What is the Penatly For Sharing Nudes Online

What is the Penatly For Sharing Nudes Online

            
Question – What is the Penalty for sharing nudes online? 
Answer – 
Section 24 (a) of the Cybercrimes Act 2015 provides that – any person who knowingly or intentionally sends a message via a computer or network system which is false, grossly offensive, pornographic, obscene, indecent or menacing commits an offence and is liable to a fine of 7 (Seven) Million Naira and/or a term of up to 3 years imprisonment. 
@Legalnaija 
Responsible & Responsive Governance: X-Raying the Paul Usoro Leadership of the Nigerian Bar Association in the light of the “Putting You First” Mantra

Responsible & Responsive Governance: X-Raying the Paul Usoro Leadership of the Nigerian Bar Association in the light of the “Putting You First” Mantra

The Making of Responsible & Responsive Governance: X-Raying the Paul Usoro Leadership of the Nigerian Bar Association in the light of the “Putting You First” Mantra 
(By Sylvester Udemezue)
“A great leader’s courage to fulfill his 
vision comes from passion, not position.”
– John Maxwell

As the quarterly meeting of the National Executive Committee (NEC) of the Nigerian Bar Association (NBA) concludes in Abuja, the writer considers it necessary to take another look at some of the successes already recorded by the Paul Usoro-led NBA leadership between the time it came into office in August 2018 and March 2019, with a view to determining to what extent Mr Paul Usoro, SAN, has fulfilled his promise of presiding over a purpose-driven, result-oriented, responsible and responsive leadership of the NBA.
The Campaign Manifesto (the PUSAN Agenda)
It would be recalled that towards his aspiration to lead the Nigeria Bar as its President for the period, 2018 to 2020, Mr. Paul Usoro, SAN, had during the electioneering campaigns leading to the 2018 NBA national elections, presented a well laid-out manifesto and action plan to try to convince Nigerian Lawyers to afford him the opportunity to serve. The PUSAN Manifesto, as it was popularly called, was designed to pursue aggressive institutional development and regulatory reforms within and outside the NBA; to put in place a solid framework for human capital development and welfare programmes that would impact positively on the lives of Nigerian lawyers and the legal sector as a whole; and to promote rule of law and good governance in Nigeria. The PUSAN Manifesto came with the motto: Putting You First. 
Summary of the PUSAN Leadership Manifesto
With respect to institutional reforms, the major action plan the PUSAN manifesto intended to adopt in order to enhance efficiency in NBA operations, engender confidence and trust among NBA members, and increase the moral equity of the organization included the following: professionalizing and strengthening NBA’s National secretariat and entrenching corporate governance rules and etiquette in financial management; upgrading organizational capacity of the various NBA Sections, reforming NBA’s electoral system and succession plan and branch administration, establishing NBA liaison offices in Lagos, Port Harcourt and Kano, opening new vista for revenue generation in the interest of the NBA.
Paul Usoro’s promise of regulatory reforms was hinged on his promise to get the Legal Practitioners Act repealed and re-enacted to improve its effectiveness, to review the RPC, to embark on aggressive advocacy for incorporation of pupillage and mentoring into the curriculum of the Nigerian Law School, to partner with the National Universities Commission and Faculties of Law of Universities towards a proactive review the LL. B curriculum, and to reform NBA’s complaint, investigative and disciplinary channels and processes. And regarding the aspect of the PUSAN Manifesto related to human capital development and welfare programmes, Paul Usoro’s plan was to pursue and secure and an all-inclusive-bar, explore ways of overhauling the entire framework for legal training in Nigeria with a view to meeting up with international best practices in the profession, reform and rejig the Institute of Continuing Legal Education to be better positioned to achieve its core objectives, and establish a model Law Office at NBA’s national secretariat, among others. 
Furthermore, the following schemes were proposed to enhance the welfare and wellbeing of lawyers in Nigeria: capacity building and job creation for young lawyers, exposure and tightening of noose against quackery in the profession, development of verifiable database for lawyers in Nigeria, provision of business education and investment planning opportunities. Meanwhile, promotion and sustenance of rule of law, good governance and strong constitutional democracy remained a major plank upon which the PUSAN leadership philosophy was promoted. Specifically, this philosophy was founded on the following objectives: enhancing speedy and affordable access to justice, respect of human rights and obedience for court orders, checking executive lawlessness and impunity, promoting and advocating respect for independence and financial autonomy of the judiciary, promoting the pro bono concept in deserving circumstances, advocating the domestication of provisions of the Administration of Criminal Justice Act, 2015 to the state level. And to promote good governance, it was Paul Usoro’s plan to set up a strong team to monitor the conduct of the 2019 general elections and performance of election tribunals at the various levels, to put in place an advocate masterplan on strengthening legal and institutional framework for the anti-corruption crusade in Nigeria, and to contribute to building a stronger, credible and effective electoral system through voter education electoral reforms, among others.
Implementation of the PUSAN Manifesto
When the Paul Usoro leadership which commenced in August 2018 started putting forward the promise-fulfilled slogan within just a space of seven months, some saw it as mere talk. But sooner than later, reality caused doubts to give way to belief, acknowledgement and approbation in the minds of many Nigerian lawyers and the observing Nigerian public. It is now obvious that tremendous progress has been recorded even though the journey towards total implementation is still in progress as Rome was not built in a day. It is now clear to all that Mr Paul Usoro, SAN, has remained true to his promise of giving Nigerian Lawyers the best of a responsive, responsible, purposeful and results-oriented leadership. At this juncture, a brief highlight of some of the areas where vital progress has been recorded is necessary:
1. Corporate Governance: The first major step the Paul Usoro leadership took on taking over the affairs of the NBA as its president was to fully incorporate all aspects of core corporate governance structures and rules into the management of the NBA, and to instill fiscal transparency and leadership responsibility in the association’s affairs. At the NBA Secretariat, it is no longer business as usual!
2. Establishment of an E-portal: In line with its promise to see that Nigerian Lawyers no longer encountered any form of challenges while trying to pay for Bar Practicing Fees, etc., the Paul Usoro-led leadership has launched an online portal for the payment processes, bar practicing fees (BPF), including, stamp & seal. The NBA President (Paul Usoro, SAN) while announcing the birth of the innovative project on 10 February 2019, gave the benefits of the platform thus:
“The benefits of the NBA portal include the following: (1) Increased efficiency, seamless and instant payments (of all kinds) to the NBA including Bar Practice Fees. (2) Ease of payments to NBA by and from lawyers and other stakeholders. Payments can be made online, both within and outside Nigeria. (3) Enhanced use of technology for the efficient administration of the Bar and provision of services. The benefits include real-time information and data gathering.” (See https://thenigerialawyer.com/nba-launches-online-portal-for-its-payment-process-stampseal-bar-practice-fees-ors/, accessed 21 February 2019) 
Amplifying the President’s position, NBA’s National Publicity Secretary, Mr. Kunle Edun, explained that “what the NBA has done through its online payment portal is to facilitate an efficient, stress-free, technology-driven payment process of the BPF and other NBA related payments, for the benefit and comfort of our members, … the manual BPF payment method has not been scrapped; it co-exists side-by-side the online payment system (See https://dnllegalandstyle.com/2019/online-payment-of-bpf-steve-suns-argument-is-misconceived-nba/, accessed 27 March 2019)
3. Domestication of the ACJA, 2015: Collaboration with MacArthur Foundation towards realization of the proposed domestication of the Administration of Criminal Justice Act (ACJA), 2015 in all states of the Federation of Nigeria.
4. Promotion of Rule of Law & Fight against Executive Lawlessness, Arbitrariness and Disobedience of Court Orders: NBA no longer sits on the fence! The PUSAN Leadership has energized and resuscitate the traditional role of NBA as the watchdog of Nigeria’s constitutional democracy, having the responsibility of promoting and sustaining independence of the judiciary, separation of powers and supremacy of rule of law. NBA can now be truly called fearless judging from its sustained and consistent efforts in speaking up and fighting against arbitrariness, lawlessness and abuse of power. This is manifest in the running battle the NBA leadership has waged against executive lawlessness, disobedience of court orders, contempt of court, to name a few.
5. Protection of the Independence of the Judiciary: The NBA leadership under Paul Usoro NBA has done a great deal already in its efforts at fighting off attempted external interference with the independence of the judiciary. The case of the illegally suspended Chief Justice of Nigeria, is a case in point. Apart from statements and other actions taken to condemn the illegal suspension of the CJN, the PUSAN Leadership with the assistance of the revered National Executive Committee (NEC) of the NBA rose to the occasion and organized and supervised a nation-wide court boycott to protest the unlawful and unjust suspension of the Hon Chief Justice of Nigeria, Hon Justice Walter Nkanu Onnoghen. (See https://punchng.com/nba-boycotts-courts-to-protest-onnoghens-suspension/). NBA orders layers to boycott courts for 2 days  (https://www.pulse.ng/news/local/nba-orders-lawyers-to-boycott-courts-for-2-days/5h4msec). NBA Demands Reversal of Onnoghen’s Suspension (See https://www.icirnigeria.org/nba-demands-reversal-of-onnoghens-suspension/)
6. Paul Usoro SAN was recently appointed a member of the Presidential Implementation Committee on Autonomy of the State Legislature and State Judiciary in accordance with the 4th Alteration of the 1999 Constitution. (See http://loyalnigerianlawyer.com/paul-usoro-appointed-as-member-of-committee-on-judiciary-legislature-autonomy/) As a member of the Committee, the PUSAN Leadership plans to bring its experience and drive into the Committee’s work with a view to ensuring that the best is achieved in line with the core objectives of the Committee. Besides, it is an opportunity to showcase some of the relevant items in the PUSAN Manifesto with a view to implementing them in the interest of Nigerian Lawyers and Nigeria as a whole. 
7. 2019 Elections Observation: Shortly before the 2019 Presidential elections, the NBA national leadership had constituted an Election-Observer Committee, ably chaired by Mr Afam Osuigwe, as an Internal Observer team for the Presidential and Governorship Elections. The work of the Committee was unprecedentedly successful and effective only because of Paul Usoro’s foresight in having selected only men of proven integrity and competence as Chairman and members of the Committee. (https://thenigerialawyer.com/nba-election-working-group-sets-up-situation-room-launches-toll-free-line-hashtags-for-2019-general-elections/) Our polls report, by NBA observers (See http://thenationonlineng.net/our-polls-report-by-nba-observers/). Headlines such as “Paul Usoro SAN And NBA’s Exemplary Work At #NigeriaDecides2019”  soon surfaced and littered the Nigerian social and print media space to testify to the exemplary leadership style of the Paus Usoro Leadership. (See https://www.legalnaija.com/2019/03/paul-usoro-san-and-nbas-exemplary-work.html)
8. Financial & Human Resources Audit of NBA: The PUSAN Leadership of the NBA has successfully undertaken both financial and human resources audit of the NBA to forestall leakages and waste of resources — human, material and financial resources. This has saved millions for the NBA.
9. Prompt Delivery of Stamp & Seal: Delivery of stamp and seal to applicants is now completed within a maximum of 14 days from the date of payment, and all complaints are resolved within 48 hours of receipt, unlike in the past when it took months to get the seal already paid for by verified legal practitioners. 
10. Seamless Interaction of the National leadership with Branch Chairmen: The PUSAN Presidency has established a platform to interact with all branch Chairmen and secretaries of the NBA across Nigeria for a seamless and more effective administration of the branches, prompt feedback and reporting.
11. Response to Unjust or Illegal Harassment of NBA Members: The Paul Usoro-led leadership has successfully waded into and resolved all reported cases of harassment of Nigerian Lawyers in the course of their lawful discharge of the professional responsibilities. NBA has on many occasions risen in defence of members of the legal profession who are unlawfully harassed by security agencies. The motto for the PUSAN presidency in this regard is “An attack against one lawyer anywhere in Nigeria is an attack against all lawyers in Nigeria and attack against NBA itself.” Hence, NBA would never fold its arms and watch any member either of the Bar or of the Bench to be illegally harassed or victimized!
12. Curriculum Review in the Nigerian Law school: The PUSAN leadership has begun relevant negotiations with the Management of Nigerian Law School towards a review of the School’s curriculum with a view to inculcating pupillage and mentoring as promised in the PUSAN Manifecto.
13. Quality Appointment & Representation at Panels, Regulatory Bodies and Government Agencies: With the inception of the PUSAN presidency efforts are made on each occasion to ensure that NBA members appointed or nominated to represent NBA in Government Committees, Panels, Regulatory Authorities and Agencies are lawyers of proven integrity with established and acknowledged expertise, instead of the attitude of just re-cycling of bar men. Apart from being a giant step in the right direction, in the spirit of having square peg in a square hole, with a view to ensuring that the NBA is competently represented in such bodies, such innovative step leaves quite a refreshing difference in the quality of contributions made by these nominees and appointees. 
14. Independence of the NBA:   To ensure that NBA remains independent, and free to pursue and fulfil its core mandate, the Paul Usoro leadership has put a stop to the hitherto rampant attitude of  NBA national Leadership accepting State Governors’ offer of sponsorship of NBA National Executive Committee (NEC) Meetings in a manner that forced the NEC meetings to rotate around different venues and places in the country, while the NBA House, a giant architectural edifice located in the heart of Abuja, FCT, lies fallow. NBA under Mr. Usoro, SAN, has now insisted and ensured that NBA NEC Meetings are held in the NBA House in Abuja. Apart from several other benefits recorded with this innovative prudent step, this has also contributed in extricating the NBA from its previous attachment and hobnobbing with various State Governments in a meaner that constituted a sort of hindrance and also made NBA less free and independent-minded to pursue its goals.
15. Cost Management: The Paul Usoro Leadership has completely trimmed the huge workforce at the NBA Secretariat in Abuja, as well as put in place measures to ensure considerable reduction in waste of resources. The decision to permanently hold NBA NEC meetings at the NBA House is one of such measures.
The writer would like to end by referring us to the words of Ronald Regan (40th president of the United States of America): “the greatest leader is not necessarily the one who does the greatest things. He is the one that gets the people to do the greatest things.” This is one attribute, among many, that stands the Paul Usoro leadership out — humility and foresight in selecting the right people for jobs—as this writer stated earlier, putting square pegs in square holes! But it is not just that; Mr Paul Usoro also gives his team members the freedom and liberty to operate freely within the rules. This accords with Theodore Roosevelt advice, that “the best leader is the one who has sense enough to pick good men to do what he wants done, and the self-restraint to keep from meddling with them while they do it.”
As the Paul Usoro leadership continues in its giant strides towards repositioning the Nigerian Bar Association for a greater future, I heartily congratulate Mr Usoro on his successful hosting of the NEC meeting for March 2019. However, I once again urge Mr. Paul Usoro, SAN to Remain Focused and carrying along his team members and indeed everyone, in all his plans and programs. For this purpose, I recall my earlier words which I believe is still as effective today as it was when I wrote them:
“Leaders that aim to succeed must adopt all-inclusiveness as their motto, so as to be able to create an environment in which all individuals and sections feel empowered to express their opinions freely within the larger group. Leaders ought also to realize that diversity of thinking is critical to effective collaboration and management; thus, they must pay close attention to team composition and team processes in order to fish out all capable hands to work with for success…. a leader has not begun leading until the leader has learned to rise above the narrow confines of his individualistic concerns to the broader concerns of all members of society he leads, and in fact the whole of humanity. In Jesse Jackson’s words, “inclusiveness is not a matter of political correctness. It is the key to growth. When everyone is included, everyone wins.” (See accessed 28 March 2019)
Finally, to all Nigerian lawyers, fellow NBA members, we must remain together in love and peace, cooperating with and advising our leaders, on how to make the NBA better and greater, with a view to elevating the NBA to a level where it becomes the cynosure of all eyes, a leading light, and a perfect example for other sectors and professional groups to copy from. We are not yet where we ought to be. But with the innovative and result-driven leadership of Mr. Paul Usoro, SAN, we sure have left where we used to be. With all hands on the deck, we would get to the promised land. United we stand! 
Respectfully,
Sylvester Udemezue 
(28/March/2019)
NBA President, Paul Usoro SAN’s Address At The NBA NEC Meeting

NBA President, Paul Usoro SAN’s Address At The NBA NEC Meeting

ADDRESS DELIVERED AT THE NBA NATIONAL EXECUTIVE COMMITTEE (“NEC”) MEETING AT THE NBA SECRETARIAT IN ABUJA. 
My Dear Colleagues

It gives me great pleasure to welcome you all to the 2018/2019 Quarter 3 NEC meeting of our great Association. We thank the Almighty for journey mercies from our various destinations for this meeting. This is the second NEC meeting of our administration and it is interesting to observe how time flies: almost seven months of our tenure is already gone and we are left with a year and a half to cram in so much that must be achieved for the betterment of our members, our Association and the Nigerian society. So, what have we achieved in the months after our last Quarterly NEC Meeting that was held on 06 December 2018? I will in the succeeding paragraphs give you, my dear colleagues, a summary of our activities in the last several months.
Last Quarter Significant Activities
Online Payment Platform
One of our significant achievements this year has been the introduction of online payment system for the payment of Bar Practice Fees (“BPF”) by our members. Gone are the days when our members had no choice but to queue at banking halls and go through the tedious manual processes for the payment of their BPF. Now they can make their payments online from the comfort of their homes or wherever else they may be, at any time of the day or night including weekends and even from outside Nigeria. The plan which is already in the works is to extend this online payment facility to cover payments for all other NBA National-related fees and dues payable by our members and third parties. 
Financial Accountability, Transparency and Prudence
We have, at this NEC meeting, published the Management Accounts of our Association for Quarter 2 of 2018/2019. That is a promise kept and a statement made on the resolve of your National Officers to be consistent in being financially accountable and transparent in the management of the NBA’s funds. Our commitment which you should hold us to is that, not a Quarter will pass in the two years of our administration without our publishing the NBA’s Quarterly Financial Statement. One of the positive knock-on consequences and effects of financial accountability and transparency is that it forces prudence on the managers of the Association’s funds, knowing as we do, that there must be an accounting to our members for every expenditure that we make as published in the Financial Statements. That fact is always present in our minds and, in part, informs the prudent management of the Association’s funds by this administration as you would find in our Q2 Management Accounts which we would present to this august body shortly.
Secretariat Reforms
As part of our campaigns, we had committed to institute internal reforms in our Secretariat such that it would be responsive to our members’ needs and serve the Association better. The feedback I receive from our members almost on a daily basis has been overwhelming in that regard. I have heard from members how their problems were resolved in quick time merely through phone calls to our Secretariat personnel. It is no longer news that stamps are delivered to our members within days of the orders being received at the Secretariat from the Branches. The extremely
few complaints that we have received in this regard were resolved in quick time and always in a manner that exonerated our National Secretariat of any blame or fault. To enhance the Secretariat’s efficiency, we would be placing before you, our NEC members, in the course of this meeting, for your kind approval, a new fit-for- purpose organogram. 
One of the innovations in the new organogram is the inclusion of the position of an Internal Auditor. In any properly organized establishment, the Internal Auditor is significant livewire personnel for ensuring prudence and accountability in financial management. His role is so central to achieving these ideals such that no serious and successful organization operates in modern times without the personnel that fulfills that role. In our match towards the entrenchment of financial transparency, accountability and prudence, we consider that position critical for the NBA and we are counting on the support of the NEC in approving the new organogram which includes that function.
Website Revamp
Work has started on the revamping and modernization of our website. The NBA deserves a modern website with the right customer experience, aesthetics and functionality and that is what we are committed to unveiling by or before the next NEC meeting. Websites, apart from serving as information portals have their functional uses. Their interactive profile in modern times allows for online resolution of problems and issues by visitors to the website. These are attributes that absent but which we will be introducing in our revamped and modernized website.
Prior to now, separate standalone websites were created each year for our Annual General Conference (“AGC”). From this year, our AGC portal will be hosted in our NBA website and there would be no need for the award of yearly contracts for the creation of websites solely for our AGC event. Some of our Sections currently have their own independent standalone websites which are not linked to the NBA website. SPIDEL is the only one without a website and the plan is for that Section to be housed and hosted at the NBA website. Links would be created between the modernized NBA website and the current standalone SBL and SPL websites.
As earlier mentioned,the online payment platform which is hosted at the NBA website would be enhanced to cover online payments of all fees and dues to the Association. The website enhancement would include the creation of an online platform for ordering stamps in a manner that would ensure that branch dues and other branch levies are fully paid and satisfied by the person making the order as a condition precedent to the placement of the orders. Let me quickly assure that we would, in expanding these frontiers ensure that the Branches are fully carried along and their concerns addressed and resolved.
2019 National Elections’ Monitoring
The 2019 National Elections have come and are gone albeit with the rumbles remaining. We acquitted ourselves very well in monitoring those elections and publishing objective, fact-based reports thereon. As you would recall, the Osun State Governorship elections provided us with a test-run in the monitoring of this year’s elections and we did not lower nor deviate from the high standards that that were set by our monitors in that election. I must here thank all our members countrywide who volunteered for the monitoring exercise and duly sent their reports including photographic images to the National Committee for compilation of our reports. For the Governorship Elections that were held on 09 March 2019, the Branches did not receive a dime from the National body and yet, our members joyfully and enthusiastically volunteered and creditably carried out their monitoring functions and sent reports to the National Committee the end result of which is the final Monitoring Committee Report that would be presented to NEC at this meeting.
Welfare of Members
Our members have for some time now been clamouring for the resuscitation of the life insurance cover that used to be in place for our members, but which unfortunately was not renewed and was therefore not operative in the last couple of years. We have hearkened to the calls of our members and, apart from having discussions with Leadway Assurance Plc, the company that originally provided us with the insurance cover that became defunct, we have held talks with WAPIC Insurance Plc, another reputable insurance company. Both organizations have made presentations to us on insurance covers that extend beyond life and include medical expenses, temporary and permanent disabilities and critical illness benefits. Their proposals have been uploaded and placed before NEC for final consideration and approval. As soon as approval is obtained, we would work to reinstitute this welfare package for the benefit of our members.
Technical Committee for Conference Planning (“TCCP”)
This year, we started the planning of our Annual General Conference quite early. NEC had, during our 06 December 2018 meeting, graciously given me the anticipatory approval to constitute the Committee which I did and would presently, in the course of this meeting, present the membership list to members. One of the innovations that we introduced in the constitution of this year’s TCCP is that we appointed three Chairmen from each of the NBA Zones as members of the Committee and representatives of their respective zones. The Chairmen directly feel the pulse of our members in the Branches and we believe that those of them that have been appointed as members of the TCCP would better appreciate the thought-process that goes into the planning and organization of the AGC apart from their bringing fresh and vibrant perspectives into the Committee’s work schedule. We are confident that this year’s TCCP will deliver on the promise of a world-class AGC that would be within the economic reach of our members. The Committee would be presenting their first report to NEC very shortly.
Rule of Law
Perhaps,the single most dominant and talked-about issue in our professional life this year has been issues and matters concerning our Chief Justice of Nigeria, Honorable Mr. Walter S N Onnoghen, GCON (“Onnoghen CJN”). Our current travails as represented by the Onnoghen CJN saga is too well known to all of us and too painful to bear recounting. Suffice to state that throughout this unfortunate and bewildering incident, the NBA has stood on the side and in defense of the rule of law, the independence of the judiciary and the principles of separation of powers between the three arms of government. As we have consistently pointed out, the Onnoghen CJN incident is but a metaphor for these immortal and immutable principles. It reminds us of how dangerously insecure the tenure of our judicial officers is, by extension, how susceptible to attack the independence of our judiciary is. These principles, we must reiterate, have no political, tribal or religious colourations and the positions of the NBA were impervious and blind to these divisive and inhibiting considerations.
We must commend our members who stood up to be counted in the struggle for the promotion and protection of the rule of law vis-à-vis the Onnoghen CJN saga and it is our earnest hope that the Executive arm of the Federal Government of Nigeria would see reason not only to terminate the on-going ugly and self-immolating spectacle at the Code of Conduct Tribunal but also find a way to resolve all the surrounding issues relating to Onnoghen CJN in a way and manner that would retrieve for us all and in our collective interest what may be left of the shredded and tattered dignity of our justice sector. The NBA remains unrelenting in its campaign in this regard.
Focus in the Coming Months
I must, at this point, highlight some of the significant issues and activities that will engage our minds and occupy our time and efforts in the coming months before our next NEC meeting:
Constitution and Electoral Review
NEC had graciously granted mean anticipatory approval for the composition of the Constitution and Electoral Review Committee. We would be publishing the composition of the Committee in the next couple of days with matching orders for them to consult with our members and Branches and come up with a reviewed Constitution and Electoral process for our Association. Similar to the composition of our TCCP, we would ensure that representative Chairmen are appointed to this Committee from the Branches. The Committee would have a timeline that would ensure the presentation of the amended Constitution at our Annual General Meeting that would be held during the AGC in August 2019.
Alternative Sources of Funds
Given the Association’s debt overhang as shown in our Financial Statement, it is imperative that we have alternative sources of funds. This is an area that we would be working quite hard at in the coming months including raising funds from our patrons and members. We would update NEC with our efforts in this regard. 
Clean Data Capture. 
We have already started working on the verification of our membership data as a prelude to creating a clean database of our members which would be used for all purposes including but not at all limited to our NBA elections. This was one of our significant campaign promises and we are hoping to be largely done with this project by or before the AGC in August 2019.
Young Lawyers
In the coming days and months, we would pay more than the ordinary attention to issues concerning our young lawyers starting with the constitution of the Council of the Young Lawyers Forum for which NEC had graciously granted me an anticipatory approval during the 06 December 2018 meeting. Happily, we have great champions of young lawyers amongst the National Officers one of the leading ones being Akorede Habeeb Lawal, our Assistant Publicity Secretary. He could easily pass as one of the most young-lawyers-centric members of our Team and he bubbles with several ideas and thoughts concerning young lawyers most of which he has shared with me and which we plan to implement in the coming months.
Rule of Law
The promotion and protection of the Rule of Law is the lead motif of and for our Association. It permeates the entirety of our professional lives and is not dated howsoever; it is a principle and fight that is immutable and alive at all times and demands eternal vigilance. We would continue to live up to our commitment in this regard. In the coming months, we would beam even more searchlight into the crevices of our national life where the Rule of Law and its twin principle, the Fundamental Rights of our people, may be under assault and in bondage. We would continue to speak out in defense of these principles and will equally commend the authorities when such commendations are deserved
FRN v Usoro
I cannot conclude this Address without updating you, my NEC members, on my prosecution by the EFCC on allegations of money laundering. I had presented to you during our 06 December 2018 NEC meeting the facts of this Charge. Those facts have not changed howsoever. The Proof of Evidence which was subsequently served on me does not contain any fact that contradicts the position that I presented to you, to wit, that I am being prosecuted for (a) professional fees totaling N1.1bn that were legitimately earned and paid to Paul Usoro & Co (“PUC”) by Akwa Ibom State Government (“AKSG”) between 2015 and 2016; and (b) professional fees totaling N300m that were paid to PUC by Governor Udom Emmanuel of Akwa Ibom State for the benefit of our colleagues who provided professional services to the Governor.
The PUC Bank Statement of Account that forms part of the Proof of Evidence clearly shows that the N300m was duly paid to those colleagues of ours who rendered those services to the Governor. The N1.1bn was not and is not the property of AKSG and nobody, apart from the EFCC, has claimed otherwise. The N300m to the best of my knowledge was not paid from the coffers of AKSG and no one apart from the EFCC has so claimed. As the trial unfolds, we will keep our members duly informed. 
I must thank all our members, from the depths of my heart, for the overwhelming support and solidarity that Mfon and I have enjoyed and received from all of you across the nation. You have seen this persecution for what it is: a struggle for the soul of our profession and means of livelihood and not just the persecution of Paul. We are so very touched by your faith in us and your show of love, from telephone calls, personal visits, text messages and other forms of communication. I must also thank most sincerely, my team of lawyers, led by our past President, Chief Wole Olanipekun, SAN for all their work on my behalf. We cannot repay you for this show of faith and love for and in us. Our prayers is that the Almighty will reward you all abundantly. We feel confident that our collective efforts would be rewarded and truth will ultimately out and we will all be vindicated.
Perhaps, I need to mention here that my current persecution is not isolated. As a profession, we are under siege. For the very first time, both in our country’s history and in the history of our Association, the NBA Elections of 2018 has been the subject of purported investigation by the EFCC. I do not believe that such an investigation is within the purview of the EFCC, seeing as there was no financial or economic crime that was alleged. I am also not aware that the EFCC has taken as much interest in the activities of other professionals and their associations as it has taken in our profession and our Association, particularly in recent years. To put it mildly, our profession and indeed the justice sector, I repeat, is under siege. Even the Independent Corrupt Practice Commission (“ICPC”) has taken to inviting our past Presidents and General Secretaries for questioning over the contract award for the construction of our National Secretariat.
But then,these agencies do not act alone; they act in close collaboration with some of our members. The petition that triggered the purported EFCC investigation into our 2018 Elections, for example, was written by one of our members. Indeed, we have taken to reporting ourselves to the EFCC even in internal matters of the Association which could be resolved internally. We do need to rethink our ways and reassess our circumstances in this regard, in our collective interest, for our collective good and for the good of our profession and our Association.
Conclusion
In concluding, I must thank the President of the National Industrial Court, Honorable Justice B A Adejumo, for graciously sponsoring the cocktail that was held for our NEC members last night, Wednesday, 27 March 2019. The Chief Judge of the Federal Capital Territory, Honorable Justice Ishaq Bello, was kind enough to provide us with the venue for the cocktail. Our gratitude also goes to our distinguished colleague, the Secretary to the Government of the Federation, Mr. Boss Mustapha, who is partially sponsoring the dinner event this evening for our members. Access Bank Plc has also donated for the hosting of this NEC meeting and we thank them most sincerely.
Once again, I thank all of you, my NEC members, for your support and consistent encouragement. I wish us all fruitful deliberations in this NEC meeting and a safe journey back to our various Branches. Long live the Nigerian Bar Association. Long live the Federal Republic of Nigeria.
Paul Usoro, SAN President
MTN lawyers say AGF’s legal arguments unacceptable and unknown to law

MTN lawyers say AGF’s legal arguments unacceptable and unknown to law

Fireworks
continued today as MTN Nigeria and the Attorney General of the Federation and
Minister for Justice continued their legal battle over the appropriateness of
the latter’s demand for $2 billion in back taxes. While MTN maintained that the
AGF was beyond his remit, the AGF sought to justify his demands.

At a
hearing in the Federal High Court in Ikoyi, Justice C J Aneke heard arguments
relating to the substance of the AGF’s preliminary objection (from November
2018), the detail of which was only filed in court by the Attorney General late
on March 25
th, and which has yet to be served on MTN. The arguments did
not focus on the substance of MTN’s suit, as the AGF’s preliminary objection
that MTN did not commence legal proceedings within 3 months of the cause of
action arising must first be addressed.

MTN’s
team of lawyers led by Chief Wole Olanipekun maintained that the AGF’s
contentions were unacceptable and unknown to law. They argued that the cause of
action actually crystalised when the AGF made a demand of MTN and threatened
the company with court action on August 20th. Previous correspondence from the
AGF was acted upon in good faith by the company, he continued. He revealed that
the previous correspondence had requested a self-assessment.

He
posited that the organization not only undertook the self-assessment but went
ahead to submit the result of that process to the AGF’s office. The assessment
was undertaken by KPMG and showed clearly that no back taxes were owed to the
Country. Despite this, the letter of August was still written. That letter
heightened issues and led to the company seeking to protect itself from the unlawful
actions of the AGF.

The
learned SAN further argued that to the extent that the letter has not been
withdrawn, the cause of action continues to exist. Therefore MTN remains within
its rights to approach the courts. Counsel to AGF was asked directly whether
the cause of action had been withdrawn (and so the demand itself withdrawn) but
declined to respond.  

The
Chief further posited that from the AGF’s pleadings his office had admitted the
submission of MTN in so far as his main argument is not in response to the core
issues raised by MTN, but to whether or not the AGF is protected in law from
the consequences of his actions. The Chief argued that it is implicit in the
AGF’s failure to address the substance of MTN’s case, that the AGF is aware it does
not have the legal authority to take the action it has taken.

Justice Aneke, after hearing the submissions of learned
counsel to both parties, reserved ruling on the preliminary objection until May
7th.

MTN Nigeria instituted the suit by a writ dated September
10, challenging the legality of the AGF’s assessment of its import duties,
withholding of tax and value-added tax in the sums of N242 billion and 1.3
billion dollars. In the suit, MTN claims that a revenue assets investigation
allegedly carried out by the Federal Government on MTN over the period from
2007–2017 violates Section 36 of the Constitution of the Federal Republic of
Nigeria. It also claims that the government’s August 20 letter stating the tax
demand to the company contravenes the provisions of the section.

The telecoms company seeks a declaration that the defendant
(AGF) acted in excess of his powers by demanding an assessment, which MTN
claims, usurped the powers of the Nigerian Customs Service to demand import
duties and the powers of the Federal Inland Revenue Service to audit and demand
remittance of withholding tax and value-added tax.

Over-reach
by the AGF has been a consistent theme recently, with President Muhammadu
Buhari already having ordered him to terminate a separate agreement through
which he sought to collect supposedly ‘additional recoverable revenue’ from the
International Oil Companies.

Legal effects of Condonation in Employment Relations | Michael Dugeri

Legal effects of Condonation in Employment Relations | Michael Dugeri

Condonation means the
forgiveness, purposeful disregard, or tacit approval by a victim of another’s
illegal or objectionable act, especially by treating the other person as if nothing
happened.

In law, the term condonation is more commonly associated with
matrimonial proceedings, in which case it is understood as the voluntary
pardoning by an innocent spouse of an offense committed by his or her partner
conditioned upon the premise that it will not happen again. Condonation, which
is used as a defence in divorce actions based on fault grounds, is strongly
supported by public policy. The institution of marriage and its preservation
are considered essential for the stability of society, and therefore
condonation is encouraged to promote the notion that marriages should not be
dissolved easily. 

Employment relations have been likened to marriages, for a number of
reasons. It is often said that
successful
labour relations are more like ‘a marriage, not a boxing match’. It is expected
therefore that both parties will sometimes have to overlook certain infractions
from the other in the interest of the relationship. However, what happens if
the forgiving party later regrets the decision to forgive and decides to
enforce their rights against the forgiven party in respect of the forgiven
offence? Are they allowed to do so and within what timeframe? What in fact,
constitutes condonation in employment relations?   

The answers to these questions will usually depend on the
context. Hence, the answers will be provided by examining a few decided court
cases on the issue of condonation in employment relations. To begin with,
condonation may either be by the employer or employee; it may also be express
or implied. Where condonation is express, the offended party expressly waives
his right to sue or complain, by stating so in writing or where the timeframe
to react to the offence, as provided by law or contract, has elapsed.. In cases
like these, there is little difficulty in establishing condonation. The
situation is however nuanced in cases where condonation is implied. That is,
where the offended party seems to have forgiven or overlooked the
offence/breach but without actually doing so.

In anticipation of situations of
implied condonation, some employment contracts (like most other commercial
contracts) contain a “no waiver”
clause, which typically provide that delays do not adversely affect the rights
of a party to enforce the terms of the contract.However, is the offending party
allowed to simply move on with the relationship without knowing whether or not
his breach may be relied upon at some point in future to apply disciplinary
measures like suspension or even termination? On the other hand, when a party
to a contract waives
breach of that contract by the other party, it
voluntarily abandons its legal rights to enforce the contract, or to claim any remedy, in
relation to that breach.
waiver must be
clear, but may be oral or written.

Another major consideration in determining
condonation is if the offended party intends to seek remedy outside the
workplace, like suing to enforce its rights or demand damages. In such a case,
one needs be mindful of “
Limitation
Law”, that is, the law that a suit must be commenced within a specific period
of time from when the injury or omission, causing the damage or loss, arose or
occurred. Grievances need to be settled in time while the evidence in support
of the claim, or the defence to a claim, is/are still fresh. Not commencing
legal action within the statutorily specified period extinguishes the right to
seek remedy. Employment contracts are classed as simple contracts. Legal
actions based on simple contracts (like recovery of debts and arrears of
interest, tortuous malfeasance which includes damages for negligence or breach
of a duty of care, account stated, etc.) must be commenced within a period of
six (6) years of the occurrence of the injury, loss or damage.

However, if the available remedy is internal, like an
employer subjecting an erring employee to its disciplinary procedure,
condonation will be implied if remedy is not sought nor applied within the
period specified for it under the employment contract or the company handbook.
Where the contract or the company handbookare silent on the period of
disciplinary proceedings, a reasonable time will be applied in determining
whether or not the employer can be said to have condoned the infraction in
question.

A key principle in industrial relations law and practice is
that the disciplinary process must not run slowly and sluggishly, or be
unnecessarily prolonged; for otherwise, the employer stands the risk of being
subsequently barred from applying penalty. From this principle, two rules are
evident: firstly, the right to suspend an employee available to an employer is
not a right that is eternally available. And secondly, where there is an
infraction, an employer who allows the disciplinary process to run very slowly
and sluggishly stands the risk of being read to have condoned the said
infraction. As a result, courts customarily frown on a prolonged suspension,
and in some cases, quash the suspension.

In one of the decided cases,the Court expressed its
displeasure over a prolonged suspension, when the employee in question had been
suspended for a period of over 18 years. The suspension was held to be unfair
and unjust and accordingly quashed. In another case, the claimant was
erroneously suspended in 2005, recalled in 2009 and told that he will still be
investigated for what he was initially and erroneously suspended for. The Court
in this case also set aside the suspension and ordered that employee be paid
all his entitlements without any loss of benefit including arrears of his
salaries.

In yet another case, the employee sued to contend his
employer’s act of summary dismissal was irregular in the sense that the employerafter
the conclusion of the investigation did not suspend, terminate, sanction or
summarily dismiss him. Rather, the employer transferred him to a different
branch as its employee to continue on the job.The employer was held to have
condoned the infractions, which he later purported to act upon in dismissing
the employee. 

The court has also held that in a case where the staff handbook
provided that ‘disciplinary proceedings for any misconduct shall be dealt with
as soon as possible’, undue delay on the part of the employer must be read as a
waiver of the right of dismissal, and that any dismissal afterwards can only be
construed as a case of victimization.

The common principle in all these cases is that where an aggrieved
party is lax in seeking remedy (and the laxity is usually for a period exceeding
one year),condonation will be implied. This means the aggrieved party must be
decisive in considering legal action in deserving cases. This is especially for
the employer, who is often required to apply disciplinary measures. When the
disciplinary process is activated, it is essential to follow the process
through completely. Employers must have robust procedures and supporting
documentation in place to effectively discipline their employees, both to
ensure procedural fairness, and to protect their position, should the employee
take action against them.

In practice, the disciplinary process starts well-invitation
to the meeting is sent, the meeting is held, all the evidence and the employee’s
response is considered, the decision is made to apply the penalty, the employee
is advised that they are getting a punishment, but then the letter never gets
issued. Often these matters are not followed up because of the difficulty of
articulating the problems, creating performance improvement plans and setting
quantifiable outcomes. Subsequently, the whole grievous process achieved so far
will be wasted.

In
conclusion, it is important to note that disciplinary procedures in the workplace
will be to the benefit of both the employer and the employee. Employers often
find themselves making costly procedural mistakes when disciplining or
dismissing an employee for misconduct. They may have a fair reason for
dismissal, for example the employee has stolen company goods, deliberately
damaged the employer’s property or breached health and safety rules, but if the
employer has not followed a fair procedure, this can make the whole process
unfair.

Having a
clear, legally compliant and well-written procedure will guide an employer
through a good disciplinary procedure which will reduce the likelihood of
running into legal action and providing the affected employee with the much
needed feeling of fairness of the process.

Micheal Dugeri

Corporate Commercial Lawyer at Austen-Peters & Co.

Pro Bono Lawyers Can Win Big In The Paul Usoro Challenge

Pro Bono Lawyers Can Win Big In The Paul Usoro Challenge

Pro Bono Lawyers are set to win big in Season 3 of the Paul Usoro Challenge. To participate, all you need do is upload an inspiring 2 minutes video explaining your pro bono case on Facebook, Instagram and Twitter using the Hash-tag #PaulUsoroChallenge and stand a chance to win up to 200,000 Naira and other cash amounts.

See the flier below for more details.

Membership Rights Of A Company | Blessing C. Madu

Membership Rights Of A Company | Blessing C. Madu

A Business can attract
investors other than the business owner. A major way for the investor to
participate in these businesses is to invest in the company by purchasing
shares. Anyone who purchases shares is called a shareholder. Shareholders are
very important persons in a company whether it is public or a private limited
company. A shareholder is one who owns at least one share, attracting at least
one vote in a company. A subscriber of shares is not regarded as a shareholder
until shares are actually allotted to him. There is equally a very important
person in a company. They are referred to as the Members of a company.

A member of a company is a
person having constituent proprietary interest in the company and whose name
has been entered in the Register of Members. The right of members is dependent
upon the Companies and Allied Matters
Act Cap C20 LFN 2004
, Articles of Association and any agreement entered
into by a member.

In the ordinary commercial
language, the term “Member’’ denotes a person who holds shares in a company. Members
and Shareholders are often  used
interchangeably. It is pertinent to note that there is a difference between a
shareholder and a member of a company although the difference is not too
visible. A member is one who satisfies the provision of Section 79 of CAMA. This
Section provides that a member of a company is one who agrees to become a
member and whose name is entered in its register of members. The original
subscribers to a company memorandum are considered to have agreed to become a
member of a company. Thus, membership of a company is not synonymous to
shareholding.

Differences
between Members and Shareholders

The following are the
differences between members and shareholders:

·       
A shareholder will not become a member of a
company until his name has been input in the register of members. A shareholder
is a person who owns the shares of the company.

·       
All shareholders whose names are entered in
the register of members are the members. Thus, all members may not be
shareholders.

·       
Proof of shareholdership is by a share
certificate; while proof of membership is by the register of members. Ponmile
v Sparks Electrics Nig. Ltd (1986) 2 NWLR 519 AND Oilsfield Supply Center Ltd
v. Johnson (1987) 2 NWLR 625.

For a person to be a member
of a company, he must

·       
Subscribe to shares, that is, he must be
allotted at least a share in the capital of the company

·       
Consent to be a member

·       
Enter his name in the register of members
before he enjoys membership benefits

If any of these conditions
is not satisfied, the person shall not be a member under this Act.

Membership of a company can
be acquired through any of the following ways;

·       
By subscribing to the Memorandum before the
registration of the company.  Section
79 of CAMA
.

·       
By applying for the shares offered by the
company. Section 125 of CAMA.

·       
By becoming a transferee of a share and being
placed in the register of members. Section 151 of CAMA

·       
By transmission of shares on succession to a
deceased or bankrupt member and the consequent registration in the register of
members. Section 155 of CAMA

·       
By share qualification: the Articles may
require a director of a company to take up shares in the company upon his
appointment.

The entry in the Register of
members is an indispensable condition for membership. Berliet Nigeria Co. Ltd v.
Francis (1987) 2 NWLR 675.

Every Nigerian company acts
through its member or shareholders either in its general meeting or through the
Board (these are the main organs of a company). The importance of having a
member and a shareholder or both cannot be over emphasized. A business owner
cannot grow a company singlehandedly.  He
is like a coach and the job of a coach is to hire extremely talented,
hardworking and vision minded people to accomplish specific assignments. Every
growing company needs people that will improve the standard of the company in
all ramifications and execute various projects. An illustration is provided in the
preceding paragraph.

Mr A and his family
established a shoe factory. He is the sole owner of the company because he
holds more shares in the company. Along the line, Mr B and C decide to purchase
shares from the company. By doing so, they become part of the company in
relation to the proportion of shares they hold. Mr A, who is the company’s
founder, would give part ownership to Mr B and C. Mr B and C who are now
shareholders in the company would play an important role in the financing,
operations, governance and control aspects of the business. They would appoint
directors to manage the operational activities of a company or in some cases,
they could equally assume the role of directors. Company owners make decisions
about significant matters such as changing the name of the business, appointing
or removing directors, altering the articles of association and so on.

Thus, it can be said that a
person can be a member and shareholder of the company at the same time. E.g, Mr
B has 30 shares in AOL Limited, he was issued a share certificate and his name
appears in the Register of members; A person can be a member but not a
shareholder of the company e.g Mr B has 30 shares in AOL Limited, his name
appears in the Register of members but he has sold all his shares to Mr C; A
person can be a shareholder but not a member of the company eg. Mr B has 30
shares in AOL Limited bought from Mr B, He holds a share certificate but his
name is not included in the Register of members. The main duty of a member who
is also a shareholder is to pay the company the sum which remains outstanding
for the agreed amount of the share(s) that have been issued.

Who
can become a member of the company?

The Articles of Association
of a company may impose certain restrictions or restrain some persons from
acquiring membership in a company. In the absence of any express provision
regarding the contractual capacity or legal personality of a person, the
provisions of Section 80 of the CAMA will apply.  These include:

·       
Minors: A minor is not a competent person to
enter into a valid contract. As a result of this, he is disqualified to acquire
membership. However, minors may be allotted shares, but it shall not be counted
for the purpose of determining the legal minimum number of members of the
company. Although, it is voidable at the instance of the minor when he attains
maturity.

·       
Unincorporated entities: A partnership firm
cannot be issued shares because it is not a legal person. Although, such firm
may hold shares in a company in the individual name of partners as joint
shareholders.

·       
An undischarged bankrupt

·       
A person of unsound mind

·       
A corporate body in liquidation

The members of a company
enjoy several benefits. Their rights can be classified under two heads;

1.     Statutory
Rights: these are the rights conferred upon members by the CAMA and they
include the following;

·       
Right to receive Dividend once declared by
the board. Section 385 of CAMA

·       
Right to transfer shares

·       
Right to receive, upon request, certain
statutory books and records of the company

·       
Right to inspect statutory registers

·       
Subject to Section 228 of CAMA,
every shareholder shall have the right to attend company meeting and vote. Section
81 of CAMA.

·       
Right to petition for the winding up of a
company

·       
Right to seek an investigation into the
affairs of a company

·       
Right to receive notice of meeting

·       
Right to demand poll and appoint proxy in
company meeting

·       
Right to take up minority actions Heyting
v. Dupont and Anor 1964 1 WLR 843

·       
Right to requisition Extra-ordinary meeting

·       
Right to be issued certificates within three
months. Section 146 of CAMA.

2.     Documentary
Rights: in addition to Statutory Rights, are certain rights that can be
conferred upon the members by the constitution of the company like the
Memorandum and Articles of Association.

Blessing C. Madu 
Madublessing111@gmail.com 

Blessing is a lawyer in the firm of
Adedunmade Onibokun & Co., she has a passion for corporate law practice.

If you have any questions or comments on
Membership rights or Shareholders Agreements, you can send a mail to the author
or contact @legalnaija. Kindly note that this article is for educational
purposes only and does not serve as legal advice.

IP ABC —IP Rights and Confidential Information: Whether IP Infringement or Breach of Confidence

IP ABC —IP Rights and Confidential Information: Whether IP Infringement or Breach of Confidence

Question
of the Week  

Dear
IP ABC


I am Ade Adeyoju, Founder of E-Estates, an internet company in Nigeria which
owns and runs a number of e-commerce startups, including www.buysmartphones.ng. BuySmartphones is an
e-commerce site where anyone can easily buy smartphones online and have them delivered
anywhere in Nigeria. In August 2018 the year we founded BuySmartphones, we
applied to register ‘BuySmartphones’ as a trademark in Nigeria. It wasn’t
accepted. The reason given was that ‘BuySmartphones’ was both descriptive, and
consequently not distinctive enough for trademark registration. But because
‘BuySmartphones’ was already at the heart of our branding and marketing
campaigns, including domain name Buysmartphones.ng, we continued to use it.
‘BuySmartphones’ is also just one of the brands amongst our other similarly
named brands BuyCars, BuyToys, BuyLands, BuyFood, BuyBooks, etc. Why is
‘BuySmartphones’ not registrable as a trademark in Nigeria?



Answer

Dear
Ade Adeyoju

‘BuySmartphones’
is not registrable as a trademark in Nigeria because it is not distinctive
under Nigeria’s Trademark Act. Under both Parts A and B of the Act,
‘BuySmartphones’ is neither adapted to distinguish nor capable of
distinguishing your online smartphone-retail business from other smartphone
retailers except the trademark has acquired distinctiveness out of use. For an
online retail business that was launched in August 2018, BuySmartphones does
not pass the by-reason-of-the-use-of-trademark test. Your registered domain
name Buysmartphones.ng does not expressly amount to a registered trademark.

For
the purpose of trademark registration under Part A of the Trademarks Act,
‘BuySmartphones’ does not meet the conditions for distinctiveness.

Distinctiveness
requires that ‘BuySmartphones’ be inherently adapted to distinguish itself as a
mark connected to your e-commerce business or by reason of the use of the
trademark, it is adapted to distinguish.

The
trademark ‘BuySmartphones’ does not contain any of the essential qualities that
qualify it for trademark registration under Part A of the Trademarks Act. In
order for a trademark to be registrable under Part A of the Act, section 9 of
the Act requires that the mark must contain at least one of the following
essential particulars:

  1. the
    name of a company, individual, or firm, represented in a special or
    particular manner;
  2. the
    signature of the applicant for registration or some predecessor in his
    business;
  3. an
    invented word or invented words;
  4. a word
    or words having no direct reference to the character or quality of the
    goods, and not being according to its ordinary signification a
    geographical name or a surname; or
  5. any
    other distinctive mark.

‘BuySmartphones’
does not pass the tests above. Regarding paragraph (a), you may argue that
‘BuySmartphones’ qualifies for trademark because you have represented it in a
“special or particular manner” by joining two words together, ‘Buy’ and
‘Smartphones’, but this representation may not be considered adequate for the
purpose of distinguishing your goods from those of others. Regarding paragraph
(c) above, though you have formed a word with two different words to form
‘BuySmartphones’, one cannot describe this as being inventive as both words
don’t only already exist in the English dictionary but are also commonly used.
‘BuySmartphones’ completely fails the test under paragraph (c). This is because
‘BuySmartphones’ are words that directly reference the character or quality of
the goods.

Therefore,
‘BuySmartphones’ is not registrable under Part A of the
Act. ‘BuySmartphones’ has not been adapted or modified enough to merit
distinctiveness.


Similarly, for the purpose of trademark registration under Part B of the
Trademarks Act, ‘BuySmartphones’ does not also meet the conditions for
distinctiveness.

Registration
under Part B requires that in relation to the goods or services in respect of
which a trademark is registered or proposed to be registered, the trademark
must be capable of distinguishing goods with which the proprietor or the
trademark is or may be connected in the course of trade from goods or services
in the case of which no such connection subsists. Section 10(1) of the Act.

Under
section 10(2), what determines distinctiveness is not the adaptability of the
trademark to distinguish goods or services (as required under Part A), but
capability of distinctiveness. There is a difference between adaptability and
capability. According to the Oxford Dictionary, adapt means “to change
something in order to make it suitable for a new use or situation”, while
capable means “[h]aving the ability, fitness, or quality necessary to do or
achieve a specified thing.”

Therefore,
while achieving distinctiveness under Part A of the Act relies on the extent to
which an applicant has adapted, changed, or modified the words or elements in
the trademark in order to make it distinctive or suitable for distinguishing
goods or services connected to the applicant, achieving distinctiveness under
Part B of the Act does not rely on the extent to which an applicant has
adapted, changed, or modified the words or elements of the trademark but the
ability or quality of the trademark itself to be inherently distinctive or
distinguish goods or services connected to the applicant.

Consequently,
‘BuySmartphones’ is not registrable under Part B of the Act. ‘BuySmartphones’
does not have the ability or quality of inherent distinctiveness.


But how about distinctiveness by reason of use of the trademark?

Good
question. Indeed under the Trademarks Act, a trademark may be determined to be
distinctive if by reason of use of the trademark it is in fact adapted to
distinguish {section 9(3)(b)} or capable of distinguishing {section 10(2)(b)}.
Once a Tribunal determines that it is, the trademark is accepted for
registration under the appropriate part.

In
your case, BuySmartphones is a new e-commerce business which retails smartphones.
It was just founded in August 2018. These past months, you have been using the
unregistered trademark ‘BuySmartphones’ in your branding and other marketing
campaigns. You also have it registered as your domain name. While these
activities qualify as “use of the trademark”, has this use adapted it or made
it become capable of distinctiveness? To determine this, a Tribunal will be
considering whether your use of ‘BuySmartphones’ is to the extent that it is
adequate for the purpose of distinctiveness. The period of time, degree of use,
and even the goodwill you may have regarding the use of ‘BuySmartphones’ in
connection to your e-commerce business of selling smartphones will all be
critical.


Descriptive marks may be good for domain names in a search engine-driven
digital world and also good for businesses with low-advertising budgets,
but they are not good for trademarks and may result in bad investments.

Descriptive
marks only describe the goods or services to which they are applied. Generally,
descriptive marks cannot be registered as trademark. Descriptive marks may only
be registered if they have achieved secondary meaning.

‘BuySmartphones’
is a descriptive mark. Has it achieved secondary meaning? The answer is most
likely NO. Achieving secondary meaning for any descriptive mark takes a lot of
time. It also needs some level of goodwill. Consequently, it is not
registrable.

If
after investing so much in branding and marketing you are unable to secure
‘BuySmartphones’ as your trademark, your e-commerce business is not protected.
Any person can use the same or similar mark to deceive potential customers and
you will have no remedy in law. This will not be good for business.
Absolutely not.


Distinctiveness is the life of any trademark. Without distinctiveness, a
trademark is dead.

When
launching a new business entering a market, choosing a distinctive mark that
distinguishes your goods and services in connection with your brand is not an
easy task.

Your trademark is your business. Be creative, deliberate, and strategic. On one
hand, don’t assume that you need to be descriptive in your choice of trademark
before your target customers can know your business exists. On the other hand,
a nondescriptive trademark may also not be easily recognizable by your target
customers. Everything depends on various factors, including economic, social,
legal, and even psychological factors.

Always consult your IP lawyer or law firm when deciding on the best name for
your brand products and services.


Best
wishes


Follow-up questions, if any, are welcomed.

My wedding album and I Part 2: An analysis of the position of Intellectual property rights to Paparazzi photos.

My wedding album and I Part 2: An analysis of the position of Intellectual property rights to Paparazzi photos.

Having written the first
article on this topic I had intended to write another article on a second
related topic which jumped in my mind, but I allowed laziness and
procrastination get the best of me. Now straight to the topic at hand: To who
belongs the intellectual property rights to celebrity photos and shot at events
or in a public place?

Now to the topic for today
which is whether a paparazzi photographer can own the rights to celebrity
pictures taken on his own accord. And what is the position where the
intellectual property rights infringe on the celebrity’s constitutional rights
to privacy.

It is common to see small
barber shops or hair salons in Nigeria with pictures of both local and
international celebrities as promotional tools. The same question comes to mind
when pictures of celebrities are pasted all over the tabloids and magazines as
headliners or fashion posts, or just for small gist or to gain publicity as a
brand. This issue hit very close to home as I have been to an award show (the
Headies) in the past, courtesy of a friend of mine who gave me a free ticket.
This was when I had much less lumps and bumps, and all was well with the world.
I was very shocked to see my photo boldly printed on the pages of a widely read
newspaper/magazine as one of the well-dressed attendees. I couldn’t help but
wonder what effrontery they had to post my picture without so much as a hint
that my picture could be published. This effectively denied me a choice of
whether I would like the picture posted in the magazine. But my proposed rage
was halted by many thoughts of how nice the picture actually was, how someone
may recognise me on the face of a tabloid and my then secrete craving for fame
and glamour. Now with my new self-acclaimed status as a recognised
non-celebrity, the whole saga felt more like a compliment, so instead of
writing this article or stumping out of my comfort zone to bring those
“criminals” to justice, I went ahead to cut out and keep my picture safe in my
room.

Now moving smartly along and
on a more serious note, I have read the provisions of the Copyright Act
repeatedly and seen that issues like this are not expressly provided for under
the Nigerian laws, except for section 37 of the 1999 constitution which
provides for the right to privacy.

The questions that boggle my
mind therefore are:

a.      Whether
the paparazzi owns the intellectual property rights to celebrity photographs
taken by him/her?

b.    What
is the position of the law when intellectual property rights clash with the
rights to privacy.?

c.     How
does a celebrity protect his image from arbitrary publication and/or sale?

Some of the elements that
can remove the automatic ownership of the copyrights from the photographer
include the following:

1.     
Trademarking:
Some schools of thought are of the view the celebrity may trademark his or her
picture in order to protect his right to privacy and any other intellectual
property rights that may be connected thereto[1]. While this seems like a viable solution, one must
question the extent to which the trademarking of an image will protect the
celebrity Is just one angle specifically trademarked or the celebrities face in
whatever angle it is captured?

2.     
 Payment of consideration in exchange
for the Photo:
Now let us bring this back to Nigerian perspective; and by
this, I mean our Nigerian “owambe” events, our glorious weddings, funerals,
birthdays, house warming, child dedication, etc. we all know the love-hate
relationship with those freelance photographers who harass us with their
cameras both big and small, our very own local paparazzi without whom we may
not enjoy our brief moment of fame. The need to analyse such underrated but
highly sensitive relationships is becoming more imminent as the technology era
takes over our society. This is a situation where the line between consent and
decent is more blurred than any other contractual relationship.

It is common knowledge that
the consent for pictures taken is usually given only after the pictures are
developed and offered to the image owner who may choose to accept the picture
with a slight shrug of the shoulder signalling acceptance and admiration for
the photo or just to take the picture from a random photographer before they
use the picture for charms or out rightly decline the picture. The question
therefore is where does the intellectual property rights lie, and at what point
does the said intellectual property rights devolve from the photographer to his
customer when little or no consent or consideration is given in the first
instance.

The answer to this brings me
back to Mr Tufaces story where (in summary) his very beautiful wedding picture
was taken by an alleged paparazzi photographer. Upon demand for their pictures,
the photographer in turn offered to give the photos to the celebrity at a fee.
The photographer however upon payment delivered the photographs with his
watermark very boldly inscribed on all the said photos. The photographer in
that instant like in my above analogy was a paparazzi/freelance photographer
taking advantage of the nice owambe event to showcase his talent.

The legal battle that ensued
therefrom was in summary to clarify the fact that once money had been exchanged
for the soft copy of the photographer’s pictures, the said photographer had in
turn sold all intellectual property rights to same. Stating otherwise would
mean that photographer may do with the photo as he pleases, and in fact, the
image owner will have to take permission from the photographer to post them on
any social media platform, or to reprint for whatever purpose you may require.

3. Protest: we all know
that celebrities get photographed daily by random people, and just like my
interpretation of the Lady Gaga’s hit song ‘Paparazzi’, some celebrities take
desperate measures to ensure they get more coverage while the photographers
make good money by selling the pictures to the highest interested bidders, in
fact most celebrities don’t seem to mind or care that much hence the saying
“there is no such thing as bad publicity.

There exists a general tacit
consent by celebrities and public figures as far as photography is concerned.
The combination of tacit consent and the use or sale of celebrity photographs
by the photographers presupposes an ownership of the rights to the celeb
pictures in line with section 10 of the Copyright Act whereby the photographer being
the originator of the photo owns all rights thereto; he can therefore do with
the pictures taken as he wishes. However, an unequivocal protest against the
photographers use of the celebrity’s picture will effectively distort the
rights of the photographer[2]

Let’s take for instance the
matter that arose in the British Royal Family. Princess Kate Middleton whose
story has touched the lives of many is well known as a celebrity and gets
photographed on a daily basis. However, when she was photographed topless by a
photographer while on vacation with her husband, the princess made a clear
protest by suing the photographer and his sponsors for invasion of privacy,
with large amounts claimed in damages. This was a clear and unequivocal protest
to which the courts awarded cost in damages to the royal couple.

It is worthy of note however
that protest in this instance will not shift the ownership of the intellectual
property rights but will bar the photographer from further use of the said
picture and extinguish any rights he may have to make financial gains from the
photo without the consent of the image owner.

In this instance therefore,
the right to privacy as in section of the 1999 constitution of the federal
republic of Nigeria will trump the photographers intellectual property rights

In summary

1.     the
Copyright Act, the photo and the intellectual property rights therein belong to
the photographer, his employers, or his hirers in the first instance as the
commissioner of the photograph.

2.     A
paying customer whether before the fact will be paying for the services of the
photographer as well as all intellectual property rights attached to the
photographs taken except otherwise stated in writing.

3.     The
intellectual property right may be transferred to a paying customer pays a
negotiated amount for the pictures except otherwise agreed.

4.     Where
the photo is taken of a celebrity or public figure by a freelance/ paparazzi
photographer, all rights in the said photo will belong to the photographer
except where the celebrity or public figure makes an unequivocal protest on the
grounds of invasion of rights to privacy. This however does not strip the
photographer of his intellectual property rights on the photographs, it only
prevents the photographer from using the photos publicly.

Now another issue arising
from this is who is a celebrity under the Nigerian context. This is a topic for
another day.

[1] AYOKUNLE ADETULA; Image Rights and IP in Nigeria;http://barcode.stillwaterslaw.com/1.1/2015/12/21/image-rights-and-ip-in-nigeria/


Managing Partner, H.B Balogun & Co
Source: LinkedIn 

Social Media Report Of NBA’s Query To Aliyu Umar SAN | Paul Usoro SAN

Social Media Report Of NBA’s Query To Aliyu Umar SAN | Paul Usoro SAN


1. My attention has just been drawn to social media reports of
this morning on the purported query issued by the NBA to Aliyu Umar, SAN over
his prosecution of the Charge against Honorable Mr. Justice Walter S N
Onnoghen, the Chief Justice of Nigeria before the Code of Conduct Tribunal. I
know nothing of that query, and I did not authorize it. I learnt of it for the
first time from the social media reports this morning and promptly called
Jonathan Taidi, the NBA General Secretary for confirmation. Jonathan, I must
mention, lost his mother only yesterday and is currently in bereavement. I had
passed on to him yesterday my personal condolences and the sympathies and
regrets of the Bar. Our prayers are with Jonathan and his extended family and
for Mama’s repose.

2. Jonathan confirmed to me during our telcon this morning that
indeed he had forwarded to Mr. Umar a petition from one of our members and that
Mr. Umar has already responded to the petition. He claims to have mentioned the
fact of the petition to me when he received it but I have no such recollection
but more importantly, as he, Jonathan acknowledged during our conversation, I
have consistently insisted that he should inform me of matters by e-mail so
there is a record of the issues he discussed with me and which I approved. He
acknowledges that he did not send to me any such e-mail forwarding me the
petition and/or his query to Aliyu Umar and/or his response. Indeed, as I
write, I have seen none of those documents and I never authorized the query to
Mr. Umar.
3. To be fair to Jonathan, he tells me that he acted in the
ordinary course of his office and duties as the General Secretary and believed
he should pass on the petition to Mr. Umar for his reaction, so he, Jonathan,
is not accused of inaction or selective disciplinary actions. If I had
known about this matter prior to now, I would have directed that it be handled
differently and in a manner that would hold together and solidify our oneness
as a united and indivisible Bar. I have directed the General Secretary to cease
all further actions on the matter and to avail me with all the documents
thereon as soon as possible for my study and further directives. I therefore
request you, my beloved and respected colleagues, to remain calm and not be
agitated howsoever by the referenced social media reports. I would reach out
both to Mr. Umar and the member that petitioned against him.
4. I must however state that this unfortunate incident does not
howsoever obviate, cancel, diminish or alter howsoever the NBA position of the
Bar on the trial of Honorable Mr. Justice Walter S N Onnoghen, GCON, before the
Code of Conduct Tribunal and matters ancillary thereto. The Resolutions that
were reached by the NBA at our Emergency NEC Meeting that was held on 28 January
2019 remain sacrosanct and is the guiding light for all the positions and steps
that we have taken and will continue to take in these matters. 
Long live the Nigerian Bar Association. 
Long live the Federal Republic of Nigeria.
Paul Usoro, SAN
President
10th March, 2019