Duty of service providers to reveal customer information

Duty of service providers to reveal customer information


The right of individuals
to protect their data is very sacred and fundamental. Section 37 of the 1999
Nigerian Constitution provides that; “the privacy of citizens, their
homes, correspondence, telephone conversations and telegraphic communications
is hereby guaranteed and protected”.

The Nigerian Communications
Commission also provides
that all licensees must take reasonable steps to protect customer information
against “improper or accidental disclosure” and must ensure that such
information is securely stored. It also provides that customer information must
“not be transferred to any party except as otherwise permitted or required by
other applicable laws or regulations”.

 This right is however constantly at logger
heads with government intrusion, as governments and security agencies are always
looking for ways to collect, intercept and interpret user data for security and
administrative reasons. 
An international
illustration was the legal battle between mobile phone giant, Apple and the U.S
government, when Apple refused to help F.B.I investigators gain access to an
iPhone used by Syed Rizwan Farook in the December, 2015, mass shooting in San
Bernardino, Calif. Apple argued, that such access could create a permanent way
to bypass iPhone password protection for law enforcement officials or even the
spy agencies of other countries[i]
Sadly, if the above
scenario were to play out in Nigeria, the outcome may not have been as eventful
as the Apple case, as service providers in Nigeria usually cooperate with
directives from security agencies to give out customer user information and
data. This is as a result of the provisions of the Cybercrimes Act, 2015 which
mandates the service providers to do so. 
Does this mean all user
data are not protected? Certainly not. User information is protected in-line with
the fundamental right to privacy under the Nigerian Constitution. However, does
this mean all user data is accessible by security agencies in Nigeria? The
answer is yes. 
By virtue of Section 38 of
the Cybercrimes Act, 2015, service providers are mandated to keep all traffic
data and subscriber information as may be prescribed by relevant authority, for
a period of 2 years. Furthermore, service providers shall, at the request of
the relevant authority or any law enforcement agency preserve, hold or retain
any traffic data, subscriber information, non­-content information, and content
data; and release any such information upon request.  It is worthy of note that the law prescribes
that any person who contravenes the above mentioned law shall be liable to 3
years imprisonment or  fine of up to N7,000,000 (Seven Million Naira) or both. 
Section 39, also empowers
security agencies by virtue of a court order, to request that electronic
communications of service users be intercepted, collected or recorded. The
above makes it clear that security agencies most likely have unbridled access
to customer information in Nigeria and if Mr. Syed Rizwan Farook had been in Nigeria,
the service providers will most likely have handed his information on a platter
to the FBI. 
As seen in Section 40 of
the Cybercrimes Act, service providers have a duty to disclose information
requested by any law enforcement agency or otherwise render assistance
howsoever in any inquiry or proceeding under this Act. Such duties include – 
(a) the identification, apprehension and prosecution of
offenders; 
(b)
the identification, tracking and tracing of proceeds of any offence or any property,
equipment or device used in the commission of any offence; or
(c)
the freezing, removal, erasure or cancellation of the services of the offender which
enables the offender to either commit the offence, hide or preserve the proceeds
of any offence or any property, equipment or device used in the commission of
the offence. 
Any service provider who
contravenes these provisions commits an offence and shall be liable on conviction
to a fine of not more than N10,000,000.00.
Also, each director, manager or officer of the service provider shall be liable
on conviction to imprisonment for a term of not more than 3 years or a fine of
not more than N7,000,000.00 or to both
such fine and imprisonment. With such stringent statutory provisions of the
law, hardly will any service provider put up a fight in Nigeria as Apple did in
the US. 
In Conclusion, the court
held in FRN V. DANIEL, (2011) LPELR-4152(CA); that –
“Undoubtedly, by virtue of the provision of
section 37 of the 1999 constitution, the privacy of every Nigerian Citizen, the
home, correspondence, telephonic and other telegraphic communications are
cherishingly guaranteed and protected. However, notwithstanding the provision
of section 37 (supra), section 45(1) of the 1999 constitution has provided in
unequivocal terms that nothing in sections 37, 38, 39, 40 and 41 thereof shall
invalidate what appears to be reasonably justifiable in a democratic society –
(a) in the interest of defence, public safety,
public order, public morality or public health; or
(b) for the purpose of protecting the rights and
freedom of other persons.”
Adedunmade Onibokun, Esq.
Adedunmade is the Principal
Partner of Adedunmade Onibokun & Co., a corporate commercial law firm
located in Lagos, Nigeria. He can be reached via dunmadeo@yahoo.com and www.adedunmadeonibokun.com


[i] [i] New York
Times. (2016). Breaking Down Apple’s iPhone Fight With the U.S. Government.
Available:
http://www.nytimes.com/interactive/2016/03/03/technology/apple-iphone-fbi-fight-explained.html?_r=0.
Last accessed 29th November, 2016.
Life of a Lagos Lawyer (Episode 4) – Big Law to Solo

Life of a Lagos Lawyer (Episode 4) – Big Law to Solo



It’s been 7 weeks since I
dropped my resignation letter out of frustration. I walked out of Oga’s office
with so much confidence, one would have thought, I just got appointed the personal
house boy to the PA of the Governor’s special adviser
a special adviser to
the President. Oga had given me a query for leaving the office at 8.30pm to
attend to some personal matters even though my letter of employment said 6pm. I
am sure the contents of my resignation letter must have passed my message
across very well, I used the most polite of languages and gently eased the cup
of employment from my head. It said –

“Dear
Sir,
Yesterday,
I was served a query for leaving the office at 8pm and it was cited as a cause
for gross- misconduct and indiscipline. My I humbly state that I am most
ashamed of my actions and now hereby resign with immediate effect on the
following grounds –
1.     I am the Deputy – Choir Director in my
church but for the past 7 months, I have not attended service because I am
always either at the office or on an official assignment but this is no excuse
as I am most ashamed for leaving the office at 8.30pm.
2.     I don’t have a relationship because I
don’t have time for a social life, let alone have one because I leave the
office at 10pm on weekdays, 6pm on Saturdays and probably 4pm on Sundays but
this is no excuse as I am most ashamed for leaving the office at 8.30pm.
3.     I have been robbed severally on the
way back home from work, and I am now familiar with the hoodlums in the
neighbourhood who used to rob me. They decided to allow me safe passage having
argued my plight on one occasion that they had robbed me so many times, I was
owed safe passage, the Chairman had loved my attitude and now He shouts “D-Law”
in greeting every time I pass by but this is no excuse as I am most ashamed for
leaving the office at 8.30pm.
4.      I have sacrificed my time and energy for the
firm for 15 years and I am still not a partner but this is no excuse as I am
most ashamed for leaving the office at 8.30pm.
5.     My neighbours have nicknamed me Ghost,
the resident you hear of but never see because I am always busy at the office
or with official assignments but this is no excuse as I am most ashamed for leaving
the office at 8.30pm.
6.     My salary after 15years at the Bar is
smaller than what fresh wigs earn in their first employment at certain law
firms but this is no excuse as I am most ashamed for leaving the office at
8.30pm.
Because
of the utmost shame I feel from the above mentioned reasons and the fact that I
cannot forgive myself for breaching office protocol to the extent of leaving
the office at 8.30pm. I humbly resign. Maybe when I have found it in my heart
to discover self –forgiveness, I will return. I am most obliged.  
Thank
you. “
I still smile every time I
remember Oga’s secretary’s face as she began reading the letter, even the Head
of Chambers said “Oga has to respond to this one personally o”.
However, now that I am
sitting in the corner shop office which I am sharing with 5 other
lawyers, life looks like a bit different and I am thinking Oga may have not
been bad after all.  He always paid
salaries on time and every December, there was a small bonus for everybody
especially if it was a good year. Now, I have to go out to find clients and
money for myself.
Many people have been
advising me not to worry that things will get better but how do I tell that to my
Landlord and  the Nepa official coming to
disconnect my light tomorrow after 3 months of warning. Nobody told me this was
what going solo was about. But like my fellow country people are prone to
saying “it is well”.
One client has however
come over and he wants to sue his former employers for loss of his hearing due
to his working conditions. He was the floor manager at the manufacturing
company and 25 years of manning the engines had taken a toll on his hearing. I
almost had to shout at the top of my voice that he could approach the courts for
justice as all his actions to engage the company had been futile and according
to Section 10 of the Employees Compensation Act, “an employee who suffers from
hearing impairment due the course of the employee’s employment is liable
to compensation”. He is extremely pleased and as asked members of his workers
union to join us in court next week for argument of his case.
I am however sizing him up
and wondering when best to raise the issue of my professional fee. “Errrr, sir,
there is just one thing that we have to talk about sir and it’s the
professional fee, we will be charging 500,000 Naira sir. I still wonder how he was
able to hear the figure clearly despite his loss of hearing and I ddn’t raise
my voice. “AHHHHHHH, D-Law, he screamed, just to quickly sue someone and come
back is 500,000 Naira, don’t worry let me pay you 30,000 Naira cash and give
you bush-meat, yam and plaintain from my brother’s farm”. Bush-meat! Yam!
Plaintain! Oga for where now, shuu, see ……………………………………..
Join us next weekend for another
episode of “Life of a Lagos Lawyer”. An exclusive Legalnaija series. PLESE NOTE
THAT THIS WORK IS PURELY FICTION AND IF IT RELATES TO ANY INCIDENT OR PERSON IN
ACTUAL LIFE, IT IS A MERE COINCIDENCE.
The Enforceability of Non-Compete Clauses/Agreements under Nigerian Labour Law

The Enforceability of Non-Compete Clauses/Agreements under Nigerian Labour Law


Entrepreneurs often dread losing key staff. The difficulty
involved in having to recruit and successfully integrate new faces into an
existing order makes the endeavour an unsavoury undertaking to many. However,
if losing a key staff is worrisome enough, the realization that a disgruntled one
may walk out the door with more than his termination letter and severance
paycheck, is a much graver cause for concern.

Daily, employers are faced with
the unfortunate reality that a departing employee may leave to go work with a
competitor, poach their long term clients or utilize skills, confidential
information and trade secrets acquired during the subsistence of their
employment to secure new jobs. This apprehension has prompted many an employer
to have prospective employees sign non-compete agreements as a prerequisite for
working for them.
A non-compete agreement also referred to as
“covenant not to compete” or a “contract in restraint of trade” is an agreement
wherein an employee consents not to engage in a similar occupation or disseminate
trade secrets that is likely to occasion damage or compete against the business
of his employer. It is a commercial contrivance which seeks to preclude
insiders from taking trade secrets, business affiliations or clientele to other
corporations or employers when they leave. 
A non-compete agreement may either
be a major clause in an employment agreement or a separate agreement, the
execution of which is a condition precedent to employment. Which form it takes,
the same effect is had. The agreement generally restricts an employee from
entering into a similar engagement for a specific period of time or within a
certain geographical location. This restriction is usually dual-pronged. One
operates during the subsistence of employment. The other transcends employment
and continues to operate after its determination. An effective non-compete
agreement seeks to achieve the following:
  • Prohibit a
    former employer employee from working with a competitor
  • Prohibit a
    former employee from soliciting former co-workers to be employee in his or her
    new company
  •  Prohibit a
    former employee from soliciting or disclosing confidential information such as
    customer lists, price lists, market strategies or other proprietary information
Generally, for a non-compete agreement to be considered
valid, it must have the following elements amongst others:
  • Be supported
    by consideration
  • Be reasonable
    in scope of the duration and geographic boundaries
  •  Protect a
    legitimate business interest
In spite of the presence of the above essentials in
a standard non-compete agreement however, the real test of validity is whether the
agreement is in itself enforceable or not. This is because having an employee
append his signature to a non-compete agreement and being subsequently able to
enforce it are two different things entirely. While it is a trite principle of
law that the court will not hesitate to enforce the terms of a mutually
consensual contract and parties will be precluded from refuting their claims
and liabilities under such, a non-compete clause which prime facie appears meticulously crafted may be unable to withstand
the objective scrutiny of the court. 
Therefore, as tempting as it is for an employer
to draft an expansive, seemingly iron clad agreement, concerted regard should
be had to the likelihood of the agreement’s chances at withstanding the test of
validity and enforceability. Generally, the courts frown at restraint of trade
and are exceedingly wary of clauses that restrict an employee’s chances to
future employment. This modern law principle against restraint of trade was
laid down in the locus classicus Nordenfelt v Maxim Nordenfelt (1894) A.C 535; (1891 – 4) ALL ER
Re. 1.111)
where the court held that all clauses in restraint of trade
are contrary to public policy and as such, void ab initio save only there
are special circumstances which justify them. 
Nevertheless, the right of an
employer to the protection of his confidential trade secrets and business is fairly
recognized. Hence, the court may be inclined to enforce the agreement if
evidence is sufficiently led to show that it is reasonable in scope, nature and
extent and regard is had to the interest of the parties and the general public.
In Koumoulis
v A.G. Leventis Motors Ltd (1973) All N.L.R. 789
, the court observed
that:
“The covenant, the subject of the complaint was
reasonably necessary for the protection of the business interest of the
respondent and was therefore valid and enforceable in law”.
It should however be noted that an employer will
not be afforded the protection of an expansive non-compete clause to shield
himself from healthy business competition by a former employee. 
Another
determinant factor of enforceability of non-compete agreements is its
geographical scope. Where the contemplation of the agreement is an expanse of
area too wide to be adjudged reasonable, the court will refuse to enforce it,
with the consent of the employee notwithstanding. This principle is notably
consistent in all jurisdictions and was sufficiently highlighted in the
decision of the court in John Holt & Co (Liverpool) Ltd v
Chalmers (1918) 3 NLR 77
While a court may alter an unreasonable term or
terms of a non-compete agreement, it also reserves the power to
invalidate the agreement in totality if
it is reasonably satisfied that the employer intentionally included overly
broad language that renders it unreasonable and oppressive. In Mesop
Kholopikiaan v Metal Furniture Nigeria Ltd {(unreported) HCL, Ikeja Judicial
Division, Suit No IK/180/69 delivered on 5th March 1974)}
, a
non compete clause which covered a radius of 800 miles from Ikeja, Lagos where
the defendant was based was held unreasonable and therefore void for it does
not only span the whole of Nigeria but extends into some neighboring west
African states.
As an additional test of enforceability, the
court may take into account the nature of the information had and the knowledge
acquired by the employee. N.M Selwyn, the renowned author on labour law texts
is of the opinion that a distinction should be drawn between subjective and
objective knowledge. According to him, objective knowledge comprises trade
secrets, list of customers etc, all which comprise the employer’s property and
therefore merits protection from infringement. Subjective knowledge on the hand
entails the general knowledge of the trade and industry and organizational
ability acquired by the employee during the subsistence of his employment, the
restraint of which would be unfair. In Herbert Moris Ltd v Saxelby (1916) 1 AC 688),
a 7 year non compete clause precluding an engineer from taking up employment
with an competitor after the determination of his employment was voided on the
ground that it was a restraint on his technical skill and knowledge which was
acquired by virtue of his industry, observation and intelligence.
Duration may also play a significant role in the
determination of enforceability. A non-compete clause which is couched to
restrict trade for a lengthy period may, if considered alongside other relevant
circumstances, be adjudged an unreasonable cloak against competition. In M
& S Drapers V Reynold (1956) 3 All ER 814
, a restraint on a
collector’s saleman of a drapery firm not to solicit his employer’s clients for
five years was voided on the ground that the restraint was too long in view of his
humble position in the company. Similarly, in Esso Petroleum Ltd v Harper’s
Garage (Stourport) Ltd (1967) UKHL 1
, the court voided a twenty year
restraint imposed on a petrol station owner under a solus agreement for being too unreasonably lengthy. It should
however be noted that each case ought to be treated on its merit, as the length
of the restraint is considered alongside other extenuating factors including
but not limited to the employer’s business and the position of the employee in
the company. The courts have held that a lengthy restraint on an employee’s
trade would not ordinarily be voided if it is revealed by the circumstances of
the case that that the restraint is necessary for the reasonable protection of
the employer’s proprietary interests.
CONCLUSION
Intellectual property is indubitably one of the
most invaluable assets in the intricate web that is the global business sphere,
largely because of the time and resources expended in its contrivance. Hence
the need to safeguard proprietary interest in trade secrets and confidential
information from abuse by insiders becomes even more apparent by the day. This is
why it is almost impossible to see a contemporary contract of employment devoid
of a non-compete or confidentiality clause. Fortunately, a non-compete
agreement, if painstakingly drafted, can obviate the dangers which it seeks to
circumvent. However, a small oversight can effectively vitiate a part or the entirety
of the agreement to the detriment of the employer and the benefit of the
employee and vice versa. Thus, it is suggested that when drafting a non-compete
agreement, strict regard should be had to its scope, duration and enforceability.
The agreement should be tailored to match the business and employee in
contemplation and caution should be exercised in the reckless use of templates
that are lifted verbatim from the internet. Better still, it would be prudent
of an employer to outsource the drafting of non-compete agreements to a
competent attorney who is adequately versed in the art of corporate commercial
legal drafting and handling contractual matters to ensure that the agreement is
apposite, reasonable and fair.
LIST
OF AUTHORITIES
·       
Esso Petroleum
Ltd v Harper’s Garage (Stourport) Ltd (1967) UKHL 1 John Holt & Co
(Liverpool) Ltd v Chalmers (1918) 3 NLR 77
·       
Fitch v. Dewes
(1921) 2 AC 158
·       
Herber Moris
Ltd v. Saxelby (1916) 1 AC 688.
·       
International
Journal of Advanced Legal Studies and Governance, Vol 4, No 2, August 2013
·       
John Holt
& Co (Liverpool) Ltd v Chalmers (1918) 3 NLR 77
·       
Koumoulis v
A.G. Leventis Motors Ltd (1973) All N.L.R. 789,
·       
M & S
Drapers V Reynold (1956) 3 All ER 814
·       
Mesop
Kholopikiaan v Metal Furniture Nigeria Ltd {(unreported) HCL, Ikeja Judicial
Division, Suit No IK/180/69 delivered on 5th March 1974)},
·       
N.M. Selwyn,
Law of Employment 3rd ed. (London, Butterworths, 1980) Pp. 282-3
·       
Nodenfelt v
Maxim Nordenfelt (1894) A.C 535; (1891 – 4) ALL ER Re. 1.111)
·       
The Validity
of the Doctrine of Restraint of Trade under the Nigerian Labour Law – Uko, E.J.
     
     Temitayo Ogunmokun Esq. 
    

Temitayo
Ogunmokun is legal practitioner based in Lagos, Nigeria. His areas of practice
include corporate commercial law, energy, taxation and international adoptions.
He presently works at a commercial law firm in Victoria Island, Lagos. He is a
volunteer legal adviser for the Literacy Integration and Formal Education (LIFE),
an NGO specialized in international adoptions and a published fictional writer
and poet. 

Photo Credit – www.quora.com 

Compliance Under The Corporate Immigration Regime in Nigeria

Compliance Under The Corporate Immigration Regime in Nigeria



Under the Nigerian corporate immigration regime, foreign
nationals may undertake any type of business and own 100 percent equity and
undertake any type of business in Nigeria except those in the negative list,
that is, production of arms, narcotics and related substances which are
prohibited to Nigerians and Foreign Investors alike.[1]

Only exempted foreign companies may carry on business in
Nigeria without incorporating a local entity. The application for exemption is
made to the office of the Secretary to the Federal Government.[2]
Relevant Permits –
Foreign
businesses hoping to carry out business in Nigeria must incorporate a local
entity in Nigeria with a minimum share capital of ten million naira (N10,000,000.00).
The company is required to have at least 2 shareholders (they may be
corporations or individuals) and 2 directors. 
Once
the company has been incorporated and obtained the Certificate of Incorporation,
issued by the Corporate Affairs Commission (“CAC”),
the company can then apply to the Federal Ministry of Interior (“the Ministry”) for a business permit,
which licenses the entity to carry on business in Nigeria.
Once
the Ministry has granted the business permit, the entity is then required to
apply to the Ministry for an expatriate quota. The expatriate quota enables the
company to employ foreign nationals to positions that have been approved by the
ministry which are listed out on the expatriate quota itself. It is noteworthy
that the expatriate quota which is usually granted for a period of 2 – 3 years
(subject to the discretion of the ministry), clearly states that for every
expatriate position occupied by a foreign national there must be at least 2
Nigerian nationals understudying the foreign national. It is always advisable to commence renewal
of the expatriate quota at least 4 months before the expiry date
.
Relevant Visas
·       
Prospective
foreign nationals who have been employed on long term basis by companies duly
incorporated in Nigeria, usually arrive the company on a Subject to
Regularization (“STR Visa”) (the
application for the visa is usually made by the company in Nigeria to the Nigerian
Mission abroad).
Once in Nigeria the foreign national is expected to
regularize the visa within 90 days by making an application to the Nigerian
Immigration Service (“NIS”), this
process is called Regularization of Stay (“ROS”).
At the end of the of the regularization period the NIS issues the Combined
Expatriate Resident Permit and Aliens Card (CERPAC)
to the foreign national.
·       
Temporary Work
Permits (“TWP”): companies desirous
of bringing foreign individuals into Nigeria on short term basis can do so by
applying for a TWP visa. This is visa usually granted to companies desirous of
bringing foreign nationals into Nigeria for the purpose after sales installation
of machinery, maintenance services etc. The application is first made by
applying to the NIS, who issues a cablegram before the Nigerian Mission abroad
issues the visa.
·       Business Visa:
This class of visa is granted to foreign nationals entering Nigeria for the
purpose attending meetings and conferences. Visitors on this visa are expressly
prohibited from taking up any form of employment in Nigeria.
·     Under the E-pass
regime, visitors in Nigeria who are likely to overstay the duration of their
visa can apply for an extension in-country.
Local Content Laws
In
certain sectors of the Nigerian economy there are local content laws which all
companies must adhere to. The provisions of these laws range from giving
priority to Nigerian firms to encouraging locally made wares. These laws apply
mostly to the Oil and Gas as wells as the power sector.
Monthly Expatriate Quota Returns
Every
company carrying on business in Nigeria with foreign nationals in its
employment is required to file to the NIS a monthly returns of expatriate quota
positions occupied and provide such details in these returns as may be
requested by the NIS. It is noteworthy to state that the quota returns is often
used by the Internal Revenue bodies as a means of reconciling the number of
expatriate employees employed by a company over a period of time for tax
computation purposes.

Busayo Adedeji

Busayo advises clients on
corporate immigration issues, advising clients on employment and labour law
issues, ensuring that clients are in line with regulatory compliance rules,
civil litigation etc

Twitter:
@thestreetloya



[1]
Sections 17 and 31 of the Nigerian Investment and Promotion Commission Act.
[2]
Section 56 Companies and Allied Matters Act.
Hierarchy Of Courts In Nigeria- Adenike Adetifa

Hierarchy Of Courts In Nigeria- Adenike Adetifa


 “A party is entitled as of right to the
consideration of his case before the court”.
  • HIS LORSHIP KARIBI-WHYTE, JSC IN
    NWOKORO V ONUMA (1990) 3 NWLR PART 136 P.22
INTRODUCTION
Courts are recognized and
renowned as the hallowed chambers of justice, where even-handed justice is
meted out to all and sundry, without sentiment, emotion, favoritism or being
unnecessarily embroiled in crass legalism. They are not only courts of law but
courts of equity. As discussed in an earlier post, a party is entitled to fair
hearing before a court and where there is a breach of the rule of fair hearing
as guaranteed by the 1999 Constitution (As Amended), the whole proceedings
automatically become vitiated with a basic and fundamental irregularity, which
renders such proceedings null and void. The test of fair hearing is the
impression of a reasonable person who was present at the trial- whether from
his observation, justice has been done in the case.
In Nigeria, the 1999
Constitution (As Amended) divides the structure of government into three arms –
the legislative; the executive and the judiciary. By the provision of Section 6
of the 1999 Constitution (As Amended), judicial powers are vested in the
courts. Courts are authorized by law to exercise jurisdiction at first instance
and on appeals on all actions and proceedings relating to matters between
persons, or between government or authority and any person in Nigeria to
determine any question as to the civil rights and obligations of that person.
It is in line with this that we will be considering in this article, the issues
of hierarchy and jurisdiction of courts in Nigeria.
1.    
THE SUPREME COURT OF NIGERIA
The Supreme Court of
Nigeria which is the apex court in Nigeria was established in 1963 following
the proclamation of the Federal Republic of Nigeria and the then 1960
Constitution which came into operation on October 1, 1963, following the
abolition of Section 120 which abrogated the appellate jurisdiction of the
judicial committee of the Privy Council which was Nigeria’s apex court.
The Court is now provided
for in Section 230 of the 1999 Constitution (As Amended) and by this provision,
the court consists of the Chief  Justice of Nigeria and not more than
21(Twenty One) judges at all times. The court’s decision on any matter is final
and binding on all other courts in Nigeria without any form of appeal to any
other body or person. This of course is without prejudice to the powers of the
President or the Governor of a State with respect to prerogative of mercy for
any person convicted of an offence under any law in Nigeria. Likewise, the
decision of the Supreme Court may be nullified by legislation and more
importantly, the Supreme Court can overrule itself.
The Supreme Court which is
presently situated in Abuja, Nigeria has original jurisdiction to the exclusion
of any other court in certain disputes. The term “original jurisdiction” means
it is the court of first instance and been the apex court in the country, it
consequentially means no appeal can be heard in respect of those matters before
another court in Nigeria. These matters includes: any dispute between the
Federation and a State or between States if and in as far as that dispute
involve any question (whether of law or fact) on which the existence or extent
of a legal right depends. The Supreme Court does not have original jurisdiction
on any criminal matter and finally, it has jurisdiction to the exclusion of any
other court in Nigeria to hear and determine any appeal from the Court of Appeal.
2.    
THE COURT OF APPEAL
The Nigerian Court of
Appeal is the next court in the hierarchy of courts in Nigeria. Unlike the
Supreme Court which is situated only in Abuja, the Court of Appeal is divided
into different judicial divisions and sits in certain states in Nigeria. It is
established by Section 237 of the 1999 Constitution (As Amended), headed by the
President of the Court of Appeal and consists of not less than 49(forty-nine)
judges at all times. The court has original jurisdiction to the exclusion of
all other courts in Nigeria to hear and determine any question as to whether –
any person has been validly elected to the office of the President or
Vice-President, Governor or Deputy Governor in Nigeria; appeals from the
Federal High Court, the High Court of the Federal Capital Territory, Abuja,
High Court of a State, Sharia Court of Appeal of the Federal Capital Territory,
Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State,
Court Martial and any other Tribunal.
Just like the finality of
decisions in Supreme Court, the Court of Appeal also enjoys the finality of
decisions on appeals lying to it from the decisions of the National and State
Houses of Assembly election petitions and also appeal arising from any civil
jurisdiction of the National Industrial Court.
3.    
THE FEDERAL HIGH COURT
Like the Court of Appeal,
the Federal High Court is divided into different judicial divisions for
administrative convenience and sits in more than 15(fifteen) states in Nigeria.
Section 249 of the 1999 Constitution (As Amended) provides for the
establishment of the Federal High Court. The Federal High Court is headed by a
Chief Judge and consists of such number of Judges as may be prescribed by an
Act of the National Assembly but is duly constituted if it consists of at least
one Judge of the court. The Court has exclusive jurisdiction in civil cases and
matters as set out under Section 251 (1) of the 1999 Constitution (As Amended).
It is important to note
that the Federal High Court also has appellate jurisdiction and all the powers
of the High Court of a State. The court shares concurrent jurisdiction with the
State High Court in matters relating to banker-customer relationship,
interpretation or application of the constitution and fundamental human rights
enforcement cases.
4.    
THE HIGH COURT OF THE FEDERAL CAPITAL
TERRITORY (FCT)/ STATE HIGH COURT
 There is a High Court of
the Federal Capital Territory, Abuja which caters for the FCT and High Court of
a State. Section 255 of the 1999 Constitution (As Amended) provides for the
establishment of a High Court of the Federal Capital Territory, Abuja while
Section 270 provides for the establishment of a High Court for each State of
the Federation. The High Court of the Federal Capital Territory and the State High
Court individually is headed by the Chief Judge and consist of such number of
Judges as may be prescribed by an Act of National Assembly (in respect of the
High Court of the Federal Capital Territory, Abuja) or the State House of
Assembly (in respect of the High Court of a State). A High Court has the widest
jurisdiction under the 1999 Constitution (As Amended) in civil and criminal
matters and has appellate jurisdiction over decisions of Magistrate Courts,
Customary Courts, Area Courts etc.
5.    
NATIONAL INDUSTRIAL COURT
The National Industrial
Court is established by Section 254A of the 1999 Constitution (As Amended),
headed by the President of the National Industrial Court and consist of such
number of Judges as may be prescribed by an Act of the National Assembly. Like
the Federal High Court, the National Industrial Court is also divided into
different judicial divisions for administrative convenience which sits in some
States in Nigeria.  The exclusive jurisdiction of the National Industrial
Court in civil causes and matters are set out in Section 254C of the 1999
Constitution and it has all the powers of the High Court of a State and an
appellate jurisdiction.
6.    
SHARIA COURT OF APPEAL
There is a Sharia Court of
Appeal for the Federal Capital Territory, Abuja which caters for the FCT and
State Sharia Court of Appeal. Section 260 of the 1999 Constitution (As Amended)
provides for a mandatory establishment of a Sharia Court of Appeal of the
Federal Capital Territory, Abuja while Section 275 provides for an optional
establishment of a Sharia Court of Appeal for any State that requires it in
Nigeria. Both courts are headed by a Grand Kadi and consist of such number of
Kadis as may be prescribed by an Act of the National Assembly for Sharia Court
of Appeal of the Federal Capital Territory, Abuja and the House of Assembly of
a State for a State Sharia Court of Appeal. Both courts exercise appellate and
supervisory jurisdiction in civil proceedings involving questions of Islamic
personal law.
7.    
CUSTOMARY COURT OF APPEAL
Like the Sharia Court of
Appeal, there is a Customary Court of Appeal of the Federal Capital Territory,
Abuja and a Court of Appeal of a State. The Customary Court of Appeal of the
Federal Capital Territory is established by Section 265 of the 1999
Constitution (As Amended) and caters for the FCT while Section 280 provides for
the optional establishment of a Customary Court of Appeal for any State that
requires it in Nigeria. Both courts are headed by President of the Customary
Court of Appeal and consists of such number of Judges as may be prescribed by
the National Assembly for the Federal Capital Territory, Abuja and the House of
Assembly for any State that requires it. Both courts exercise appellate and
supervisory jurisdiction in civil proceedings involving questions of customary
law.
8.    
MAGISTRATE COURTS AND DISTRICT COURTS
Although not provided for
in the 1999 Constitution (As Amended), it is established by the law of the
House of Assembly of a State. A magistrate court is a court of summary judgment
as matters are determined in this court without pleadings or briefs filed by
the parties. In the Southern part of Nigeria, they are referred to as
Magistrate courts but they are referred to as District courts in the Northern parts
of Nigeria when they sit in their civil jurisdiction. The jurisdiction of a
magistrate courts is provided for under the various magistrate court rules of
each state establishing them.
We hope this write up was
beneficial to you. We would like appreciate the effort and contribution of Mr.
Ibiyemi Ajiboye an ex-law student of University of Ibadan towards this article.
Readers of this article are welcomed to leave their questions, comments,
constructive criticism, suggestions, new ideas, and contributions in the
comment section or via our email- thelawdenike@gmail.com. We
look forward to reading your comments and contributions.
MATERIALS USED
  • 1999 Constitution of the Federal
    Republic of Nigeria (as amended).
  • Ugwa v. Lekwauwa (2010) 17 NWLR PART
    1222 P.211@ 236 para D-E
  • D.P. V K.S.I.E.C (2005) 15 NWLR PART
    948 P.230 @ 254 para H-A
  • http://supremecourt.gov.ng/About/history
  • I Efevwerhan, Principles of Civil Procedure
    in Nigeria, 2nd ed., Snaap Press Ltd, Enugu, 2013.
DISCLAIMER NOTICE:
This blog is a free education material, for your general information and
enlightenment purposes ONLY. This write up, by itself does not create a
Client/Attorney relationship between yourself and the author of this blog.
Readers are therefore advised to seek professional legal counseling to their
specific situation when they do arise. This blog is protected by Intellectual
Property Law and Regulations. It may however be shared with others parties or
person provided the writer’s Authorship is always acknowledged and this
disclaimer notice attached.
Source – THELAWDENIKE
 

Photocredit – thelawchronicle.com 
Life of a Lagos Lawyer – Milady (Episode 3)

Life of a Lagos Lawyer – Milady (Episode 3)



It all started on the day of my Call. My father was so proud that his little angel was becoming a Barrister; He had put up my Pre-Call photo as his display picture on Facebook with the tagline “Beware, my daughter is a lawyer” and invited everyone to my call-to-bar celebration party. 

It was an exciting day and the ceremony was beautiful. After studying for the bar exams like my life depended on it and spending hours in tutorials even till 2am, this was the reward for my success, the opportunity to be called into the noble legal profession. 

I felt really happy and remembered this day was possible because at the end of 1920s, which marked the beginning of the emancipation of women, the judgment in Edwards v. A.G. of Canada (1930) AC 124 was overturned by the Privy Council in a landmark decision that heralded the entrance of women into the legal profession. I was determined to stand out in the legal profession and I gave all to ensure I graduated with a first class at the university and in law school, however faith had other plans. As I graduated with a second class lower division, in both schools. However, if Gani could be such a great lawyer with a 3rd class degree, what did I have to worry about. 

Now, a couple of years down the line with considerable practice experience under my belt and a great career ahead of me, my mother daily reminds me of the one thing she believes I am lacking. Even in my sleep I can hear her words clearly in my head “When would you bring someone home, D-law?”; a name she uses when she wants to tease me, knowing it’s my dad’s new favourite pet name for me. “Don’t you want me to carry my grand-children?”; “when will you bring a husband home?” and on and on. It’s worse when she tries to play match-maker, she has forced me to meet 8 different men, children of her friends, whom she believed would have made good husbands. 

Though, for reasons beyond my control, I have never liked any. My mother likes to say I am choosy but it’s not my fault they all had something incredibly wrong with them. The 1st had a terrible mouth odour, I almost puked when he said hi; the 2nd and 3rd were mummy’s boys; the 4th had no future ambition, total NFA who asked me for 500 naira to buy recharge card on the first day we met; the 5th had baby mama drama; the 6th believed women were only meant to be in the bedroom, kitchen and the other room; the 7th was a banker with too much debt to be relaxed, and was always going on about meeting his targets; while the last who certainly was not the least was a serial dater and professional bachelor who had no plans for marriage. 

I am very beautiful and I know it, every guy around me as said it at one time or the other. But this beautiful face, flawless yellow skin and coca-cola shaped figure can be a distraction from my work. In court, lawyers are always trying to flirt with me, senior lawyers are always handing me their cards and making me promise to call. At one time, an older lawyer gave me a 5,000,000 Naira cheque and asked me to be his 2nd wife. 

It’s also very annoying when people sometimes have a wrong notion about me; they see me as not being strong enough and clients most of the time, prefer male lawyers to handle their cases including female clients for that matter. Even though I know most of the male lawyers in my firm aren’t as smart as I am. Like it’s not bad enough, some employers choose not to employ female lawyers. However, saying an outright no is better than employing me for my looks, like an employer who once asked me to sit on his laps during an interview and went on and on about how sexy my figure was and he wanted me to spend the weekend with him in his guest house on the island. 

Do I have plans to get married? Of course I do. And somehow in the middle of my crazy work schedule and limited time for myself, I will certainly find a man or my man will find me. Dad always told me that the traditional role of a woman as a child bearer, house keeper and a cook for the husband, children and larger family puts her at a great disadvantage in taking her proper position at work life, so he encourages me to make the most of my career and profession, a male dominated one if I might add.

However, I am not done reminiscing when Oga walks in looking furious, “where is the Head of Chambers? “ he says clutching what appeared to be a letter in his arms. “Why would he address such a letter to me” he shouts as he waves the paper around and eventually throws it on my table and walks back to his office still livid. 

Curiously, I reached for the letter wondering what it was about. The heading which read ‘Letter of Resignation” startled me. I knew the H.O.C was given a query the night before for closing too early at 8.30pm but no one expected him to resign. Picking the letter up once again, I begin reading – 

Yesterday, I was served with a query for leaving the office early at 8.30pm; even though the official closing hour is 6pm every weekeday. However, I am so ashamed of my actions that I hereby resign……………”

Pls join us next weekend for another episode of “Life of a Lagos Lawyer”. An exclusive Legalnaija series.

The Communication Service Tax Bill: A Desperate Cry For Help – Emmanuel Ohiri

The Communication Service Tax Bill: A Desperate Cry For Help – Emmanuel Ohiri



1.     Introduction
On
31st August 2016, the National Bureau of Statistics of Nigeria (Bureau)
confirmed what was already in the minds of all Nigerians and the world- Nigeria
was in recession. From the Bureau’s Q2 report, Nigeria’s GDP declined to -2.06%
(year-on-year) in real terms. Rather than focus on alleviating the effect of
the recession, the National Assembly is contemplating levying taxes on communication
and internet services in Nigeria. 

This proposed tax is planned to come into
effect through the Communication Service Tax Bill (Bill) sponsored by Hon.
Saheed Akinade-Fijabi representing Ibadan North West/South West Federal
Constituency, which is currently at its second reading. The bill proposes a
seven percent (7%) tax on charges payable by a user (customer or a
subscriber)
of an electronic communication service by a Telecommunication
and or Internet service providers (“Service Providers”) in Nigeria. 
2.     Overview
of the Bill
2.1   The
Chargeable Services
Section
2(4) of the Bill provides that the Communication Service Tax (CST) shall be
levied on the electronic communication services supplied by Service Providers,
including the following:
(a)   Voice
Calls;
(b)   SMS;
(c)   MMS;
(d)   Pay
per view television stations; and
(e)   Data
usage from telecommunication services providers and internet service providers.
2.2  Persons
Liable to pay the Tax and Rate
In
addition to the electronic communication service fee payable by the user, the
Service Providers are required to impose the CST being 7% of the service charge
payable for the use of the communication service.
2.3  Collection
of Taxes and its Administration
The
Federal Inland Revenue Service (FIRS) will be responsible for the general
administration of the CST including the collection and remittance to the
Federation account.
2.4  Penalties
and Interests
The
penalties for non-compliance with the provisions of the Bill are:
a)    N100, 000.00 (One Hundred Thousand Naira) to be
paid by a Service Provider who without justification fails to file returns to
the FIRS by the stipulated date and a further sum of N20,
000.00 (Twenty Thousand Naira) for each day the return is not submitted.
b)   Failure
to pay tax by the due date attracts a monthly interest of 150% (One Hundred and
Fifty Percent) of the average of the commercial banks’ lending rate, as may be
published by the Central Bank of Nigeria from time to time, payable by the
defaulting Service Provider.
The
means by which FIRS may recover a tax or penalty of any interest, which remains
unpaid after its due date, include garnishee proceedings, an order to levy
distress on the property/assets/chattels of the Service Provider. The Bill
incorporates the provisions of the Value Added Tax (Amendment) Act 2007 with
respect to objections and appeals on tax related matters.
3.     Conclusion
The
Bill imposes an additional burden on the masses by imposing taxes on the users
of the electronic communication service, rather than taking steps to alleviate
the effect of the recession on the populace. The Bill also imposes significant
compliance burden and costs on the Service Providers. It is apparent that the
National Assembly has disregarded the resultant effect of the Bill on
low-income earners and small-scale business entrepreneurs who despite the
economic situation require telecommunication and internet services in their
day-to-day activities.
Multiple
taxation already exists in the information and telecommunications industry
alongside general tax requirement of companies in Nigeria, which include but
not limited to 30% Companies Income Tax, PAYE deductions for employees, 2%
Education Tax, 1% Industrial Training Fund Payroll contribution, and most
interestingly 1% Information Technology Tax (NITDA Levy) and 5% VAT on
consumption of their services. Clearly, the introduction of 7% CST increases
the tax burden on Service Providers and consequently their customers. 
It
is without doubt that any potential foreign investor would flee at the sight of
the ever expanding list of taxes imposed on companies in Nigeria. Indeed the
CST can be seen as a desperate attempt of the government to boost its dwindling
internally generated revenue in the face of the economic meltdown currently bedeviling
the nation. As such, this Bill must not be allowed to scale through the second
reading and must be strongly opposed at its “public” hearing.
By:
Emmanuel Ohiri (TNP)
Emmanuel
Ohiri is a vibrant and dynamic young lawyer with a high level of intellectual
curiosity, passion for perfection and tactical proficiency
.
Ed’s
Note – This article was originally published here.