INVITATION TO NIGERIAN BAR ASSOCIATION WOMEN FORUM VIRTUAL MENTORSHIP SESSION

INVITATION TO NIGERIAN BAR ASSOCIATION WOMEN FORUM VIRTUAL MENTORSHIP SESSION


You are invited to participate in our innovative lunchtime mentoring session holding tomorrow Wednesday 1 April  2020.
Discussions will be led by our esteemed Senior Advocates of Nigeria, Mia Essien, SAN, Abimbola Akeredolu, SAN and Prof Toyin Akintola.

*Main Topics:*
1. Professional Development

2. Managing Practice in a Coronavirus Environment; and

3. Understanding Mentoring

Sub-Topics as time will permit are Self Development, Advocacy Skills, Dealing with Sexual Harassment in the Workplace, Work-life Balance, Choice of Life Partner. 

Time: 1pm – 2:30pm.

Link to connect: Here

Download Microsoft Team now.  Look forward to meeting you tomorrow and be sure to inform others.

The Coronavirus Pandemic: A Separation of “The Human” From “The Natural”

The Coronavirus Pandemic: A Separation of “The Human” From “The Natural”

The Corona-Virus
Disease (COVID- 19), famous for its widespread, has killed tens of thousands of
people across the globe and has raisedan indispensable question in the minds of
many; whether the Chinese government can be held liable in Negligence, whether the
pandemic is an ‘act of God’. In the legal community, an act of God is a concept
that allows a party exemption from instances of strict liability and negligence.
This article is concerned primarily with the debate, whether the corona-virus
pandemic is an act of God or an act of man.

An event,
occurrence or accident that cannot be prevented by ordinary human foresight,
normally by an operation of natural forces free from human intervention, like
flood or earthquake is an ‘Act of God’. James LJ in Nugent V Smith[1]
described it as “any accident due to natural causes directly and exclusively
without human intervention and that could not have been prevented by any amount
of foresight and pains and care reasonably to have been expected
”.The
determining factor for an act of God is that it “proceeds from the
forces of nature alone, to the entire exclusion of human agency
.”[2]

The courts have
expanded this concept by including similar defences such as force
majeure 
and peril of the sea to the mix. The courts have also
expanded on the no-fault concept and used the term ‘inevitable accident’ to
describe certain accidents, whether or not caused by an act of God, where all
reasonable precautions had been taken and the accident occurred anyway. An
inevitable accident, unlike an act of God, can start with human action or
originate with a natural force.[3]

On December 31,
2019, the World Health Organisation(WHO) heard the first reports of a previously-unknown
virus behind a number of pneumonia cases in Wuhan, a city in Eastern China with
a population of over 11 million.[4]What
started as an epidemic mainly limited to China has now become a truly global
pandemic with cases globally surpassing 669,310 and deaths, at least 30,982
people.[5]
Not only is the virus a major concern from a public health perspective,
businesses are seeing disruptions which are only likely to increase in the
coming weeks and months.

It is apparent
that the disease originated from a Wuhan seafood market where wild animals,
including marmots, birds, rabbits, bats and snakes, are traded illegally.
Coronaviruses, constituting the subfamily 
Orthocoronavirinae, are known to jump from animals to humans, so
it is thought that the first people infected with the disease, a group
primarily made up of stallholders from the seafood market, contracted it from
contact with animals.

The hunt for the
animal source of Covid-19 is still unknown, although there are some strong
contenders. A team of virologists at the Wuhan Institute for Virology released
a detailed paper showing that the new coronaviruses’ genetic makeup is 96%
identical to that of a coronavirus found in bats, while an as-yet unpublished
study argues that genetic sequences of coronavirus in pangolins are 99% similar
to the human virus. Some early cases of Covid-19, however, appear to have
inflicted people with no link to the Wuhan market at all, suggesting that the
initial route of human infection may pre-date the market cases. Although the Wuhan
market was shut down for inspection and cleaning on January 1, 2020, it appears
that Covid-19 had already spread beyond the market itself.

United States President
Donald Trump has repeatedly referred to it as the “Chinese virus”. Many of his
critics insist the term is racist. U.S. Sen. Kelly Loeffler, opines that the
crisis should not be politicized by assigning blame, but our focus should be on
pulling together in the common fight against a global disease that makes no
distinction between people and recognizes no borders. However, many still argue
that the virus is a failure of governance, not a blind force of nature
independent of human agency, caused in part by incompetent, malicious, and
corrupt politicians. To ignore the political dimension of the coronavirus
pandemic is an excellent way to ensure its recurrence, and that to prevent a
recurrence, we have to hold accountable the politicians responsible for its
global transmission and uncontrolled spread, with all its terrible consequences
to populations and economies around the world.[6]

As one of the
194 states party to the legally binding 2005 International Health
Regulations
, China has a duty to rapidly gather information about and
contribute to a common understanding of what may constitute a public health
emergency with potential international implications. The legally binding
International Health Regulations were adopted by the World Health Assembly in
1969, to control six infectious diseases: cholera, plague, yellow fever, smallpox,
relapsing fever, and typhus. The 2005 revision added smallpox, poliomyelitis
due to wild-type poliovirus, SARS, and cases of human influenza caused by a new
subtype, set forth in the second annex.

Article 6 of the International Health Regulations requires states to provide expedited,
timely, accurate, and sufficiently detailed information to WHO about the
potential public health emergencies identified in the second annex in order to stir
efforts to prevent pandemics. States are required to provide timely and
transparent information as requested and to participate in collaborative
assessments of the risks presented. Yet China rejected repeated offers of
epidemic investigation assistance[7]
from WHO in late January, as well as the U.S. Centres for Disease Control
and Prevention
in early February, without explanation.[8]This
answers the question whether reasonable care was taken by China to prevent the
horrific consequences the disease posed. China’s failure to expeditiously and
transparently share information with WHO in accordance with the International
Health Regulations[9]
constitutes an early and subsequently extended breach of its legal obligations.

An
epidemiological model at the University of Southampton found that had China
acted responsibly just one, two, or three weeks more quickly, the number
affected by the virus would have been cut by 66 percent, 86 percent, and 95
percent, respectively.[10]
By its failure to adhere to its legal commitments to the International Health
Regulations, the Chinese Communist Party has let loose a global contagion, with
mounting material consequences.[11]

Other than the
fact that the act of God defence is still not relied on very often, likely
because of the difficulty of proving that human elements played no role in causing
an injury, China’s initial lackadaisical attitude, malfeasance and breach of an
international obligation is certainly the cause of the cost of the coronavirus
disease. Thereby making it improbable that the defence will excuse the Chinese
government. Hence, China bears legal responsibility for its internationally
wrongful acts.[12]

Under Article
31 of the Articles of State Responsibility
, states are required to make
full reparations for the injury caused by their internationally wrongful acts.
Injuries include damages, whether material or moral. Injured states are
entitled to full reparation “in the form of restitution in kind, compensation,
satisfaction and assurances and guarantees of non-repetition”.[13]
Restitution in kind means that the injured state is entitled to be placed in
the same position as existed before the wrongful acts were committed.[14]
To the extent that restitution is not made, injured states are entitled to
compensation[15], and
satisfaction, in terms of an apology and internal discipline and even criminal
prosecution of officials in China who committed malfeasance.[16]As
the world continues to suffer the costs of China’s breach of its legal duties,
it remains to be seen whether the injured states can be made whole.

Perhaps, China
did not intentionally create a global pandemic. However, the increasing
incidents of sickness and death as well as the economic cost of the pandemic
cannot be overlooked. The world has paid and is still paying for China’s
carelessness.

Written by:

Oluwabukunmi
Adeniran.



[1] (1876) 1 CPD 428.

[2]Rice v. Or. Short Line R.R. Co., 198 P. 161, 164 (Idaho 1921).

[3]Lawrence R DeMarcay, Michael Harowski,
“Planning ahead to use act of God as legal defence.”. Published: July 8, 2015. Accessed
March 30, 2020
.

[4]Matt Reynolds, “What is coronavirus and
what happens now it is a pandemic?”. Published: March 27, 2020. Accessed
March 29, 2020
.

[5]CNBC, “Coronavirus live updates: Cases
globally surpass 660,000, Spain sees highest daily jump in deaths”. Published:
March 28, 2020. Accessed March 29, 2020.

[6]Paul D. Miller, “Yes, Blame China for
the Virus.”. Published: March 25, 2020. Accessed March 29, 2020.

[7] New York Times: By Donald G. McNeil Jr. and Zolan
Kanno-Youngs
, “C.D.C. and W.H.O. Offers to Help China Have Been Ignored for
Weeks”. Published: February 7, 2020. Accessed March 30, 2020.

[9] Article 14.

[10]Shengjie Lai, Nick W Ruktanonchai,
Liangcai Zhou, Olivia Prosper, Wei Luo,Jessica R Floyd,
AmyWesolowski
, Mauricio Santillana, Chi Zhang, XiangjunDu,
Hongjie Yu, and Andrew J Tatem, “Effect of non-pharmaceutical
interventions for containing the COVID-19outbreak in China.”. Published: March
3, 2020. Accessed March 30, 2020.

[11]James Kraska, “China is legally
responsible for Covid-19 damage and claims could be in the trillions.”.
Published: March 23, 2020. Accessed March 30, 2020

[12] Article 28 of the International Health Regulations.

[13] Article 34.

[14] Article 35.

[15] Article 36.

[16] Article 37.

The 1926 Quarantine Act and the Nigerian Reality

The 1926 Quarantine Act and the Nigerian Reality

As the world battles the Corona-Virus
Disease (Covid-19), emergency legislations are being enacted globally.[1]
Some governments have invoked the provisions of relevant legislations to
declare a state of emergency, to enable them legally enforce total shutdown of cities,
provide relief packages, and fast track the mass production of health
equipment.[2]
Alongside the unified effort by the Nigerian federal government, governors have
been on the front line of combating the disease, as a couple of them have
issued directives and regulations to enforce the shutdown of their respective
states.

 Section 305 of the 1999 constitution and the Quarantine
Act[3]
serve as the legal authority for the President to take extraordinary measures
during public health crises, as we are currently experiencing. While Section
305 of the 1999 constitution empowers the president to declare a public
emergency, restricting right to personal liberty, movement and property; the Quarantine
Act on the other hand, gives the president and the country’s health authorities,
broad powers to deal with public health crises by issuing declarations and
orders.

As already stated above, the Quarantine
Act is the primary legislation governing the suppression and prevention of
deadly infectious disease in Nigeria. The Act intends to provide for and
regulate the imposition of quarantine, and to make other provisions for
preventing the introduction and spread of dangerous infectious diseases in Nigeria.
The Act provides that “dangerous infectious disease” means cholera, plague,
yellow fever, smallpox and typhus. The Act further states that the president
may by notice, declare any disease of an infectious or contagious nature to be
a dangerous infectious disease within the meaning of the Act.[4]
Till date, this authority has been used just once in the past, to categorize Sleeping
sickness as a dangerous infectious disease.[5]
As the author writes, the president is yet to declare, by notice, Covid-19, to
be a dangerous infectious disease.

The Act also provides that the
President may by notice declare any place, whether within or outside Nigeria,
to be an infected local area.[6]
Section 4 further provides that the President may make regulations which among
other things:

·       
prescribe
the steps to be taken within Nigeria, upon any place, whether within or outside
Nigeria, being declared to be an infected local area.

·       
prevent
the spread of any dangerous infectious disease, from any place within Nigeria,
whether an infected local area or not, to any other place within Nigeria.

·       
prevent
the transmission of any dangerous infectious disease, from Nigeria or from any
place within Nigeria, whether an infected local area or not, to any place
outside Nigeria

·       
prescribe
the duties of such officers as may be charged with carrying out such
regulations.

It must be noted that the Quarantine
(Ships) Regulations remains the only set of regulations that has been issued
pursuant to this provision at the national level.[7]

 

Section 5 of the Act stipulates a 6
month jail term or a fine of 200 Naira for contravening any of the regulations
made under the act. The President; and within each state, the Governor, may provide
sanitary stations, buildings and equipment and appoint any sanitary anchorages,
as he may think necessary.[8]
The magistrate courts have jurisdiction to commence and determine proceedings
for imposing any fine or imprisonment or for recovering any expense incurred or
charged by the Government in carrying out the provisions of the Act.[9]

Section 8 of the Act provides that where
the President is yet to declare, by notice, a disease to be a dangerous infectious
disease or is yet to declare, by notice, any place to be an infected area or is
yet to issue regulations as provided for in Section 4 of the Act, the State
governors are accorded the same powers as the President.

 The Kaduna state government on Thursday 26th
of March invoked the provisions of Section 2, 3 and 8 of the Act, declaring
Kaduna State a public health area, declaring Covid-19 a dangerous infectious
disease and restricting movement from midnight.[10]
 Similarly, on Friday 27th of
March, the Lagos state government issued the Lagos State Infectious Disease
(Emergency Prevention) Regulations 2020.[11]
These regulations, among other things, imposed a shutdown of the state,
declared Covid-19 a dangerous infectious disease, and declared Lagos State an
infected local area.[12]

The Quarantine Act however has two
subsidiary legislations namely:

1.     
Declaration
of Dangerous Infectious Disease: Sleeping Sickness was declared to be a
dangerous disease within the meaning of the Act.

2.     
Quarantine
(Ships) Regulations:

These regulations provide that the port
health officer is authorized to inspect any ship, already in the port or on
arrival at the port.[13]
In any instance where the master of a ship has sent to the health authority, a
notification of infectious disease on board, or he (the health officer) has
reasonable grounds to believe that there is on board, a case or a suspected
case of an infectious disease, the port health officer is authorized to inspect
on arrival, any of such ship.[14]

The regulations also provide that a
ship that has voyaged in a foreign port shall complete a Maritime Declaration
of Health Form which shall be countersigned by the ships’ surgeon, if it has
one.[15]
When before a ship arrives a Nigerian port, and a person is suspected to be
suffering from or is showing symptoms of an infectious disease, the master is
obligated to send a radio message before arrival, either directly or to the
Port Health Authority. When a person onboard a ship is suffering from an
infectious disease or tuberculosis, or has been exposed to an infectious
disease, the  port health officer, upon
request by the master of a ship or on his own volition, is authorized to take
measures, including detaining the infected person or ordering his belongings to
be disinfected.

It should be noted that there is a Bill
for an Act to Establish the Nigerian Public Health (Quarantine, Isolation and
Emergency Health Matters Procedure) Act also known as Public Health Bill 2013
in the Senate.[16] This
Bill seeks to replace the Quarantine Act 1926, but is however yet to scale the
committee stage.

In conclusion, it must be stated that
the federal government is yet to lead by example in implementing the provisions
of the Quarantine Act 1926, as Nigerian is confronted by a deadly health
crisis. In his national address on Sunday 29th of March 2020, the
President made no recourse to the provisions of the Act in combating the
current national health crisis; rather he unconstitutionally imposed a 14-day
lock down on Lagos, Ogun and Abuja. This move, though out of necessity, begs to
question the relevance of the Quarantine Act 1926, in the current realities of
the Nigerian state.

@Legalnaija



[1]
The Covid-19 Emergency Response Act Receives Royal assent, https://www.canada.ca/en/departments-finance/news/2020/03/the-covid-19-emergency-response-act-receives-royal-assent0.html

 [2]
Countries like The US, Italy, France, and Spain, among others, have declared
state of national emergency.

[3]
Quarantine Act of 1926, 14 Laws of the Federation of Nigeria Cap. Q2 (rev. ed.
2004) http://www.placng.org/new//laws/Q2.pdf

 [4]
Section 4, Quarantine Act 1926

[5]
Nigeria: Legal Responses to Health Emergencies, https://www.loc.gov/law/help/health-emergencies/nigeria.php#_ftn33

 [6]
Section 3, Quarantine Act 1926

[7] Nigeria:
Legal Responses to Health Emergencies, https://www.loc.gov/law/help/health-emergencies/nigeria.php#_ftn33

 [8] Section
6, Quarantine Act 1926

 [9] Ibid Section. 7

 [13]
Par. 3(1) Quarantine (Ships) Regulation

[14] Ibid

[15]
Par, 10 Quarantine (Ship) Regulation

[16] Available
on the Nigerian Senate website at http://www.nassnig.org/nass/legislation.php?id=1316

Stay Productive during the Isolation Period – Dele Adesina SAN

Stay Productive during the Isolation Period – Dele Adesina SAN

Dear Colleagues, I recognise that as lawyers, we live a very busy life. Our time and attention are usually divided between reading, drafting, court appearances, client meetings and research work to mention a few all aimed at servicing the needs of our Clients. Our Profession is a jealous Profession which possesses us absolutely day and night. Consequently, a sedentary lifestyle and self – isolation at home may be alien to some of us. Though staying home to stay safe has become a task that must be done, we can still be productive while observing these safety measures by investing the time we have at home rather than spending it.

We can invest the time by drafting those outstanding briefs and pleadings, vetting of documents, reading our law reports, researching into specific areas of legal interest and of course audio and video calls and conferencing with clients to render both curative and preventive legal advice and opinions.

Recognising that health is wealth, exercising the body is also of paramount interest. We must remain active so as to prevent weight gain and  strengthen our immune system as this will make us less susceptible to infections including that of the Corona Virus. We must continue to take the necessary precautions to prevent the spread of the virus and flatten the curve. It is my confident belief that the earth will reject Coronavirus in all its entirety because the earth is given by God to the children of men. Surely the end of the virus is coming soon. Our expectations shall not be cut-off.

I urge you to stay alive as we will all rise from this challenge stronger, healthier and with a determined mind to continue to serve the interest of our clients, our nation and justice in general.

My warm greetings to you and your family.
Thank you.

Dele Adesina SAN

#securethefuture
#nigerianlawyers

COVID-19: The Doctrine of Frustration and Force Majeure

COVID-19: The Doctrine of Frustration and Force Majeure

The Doctrine of
Frustration postulates that if an event or series of events occurs without the
fault of any of the parties which hinders or prevents the performance of the
duty under the contract, such contract is discharged and is considered
terminated. Such event fundamentally changes the circumstance and strikes at
the root of the agreement, This is expressed in Latin as “Non haec in foedera veni”.
See NWAOLISAH V. NWABUFOH (2011) 14 NWLR
(PT. 1268) 600; WECO ENGINEERING AND CONSTRUCTION CO. LTD v. DUFAN (NIG) LTD
& ANOR (2019) LPELR-47211(CA), CHANDLER V. WEBSTER [1904] 1 KB 49.


The Supreme Court in NWAOLISAH v. NWABUFOH (2011) LPELR-2115(SC)
observed that:

“Frustration
occurs wherever the law recognizes that without default of either party, a
contractual obligation has become incapable of being performed because the
circumstances in which performance is called for would render it radically
different from what was undertaken by the contract” The events which have
been listed by the court to constitute frustration are: (1) Subsequent legal
changes or statutory impossibility (2) Outbreak of war (3) Destruction of the
subject matter of the contract or literal impossibility (4) Government
acquisition of the subject matter of the contract (5) Cancellation by an
unexpected event like where other party to a contract for personal service,
dies or where either party is permanently incapacitated by ill-health,
imprisonment etc., from rendering the service he has undertaken. Davies
Contractors Ltd. v. Fareham DC (1956) AC 696, Akanmu v. Olugbode (2001) 13 WRN
132, NBCI v. Standard (Nig.) Eng. Co. Ltd. (2002) 8 NWLR (pt. 768) pg 104,
Obayuwana v. The Governor of Bendel State (1982) SC pg. 167, Taylor v. Caldwel
(1863) 3 B& Y S 826, J. P Dawodu v. B. Anderson & Co, Ltd (1925) 6 NLR
Pg. 105, Adu v. Makanjuola (1944) 10 WACA Pg. 168.”
See also Cricklewood Property & Investment Trust
Ltd v. Leightons Investment Ltd. (1945) 1 All ER 252.

The Court of Appeal
in GLOBE SPINNING MILLS (NIG) PLC v.
RELIANCE TEXTILE INDUSTRIES LTD (2017) LPELR-41433(CA)
held that where the
commercial purpose of the contract has failed that it amounts to frustration.

Where a contract has
been frustrated, the question of breach will not arise, as none of the parties
can be held responsible for what has happened. The contract is generally
discharged.

The question whether the doctrine of
frustration applies to leases came up in ARAKA
v. MONIER CONSTRUCTION COMPANY (NIGERIA) LTD (1978) LPELR-531(SC),
the
facts of the case are as follows:

The Appellant as Plaintiff claimed from
the Respondents as Defendants, the sum of N4,400 being rents due to the
Appellant for the period, 1st December 1967 to 30th November 1969, in respect
of the Appellant’s house situated at 5 Wenike Tienabeso Street, formerly 5
Umuahia Street, Port Harcourt. At the trial of the action the Appellant gave
evidence and called one witness. The Respondents did not adduce any evidence,
but rested their case on the evidence of the Appellant and the correspondent
between them and the appellant, which were admitted in evidence through the
Appellant. In a reserved judgement, the learned trial Judge found that there
was a lacuna in the case of the Plaintiff in that there was no evidence of the
terms of the tenancy agreement for the period 1st December 1964 to 30th
November 1966 and there was no such evidence for the period in question either.
He further found that the  occupant of the house, who was an expatriate,
vacated the house in June 1967 which was six months before the next rent was
due and that he did so because all expatriates had been asked by the Biafran
rebels to leave that part of the country on account of the Nigerian civil war.
Consequently, the learned trial Judge dismissed the Plaintiff’s claim. Being
aggrieved at the Judgment, the plaintiff as appellant, appealed to the Supreme
Court. 

The Supreme Court held thus:

“We are inclined
to accept the views of Viscount Simon and Lord Wright as being the correct
statement of the law that the doctrine of frustration may in certain
circumstances apply to a lease. We think that it may tantamount to injustice to
deny a tenant the benefit of frustration in cases where, owing to circumstance
of an intervening event or change of circumstances so fundamental as to be
regarded by the law as striking at the root of the agreement, it has become
impossible for the tenant to enjoy the fruits of his lease and at the same time
to expect him on account of the abstract estate concept to honour his
obligations under the lease. Such denial may also suffer injustice to a
landlord who finds himself in the same situation as the landlord in DENMAN v.
BRISE (Supra).

…the very purpose for
which the lease had been taken was frustrated by the action of
the Biafran rebels and that since that date the tenants have not
enjoyed the benefits of the lease. 

Furthermore,
the tenants were compelled by the civil war to suspend their business in
Port Harcourt and vacated the area and that before the end of the war
the lease property had been taken over by the Abandoned Property Authority
and consequently, neither the landlord nor the tenant had a right
of access to the house after the secession of hostility in January
1970. 

Under
the circumstances we think it would be unjust and oppressive to cause the
tenant to pay the rent for the period in question. That being
the case, we think the learned Judge was right in regarding the
contract as having been determined by frustration and holding that the
Appellant was not entitled to recover any rent thereafter. 

Accordingly,
the appeal is dismissed and the cost of the appeal in favour of the
Respondents is assessed at N310.”

In A-G CROSS RIVER STATE v. A-G FEDERATION & ANOR (2012) LPELR-9335
(SC)
the Supreme Court held that the doctrine of frustration is
applicable to all categories of contract.

COVID-19

In view of this raging pandemic
disease; Coronavirus (COVID-19), there will be so many actions in court over
breach of contracts. Some employers are already issuing notices for non-payment
of their employees during this period they have asked them to stay at home,
some loans can no longer be serviced, some persons that rented event centres
can’t use them again and don’t have the assurance of getting their money, some
that gave banks standing orders can’t fund the accounts to carry out these
instructions, some booked airline but can’t travel, etc.

The writers wish to pause at this
juncture to ascertain whether the outbreak of Coronavirus is a frustrating
event?

Our answer to the above poser will be
dependent on the peculiar facts of each case under consideration. While
COVID-19 will amount to a frustrating event to discharge some contracts, it
will not be enough to discharge some contracts as a frustrating event.

Flowing from the
foregoing, a contract is not frustrated
merely because its execution becomes more difficult or more expensive
than
either party originally anticipated and has to be carried out in a manner not
envisaged at the time of its negotiation. See DAVIES CONTRACTORS LTD V. FAREHAM N.D.C (1956) AC 696, TSAKINEGLON
& CO. V. NOBLEE THORH G.M.B.H (1962) A.C. 93.

Secondly, if the obligation under a
contract was due before the frustrating event, the subsequent occurrence of the
frustrating event does not discharge that contract. Thus, all legal rights
already accrued or money already paid, which has become payable before the
frustrating events occurred remains intact, while
obligations falling due for performance after the event are discharged.
See
NOSPECTO OIL & GAS LTD v. KENNEY
& ORS (2014) LPELR-23628(CA)

In addition to the above two instances,
it is pertinent to note that the doctrine of frustration also does not occur
where:

(i) The intervening circumstance is one which the law would
not regard as so fundamental as to destroy the basis of the agreement.

(ii) The terms of the
agreement show that the parties contemplated the possibility of such an
intervening circumstance arising.

(iii) One of the parties had deliberately brought about the
supervening event by his own choice. See GOLD
LINK INSURANCE CO. LTD v. PTF (2008) LPELR-4211(CA).

A scenario will be apt to explain when COVID-19 will amount
to frustration and when it will not.

Mr Ugo who stays in Canada entered into an agreement with Mr
Segun for the supply of 100 cartons of Wine on 1/3/2020, which 60% is payable
on 5/3/2020. The Nigerian Government however closed its border on 7/3/2020
because of COVID-19 outbreak when Mr Segun has not paid the 60%. Meanwhile, Mr
Ugo has expended money in buying the wine and other logistics. Mr Ugo who is
aggrieved has brought an action to enforce the 60% that was due and payable
before 7/3/2020.

In this event, Mr Ugo can successfully claim for the 60%
because it was due and payable before the closure of the border. However,
assuming the 60% was payable on 9/3/2020, the contract will be deemed
frustrated and Mr Segun will be discharged from the obligation.

Flowing from the foregoing, it is clear that if the parties
contemplated the possibility of such an intervening circumstance that the
doctrine of frustration will not apply. Hence, such contemplation will usually
come under the “Force Majeure clause” inserted in such commercial agreement in
which the parties determine whether the contract is to be suspended during the
period or to be discharged or for refund of any consideration that has passed,
etc. In such circumstance the court will give sanctity to the agreement of the
parties by applying whatever they have provided for in such Force Majeure
Clause. This is on the principle of freedom of contract.

FORCE
MAJEURE (VIZ MAJOR)

Force
majeure, according to Black’s Law Dictionary 8th Ed, is an event or effect that
can neither be anticipated nor controlled. It includes both natural and human
acts. The human acts may be of political in nature including riots, strikes or
war. This was affirmed by EJEMBI EKO, J.C.A in C.G.G. (NIG) LTD v. AUGUSTINE & ORS (2010) LPELR-8592(CA).

However, according to Wikipedia, Force majeure is a common
clause in contracts that essentially frees both parties from liability or
obligation when an extraordinary event or circumstance beyond the control of
the parties, such as a war, strike, riot, crime, plague, or an event described
by the legal term act of God (hurricane, flood, earthquake, volcanic eruption,
etc.), prevents one or both parties from fulfilling their obligations under the
contract. In practice, most force majeure clauses do not excuse a party’s
non-performance entirely, but only suspend it for the duration of the force
majeure.

It will be pertinent to note from the above that while the
Black’s law dictionary equates Force majeure to the Doctrine of frustration,
Wikipedia sees it as a clause in contract. In any event, it is our view that
Frustration is the umbrella name that covers both Force majeure and other
frustrating events. Hence, where the supervening event was contemplated as
noted above, the doctrine of frustration will not apply and recourse will be
had to the Force majeure clause.

There
are two possible instances, which may suggest that a force majeure clause
covers a pandemic such as COVID-19:

(a)
if the contractual definition of a force majeure event expressly includes a
pandemic. The inclusion of pandemic to the list of force majeure events will
provide clarity as to whether Covid-19 outbreak would trigger a force majeure
clause in a contract; or

(b) if the force majeure clause covers
extraordinary events or circumstances beyond the reasonable control of the
parties. Such general, catch-all wording may be invoked if it is determined
that the factual circumstances caused by the pandemic are beyond reasonable
control of the affected party.

The question that arises is: who has
the duty to prove that COVID-19 really constituted a force majeure capable of
frustrating the contract?

Courts place the burden on the party
asserting force majeure defense to demonstrate the existence of force majeure.
Such clauses are interpreted strictly by the courts.

It is not expected that contracting
parties should fold their arms and wait till the end of the pandemic before
they do something to salvage their contracts. It is therefore the opinion of
the writers that contracting parties should:

1.     
Identify contracts that are likely to be affected by COVID-19.

2.     
Adhere to contractual notice requirement to notify the other party
of the impracticability of completing the contract.

3.     
Take steps to mitigate their losses if the contract that is in
existence now does not have Force majeure clause. The law imposes upon both
parties an obligation to mitigate their losses.

In conclusion, we advise that a
contracting party may need to engage a lawyer for proper advice on the next
step to take.

ABOUT THE AUTHORS:

Why there is No Extension for Payment of Bar Practising Fees

Why there is No Extension for Payment of Bar Practising Fees



Over the past few days, many lawyers have requested for an extension of the deadline for payment of Bar Practising Fees due to the recent global state of events and stay at home orders being directed by various State Governments. 
The cause for this call is no other than the pandemic which is currently putting the world on mandatory holiday. It is argued that some practitioners may not be able to adequately provide for themselves, let alone afford the practising fees at this time when the courts and their chambers are closed.

However, the truth is that the NBA President, Paul Usoro SAN really cannot do anything about it. Many lawyers may be unaware but the provision for payment of Bar Practice Fees is provided in Rule 9 of the RPC.

Furthermore, Article 4 (1) (b) of the NBA Constitution also stipulates that Bar Practice Fees be paid by end of March for lawyers to enjoy the full membership benefits of the NBA, including having right of audience in court and right to vote and be voted for at the NBA Elections.

Therefore, if the deadline were to be postponed, it will require an amendment of the NBA Constitution which can only be effected at the Annual General Meeting of the NBA. More so, calling an extraordinary AGM is also impossible in view of the COVID-19 pandemic.

Lawyers should also note that the
NBA does not have the power to amend the Rules of Professional conduct, only the Bar Council has.

The valid date for the Annual Payment of Practice Fees of Nigerian Bar Association(NBA) is between Ist January to the 31st of March every year and due to the foregoing, lawyers are encouraged to take advantage of the online payment options here

https://nigerianbar.org.ng/membership-portal
Restriction Of Movement In The Corona Era  | Adetutu Akinyemi

Restriction Of Movement In The Corona Era | Adetutu Akinyemi

In the wake of the infiltration of the corona virus disease (COVID-19), into Nigeria, the Federal and State governments have had to impose strict measures to curb the spread of this deadly disease. One of such measures is the restriction of social gatherings across the states.
In Lagos state, the limit on social and religious gatherings is 20. However, this restriction has caused some legal brows to be raised.
Does this mean that this restriction on social gathering is illegal or unconstitutional?
Let us have a look at the law. The Quarantine Act of 1926 ( an ancient legislation which is long overdue for review) clearly empowers the President, among other things, to make regulations for preventing the spread/transmission of any infectious disease within Nigeria. Section 4.
By virtue of Section 8, the Governor of a state may also do likewise.
Most importantly, the grund norm of the Land, the 1999 Constitution of the Federal Republic of Nigeria as amended ,which provides for the citizens’ right to personal liberty, peaceful assembly and freedom of movement stipulates that these rights may be restricted and derogated from in the interest of defence, public safety, public order, public morality or public health. Section 45.
These statutory provisions have established that the government has the power to impose certain restrictions in necessary circumstances such as the issue of this pandemic we currently have in our hands. However, such restriction must have been made PURSUANT to a law.
In Lagos and other parts of Nigeria, is there any law, regulation or even executive order that we can lay hold on in support of this current restriction? That is the issue.
Although, it is highly unlikely that any one would break this ‘law’ in the interest of self preservation, it is not impossible that such could happen. Under which law would such ‘offender’ then be prosecuted? 
After all, where there’s an offence, there’s a punishment. In the light of this, the Executive Order No. 2020.4 (Temporary prohibition of large assemblages and event, Temporary School Closures, Prohibition of excessively passengers in commercial vehicles) by the Ekiti state government is highly commendable.
Also praise worthy is the step taken by  Lagos State House of Assembly in passing the Bill for A LAW TO COMBAT AND STOP THE SPREAD OF THE CORONA VIRUS PANDEMIC IN LAGOS STATE AND FOR CONNECTED PURPOSES. 
By this, the government would now have the legal standing to impose penal sanctions on anyone in breach of the “stay at home order”, and restriction of movement generally meant to help contain the spread of covid-19 virus. 
That is how things should be done in a democratic era.
Adetutu Akinyemi was called to the Nigerian bar in 2017. She enjoys litigation practice and is currently based in Lagos where she practices.

Highlights of the Report on the Future of FinTech in Nigeria – Olayanju Phillips

Highlights of the Report on the Future of FinTech in Nigeria – Olayanju Phillips

Introduction

In light of the rapid
adoption of technology in the financial services sector, the Securities and
Exchange Commission (“the SEC” or “the Commission”) spearheaded the development
of a regulatory framework for the operation of FinTechs in Nigeria with the
inauguration of a FinTech Roadmap Committee (“the Committee”) at the 3rd
quarter meeting of its Capital Market Committee (“CMC”) in 2018.[2]

The terms of reference of
the Committee were as follows:

  • Develop a FinTech roadmap for the
    Nigerian Capital Market;
  • Inform the SEC on approaches to
    innovation within the Financial Services sector;
  • Promote access to capital in the
    Financial Services sector;
  • Enhance financial inclusion in our
    economy;
  • Foster greater transparency within the
    Financial Services sector;
  • Enable more efficient compliance in
    regulator regime;
  • Serve as a think tank which will provide
    guidance on independent research for examining the role and value of
    FinTech in the financial ecosystem; and
  • Seek efficient and responsible policy
    regulatory regimes that balance financial innovation and consumer
    protection.

The Committee submitted its
report titled “The
Future of FinTech in Nigeria”
(“the Report”)[3] which was formally launched by the SEC on
29th October 2019 at the Nigeria Fintech Week. The Report identifies
certain challenges against the growth of FinTechs in the Nigerian capital
market and proposes solutions.

Challenges

The following are the
challenges identified by the Committee:

1.     
Regulation

The existing regulatory
framework
in the Nigerian capital market neither provides enough clarity on
the role of FinTech companies nor clearly articulates their licensing and
compliance requirements. In addition, there is uncertainty on how regulators
intend to treat certain FinTech products like crypto assets. This lack of
clarity creates uncertainty in the minds of innovators. Another regulatory
problem is the length of time it takes to register a FinTech company with the
Commission.[4]

2.                 
Access to Data

The efficiency of every
FinTech company is dependent on access to data, and the limited data makes it
difficult to identify potential customers, develop applications to meet the
specific needs of investors and monitor competition. Access to data is also important
for regulators to adopt the use of supervisory technology (SupTech). The
Nigeria Data Protection Regulation 2019 will potentially affect FinTech’s
access to data, because of the requirement of lawful processing.[5]

3.                 
Cybersecurity

FinTechs rely on data, which
is vulnerable to attack and misuse. The interconnected financial systems
further accentuate the threat of data theft and cybersecurity. If the risk of
cyber security is not curtailed, then it may lead to financial instability.[6]

4.                 
Capital Market Liquidity

The Nigerian capital market
is overdependent on foreign capital for liquidity. Thus, there is a need to
grow the domestic contribution as a shock absorber to adverse changes in the
market and address the capital flight associated with foreign capital and the
dearth of liquidity in the market. Furthermore, the crowdfunding industry has
been stifled by regulation. While donation-based and reward-based crowdfunding
are permitted by extant regulation, equity crowdfunding is considered illegal.[7] This has curtailed the growth of the
retail market.

5.                 
Lack of Market Confidence

FinTechs fall under
Non-Banking Financial Institutions (NBFIs), which are perceived as weaker
institutions compared to Banks. This causes a dip in the market’s confidence in
FinTechs. Other problems causing low market confidence are:

  • Low Investments participation;
  • Poor trading operations
    process/infrastructure;
  • Poor communication of value proposition;
    and
  • Dearth of innovative solutions to bring
    FinTechs into the mainstream market and encourage retail and institutional
    participation in their funding.

6.                 
Institutional Knowledge Gap

As a result of lack of
awareness, a typical retail customer would rather have his/her money in a bank
account or invested in land/property than the capital market. To achieve better
participation, capital market operators and FinTechs must collaborate to
educate the public about their service offerings.

7.                 
Lack of Innovation

The industry is not dynamic
and innovative in providing solutions for retail investors. Government has to
offer incentives to encourage investment in FinTech innovation. Regulators must
adopt a more innovative approach and the operators need to deploy more
solutions to engage and encourage broad based participation. In addition, more
products and services must be designed around the investment needs of the
public, and not just High Net-Worth Individuals (“HNIs”).

8.                 
Weak Digital Infrastructure

Infrastructures such as
power, high-speed broadband, cloud infrastructure, and IOT infrastructure are
lacking; and where available are not optimal. The cost of setting up
infrastructure required to power FinTech solutions is usually passed to the
final consumer. The right digital infrastructure will create safer, efficient,
and more transparent platform for financial services, building confidence, and
ensuring speedy services delivery and stability in the system.

9.                 
Underdeveloped Venture Capital/Growth
Funding Structure

There is a low level of
participation of venture capital/growth funds in FinTech investments. The
non-existence of numerous marketplace platforms where FinTech startups can
demonstrate their innovative offerings to potential investors, and the absence
of developed platforms for alternative funding markets providing capital
formation for FinTech startups are challenges facing FinTech startups. In
addition, the absence of a single source of guidance or regulation around
funding for FinTechs through venture capitalists in Nigeria subjects the
process to variation and uncertainty.

10.            
Lack of Incubator-accelerator
Entrepreneurial Support System

The report admits that while
there have been attempts by the innovative hubs to offer support to startups,
the effect has not been felt across the FinTech startups community. In
addition, the quality of the incubation/accelerator entrepreneurial support
system for FinTech in Nigeria is heavily reliant on foreign technical support
and investment. The need for these support systems is underpinned by the fact
that many local startup founders have a technical background in technology and
are not familiar with industry practices in capital markets and banking.

Recommendations

After identifying the
foregoing problems, the Committee recommended as follows:

1. Deepening Market
Penetrations

In order to improve the
penetration of investment products, the Committee

recommends that:

A. Collaboration

i. SEC should collaborate
with the CBN to streamline customer onboarding and simplify the process of new
product registration.

ii. SEC should collaborate
with Self-Regulatory Operators to provide access to information for FinTech
oriented public/startups.

iii. SEC should collaborate
with the National Pension Commission to ease tension between fund and pension
managers, share knowledge with the Commission to effectively allocate available
assets and revise regulations, such as the SEC Rules.

iv. SEC should collaborate
with the National Insurance Commission (NAICOM) to promote the adoption of
FinTech as distribution channels for the promotion and sales of insurance
products and educate consumers on how insurance works.

v. SEC should collaborate
with educational institutions to develop industry relevant curriculum, create
cross-country financial literacy programs and hold seminars and conferences on
financial literacy in capital market.

vi. The government should
collaborate with universities and other tertiary institutions to deepen
training and research in software skills and engineering, provide grants for
training prospective software developers to high globally recognised standards
and implement fiscal policies to provide tax breaks for institutions and
individuals investing in startups and FinTechs.


B. Fostering an Innovative
Environment

i. SEC should intensify its
efforts to raise awareness on the benefits of investing in the Nigerian capital
market.

ii. SEC should encourage the
development and introduction of FinTech-led innovation in the market.

iii. SEC can collaborate
with Nollywood or leverage YouTube and Facebook to develop and disseminate
short videos on financial literacy, to educate the public.

iv. SEC should create a
sandbox and collection of Application Programming Interface (API) services that
can be made available to FinTech firms to create innovative solutions.

C. Invest in RegTech and
Process Improvement Technologies

RegTech platforms will
strengthen inspection and investigation processes and ensure transparent
enforcement and prosecution of digitized rules/codes.

2. Consumer Protection,
Security and Data Privacy

A. The Committee recommends
that SEC should collaborate with regulators and government agencies to develop
FinTech oriented privacy and security policies. Global privacy regulations,
such as the Convention No108,[8] the OECD Guidelines on the Protection of
Privacy and Transborder Flows of Personal Data,[9] and the EU General Data Protection
Regulation,[10] should be reviewed and adapted to
Nigerian startups. Competition rules should also be enforced to prevent
formation of data provider monopolies.

B. FinTechs should comply
with industry standards in data exploitation, data minimisation, information
security, responding to cyber incidents and periodically assess their security
posture for systemic vulnerabilities.

3. FinTech Friendly
Regulation/Policies and Compliance

To address the regulatory
challenges that FinTechs encounter, the following were recommended:

A. SEC to drive a harmonized
regulatory agenda by creating a centralised committee of all regulators (charged
with the responsibility of formulating and ratifying policies and regulations
for FinTechs) and allow different FinTech businesses to be regulated by
different bodies within the committee. Equity financing/crowdfunding are to be
regulated by the SEC, while payments and lending are to be regulated by the
CBN. In addition, SEC and other regulators in the industry should leverage on
the regulatory sandbox to be made available to FinTechs by the Nigerian
Inter-Bank Settlement Scheme instead of building individual ones. The
Commission should also work with other government agencies to provide
incentives to startups.

Due Date: Q4, 2020

B. Cryptocurrencies, Virtual
Financial Assets and Initial Coin Offerings (ICOs)

i. SEC should decide on the
preferred classification of cryptocurrencies; preferably as commodities or
securities but NOT as currency.

ii. SEC should be
responsible for regulating Virtual Financial Assets Exchanges.

iii. SEC should regulate
equity-based crowdfunding while the CBN should regulate interest-based
crowdfunding.

iv. SEC should issue
guidelines and standards for white papers and ICOs.

v. SEC should have clear
taxonomies of tokens based on their nature, characteristics, and economic
realities as their determining factors.

Due Date: Q1, 2020

C. Accelerating Investments
in FinTechs

i. SEC needs to establish a
clear FinTech vision and agenda.

ii. SEC should consider
creating “Speed Funds” where HNIs can invest in FinTechs through the capital
markets.

iii. SEC should shorten the
timeline for registration of FinTech companies.

iv. SEC, Self-Regulatory
Organisations and Exchanges should ensure that listing requirements are
FinTech-friendly.

Due Date: Q2, 2021.

D. Directory Services

i. SEC should create a
RegTech platform as a one-stop shop to manage registration, licensing and
approval of FinTechs, and a directory service where useful information about
FinTechs in Nigeria can be accessed.

ii. SEC should organise
hackathons to develop software solutions for automation of SEC’s regulatory
processes.

iii. SEC should create a
FinTech Office to manage investor relationships, engage and provide regulatory
clarifications to new entrants, facilitate
regulator-innovator-market-engagements, coordinate the communication
and dissemination of relevant industry information, and provide support and
advisory services to the industry.

Due Date: Q2, 2021.

E. Capacity Building

i. SEC should invest in
capacity building for its employees charged with regulation.

ii. SEC should look to
publish a report on FinTech in the Nigerian capital market, on an annual basis.

Due Date: Q1, 2021.

F. Engagement with FinTechs

i. SEC and other regulators
should cooperate more with FinTechs through forums and engagement sessions.

ii. SEC should create an
innovation Hub within the Commission.
Due Date: Bi-annually, Quarterly.

Commentary

With the buzz in the
Nigerian FinTech space and the growing interest of entrepreneurs and foreign
investors in FinTech companies that solve problems in the financial industry,
the establishment of a Roadmap Committee and a blueprint for the development of
FinTech companies in Nigeria is a step in the right direction. It is our hope
that this Report will provide clarity to investors and entrepreneurs alike on
the policy plan of the SEC for the integration of FinTech companies into its
operations. The Committee provided a timeline for the implementation of its
recommendations between Q4 2019 and Q4 2021 and expressed its availability to
assist the Commission with the process of implementation.

_________________________________________________________________

For further information on
this article and area of law, please contact
Olayanju Phillips at:
S. P.A. Ajibade & Co., Lagos by
telephone (+234 1 472 9890), fax (+234 1 4605092)

mobile (+234.814.468.3333)
or email

[1]
    Olayanju Phillips, Associate, Corporate Finance &
Capital Markets department, SPA Ajibade & Co., Lagos, Nigeria.

[2]
    Held on the 14th of November 2018 at the Federal
Palace, Hotel, Victoria Island, Lagos. See ‘Notification for Third CMC Meeting
in 2018’ (SEC Nigeria, 19 October 2018)
(accessed 22 January 2020).

[3]
    Fintech Roadmap Committee of the Nigerian Capital Market,
‘The Future of Fintech in Nigeria’,
April 2019 
(accessed 22 January 2020).

[4]
    The registration process involves an application for
approval from the Commission by filling the FinTech assessment form
http://sec.gov.ng/regulatory-sandbox-assessment/. The SEC engages the FinTech
company and registers it if it meets its requirements. The length of time it
takes to receive SEC’s approval to offer a FinTech product depends on the
nature of product and whether the SEC has existing Rules or Guidelines to
regulate them.

[5]
    Pursuant to Para 2.1 of the Nigeria Data Protection
Regulation 2019, data may no longer be collected, processed or shared with
third parties, except with the lawful consent of the data subject. Furthermore,
by the provisions of Para 2.2, the consent of the data subject must obtained
for each purpose the data will be processed, unless the processing is necessary
for compliance with a legal provision, performance of a contract to which the
data subject is a party, to protect the interests of the data subject or of
another person, or in the public’s interest.

[6]
    In a bid to curb these threats, the Cybercrimes Act
(Prohibition, Prevention, etc) Act, 2015 criminalizes unlawful access to a
computer with intent to obtain confidential information, unlawful interception
of communications, unauthorised modification of computer data, computer related
forgery, identity theft and impersonation (See sections 6,7,8,11 and 13 of the
Cybercrime Act, 2015). Significantly, there are no requirements for reporting
cyberbreaches and intelligence sharing across organisations to build cyber
resilience in the Act. Proactive safeguards to be put in place by data
controllers and data processors are also conspicuously absent.

[7]
    Section 22(5) of the Companies and Allied Matters Act CAP
C20 LFN 2004 prohibits private limited companies (which most FinTech companies
are registered as) from inviting the public to subscribe for any shares or
debentures of the company or deposit money to it. Section 67 of the Investments
and Securities Act also prohibits all persons from making invitations to the
public to acquire or dispose of any securities of a corporate entity or to deposit
money with any corporate entity for a fixed period or payable at call, unless
the body corporate is a public company. Furthermore, a public company may only
offer its shares to the public through a registered Exchange, subject to
certain restrictions placed by the Commission, including approval of the
Commission and registration of the securities.

[8]
    Council of Europe, Convention for the Protection of
Individuals with regard to the Automatic
Processing of Individual Data
, 28 January 1981, ETS 108, available at:
 (accessed 28 January
2020).

[9]
    Organisation for Economic Cooperation and Development
(OECD), Guidelines Governing the Protection of Privacy and Transborder
Flow of Personal Data
, 23 September 1980, available at:
 (accessed 28 January
2020).

[10]
   Regulation (EU) 2016/679 of the European Parliament and of the
Council of 27 April 2016 on the protection of natural persons with regard to
the processing of personal data and on the free movement of such data, and repealing
Directive 95/46/EC (General Data Protection Regulation)
(accessed 28 January 2020).

 This article was 1st published Here

Data Privacy and Protection under the Nigerian Law – Francis Ololuo

Data Privacy and Protection under the Nigerian Law – Francis Ololuo

Introduction

The 21st century,
commonly dubbed “the information age” with its greatest invention, the
internet, has brought about fast and easy dispensation of personal information
or data. With an estimated 2.96 billion social media users worldwide, social
media is the greatest accomplice to the speedy dispensation of personal
information around the world.[2] Virtually everybody on the planet has
their personal data i.e., name, address, pictures, email address, bank details,
or medical information online. These data reveal sensitive personal information
that can be exploited to harm users unscrupulously for economic gain. Thus, it
is has become important to protect these data and regulate the way data is
used. One should be able to decide whether or not they want to share some
information, who has access to it, for how long, for what reason and to be able
to modify some of this information, if necessary.[3]


The information age has seen
data exchange become a common feature and an integral part of commercial
transactions. Considering that five of the six largest companies in the world
(Apple, Microsoft, Amazon, Google and Facebook) deal in data and profit off
processing the data of its consumers,[4] it has become imperative to regulate how
that vast amount of personally identifiable data is managed. For instance, the
Google-owned YouTube’s algorithm feeds off personal data (e.g. user
information, likes, searches, etc.) to suggest what videos users may like or
find interesting.

1.     
“Knowledge is power, information is
power.”

1.1      
This statement by Robin Morgan became more glaring and profound in the light of
the Facebook-Cambridge Analytica Data Privacy Scandal[5] that shook the world in 2018. Here,
Cambridge Analytica, a political consulting and strategic communication firm
was found to have illicitly collected the personal data and information of
about 87 million Facebook users without their consent for political advertising
purposes (especially in the run-up to the 2016 US Presidential elections). This
scandal amongst other previous data privacy breaches[6] signaled the urgent need to protect
personal data. It prompted the immediate implementation of the EU General Data
Protection Regulation (GDPR)[7] in 2018.

1.2      
In similar vein, Nigeria has had its own fair share of data privacy breaches.
Notably, the recent case between NITDA[8] and TrueCaller (2019) as well as the case
involving MTN Nigeria Communications Ltd v Barr. Godfrey Eneye (2013) are a few
instances.[9] Data protection is becoming a risk issue
discussed at negotiation stages between companies in different jurisdictions
and data protection has become a tool to encourage confidence in businesses. In
essence, it is important that companies and persons in Nigeria know the laws
governing Data Privacy and Protection in Nigeria and the scope of rights,
duties and responsibilities available to them.

2.     
The Legal Framework of Data Privacy and
Protection Laws in Nigeria

Although Nigeria does not
have a specific statute regulating Data Privacy and protection, the NITDA
commendably came up with the Nigeria Data Protection Regulations (NDPR) in 2019
which specifically addresses Data Privacy and Protection in Nigeria. Asides
from the NDPR, there are other laws which touch on Data Privacy and Protection
in Nigeria, which are briefly highlighted below.

3.     
The Constitution[10]

Section 37 of Nigeria’s 1999
constitution forms the foundation of data privacy rights and protection in
Nigeria. Section 37 guarantees and protects the right of Nigerians to privacy
with respect to their homes, correspondence, telephone conversations and telegraphic
communications. It deems Privacy in this respect a fundamental right which is
enforceable in a court of law when breached. Prior to the NDPR, most cases of
data privacy breaches were enforced under this section.[11]

4.     
The Nigeria Data Protection Regulation
(NDPR) 2019[12]

Albeit a subsidiary
legislation, the NDPR is the major law specifically aimed at addressing data
privacy and protection in Nigeria. The regulation was issued by the National
Information Technology Development Agency (NITDA) in 2019 to comprehensively
regulate and control the use of data in Nigeria.[13] A copycat of the EU GDPR, the
regulation touches on principles of data processing, the requirement of Data
Compliance Officers, requirement of data subject’s consent for collecting and
processing data, requirements for international transfers of data and rights of
data subjects, inter alia. It also prescribes penalty for non-compliance
with the regulation. [14]

5.     
The NCC Consumer Code of Practice
Regulation 2007[15]

Part VI of the Nigerian
Communications Commission (NCC) regulation, generally deals with the protection
of consumers’ data in the telecoms sector. Reg. 35 requires all licensees to
take reasonable steps to protect the information of their customers against
improper or accidental disclosures. It prescribes that licensees shall not
transfer this information to a third party except as permitted by the consumer
or commission or by other applicable laws or regulation. Data collected by the
licensee must be such that is reasonably required for business purposes and not
to be kept for longer than necessary. This law extends not only to electronic
or written data but also to verbal data recorded by the licensee.[16] It also provides for notification of the
consumer of the use and disclosure of data obtained from them.

6.     
The NCC Registration of Telephone
Subscribers Regulation 2011[17]

Regulation 9 and 10 of the
NCC Registration of Telephone Subscribers Regulation 2011, deals with the data
privacy and protection of subscribers. It provides for confidentiality of
personal information of subscribers stored in the central database or a
licensee’s database.[18] It also provides that these information
shall not be released to a third party nor transferred outside Nigeria without
the prior written consent of the subscriber and commission, respectively. This
regulation also regards the information stored in the Central Database as the
property of the federal government of Nigeria.[19]

7.     
The Freedom of Information Act 2011[20]

Section 14 of the Freedom of
Information Act protects personal data. It restricts the disclosure of
information which contains personal information by public institutions except
where the involved data subject consents to its disclosure or where the
information is publicly available. The Act also provides that a public
institution may deny the application for disclosure of information that is
deemed privileged by law (e.g. Attorney-client privilege, doctor-client privilege).

8.     
The Cybercrimes (Prohibition,
Prevention, etc.) Act 2015[21]

The Cybercrimes
(Prohibition, Prevention, etc.) Act, Nigeria’s foremost law on cybercrimes
criminalizes data privacy breaches. Generally, this Act prohibits, prevents and
punishes cybercrimes in Nigeria. It prescribes that anyone or service provider
in possession of any person’s personal data shall take appropriate measures to
safeguard such data. [22]

9.     
The Child Rights Act 2003[23]

The Child Rights Act
protects the privacy rights of children.[24]  The Act protects and guarantees
the right of every child to privacy, family life, home, correspondence,
telephone conversation and telegraphic communications subject to the
supervision or control of the parents or guardians.[25]

10. The
Consumer Protection Framework 2016[26]

The Central Bank of
Nigeria’s Consumer Protection Framework prohibits financial institutions from
disclosing the personal information of their customers. It also ensures that
these financial institutions take appropriate measures to safeguard customers’
data and necessitates the prior written consent of their customers before
sharing these data with anyone.

11. The
National Identity Management Commission (NIMC) Act 2007[27]

Section 26 of this Act
requires the approval of the Commission before a corporate body or anybody can
have access to data stored in their database. The Act also empowers the NIMC to
collect, collate and process data of Nigerian citizens and residents.

12. The
National Health Act (NHA)2014[28]

The NHA which regulates
health users and healthcare personnel restricts the disclosure of the personal
information of users of health services in their records. It also ensures that
healthcare providers take the necessary steps to safeguard such data.

13. The
Federal Competition and Consumer Protection Act 2019[29]

This Act stipulates that the
Federal Competition and Consumer Commission shall ensure that business secrets
of all parties concerned in investigations conducted by it are adequately
protected during all stages of the investigation or inquiry.[30]

14. Case
Laws

Just like many other common
law jurisdictions, judicial decisions are an integral source of law in Nigeria
and although, very few, there are court decisions on data privacy and
protection. Some of these include the cases of Godfrey Nya Eneye v MTN
Nigeria Communication Ltd
[31] and Barr. Ezugwu Anene v Airtel
Nigeria Ltd
.[32] In the former case, the court held that
the unauthorized disclosure of the claimant’s mobile phone number by his
telecommunications service provider (the defendant) and subsequent unsolicited
text messages he received from unknown third parties were violations of his
constitutional right to privacy. A similar verdict was given in the latter
case. Both claimants were awarded damages of N5,000,000 (five million naira),
respectively.

15. Conclusion

15.1    
It is laudable that Nigerian authorities through their laws and various
regulations are taking bold steps to protect the personal data of her citizens.
However, despite the array of laws and regulations on data privacy and protection,
the only law that specifically and comprehensively deals with this phenomenon
is the recently announced NDPR by NITDA.

15.2    
Prior to the NDPR, most laws on data privacy and protection in Nigeria were
industry specific. For instance, the various NCC regulations protect consumers
in the telecommunications sector; the provisions in the Child Rights Act
protects persons under the age of 18 and the Freedom of Information Act
protects personal data in records of public institutions. Therefore, the
establishment of a data privacy and protection law in the form of the NDPR that
transcends industries and category of persons is highly commendable.

15.3    
The quick implementation and enforcement of the NDPR by NITDA has shown its
seriousness in ensuring compliance with data privacy and protection laws by
data controllers and processors in Nigeria. [33] Another evidence of this is the current
investigation of TrueCaller by NITDA for data privacy breaches[34] alongside the recent investigation of
the Lagos Internal Revenue Service (LIRS) for publishing some Lagos State
taxpayers’ personal information on its website.[35] The establishment of the NDPR and the
activities of NITDA have also helped create awareness about data privacy and
protection amongst Nigerians.

15.4    
Despite being a huge step in the right direction, the NDPR is not without
criticism. The regulation solely “applies to all transactions intended for the
processing of personal data and to actual processing of personal data
and to natural persons residing in Nigeria or residing outside Nigeria
but of Nigerian descent.”[36] The NDPR applying solely to personal
data
and natural persons means the regulation excludes other forms
of data and corporate organisations respectively.

15.5    
Furthermore, some quarters believe the NDPR being a regulation and not a
statute enacted by the National Assembly lacks the requisite force of law
sufficient for addressing such an important subject. Some also believe the NITDA
is not empowered by law within the ambit of Section 6 of the NITDA Act to make
such a regulation.

15.6    
Nonetheless, Nigeria is one of the few countries that can boast of having data
privacy and protection laws in the world.[37] It is thus apparent the country is
heading in the right direction although there is still room for improvement.

_________________________________________________________________

For further information on
this article and area of law, please contact

Francis Ololuo at:
S. P. A. Ajibade & Co., Lagos by

Mobile (+2348112491286) or

Email
(fololuo@spaajibade.com).


[1]    
Francis Ololuo, Associate Intern Intellectual Property & Technology Law
Department, SPA Ajibade & Co., Lagos, Nigeria.

[3]
    Estelle Masse “Data Protection: Why it matters and how to
protect it” (January 25, 2018) available online at: https://www.accessnow.org/data-protection-matters-protect/accessed
on January 20, 2020.

[5]
    “Facebook data privacy scandal: A cheat sheet” by James
Sanders and Dan Patterson (July 24, 2019) available online at: https://www.techrepublic.com/article/facebook-data-privacy-scandal-a-cheat-sheet/
accessed on January 20, 2020.

[6]
    For instance, in 2014 the personal information of over
3billion Yahoo users was unlawfully accessed by hackers – CNN Business: “Every
Single Yahoo Account  was Hacked – 3 Billion in all” (October 4, 2017)
available online at https://money.cnn.com/2017/10/03/technology/business/yahoo-breach-3-billion-accounts/index.html/
accessed on 4TH February, 2020

[7]
    The European Union General Data Protection Regulation
2016/679 is the EU’s major law on Data Protection and Privacy is aimed at
protecting natural persons within the EU with respect to the processing of
personal data and on the transfer of such data outside the EU.

[8]
    National Information Technology Development Agency (NITDA)
is Nigeria’s foremost agency responsible for regulating data privacy and
protection in Nigeria.

[9]
    CA/A/689/2013 (Unreported).

[10]
   The Constitution of the Federal Republic of Nigeria 1999 (as
amended). Act No. 24, 5 May 1999.

[11]
   See the case of Barr. Ezugwu Emmanuel Anene v. Airtel Nigeria Ltd,
Suit No: FCT/HC/CV/545/2015 (Unreported).

[12]
   A regulation made by the NITDA pursuant to Section 6 of the NITDA
Act. Available on https://nitda.gov.ng/wp-content/uploads/2019/01/NigeriaDataProtectionRegulation.pdf
accessed on 27th January, 2020.

[13]   
NITDA is empowered by section 6(a) of the NITDA Act (2007) “to create a
framework for the planning, research…evaluation and regulation of Information
Technology practices, activities and systems in Nigeria.”.

[14]
   For a review of the NDPR, see “Data Protection Regulation 2019 –
The New Law” by Yimika Ketiku and Dolapo Bolu, available online at: http://www.spaajibade.com/resources/data-protection-regulation-2019-the-new-law-yimika-ketiku-and-dolapo-bolu/
accessed on January 20, 2020.

[15]
   Nigerian Communications Act 2003, Federal Republic of Nigeria
Official Gazette No. 87 (10th July, 2007) Vol. 94.

[16]
   Regulation 35(3), CPC 2007.

[17]
   Federal Republic of Nigeria Official Gazette No. 101 (7th November
2011) Vol. 98.

[18]
   Regulation 9(2).

[19]
   Regulation 5.

[20]
   Federal Republic of Nigeria Official Gazette (28th May)
Vol.98. Available on  https://www.cbn.gov.ng/FOI/Freedom%20Of%20Information%20Act.pdf
accessed on 28th January, 2020.

[21]
   Federal Republic of Nigeria Official Gazette (15th May)
Vol. 102. Available on  https://cert.gov.ng/ngcert/resources/CyberCrime__Prohibition_Prevention_etc__Act__2015.pdf
accessed on 28th January, 2020.

[22]
   Section 21.

[23]
   Child’s Rights Act No 26 of 2003 (Federal Republic of Nigeria
Official Gazette No 26, Vol.90). Available on  https://www.refworld.org/pdfid/5568201f4.pdf
accessed on 28th January, 2020.

[24]
   persons under the age of 18.

[25]
   Section 8.

[26]
   Pursuant to its powers under section 2(a) and 33(1)(b) of the CBN
Act 2007, the CBN released the Consumer Protection Framework 2016 on 7th
November 2016. Available on  https://www.cbn.gov.ng/out/2016/cfpd/consumer%20protection%20framework%20
(final).pdf
accessed on 28th January, 2020.

[27]
   National Identity Management Commission Act No 23 of 2007 (Federal
Republic of Nigeria Official Gazette No 23, Vol. 94). Available on  https://www.nimc.gov.ng/docs/reports/nimc_act.pdf
accessed on 28th January, 2020.

[28]
   Federal Republic of Nigeria Official Gazette No. 145 (27th
October, 2014) Vol. 101.

[29]
   Federal Republic of Nigeria Official Gazette No 18 (1st
February 2019) Vol. 106. http://fccpc.gov.ng/uploads/FCCPA%202019.pdf
accessed on 28th January, 2020.

[30]
   Section 34(6).

[31]
   Appeal No: CA/A/689/2013 (Unreported).

[32]
   Suit No: FCT/HC/CV/545/2015 (Unreported).

[33]   
In December 2019, NITDA threatened to issue a Notice of Non-compliance and to
publish the names of companies that default in filing their Initial Data
Protection Audit Report within the prescribed timeline. See https://andersentax.ng/nitda-to-issue-non-compliance-notices-to-defaulting-
organizations/
, accessed on 30th January, 2020.

[34]
   Wole Olayinka “The People v Big Tech: Nigerian takes TrueCaller to
Court for Alleged Violation of Privacy Rights” 30th September 2019 https://techcabal.com/2019/09/30/the-people-v-big-tech-nigerian-takes-truecaller-to-court-for-alleged-violation-of-privacy-rights/
accessed on 30th January,2020.

[35]
   James Kwen “NITDA says LIRS breaches Nigeria Data Protection
Regulation” 27th December, 2019 https://businessday.ng/news/article/nitda-says-lirs-breaches-nigeria-data-protection-regulation/
accessed on 30th January, 2020.

[36]
   Article 1.2 of the NDPR 2019.

[37]
   Other countries/regions include the EU, Canada, Brazil, China,
Angola, Argentina, Australia and Cape Verde.

First published here 

The NBA can reconstruct the Nation by positively impacting on our democratic process | Dele Adesina SAN

The NBA can reconstruct the Nation by positively impacting on our democratic process | Dele Adesina SAN

 Egbe Amofin ni Eko, the Lagos Branch of the main Egbe Amofin held its annual lecture in honour of Pa Tunji Gomez yesterday. The lecture is an annual event organised to honour the memory of Pa Gomez, who was one of the strong leaders of Nigerian Bar Association, Lagos Branch and Egbe Amofin in Lagos.

The programme was attended by eminent Legal Practitioners, including the Honourable Attorney General of Lagos State, Mr Moyo Onigbanjo SAN; Chief (Mrs.) Pricilla Kuye, Past President of Nigerian Bar Association; Mr Dele Adesina SAN and many others. Chief Wole Olanipekun SAN OFR was the Chairman of the occasion, while Mr Femi Falana SAN was the Guest Lecturer. The occasion was also attended by the family of the honouree.
In his welcome address, the Chairman of Egbe Amofin ni Eko, Chief Ogunleye Martins, traced the formation of the Branch to January 2017 and stated that the Branch was formed to provide a platform for a fraternity of lawyers of Yoruba extraction who live and practice in Lagos State. The objectives of Egbe Amofin ni Eko is to promote cultural renaissance by exposing its members to the trail-blazing contributions of Yoruba progenitors in the area of politics, law, ethics and national development. 
The Chairman of the occasion, Chief Wole Olanipekun SAN OFR, congratulated the Egbe Amofin ni Eko for the well-deserved honour they have done to Pa Tunji Gomez. He also congratulated the family for the worthy life Pa Tunji Gomez lived first as a lawyer of note and of integrity and secondly as a human being. Speaking on the topic, Chief Wole Olanipekun SAN OFR talked about the need to protect the Profession and its two departments. According to him, the Bar must defend and honour the Judiciary while the Judiciary must also respect the Bar as respect is reciprocal. He said *“may the day never come when a lawyer will be intimidated or blackmailed for prosecuting/ handling a matter. At the same time, the lawyer has a duty to be civil and respectful in handling his matter.”* And this he has observed throughout his Practice career. He emphasised that the Bar and the Bench belong to the same Profession and we must build the Profession together.
The guest lecturer, Mr Femi Falana SAN, delivered a thought provoking lecture on *“Tribunalisation of Democracy in Nigeria.”* Among other issues raised by the lecturer is the increasing number of pre and post election petitions in Nigeria which according to the lecturer is second to none anywhere in the world. He wondered why Nigerian politicians seem unprepared to take no for an answer or accept defeat after an electoral contest. 
He also touched on the negative impact of election-related cases on the nation’s Judiciary, in particular, the over-burdensome of these cases on the Judges and the abandonment of other cases including civil and criminal; stressing that these other cases are as important as the political cases. He advocated a shift away from the present state of the law whereby the onus is on the petitioner to prove corrupt practices and other vices beyond reasonable doubt, submitting that the standard of proof must not be that of proof beyond reasonable doubt but of balance of probability; election petition being sui generis.
In his contribution, Dele Adesina SAN congratulated Egbe Amofin ni Eko for thinking it wise to organise the lecture in honour of a worthy, honourable and quintessential lawyer in person of Pa Tunji Gomez. According to Dele Adesina SAN, Pa Gomez was a man of principle, honesty and high integrity, who will not say one thing and do another; a group person who was noted for pursuing the collective interest rather than narrow or selfish interest. Commenting on the theme of the lecture, Mr Adesina SAN stated that the bane of the problem in our democratic experience is the unwillingness on the part of the politicians to play by the rules or obey the law of the land. He stated that it is rather unfortunate that there seems to be no punishment in practical terms for electoral offenders. 
So in our democracy, the politicians believe that the end justifies the means; stressing that it is the failure of the electoral process, both pre and post election that leads to the inundation and suffocation of our Courts with election-related cases, the opportunity-cost of which is a profound delay and congestion in our Courts. Mr Adesina SAN expressed his belief that the Nigerian Bar Association can reconstruct the Nation through positively impacting on our democratic process and making constructive contributions that will ensure that our democracy enjoins more democratic content in terms of obedience to electoral principles, ensuring punishment for electoral offenders and expediting the judicial process. He further stated that such suggestions from the Bar must include the establishment of Constitutional Courts to handle all election cases in order to free our Courts. He said, in order to be able to do this, the lawyers themselves must promote rule of law by obeying their own laws and constitution as no one can give what he does not have.
Finally, Mr Adesina SAN stressed the need for Egbe Amofin members, both national and in Lagos, to promote unity, the selfless pursuit of a collective goal in the affairs of Nigerian Bar Association and the need to elevate the interest of Yoruba lawyers within the context of the Nigerian Bar Association, as these have become more paramount and compelling more than ever before so as to avoid needless conflicts and controversies which has led to the failure of the Group in the past. Concluding that Egbe Amofin members need compromise which he said is a strong factor in leadership success and the absence of which precipitate failure.