and proceedings nullified. Either way, the office of the Attorney-General ought to have done better to aid the administration of justice and prosecution of offenders but not persecution and maintain high professional standards which include due respect for opposing counsel and avoidance of scurrilous remarks.

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Madukaegbu v. State [2018] 10 NWLR (Pt. 1626) 26 at 58, paras. B-C, per Eko, JSC:

“The very emotional, and highly vituperative counter-affidavit, the facts of which were supplied by the prosecuting counsel, E. I. Okafor, Esq., did not deny most of the salient facts in the supporting affidavit, including exhibit A. Mr. Okafor, quite unethically had taken undue liberty of the judicial immunity he had to deliver personal attacks on the character of the Appellant’s counsel. I think it is a conduct unbecoming of a counsel to goad a litigation officer under him to make scurrilous remarks on the opposing counsel. Calling the opposing counsel names, smacks of professional misconduct as well as immaturity on his part.”

Notes:

The above observation of Eko, JSC made in his dissenting Judgment in the case is worthy of being seriously noted. Counsel must always be reminded that the cases which they handle are basically the cases of their clients or litigants (or the State as in the instant case) and as such they must not take them personal. Whatever the case, there is no justification for attacking the person of an opposing counsel either verbally or as may be contained in affidavits, written addresses or other court processes. The opportunity counsel has to express himself on behalf of his client must not be abused by being seen as an opportunity to make insulting remarks. In worst cases, we have seen counsel disrespect both the opposing counsel as well as the court. The courts must take a bold step in condemning any such conduct whenever it appears or is noticed. Making disparaging remarks can by no means be part of advocacy. It is rather an antithesis of literacy. As his lordship noted, counsel must act professionally and maturely at all times and must uphold the dignity and nobility of the legal profession in all its ethical underpinnings.

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Heritage Bank Ltd. v. Bentworth Finance Nig. Ltd. [2018] 9 NWLR (Pt. 1625) 420 at 435 paras G-H, per Eko, JSC:

“The point must be made as well that a seemingly endless chain of authorities have made it a settled principle of law that bankers who collect cheques and pay to those not entitled to the proceeds of the cheques are liable for the tort of conversion.” 

Notes:

Eko, JSC above was actually citing with approval the holding of the Court of Appeal in the case, per Muhammad, JCA (as he then was). Interestingly, the Supreme Court had made similar remarks in the case of Trade Bank Plc v. Benilux (Nig.) Ltd. [2003] 9 NWLR (Pt. 825) 416 at 431, paras. A-B, per Mohammed, JSC. This case was not referred to. What was evident too was that both Heritage Bank Ltd. v. Bentworth Finance and Trade Bank Plc v. Benilux referred to the foreign cases of Kleinwort v. Comptoir National d’Escompte de Paris [1894] 2 Q.B. 157 and Fine Arts Society v. Union Bank of London (1886) 17 Q.D. 705. The Supreme Court in Trade Bank further referred to the foreign case of A. L. Underwood, Limited v. Bank of Liverpool and Martins (1924) 1 KB 775 from which the Court relied on the dictum of Bankes L. J. Notably, the case of  Kleinwort v. Comptoir National d’Escompte de Paris was inadvertently stated as  having been reported in 1984 in both Nigerian cases of Heritage Bank and Trade Bank instead of 1894.

The facts of the case (Heritage Bank Ltd. v. Bentworth Finance) are that the Respondent bought a draft of N1 Million from Wema Bank, payable to a company, Teko Fishing Industries Ltd (TFIL). The payment was for services which TFIL rendered to the Respondent. The Managing Director of TFIL intercepted the bank draft and paid it into his personal account with the Appellant. Meanwhile, TFIL also had a current account with the Appellant. In spite of the fact that it was a crossed cheque payable only to TFIL with “Not Negotiable” boldly inscribed on it, the Appellant went ahead and gave value to the bank draft and paid the sum of N1 Million into the account of the Managing Director, instead of the payee of the cheque, TFIL. The Respondent’s case against the Appellant succeeded and the Appellant’s appeal up to the Supreme Court was dismissed.

At the Supreme Court, the Appellant contended that the Respondent must prove the actual loss it suffered by the Appellant’s negligent conduct. The Court discountenanced the argument. Eko, JSC reasoned that until the value of the bank draft was paid over, the draft could be counter-manded or re-purchased by the Respondent, the drawer. Beyond that, the Appellant was clearly liable for the tort of conversion as already established by decided cases and that the Respondent was entitled to recover the sum so converted. Significantly, it was immaterial that the person who received value for the bank draft was the Managing Director of TFIL, the actual payee of the draft. It is elementary principle that a company is a distinct personality and that accounts for the reason it owned a separate bank account in its name. The Appellant could not be excused on the basis that it reasonably believed the Managing Director would not misappropriate the funds belonging to TFIL. The relevant fact was that the draft was in the name of TFIL and was clearly marked “Not Negotiable” but the Appellant paid it into the personal account of another person not being the person entitled. Mohammed JSC aptly stated, while delivering his Judgment in Trade Bank v. Benilux (a similar case where the Appellant bank paid a cheque belonging to another to a stranger):

“The relief of the Plaintiff/Respondent is founded in the tort of conversion. This is clear, because the Appellant dealt with the Respondent’s cheque in a manner inconsistent with the Respondent’s rights whereby the respondent has been deprived of the use and possession of same. The tort of conversion is committed when the person entitled to the possession of a chattel is permanently deprived of that possession and the chattel is converted to the use of someone else.”

See Trade Bank Plc v. Benilux (Nig.) Ltd. (supra) at 430.

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Ijeoma Anyasodor v. State [2018] 8 NWLR (Pt. 1620) 107 at 132, paras. E-G, per Peter-Odili, JSC:

“For a fact, the Prosecution/Respondent properly executed the duty laid upon it for proof beyond reasonable doubt of the charge of murder against the Appellant, whose evidence in defence just could not hold water nor could dent the rock solid evidence both direct and circumstantial against her who masterminded the dastardly act and made sure it was carried out with the attempt she made to cover up her tracks. That she did not do the shooting personally does not exculpate her for the main offence as Section 7 of the Criminal Code sees to that …”

 Notes:

The dastardly act mentioned above was well narrated by Sanusi, JSC who read the leading Judgment. His Lordship recounted as follows. ‘The deceased, Chibuike Nlemagwu, was having amorous relationship with the Appellant which lasted for three years before his death. The deceased (posing as a bachelor) had earlier promised to marry the Appellant but the Appellant later discovered that the deceased was already married with some children. She thereby became disenchanted and started hatching a plan to kill him.’ The deceased played into the hands of the Appellant when on a certain date, the deceased invited the Appellant for a date. He, in fact, drove and picked up the Appellant and off they went to Cradle Hotel Owerri where they spent the night in what happened to be their last night of passion together. While on their way the next day, the Appellant asked the deceased to slow down in order to drop her. As she made to alight, two armed men hired by the Appellant and who were already well stationed at the appointed place suddenly approached and shot the deceased on his stomach and escaped.

A man, who later testified as a witness in the case, heard the gun shots and on getting to the scene he saw the deceased reeling in pains, crying for help. The man also saw the Appellant trying to escape and pleaded with her to help. Both of them took the deceased to the hospital. The Good Samaritan left to make efforts to procure the medical papers from the police as demanded by the hospital, leaving the Appellant with the deceased. Before he returned, the Appellant had gone away with the deceased’s bag. The deceased died six days later while on admission at the hospital. The Police swung into action. Investigation revealed that the Appellant planned the killing of the deceased. The Appellant’s earlier alarm that the Good Samaritan and the wife of the deceased attempted to kidnap her was found to be false. The Appellant was charged for murder. Although there was no eye witness evidence or confessional statement from the Appellant, the Court relied on circumstantial evidence (uncontradicted) as supplied by the Prosecution and the “doctrine of last seen” to find the Appellant guilty of murder. Her appeal up to the Supreme Court was dismissed. The Supreme Court rejected the contention that the Good Samaritan, the deceased’s wife and the investigating police officer (IPO) who testified in the case were tainted witnesses. The apex Court upheld the Court of Appeal’s reasoning that if the Good Samaritan was biased, he should have been in favour of the Appellant who is his kinswoman. The Appellant also contended that the evidence of the IPO was hearsay. In rejecting the argument, the Court held that all the IPO did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator. As such, his evidence did not amount to hearsay.

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It is no longer breaking news that the Nigerian Senate recently passed the Bill for an Act to Repeal the Companies and Allied Matters Act 1990 (Cap. C20, Laws of the Federation of Nigeria 2004) and Enact the Companies and Allied Matters Act (“The Bill”). This may be an affirmation of the current administration’s commitment to improving Nigeria’s global Ease of Doing Business ranking. The Bill, if passed by the House of Representatives and signed by the President, will open the gates for a fresh entrepreneurial vigour into the Nigerian economy. It introduces many novel innovations that may be ground breaking in this part of the world but which have been in operation in some other advanced climes like the UK. The purpose of this brief article is to highlight major salient introductions made by the Bill especially as it affects small companies.

Akintunde Ifeanyi Agunbiade is a Final Year Law Student, Obafemi Awolowo University.

Highlights

Single Person can now Incorporate a Private Company: The Bill allows individuals to incorporate private companies, unlike the current law that does not recognise such activity owing to the provision in Section 18(1) that a company can only be formed by a minimum of 2 persons. Although the Bill preserves this provision, it however introduces a new Section 18(2) which provides that one person may form and incorporate a private company in line with the statutory requirements. Notably, the concept of single-person company was embraced in England as far back as 1992, while India embraced it in 2013. Since then, the Indian Ministry of Corporate Affairs has reported that it has seen the registration of over 1,400 OPCs (Only Person Companies), with the IT sector dominating. With the rise of small and medium scale enterprises including internet entrepreneurship in Nigeria by way of blogging, e-commerce, movie and music download websites, this is the perfect platform to get these persons, not just into the formal economy, but also into the tax net. As it stands, once a company is registered with the Corporate Affairs Commission (CAC), it is automatically issued its TIN (Taxpayer Identification Number). It is however suggested that a comprehensive review of the Companies Income Tax Act should be done to provide for lower tax rates for one-man companies, and exemptions from certain taxes.

Increase in Minimum Share Capital: The Bill increased the minimum share capital of a private company and public company from N10,000 and N500,000 to a more realistic figure of N100,000 and N2 Million respectively. This is in tandem with the current purchasing power of the Naira, as against its 1990 value.

Qualification of a Small Company: The Bill also increased the financial standards for a company to qualify as a ‘small company’ in the eyes of the law. The Bill increased the turnover value to a maximum of N10 Million (as against the former N2 Million), net asset value to N5 Million (as against N1 Million), but deletes the requirement in the current law that none of its members is an alien. This change may be premised on the need to bring the legal requirements in line with prevailing exchange rates, although it would have been better to leave it to the CAC to define the financial requirements from time to time. Notably, a company may still qualify as a small company even if any of its members is an alien. This is also timely. Most small tech start-ups in Nigeria depend on venture capital funding to scale their ideas. To access those funds, the venture capitalist could require a seat on the board and full company membership in order to effectively monitor his investment and give much-needed advice.

Easy Filing of Incorporation Documents: The Bill makes it easier to file the needed documents for registration of companies, by recognizing and permitting the relative ease of e-filing over manual filing.

Less Legal Costs: The Bill deletes the requirement of a statutory declaration by a legal practitioner certifying that the procedures for registering a company have been fully complied with. This appears to de-emphasise the usefulness of legal practitioners in company incorporation thereby doing away with legal costs in this respect.

Lightens Burden as regards filing of Annual Returns: By virtue of Section 378 of the Bill, a small company will now be free from the onerous requirements of filing documents such as its profit and loss account and balance sheet, certified by a director and the company secretary as part of its annual returns, provided for in Section 376 of the Bill. This also means that small companies would not have to suffer the cost of procuring the preparation of these documents.

Exemption from Audit Requirement: Small companies are exempted from the requirements of the Act relating to the audit of accounts in respect of a financial year. This is another reduction in regulatory and compliance requirements as it relates to small companies. It also saves small companies from incurring cost of engaging auditors.

Business Rescue: The Bill under Section 403 introduced a Business Rescue system in order to facilitate the recovery and rehabilitation of financially distressed companies. This is good news for small companies.

Conclusion

In conclusion, the Bill when eventually passed into law would mark a significant improvement and promote ease of doing of business as well as reduce regulatory obstacles for small companies. This means a new dawn in the business climate in Nigeria.

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Data privacy is a new realm of human right which comes with the unprecedented innovations of technology. This article argues that right to privacy albeit guaranteed under the Constitution of the Federal Republic of Nigeria and some legislations, majorly sector specific, is inadequate for the data protection as is currently required in Nigeria and expected in view of internationally accepted best practices and the data protection laws in other jurisdictions. It concludes that Nigeria needs to enact a more comprehensive data protection law whilst applauding the attempt already made in this regard.

Emma Ndiyo, a legal practitioner, writes from Lagos. ndiyoemma@yahoo.com

INTRODUCTION

Every now and then, personal information of Nigerians are collected and processed by both private and public institutions. These institutions that collect individual’s personal information include the National Identity Management Commission (NIMC) through the exercise of issuance of the National Identity Number (NIN) pursuant to the provisions of National Identity Management Commission Act (NIMC Act) 2007; the Central Bank of Nigeria (CBN) and other financial banks, which in 2014 commenced the collection of the biometrics and other personal information of Nigerians for the issuance of the Bank Verification Number (BVN), the Independent National Electoral Commission (INEC) which issues the Permanent Voters Card (PVC) required for participation in voting exercise Nationwide; the Nigerian Communications Commission (NCC) with their Subscriber Identity Module (SIM) registration initiative in partnership with telecommunication companies in Nigeria.

Personal Data is defined under the National Information Technology Development Agency NITDA Guidelines as:

“Any information relating to an identified or identifiable natural person (data subject); information relating to an individual, whether it relates to his or her private, professional or public life. It can be anything from a name, address, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer’s IP address”.

Information privacy, or data privacy (or data protection), is the relationship between the collection and dissemination of data, technology, the public expectation of privacy, and the legal and political issues surrounding them. Thus, as much as a state for several reasons including national security may require the personal data of an individual, such individual should within the reasonable bounds of his freedom of privacy, have the prerogative to determine what personal data they are willing to give away and to what extent and for what reasons such personal data may be used for as well as the ability to recall such personal data by demanding that they be destroyed and or returned to him or her.

Personal data is a priced commodity all over the world and the effects of getting into the wrong hands is of significant concern. It may lead to crimes such as identity theft and other cybercrimes and most importantly, a breach of an individual’s right to privacy. A very relatable instance of breach to personal data is the receipt of unsolicited email and the disturbing pop up adverts resulting from the activities of technology companies through behavioral targeting of data subject. There is no telling the consequences of the nonexistence of a data protection law, hence the urgent need for one.

DATA PROTECTION IN NIGERIA

Despite the increasing number of personal data collected and managed by some institutions as earlier stated, and the sensitivity of these data; it is worrisome that there is currently no comprehensive data protection law in Nigeria catering for the data privacy needs of the citizenry.

Section 37 of the constitution of the Federal Republic of Nigeria 1999 (as amended) provides that:

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

It is opined that data privacy is sui generis as it transcends the right of privacy as traditionally known to us and guaranteed under the constitution of the Federal Republic of Nigeria. Therefore, it should be accorded a special level of attention.

In addition to the provision of the constitution, there are some regulations which have been put in place to regulate in part the data collection and management of Nigerian citizens. Some of these regulations/laws are:

  • The draft “Data Protection Guidelines” of the NITDA
  • Cybercrime {prohibition, prevention etc} Act 2015
  • The child rights Act
  • The Registration of Telephone Subscribers (RTS) Regulation 2011
  • The Nigerian Communication Commission (NCC) Act 2003
  • The Freedom of Information (FOI) Act 2011
  • The National Identity Management Commission Act (NIMC) Act 2007

We shall now discuss some of the provisions of these regulations which do not suffice as data protection laws in Nigeria. Whilst the Child Rights Act merely reiterates the provisions of the constitution as to the right to privacy in relation to a child, Section 26 of the NIMC Act provides that no person or corporate body shall have access to data or information contained in the Database with respect to a registered individual entry without the authorization of the Commission. However, the Commission is empowered to provide a third party with information recorded in an individual’s entry in the Database without the individual’s consent, provided it is in the interest of National Security.

The FOI Act 2011 is an Act enacted to make public records and information freely available and accessible to the public. In doing this however, there is a provision for the protection of personal information of individuals. Thus, section 12 (1) (v) of the Act provides that “A public institution may deny an application for any information which constitute an invasion of personal privacy under Section 15 of this Act, except, where the interest of the public would be better served by having such record being made available”. Section 15 referred to in this provision makes reference to just a limited scope of private information to wit, information that deals with trade secrets and contractual relations of individuals. This, clearly, is not all encompassing and cannot pass as a data protection law in Nigeria.

The Cybercrime {Prohibition, Prevention etc} Act 2015 in seeking the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria through its requirement for the retention of traffic data by service providers under the act also makes provision in section 38 of the Act for the protection of data such that any data retained, processed or retrieved by the service provider at the request of any law enforcement agency under the Act is expected to be utilized only for legitimate purposes as may be provided for under the Act any other legislation, regulation or by an order of a court of competent jurisdiction.

“Service provider” under The Cybercrime {Prohibition, Prevention etc} Act means:

(i)     any public or private entity that provides to users of its services the ability to communicate by means of a computer system, electronic communication devices, mobile networks; and

(ii)    any other entity that processes or stores computer data on behalf of such communication service or users of such service.

As the name of the Act implies, it does not make any provision for damages which may be claimed by an aggrieved data subject. It merely provides for a punitive consequence for contravention of the provisions of section 38 of the Act.

An ideal data protection law should have the eight international principles and best practices for data protection laws namely:

  • Personal data must be processed fairly and lawfully.
  • Personal data must be processed only for a limited and identified purpose.
  • Personal data being processed must be relevant, adequate and not excessive.
  • Personal data should be (This includes the need for frequent update of the data).
  • Personal data should not be kept for no longer than is necessary.
  • Personal data should be processed in accordance with the rights of data subjects.
  • Personal data should be protected against improper and accidental disclosure.
  • Personal data should be not to be transferred to a third parties/outside the country without the consent of the data subject.

NITDA Data Protection Guidelines is one of the regulations in Nigeria which has these principles incorporated in it. The NITDA, established pursuant to the NITDA Act of 2007, is mandated to develop Information Technology in Nigeria through regulatory policies, guidelines, standards, and incentives. Part of the obligation is to ensure the safety and protection of the Nigerian Citizens’ Personal Data. In furtherance of this mandate, the “Data Protection Guidelines” was in 2013 put in place by the NITDA. It ought to apply to data controllers in the public and private sectors and covers the processing of personal data of data subjects.

This Guideline, though laudable subsidiary to the NITDA Act, is arguably an insufficient data protection model. According to learned writers, Jemilohun and Akomolede, the Guidelines were drawn “with little or nothing to show legislative authority or thoughtfulness.” The Guideline is presently being reviewed. Beyond this, what we really need is a clear legislative framework and not some guidelines or regulations. Arguably, a guideline or regulation made pursuant to an enabling law enjoys the force of law. Nevertheless, such guideline does not rank in the status of a statute properly so called.

DATA PROTECTION IN THE EUROPEAN UNION

The European Union (EU) has made an elaborate data protection law applicable in all EU countries: the EU General Data Protection Regulation (GDPR) which has gone through a two year transition. The regulation was adopted on 27th April 2016 and it became enforceable from 25th May 2018. Being a regulation as opposed to a directive, it supersedes the Data Protection Directive of 1995 as it commands coercive force all over the EU countries rather than lay down expected results.

The GDPR is a model data protection legislation being the first of its kind. The effects of the regulation are far reaching as it is not territorially bound. It applies to organizations which process the personal data of EU citizens whether such organizations are located within the EU countries or otherwise.

The GDPR gives the data subject extensive control over their data privacy. There is a requirement for active consent of data subject and a documentation of such consent by data processors (the entity processing personal data) and data controller (the entity that decides the purposes and means of that data processing). The consent of the data subject can also be withdrawn and where notice of such withdrawal (right to erasure/right to be forgotten) is indicated to the controller or processor, the data subject’s personal data should within one month be deleted. The data subject also has the right to access their data in the possession of the data controller or the data processor as well as rectify them where inaccurate. These are captured in Articles 16-19 of the GDPR.

By the provisions of Article 37, a controller and processor of data is required to appoint a Data Protection Officer (DPO) if the processor or collector is a public authority or body; or their core activities involve regular and systematic monitoring of data subjects on a large scale or if they conduct large-scale processing of special categories of personal data (such as data about race, ethnic origin, political opinions, and religious beliefs) or personal data relating to criminal convictions and offences.

With its imminent enforcement date and compliance requirements of the GDPR, several processors of EU citizens’ private data are making efforts to ensure that there is no contravention of the requirements of the regulation due majorly to the repercussions for non compliance which is as much as 4% of a company’s annual global turnover or an equivalent of Twenty Million Euros (€20 Million).

Beyond the punitive fine provided in respect of the contravention of the GDPR, there is a provision for class actions by data subjects whose data privacy is breached.

CONCLUSION

As much as we applaud these data protection provisions as highlighted above, we are of the opinion that Nigeria needs a more comprehensive data protection law as are made available in the other jurisdictions with the EU countries as a case study. As at December 2017, the implementation of the BVN project recorded 31,426,091 registered BVNs and 43,959,282 accounts linked with BVN. This is just an instance compared to the other data collecting institutions discussed in this paper. The effects of these in the absence of an adequate data protection law include fraud, phishing scams, and identity theft which are the very reason some of the government regulated data collecting agencies such as the SIM card registration initiative were established. It is therefore recommended that there should be enacted an all encompassing data protection legislation applicable in Nigeria.

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