YOUR RIGHT TO PUBLIC INFORMATION

YOUR RIGHT TO PUBLIC INFORMATION

The essence of good governance in the administration of national agencies cannot be over emphasized especially with current global economic challenges happening around the world. Transparency and accountability are essential elements in governance and administration of public agencies. The Freedom of Information Act enacted by the Nigerian National Assembly empowers and entitles Nigerians to access public records and information or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution.
The 2011 Freedom of Information Act is described in its preamble as

“An Act to make public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences of disclosing certain kinds of official. It should be noted that the courts recognise these rights as Section 1(3) and (6) of the Act provide that “any person entitled to the right to information under this Act, shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of this Act”. Illiterates or persons who cannot request for public information due to their inability to write may also apply through 3rd parties.
Furthermore, the Act charges all public institutions in section 2 to ensure that it records and keeps information about all its activities, operations and businesses. All public institutions are also mandated by the Act to publish the following information-
– A description of the organization and responsibilities of the institution including details of the programmes and functions of each division, branch and department of the institution;
– Classes of records under the control of the institution;
– Manuals used by employees of the institution in administering or carrying out any of the programmes or activities of the institution;
– Substantive rules of the institution;
– Statements and interpretations of policy which have been adopted by the institution;
– Factual reports, inspection reports, and studies whether prepared by or for the institution;
– Information relating to the receipt or expenditure of public or other funds of the institution;
– The names, salaries, titles and dates of employment of all employees and officers of the institution;
– The title and address of the appropriate officer of the institution to whom an application for information under the Act shall be sent.
                      
Public institutions are all authorities whether executive, legislative or judicial agencies, ministries, and extra-ministerial departments of the government, together with all corporations established by law and all companies in which government has a controlling interest, and private companies utilizing public funds, providing public services or performing public functions. 
Where an application is made to a public institution under the Act, such information must be released to the applicant 7 days after date of request and where the public institution considers that the application should be denied, the institution shall give written notice to the applicant that access to all or part of the information will not be granted, stating reasons for the denial. Where a case of wrongful denial of access is established, the defaulting officer or institution commits an offence and is liable on conviction to a fine of N500, 000 and if fees shall be charged for the information requested it must be limited to standard charges for document duplication and Fees transcription where necessary.
A public institution may however deny an application for any information which contains records compiled by any public institution for administrative enforcement proceedings and by any law enforcement or correctional agency for law enforcement purposes or for internal matters of a public institution, but only to the extent that disclosure would-
(i) interfere with pending or actual and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency,
(ii) interfere with pending administrative enforcement proceedings conducted by any public institution,
(iii) deprive a person of a fair trial or an impartial hearing,
(iv) unavoidably disclose the identity of a confidential source,
(v) 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, this
exemption to disclosure shall not apply, and
(vi) obstruct an ongoing criminal investigation
(b) information the disclosure of which could reasonably be expected to be injurious to the security of penal institutions.
HOW TO REGISTER A TRADEMARK OR PATENT IN NIGERIA

HOW TO REGISTER A TRADEMARK OR PATENT IN NIGERIA

The Trade Marks Act; Chapter 436; Laws of the Federation of Nigeria 1990 provides for Trademarks and Patents in Nigeria. A trademark is a symbol or a sign which differentiates the goods and services of one business from another one. You can register your trademark – a name, logo, slogan, domain name, shape, colour or sound with the Commercial Law department, Ministry of Trade and Investment in Nigeria. This can legally protect your trademark from use by a competitor. The trademark must be distinctive for the goods and services that you provide, not be deceptive, illegal or immoral and not be similar to existing trademarks.

A trademark provides protection to the owner of the mark by ensuring the exclusive right to use it to identify goods or services, or to authorize another to use it in return for payment. The period of protection varies, but a trademark can be renewed indefinitely beyond the time limit on payment of additional fees. Trademark protection is enforced by the courts, which in most systems have the authority to block trademark infringement.

In a larger sense, trademarks promote initiative and enterprise worldwide by rewarding the owners of trademarks with recognition and financial profit. Trademark protection also hinders the efforts of unfair competitors, such as counterfeiters, to use similar distinctive signs to market inferior or different products or services. The system enables people with skill and enterprise to produce and market goods and services in the fairest possible conditions, thereby facilitating international trade.

REQUIREMENTS FOR FILING NIGERIAN TRADE MARK APPLICATIONS

Applicant’s details

The full name(s), nationality and physical address of the applicant (to be advised to local Agent/Attorney).

The trademark Information

The Representation must be clear and distinct. If to be filed online, soft copies are to be provided in jpeg format at a minimum of 1200 dpi.

A representation is preferred to have the following dimensions: 120px by 100px (length by breath)

Goods

The full range of goods covered or proposed to be covered by the trade mark. Nigeria presently follows the International Classification of Goods. A separate application is filed for each classification of goods for which the trade mark is to be registered.

Power of Attorney/Authorization of Agent

A Power of Attorney simply signed, with full particulars of name(s), address (es) and nationality of the applicant(s). Full name(s) and capacity of the signatory when applicant is a firm/company.

PROCEDURE FOR REGISTRATION OF TRADE MARKS

The usual market practice is to instruct a local Attorney/Agent in Nigeria, who would file and process applications at the Nigerian Registry of Trade Marks, Patents, Designs and Copyright. A Power of Attorney/Authorization of Agent Form would be completed in favor of such local Agent, as the enabling instrument to act for the principal/ Applicant. Thereafter, all official documents and forms would be submitted by the local Agent/Attorney. Until replaced or substituted by another local Agent, the local Agent remains responsible for processing registrations of the marks, defending Oppositions (if any), provides address for local service of documents, and maintains renewals of the marks. A local Agent/Attorney may be replaced or substituted by executing another Power of Attorney/Authorization of Agent Form in favor of the succeeding Agent. NO formal notices are necessary and the Agent with the more recent Authorization is deemed to be the one with powers to act thenceforth.

After filing the application for trade mark registration, the Registrar issues an official acknowledgement reflecting the official number and filing date of the application. A preliminary search is conducted as to distinctiveness from existing and pending registrations. The Registrar examines the application for registrability taking into consideration possible conflicts with prior registered or pending marks and or inherent registrability of the mark. If the Registrar finds the trademark acceptable for registration, the applicant will be furnished with a letter/notice of acceptance.

Every trade mark application must be advertised in the Nigerian Trademark Journal, and is open to opposition for a period of two (2) months from the date of advertisement.

If no objections are received within the specified period or no objections are sustained, the Registrar will issue the applicant with a certificate of registration.

When issued, the Registration Certificate will reflect the date of initial filing as date of registration (i.e. date of filing acknowledgement).

Nigerian trade mark registrations have an initial validity of seven (7) years, and are thereafter indefinitely renewable for periods of fourteen (14) years. An application for renewal should be made not less than three (3) months from the due date.

A trademark may be registered either plainly (black and white) or in colour. However, where a trademark is registered in colour, the protection afforded the Mark is limited to the colour(s) registered. On the other hand, a plain (viz. black and white) registration affords protection to all colours of presentation of the trade mark.

Occasionally, the Registrar may request that for distinctiveness and acceptability for registration, word marks that are Common English words be registered in combination with devices or logos.

ELECTRONIC FILING IN NIGERIA

Trademarks can now be filed in Nigeria electronically through Local IP Agents. The Electronic filing was introduced to reduce the Hassles that come with Manual Processing of Applications.

The Electronic Filing Method is Convenient as you can file from the comfort of your location. Applicants will automatically get their Electronic acknowledgement notice on the same day of payment. Payments can now be made via Quickteller.com using Debit cards or at any Skye Bank Plc. in Nigeria. Applicants however must obtain Pre-generated Invoices obtainable through a Platform created for Local Agents in Nigeria.

One of the Benefits of Electronic filing is the Check Status module. You can track your applications online using your online application ID provided on your Acknowledgment letter.

Electronic Filing is encouraged as it is in line with Best practices around the world.

– copied from http://www.iponigeria.com/site/a14fe?main=9e5ca&sidemenu=9e5ca

POWERS AND CONDUCT OF NIGERIAN POLICE

POWERS AND CONDUCT OF NIGERIAN POLICE

Section 214.(1) of the 1999 Nigerian constitution provides that:
There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.

(2) Subject to the provisions of this Constitution –

(a) the Nigeria Police Force shall be organised and administered in accordance with such provisions as may be prescribed by an act of the National Assembly;

(b) the members of the Nigeria Police shall have such powers and duties as maybe conferred upon them by law;

(c) the National Assembly may make provisions for branches of the Nigeria Police Force forming part of the armed forces of the Federation or for the protection of harbours, waterways, railways and air fields.

The Police Act is an act to make provision for the organisation, discipline, powers and duties of the police, the special constabulary and the traffic wardens. [1967 No. 41.] [1st April, 1943].
According to the Police Act, the duties of The police shall be the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.

When it concerns public safety and public order as provided for in section 215 of the Constitution, The President may give to the Inspector-General such directions with respect to the maintaining and securing of public safety and public order as he may consider necessary, and the Inspector-General shall comply with those directions or cause them to be complied with. Similarly, the Commissioner of a State shall comply with the directions of the Governor of the State with respect to the maintaining and securing of public safety and public order within the State, or cause them to be complied with: (Provided that before carrying out any such direction the Commissioner may request that the matter should be referred to the President for his directions. The officer’s powers and duties are conferred by statute.

POWERS OF POLICE OFFICERS
• A police officer has the power to conduct in person all prosecutions before any court, whether or not the information or complaint is laid in his name. (S.23 Police Act)
• A Police officer has the Power to arrest with or without warrant. S.24 Police Act)
• Power to search (S.28 Police Act)
• Power to detain and search suspected persons (S.29 Police Act)
• Power to take fingerprints
• Grant Bail of person arrested without warrant, with or without sureties, for a reasonable amount to appear before a magistrate at the day, time and place mentioned in the recognisance.

The Code of Conduct and Professional Standards for Police Officers is to provide all members for the Nigeria Police Force with a set of guiding principles and standards of behaviour while on or off-duty.

A Primary Responsibility of a Police Officer is to act as an official representative of government who is required and trusted to work within the law. The fundamental duties of a police officer include serving the community, safeguarding lives and property, protecting the innocent, keeping the peace and ensuring the rights of all to liberty, equality and justice; In performing duties, a police officer shall perform all duties impartially, without favour of affection or ill will and without regard to status, sex, race, religion, political belief or aspiration. All citizens will be treated equally with courtesy, consideration and dignity. They will conduct themselves both in appearance and composure, in such a manner as to inspire confidence and respect for the position of public trust they hold.

Discretion – a Police officer will use responsibly, the discretion vested in his position and exercise it within the law.
Use of Force – a police officer will never employ unnecessary force or violence and will use only such force in discharge of duty, as is reasonable in all circumstances.
Confidentiality – Whatever a police officer sees, hears or learns which is of a confidential nature, will be kept secret unless the performance of duty or legal provision requires otherwise.
Integrity – a police officer will not engage in acts of corruption or bribery, nor will an officer condone such acts by other police officers. The public demands that the integrity of police officers be above reproach.
Cooperation with other Police Officers and Agencies – Police officers will cooperate with all legally authorized agencies and their representatives in the pursuit of justice.
Personal Professional Capabilities – Police Officers will be responsible for their own standard of professional performance and will take every reasonable opportunity to enhance and improve their level or knowledge and competence.

Adedunmade Onibokun Esq.
@adedunmade

NIGERIAN NATIONAL COUNCIL ON PRIVATISATION

NIGERIAN NATIONAL COUNCIL ON PRIVATISATION

Privatisation can be defined as the transfer of Government owned shareholding in designated enterprises to private shareholders, comprising individuals and corporate bodies. 
While Commercialisation is the reorganisation of enterprises wholly or partly owned by the Federal Government in which such commercialised enterprises shall operate as profit making commercial ventures without any subvention from the Federal Government. 
Commercialisation may either be Full Commercialisation i.e. when Enterprises so designated will be expected to operate profitably on a commercial basis and be able to raise funds from the capital market without government guarantee. 
Such enterprises are expected to use private sector procedures in the running of their business or Partial Commercialisation where the enterprises so designated will be expected to generate enough revenue to cover their operating expenditures. Government may however consider them for capital grants to finance their capital intensive projects.

The National Council on Privatization (NCP) is a body created by the Nigerian government to determine the political, economic and social objectives of the privatization and commercialization of Nigeria’s public enterprises. 
The Privatization Act gives the National Council on Privatization (NCP) sufficient flexibility in deciding the appropriate method/strategy to be adopted in privatizing each enterprise. However, in choosing the strategy for each enterprise, the following are always taken into consideration: Government Policy, Opportunities and Constraints, and Nature of the enterprise.
Functions of the council include:
• To determine the political, economic and social objectives of privatization and commercialization of public enterprises.
• To approve policies on privatization and commercialization.
• To approve guidelines and criteria for valuation of public enterprises for privatization and choice of strategic investors.
• To approve the legal and regulatory framework for the public enterprises to be privatized.
• To determine the mode of sale of shares of a listed public enterprise and to advise the Federal Government accordingly.
• To approve the prices of shares or assets of the public enterprise to be offered for sale.
• To approve the appointment of privatization advisers and consultants and their remuneration.
• To appoint as and when necessary Committees comprising persons from both the public and private sectors with requisite technical competence to advise on the privatization or commercialization of specific public sector enterprises.
• To approve the budget of the Council.
• To approve the budget of the Bureau.
• To receive and consider for approval audited accounts of the Bureau.
• To receive and review periodic reports from the Bureau on programme implementation and give appropriate directions.
In order to effectively carry out its mandate, the NCP has established a number of committees to assist it in the management of the privatization process. The standing committees are: Technical Committee; Policy and Monitoring Committee; Publicity/Mobilisation & Transactions Marketing Committee; Finance Committee and the Legal Committee. 
However, in considering the strategy to adopt, priority is always given to the most economically and socially efficient option in order to maximize the benefits accruable to the government, the citizens, as well as the economy as a whole. The following strategies are used in the privatization exercise:
a) private placement
b) asset sale
c) equity sale
d) public offer for sale of shares
e) management buy out (mbo)
f) guided” liquidation
g) concession
The Bureau of Public Enterprises is the secretariat of the National Council on Privatisation. The Bureau of Public Enterprises (BPE), under the general guidance of the National council on Privatization (NCP) oversees the privatization programs. The BPE also assist organizations in the stock exchange to determine fair price for each public issue. Other functions include:
• Implementation of the NCP policies on privatisation and commercialisation.
• Preparation of public enterprises approved by the NCP for privatisation and commercialisation.
• Advising the NPC on further public enterprises which may be privatised or commercialised
• Advising the NPC on the capital restructuring needs of Nigerian public enterprises to be privatised
• Account management for all commercialised enterprises for financial discipline
• Vetting candidates for appointments as: Consultants, advisers, investment bankers, issuing houses stockbrokers, Solicitors, trustees, accountants and other professionals required for the purpose of either privatisation or commercialisation
• Management of post transactional performance monitoring and evaluation
• To minimise economic inequalities by promoting public welfare activities.
• to promote balanced regional development by developing industries in every
Follow @BPENigeria on twitter for more information on BPE activities.

Adedunmade Onibokun Esq.
@adedunmade
dunmadeo@yahoo.com

PROCEDURE FOR FOREIGN INVESTMENT IN NIGERIA

PROCEDURE FOR FOREIGN INVESTMENT IN NIGERIA

With Africa being one of the fastest growing continents in the world and Nigeria being a major investment destination for many international businesses, persons and organisations. It is very important that intending investors consult and seek advice from local professionals such as accountants and lawyers, with the latter coming first in hierarchy. This article gives an introduction into the relevant laws and procedures which an investor should consider when intending to do business in Nigeria.
Nigerian laws allow and encourage foreign investment in Nigeria by aliens or non-Nigerians.

Section 20(4) of CAMA provides:

“subject to the provisions of any enactment regulating the rights and capacity of aliens to participate or undertake in trade or business, an alien or a foreign company may join in forming of a company”.

Also Section 17 of Nigerian Investment Promotion Commission (NIPC) provides that a non-Nigerian whether company or individual may invest and participate in the operation of any enterprise in Nigeria except those in the negative list. The negative list include: arms and ammunition; narcotic drugs and psychotrophic substance; para-military and military wears and accoutre.

A foreigner may invest in Nigeria by way of Foreign Direct Investment (FDI) which is investments such as ownership of productive assets, such as factories, mines and land or through Foreign Portfolio Investment (FPI), which is the entry of funds into the country where foreigners make purchases in the country’s stock and bond markets.

There are various laws regulating foreign participation in business in Nigeria, they include:
1. Companies and Allied Matters Act (CAMA), Cap. C.20 LFN 2004 – Sections 148 and 155 of CAMA. Section 148 of the Act requires the production of a document which is by law sufficient evidence of probate of a Will or letters of administration of an estate. Section 155, on the other hand, deals with transmission of shares
2. Nigerian Investment Promotion Commission (NIPC) Act, Cap NI 17 LFN 2004 – Section 17 of the Nigerian Investment Promotion Commission Act which requires alien to register with the Commission before commencing business in Nigeria.
3. Immigration Act Cap I 1 LFN 2004 – Obtaining business permit under Section 8 of the Immigration Act, 1963.
4. Investments and Securities Act (ISA) 2009 – Section 8 of the Investments and Securities Act which empowers the Securities and Exchange Commission (SEC) to keep and maintain Foreign Direct Investments (FDI) and Foreign Portfolio Investments (FPI) in Nigeria.
5. Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, Cap F.34 LFN 2004.
6. Industrial Inspectorate Act Cap. I 8 LFN 2004.
7. National Office for Technology Acquisition and Promotion Act, Cap N. 62 LFN 2004.

There are basically three government agencies regulating foreign participation in Nigeria and these are:
1. Nigerian Investment Promotion Commission (NIPC);
2. National Office of Technology Acquisition and Promotion (NOTAP); and
3. Immigration.

It should be noted that this government agencies have respective registration procedures. Documents to be submitted to the relevant government agencies seeking reliefs and approval on behalf of companies include: business permits, expatriate quota and residence permit. On approval, the non-Nigerian is then granted an STR Visa which on arrival in Nigeria will be regularised and then issued a work permit.

A wide range of incentives and reliefs have been designed by the government to boost investment opportunities in Nigeria and are offered to foreign investors who qualify for them, they include: pioneer status; duty drawback and suspension scheme; tax relief under the Companies Income Tax (Cit) Act, Cap 60 LFN, 1990.

Adedunmade Onibokun Esq.
@adedunmade
dunmadeo@yahoo.com

INTRODUCTION TO NIGERIAN LEGAL SYSTEM(2) – Criminal proceedings

INTRODUCTION TO NIGERIAN LEGAL SYSTEM(2) – Criminal proceedings

‎Criminal proceedings can be instituted in courts vested with criminal jurisdiction by persons or authorities competent to do so. The 1999 Constitution of the Federal Republic of Nigeria (CFRN), and various enactments also vest powers on these authorities:
– The Attorney-General
‎‎The Attorney General of the Federation is the Chief Law Officer of the Federation while the Attorney General of the State is the Chief Law Officer of the State.
The office of the A-G. is created under the provisions of sections 171(1) and 211(1) of the 1999 Constitution. By these provisions, each A-G., has the power to institute, take over and to discontinue criminal proceedings before a Court in Nigeria in his respective jurisdiction, except in a Court Martial.
– The Police
‎The power of the Police to institute criminal proceedings derives from section
23 of the Police Act, Cap P.19, Laws of the Federation of Nigeria (LFN), 2004. It provides thus:
“Subject to the provisions of Sections 160 and 191 of the Constitution of the Federal Republic of Nigeria (which relate to the power of the Attorney-General of the Federation and of a State to institute and undertake, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria), any Police Officer may conduct in person all prosecutions before any court whether or not the information or complaint is laid in his name”.
– Private persons
Private persons may institute criminal proceedings against a person alleged to have committed an offence by laying a complaint before a court – section 59(1) of CPA, and 143(e) of CPC.
‎By section 59(1) of CPA, the power of a private person to make a complaint against any person is subject only to statutory provisions, which says that only a particular person or authority may make a particular complaint (as a matter of procedure).
‎ 
Instances of statutory provisions that may limit the powers of a private person to lay a complaint includes: 
Section 98(c)(ii) of the Criminal Code which provides that no proceedings for an offence of official corruption may be commenced against a judicial officer save upon a complaint or information signed by or on behalf of the Attorney General.
Section 52(2) of the Criminal Code also provides that a person shall not be prosecuted for the offence of sedition unless the consent of the Attorney General is obtained.
Also, by virtue of section 142(1) of the CPC, any complaint of offences such as adultery and related offences itemised in section 387 and 389 of the Penal Code shall only be made by the husband, father, or guardian of the woman or girl involved.
– Special prosecutors.
‎The statute creating a particular offence may specify the person or class of persons who may institute proceedings in respect of the same offence. For instance Section 176(2) of the Customs and Excise Management Act (CEMA), Cap C.45 LFN, 2004 provides that only the Attorney General of the Federation can prosecute for offences under the Act after the board must have sanctioned the same . Also, Section 66 of the Factories Act, also vests power of prosecution in respect of factory offences on the Inspector of Factories.
‎As a general rule, there is no time limit within which to commence criminal proceedings against an offender. In other words, proceedings may commence at any time after the commission of the offence.  There are, however, some statutory exceptions:
Sedition – Under section 52(1) of the Criminal Code, proceedings in respect of sedition must be commenced within six months.
Treason and Treasonable Felony – Under section 43 of the Criminal Code, criminal action in respect of persons and treasonable felony must be commenced within two years.
Having Carnal Knowledge of a Girl under 16 – Contrary to sections 218 and 221 of the Criminal Code, offences under these two sections must be commenced within two months.
Offences under CEMA – Under section 176(3) of the Customs and Excise Management Act, offences must be commenced within 7 years.
Adedunmade Onibokun Esq.
@adedunmade 
INTRODUCTION TO NIGERIAN LEGAL SYSTEM (1)

INTRODUCTION TO NIGERIAN LEGAL SYSTEM (1)

When as Nigerians, we come in contact with the law, either through contracts or court prosecutions and civil actions, it is sometimes difficult to fully understand the system of the law so we usually depend on lawyers to interpret the laws or procedures and also to stand for us as advocates in court. This article will be giving a brief introduction to the Nigerian legal system in a lay man’s terms in other to help the common Nigerian on the street who has no legal training understand how the law affects his civil rights, duties and obligations.

SOURCES OF NIGERIAN LAW
There are numerous sources of law in the Nigerian legal system, they include:
1. The Constitution
2. Federal and State laws made by the Legislature. E.g. the National Assembly, consisting of the Senate and House of Representatives and also State House of Assemblies.
3. Customary and Islamic law
4. Laws of regulatory agencies such as NAFDAC.

COURTS
The judicial powers of the federation are vested on the courts established for the federation while the judicial powers of a State are vested on the courts established for the State, as provided by the Constitution. Courts established by the Constitution for the Federation, the states and the Federal Capital Territory are the only Courts of record in Nigeria. These courts include: The Supreme Court; The Court of Appeal; The Federal High Court; The High Court of a State and of the Federal Capital Territory; The Sharia or the Customary Court of Appeal of the Federal Capital Territory; The Sharia or the Customary Court of Appeal of a State and also Magistrate courts.

Courts are an independent branch of government that exist to interpret laws, to enforce the laws, to resolve disputes, and to protect the rights people have as citizen of the Federal Republic of Nigeria. Another crucial responsibility of courts is to settle disputes or render judgment between people. Courts also play a very important role in preventing the government from abusing its power. Courts exist to check government power by halting infringements of liberty and compensating those who have been injured by government wrongdoing.

Lawsuits brought by the federal or state government to prosecute a person for violating a law are termed criminal cases. Only the government can initiate a criminal case in court, unless an attorney is granted fiat for that purpose by the Attorney-General. While lawsuits brought by private citizens against another person which are not criminal in nature are termed civil cases, examples of this include cases for breach of contract, false imprisonment, nuisance or defamation.

ASSERTING CONSTITUTIONAL RIGHTS
People can assert their constitutional rights in both criminal and civil cases. For example, a person being prosecuted for a crime can argue in defence that the government acted in violation of the Constitution, for instance, by conducting a search without a search warrant. Alternatively, people can sue the government for violating their rights and stop the government’s action or receive compensation for their injuries. This is called Fundamental Rights enforcement Proceedings.

THE ROLE OF ATTORNEYS
Lawyers are individuals trained in the law who represent the interests of their clients. Under the rules of the profession, attorneys must do everything for their clients, within the bounds of the law that they would do for themselves under the circumstances. Attorneys are required to keep secret what they are told by their clients; this is called Attorney-client privilege. The Constitution guarantees everyone who is charge with a crime the right to have an attorney.
The Nigerian legal system is constantly changing and evolving. Countless problems confront the judiciary as it tries to provide justice for those who are parties to court proceedings. The current system is terribly overburdened. There simply are not enough judges and courtrooms to accommodate all of the cases that must be handled. As a result, there are often long delays before matters are finally disposed of. Additionally, although equal justice for all is the goal, all too often the reality is much different. Many of the poor and middle class simply cannot afford the costs of the legal system and thus sometimes abandon their claims in court.

Adedunmade Onibokun Esq.
@adedunmade
Resources: INTRODUCTION TO LEGAL LITERACY IN NIGERIA Edited by Emeka Maduewesi

SAFE-GUARDS OF THE CONSUMERS’ RIGHTS UNDER THE ELECTRIC POWER SECTOR REFORM ACT

SAFE-GUARDS OF THE CONSUMERS’ RIGHTS UNDER THE ELECTRIC POWER SECTOR REFORM ACT

The Electric Power Sector Reform Act 2004 (the Act) provides legal framework for the ongoing efforts of the Federal Government of Nigeria to unbundle the electricity sector.
To balance the interests and activities of the licensee, investors, the consumer, and other stakeholders, Section 31 of the Act establishes the Nigerian Electricity Regulatory Commission (NERC). NERC’s principal objectives as provided by section 32 (1) are:
• To create, promote, and preserve an efficient industry and market structure, and to ensure optimal utilization of resources for the provision of electricity services
• To maximize access to and availability of electricity and to ensure that consumers are charged fair prices for electricity consumed.

Further Section 96 of the Act vests in NERC the powers to make regulations prescribing all matters which are by the Act required or permitted to be prescribed or which in the opinion of the commission are necessary or convenient for giving effect to the Act.
NERC’s regulatory powers in respect of complaint handling procedures, practices relating to payment of bills, connection and disconnection procedures are emphatically provided for under subsection 2 (j) of Section 96 of the Act. It is in the exercise of this regulatory power that NERC has made regulations for CUSTOMER COMPLAINT HANDLING: STANDARD AND PROCEDURE (the Regulations). The Regulations erroneously cites Section 96 subsection 2 paragraphs c and d of the Act instead of Section 96 (2) (j) of the Act as the enabling provision to make regulations relating to complaint handling standards and procedures.

The Regulations applies to the distributing licensee who is defined in Section 2 (13) of the Regulations to mean a company authorized to operate and maintain a distribution system for supplying electricity to customers in his area of supply.
Under the Regulations, the licensee is required to establish a customer complaint unit (CCU) with the responsibility of resolving complaints as provided for under section 2 (6) of the Regulations. Sections 2 (6) and 8 of the Regulations makes it clear that a complaint must be in writing and relate to defects or deficiencies in services, unfair or restricted trade practices, bills in excess of NERC’s fixed prices, unsafe or hazardous electricity supply, recovery of excess bills or charges, or any breach of obligation whether in law or contract.

The definition of a complainant under Section 2 (5) (v) of the Regulations includes in the case of the death of a customer, his legal heirs or representative making or continuing a complaint. If a complaint is not resolved by the CCU or a complainant is not satisfied, appeal may be made to the Forum. Appeals from the Forum lie to NERC. Section 4 (1) of the Regulations provides that the Forum is to be established by NERC at a date set out in the Order of NERC for hearing and resolving of customer complaints in the licensee’s operational area.

The Forum seeks to establish a framework for safeguarding customers’ rights. Section 4 (10) of the Regulations requires the licensee to provide office space and other facilities required by the members of the Forum for their efficient functioning. In my opinion, although the requirement is expedient, it may affect the public perception of the independence of the Forum.

Under section 4 (3) of the regulations, NERC is to appoint five part-time members of the Forum who are to be reputable men and women resident in the licensee’s operational area provided that they are not employees or family members of the licensee. The membership of the Forum is designed by Section 4 (1) to include a nominee each from the Manufacturers’ Association of Nigeria, the Nigerian Association of Chambers of Commerce Industry Mining and Agriculture and the Consumer Protection Council, a member of non-governmental organization, and a person with a bias in electrical engineering.Section 4(5) of the Regulations provides that the Forum is to elect their chairperson.

Given that the Forum will be a dispute resolution body, the non-inclusion of the Nigerian Bar Association (NBA), or other association which is likely to nominate lawyers in the list of bodies that may nominate members may impact the efficiency of the Forum especially if a party engages a lawyer to appear before the forum.

It is therefore recommended that Section 4 (3) (i)-(v) of the Regulations be amended to include a nomination from the NBA, Institute of Chartered Arbitrators or other body conversant with the law or dispute resolution processes for appointment into the Forum and that Section 4 (5) be amended to provide that such nominee shall be the Forum’s chairperson as opposed to the Forum electing its chairperson.

Furthermore, Section 4 (10) of the Regulations cited earlier should be deleted. The office space and other facilities required by the Forum should be provided by the government.

If the foregoing recommendations are speedily enshrined in the Regulations it may increase the public perception of the independence of the Forum.

Osita F. Enwe
Legal Practitioner
E-mail: ofenwe@elisiolegal.com