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ECOWAS COURT TO DELIVER ITS DECISION ON ALLEGED HUMAN RIGHTS VIOLATION CASE AGAINST THE LIBERIAN GOVERNMENT

The ECOWAS Community Court of Justice will on Wednesday, 6th February 2019 deliver judgement in a suit brought by Dexter Oil and Gas, a Liberian registered company, urging the Court to order the release of its 3 million dollars withheld by the government for on the ground of being a suspicious transaction.

In suit no ECW/CCJ/APP/24/17 filed on 28th June 2017, the plaintiff claimed that by withholding the said amount paid into its account with a bank in Liberia since November 2013, the government was in violation of the company’s right to possess and own property.

The company therefore wants the Court to hold that the continued withholding of the plaintiff’s fund violates its right to own property as guaranteed by the African Charter on Human and Peoples’ Rights and the ECOWAS Treaty among other legal documents.

It also urged the Court to order the release of the fund, the payment of 21% interest on the amount from November 2013 until the liquidation of the amount as well as the payment of another 50,000 dollars in favour of the plaintiff.

Judgment will be delivered by a three member panel of judge of the Court including Honorable Justices Edward Asante, Dupe Atoki, and Keikura Bangura.

LAURENT GBAGBO AND CHARLES BLE’ GOUDE’ ACQUITTED BY ICC

The Hague – On 15 January 2019, Trial Chamber I (the Chamber) of the International Criminal Court (ICC) decided, in a majority decision, to acquit Mr. Laurent Gbagbo and Mr. Charles Blé Goudé of charges of crimes against humanity.

The ICC Prosecutor had alleged that the former Côte d’Ivoire president, Mr. Gbagbo, and members of his inner circle, including former youth leader Mr. Blé Goudé, created and executed a common plan to hold on to power after losing the country’s 2010 presidential election by encouraging attacks against supporters of then rival candidate, Mr. Alassane Ouattara. Mr. Gbagbo and Mr. Blé Goudé were each charged with four counts of crimes against humanity in this context.  

The majority of judges, Presiding Judge Cuno Tarfusser and Judge Geoffrey Henderson, concluded in an oral decision that the Prosecutor failed to satisfy the burden of proof in accordance with Article 66 of the Rome Statute. In particular, they reasoned that the Office of the Prosecutor (OTP) did not meet the threshold of evidence in relation to the alleged crimes, including the failure to demonstrate a common plan to keep Mr. Gbagbo in power and a deliberate policy of attacking civilian populations. In the judges’ opinion, the Prosecution additionally failed to prove that the defendants gave public speeches inciting the alleged crimes.

Ms. Fanta Doumbia, Executive Coordinator of the Ivorian national coalition for the ICC responded, “This acquittal must not make us forget the thousands of victims of the Ivorian crisis who are in need of justice and reparations.” Mr. Ali Ouattara, President of the Board of the Ivorian Coalition added, “The ICC would benefit from not giving false hope to victims of serious crimes. It must give victims confidence through credible investigations and decisions that take their interest into account. Moreover, it must also investigate all the parties involved in the Ivorian conflict so that today’s impunity does not become the crime of tomorrow.”

In commenting the acquittal, Journalists For Justice stressed the “disappointment among the victims after the Gbagbo/Blé Goudé acquittal. But nobody denies that terrible things happened in Ivory Coast during the post-election violence in 2010/11. The judges reminded the audience of that in their acquittal decision. But the crucial point is that the Prosecution presented an exceptionally weak case, as presiding judge Cuno Tarfusser stated, that did not establish a sufficient link relevant under international criminal law between the atrocities and the accused: No evidence of a common plan to attack civilians in a widespread or systematic manner, as part of a state or organisational policy. These are the high evidentiary thresholds within the Rome Statute system for a conviction for crimes against humanity. As the defence stated after the acquittal: This is a victory for the ICC, because it has been shown that the court has independent and professional judges who look at the facts.”

In her dissenting written opinion, Judge Herrera Carbuccia disagreed with the decision of the majority, expressing her view that the evidence provided by the Prosecutor was sufficient for “a reasonable Trial Chamber to convict the accused”. She went on to challenge the majority’s issuing of the final decision orally, in place of a written decision with a full reasoning as to the basis of their judgement. Judge Carbuccia asserted that such an oral summary by the majority is contrary to Article 74(5) of the Rome Statute, which obliges judges to issue a “reasoned statement” of the Chamber’s findings in writing.

The Coordinator of the African Network on International Criminal Justice (ANICJ), Mr Chino Obiagwu, expressed his concerns in relation to the redress for victims of crimes against humanity in Côte d’Ivoire: “The Rome Statute system under articles 75 (1) ties reparations to convictions and once a defendant is discharged and acquitted of crimes, one may wonder the fate of victims. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other bilateral and multilateral funds may also be established for this purpose.”

“…Our investigations in the Côte d’Ivoire continue. We remain committed to our mandate under the Rome Statute and will continue to honour it,” said ICC Prosecutor, Ms. Fatou Bensouda, in a statement. “As we do, my Office is vigorously dedicated to doing its part, with the plight of the victims in Côte d’Ivoire foremost and always on our minds.”

As a result of the majority decision, the Chamber ordered the immediate release of Mr. Gbagbo and Mr. Blé Goudé. In response, the OTP filed an urgent request asking the Chamber to suspend the release order, stating that “it intends to appeal the full and detailed reasoned decision”, and alleging exceptional circumstances that would justify the continued detention of the defendants pending further Court proceedings.

In explaining the exceptional circumstances, the Prosecution asserted that there is “a concrete risk that the accused will not appear for the continuation of the trial” should an appeal of the decision be successful, underscoring the access of Mr. Gbagbo and Mr. Blé Goudé to sufficient means and support to avoid reappearing before the Court. The request additionally highlights the absence of a fully reasoned statement by the majority on their decision.

The legal representative of victims echoed the OTP, demanding the imposition of strict conditions in the case of an immediate release with the aim of reducing the flight risk of Mr. Gbagbo and Mr. Blé Goudé, such as their transfer to a State Party other than Côte d’Ivoire.

In a statement released after the acquittals, Ms. Paolina Massidda, the counsel representing victims in the case, expressed the deep disappointment of victims at the decision. “They participated in the trial in the hope that an impartial tribunal could someday bringing justice. This hope is vain today.”

On 16 January 2018, in another majority decision, the Chamber rejected the request for continued detention of the Prosecutor and legal representative of victims, stating that it was not convinced that the alleged circumstances could be considered exceptional. The majority of Judges demanded written and signed reassurances that the defendants and their counsels will appear before the Court if so requested, and decided to release Mr. Gbagbo and Mr. Blé Goudé.

The Office of the Prosecutor then filed an appeal against the decision of the Chamber to release Mr. Gbagbo and Mr. Blé Goudé, requesting the Appeals Chamber to suspend its effect. On 18 January 2019, the Appeals Chamber, by majority, suspended the Trial Chamber I’s decision to release Mr Gbagbo and Mr Blé Goudé, scheduled a hearing on 1 February 2019 and ordered the defendants to return to detention.

Africa Legal Aid (AFLA), in light of the decision, defended the judicial independence of the Court highlighting that “these developments should prove to skeptics that the ICC is a serious Court composed of independent judges, who may disagree with their fellow judges. The ICC is not a kangaroo court that is just there to convict.”

Ms. Amal Nassar, FIDH Representative to the ICC stated that “the ICC as a whole should learn from its difficulties in convicting (former) political leaders bearing the highest responsibility in the perpetration of crimes and revise adequately its policies.”

Lagos 13 January 2019.

The Legal Defence and Assistance Project (LEDAP) condemns the hurried charges filed at the Code of Conduct Tribunal against the Chief Justice of Nigeria, the head of the Nigerian judiciary, and calls on all lawyers to rise up and defend the judiciary from attack and destruction.

LEDAP recalls that this regime attacked and arrested some senior judges in 2016 upon frivolous charges that have all failed. The regime had also used the Code of Conduct Bureau and Tribunal to attack the legislature on pretence of enforcing assets declaration laws against the Senate President. The code of conduct system located in the Presidency has therefore become the instrument for political emasculation of the other arms of government.

The executive attack on the Judiciary and Legislature, and of the political opposition, independent media and the civil society organisations in Nigeria, are clear indicators of a regime driving towards full dictatorship. All Nigerians must resist this prospect, and all lawyers and justice sector stakeholders must stand up against the attack on the judiciary.

LEDAP calls on the Nigerian Bar Association (NBA) to call out all lawyers, judges and magistrates from the court to protest this unwarranted assault and desecration of the integrity and reputation of the judiciary by the politically motivated charges against the CJN.

The charges against the CJN at the Code of Conduct Tribunal are unlawful. The executive has no constitutional powers to discipline or charge any judge to court for a criminal offence unless the judge has been subjected to disciplinary procedure by the National Judicial Council (NJC). LEDAP filed a suit at the Federal High Court Abuja in October 2016 when some judges’ homes were raided and some of them arrested. We challenged the constitutionality of the arrests without prior reference to NJC. In 2017 in a similar suit, the court of appeal confirmed that only the NJC can discipline judicial officers or refer them for criminal prosecution. This was the case of Nganjiwa v Federal Republic of Nigeria (2017) LPELR-43391 (CA)

The charges against the CJN without reference to, and prior disciplinary actions of NJC, are grossly unlawful. The CCT as a vehicle for such unlawful enterprise, as an arm of the Presidency, contravene the principle of separation of powers under the 1999 Constitution.

We call on the Federal government to immediately withdraw the charges against the CJN, as well as the purported motion for order suspending him from office. The executive arm of government has no power for seek for such orders. We also call on the Hon Attorney General of the Federation to put a stop to this unconstitutional action and to allow caution and good sense to rule to avoid the erosion of judicial independence.

Chino Obiagwu SAN

Coordinator LEDAP.

Human Rights Protection in Nigeria: the Past, the Present and Goals for Role Actors for the Future Dr. Jacob Abiodun Dada

ABSTRACT

Since the adoption of the Universal Declaration of Human Rights in 1948, human rights have not only acquired global status and importance but have grown tremendously both in conception and content. While the internationalization of human rights was energized and strengthened by a number of developments, the present status of human rights in Nigeria is also not without any historical  antecedents. This article provided a historical development of human rights in Nigeria, starting from pre-colonial, to colonial and post-independence Nigeria. It highlighted the scope of human rights guaranteed in each epoch and the impediments to their full realization.  The paper argued that although Nigeria is a signatory to major international human rights instruments, large-scale human rights abuses still exist in the country and the social, economic and cultural rights have become a neglected category of human rights in Nigeria. The paper concluded by prescribing roles which the government  and NGOs must play to ensure optimal realization of human rights in Nigeria.

NTRODUCTION

Internationally and nationally, the need for the promotion and protection of human rights is now not only recognized as the foundation of freedom and justice but as an integral and essential element for the preservation of peace not only within the confines of particular states, but universally. It is for this reason that human rights which include such rights as right to life, dignity of human person, personal liberty, fair-hearing and freedom of thought, conscience and religion, have not only engaged the attention of the world community but have, “in the recent past, penetrated the international dialogue, become an active ingredient in interstate relations and has burst the sacred bounds of national sovereignty”.

 

To demonstrate their importance, the United Nations not only “affirm faith in fundamental human rights, in the dignity and worth of the human person”, but declares as one of its purposes, the need to promote and encourage universal “respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion,” From the “scattered, terse, even cryptic”references to human rights in the UN Charter to the more elaborate, definitive and authoritative “burst of idealism and enthusiasm” which the UDHR represents, the United Nations has drafted, developed and adopted many international human rights instruments of promotional and programmatic character, to ensure effective promotion and protection of human rights.

 

Indeed, it is salutary that since the historic adoption of the UDHR, human rights have become central to the work of the United Nations which has consistently emphasized their universality; that is that, human rights are not foreign to no country but native to all nations. Just as the contemporary conception and contents of human rights have developed and grown over the years at the global level, human rights in Nigeria  have been energized and strengthened; and paradoxically, undermined and subverted, by certain historical developments. The primary focus of this paper is to place human rights protection in Nigeria in historical perspective. The relevance of, and rationale for this exercise are by no means far- fetched. It is now generally acknowledged that the past co-exists with the present. History is a study both of change and of continuity. It helps to appreciate the past, understand the present and prepare for the future. In discharging the objective of this paper, the first segment will be devoted to the examination of the state of human rights in pre-colonial era while the second segment will be devoted to the examination of the current legislative and institutional efforts aimed at protecting human rights. Hindrances to the full realization of the global effort at promoting and protecting human rights will also be examined. The last pre-occupation of this paper will be to design a road-map for institutions and bodies which are concerned with human rights in Nigeria.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Director of SSS V. Agbakoba

A Review of Director of  S.S.S. V. Agbakoba
The Supreme Court is the highest court in Nigeria. Being the highest court in the land its decisions are final. The finality of its decision is given constitutional expression in Section 235 of the Constitution of the Federal Republic of Nigeria 1999 which provides that:
“235. Without prejudice to the powers of the President or of the Governor of a State with respect to prerogative of mercy, no appeal shall lie to any other body or person from any other body or person from any determination of the Supreme Court.”(1)
Judicial expression has also been given to the finality of the decision of the Court in the case of Architects Registration Council V. Fassassi (NO. 4) (2) where ESO J.S.C said:(3) “In the Supreme Court, the decision of that Court in so far as that case is concerned is final for all ages…it is final in the sense of real finality. It is final forever. Only a legislation ad hominen can alter it.”
But does the fact of the finality of the decisions of the Supreme Court make the Justices of the Court super men who are infallible in the decision which they give? The late doyen of the Bar, Chief F.R.A Williams, S.A.N was the first to throw up this question when he was faced with a decision of the Court which he believed was wrong and therefore brought an application seeking a “Correction” of the perceived errors in the Judgment ESO J.S.C. gave a qualified affirmative answer to the question. He said:

“…the decision of the Supreme Court is final.

The Supreme Court, and it is only the Supreme Court, may depart from the principle laid down in their decision in the case in future cases, but that does not alter the rights, privileges or detriment to the parties concerned, arising from the original case. Such is the constitutional power of the Supreme Court that learned counsel, probably rightly, wondered if the Justices of the Supreme Court were supermen. Let me answer the question. The Supreme Court, deliberately meant and made to be so by the organic law, and the Justices of the court, now only to that extent of their decision are supermen, meant to be so and so made by the constitution”(5)
His Lordship, after making the tendentious statement contained in the passage quoted above then conceded the fallibility of the court when he said:(6)
“Of course, neither the Court nor the Justices are meant to, or could even be infallible. But the price paid for finality in litigation is that the notion or the dread of infallibility has been sacrificed by the Constitution on the altar of finality. The society can never be stable if there is no such finality in litigation. It is, I very respectfully hold, desirable to have such finality. Notwithstanding the price paid for it.”

Before we make any deductions from the statements contained in the passages quoted above it will be useful to make a quick reference to the provision of Section 287 (1) of the Constitution which provides that:
“The decision of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court”.

Three points appear in bold relief from the passages and constitutional provisions quoted above. These are that:
(a) The Supreme Court being the final court in the land ought or is expected to lay down principles of law in their decisions which would guide future cases.
(b) The decisions of the court are binding on all authorities and persons and courts with subordinate jurisdiction to that of the court, and
(c) The principles laid down by the Supreme Court in its decisions can only be altered by a legislation ad hominen and by the Supreme Court itself in future cases.
In the present exercise of “case review”, a critical look would be taken at the decision of the Supreme Court in the case of Director of State Security Service V. Olisa Agbakoba with a view to seeing whether any specific principle or principles were laid down by the court which inclined the Judgment of the court to the conclusion reached in the case. Before we go into the review, let us briefly examine the definition of ‘principles of law’ as given by the Supreme Court. Thus in Ojegele V. State, (7) Oputa J.S.C, whilst discussing the distinction between ‘Principles’ and ‘Rules’ said:

“Principles are broader statements of conduct and they do not necessarily decide the outcome of the dispute. They merely incline the decision one way or the other depending on the facts and surrounding circumstances of the case in hand. The word principle is from the Latin principium, which means the starting point. A principle merely furnishes a basis for the consideration of the case in which the principle is meant to apply. Principles merely incline the decision towards a certain direction but they are not conclusive and they survive intact even if the principles are not followed in that particular case. Rules apply in an all-or-nothing dimension. Either the decision falls within the ambit of the antecedent portion of the rule in which case it must be dealt with as the rule dictated or it does not in which case it is unaffected by the rule. Rules dictate results come what may but principles do not. And that is the main difference to bear in mind when dealing with principles.”

The foregoing definition of ‘principle’ would be used as a guide in the review of the case to be reviewed herein, that is, Director of State Security Service V. Olisa Agbakoba (9) The relevant facts are these. The Respondent, Olisa Agbakoba, was invited by the Netherlands Organization for International Development and Cooperation (NOVIB) to attend a conference which was scheduled to take place between 22nd and 25th April, 1992. On 21st April, 1992, he went to Murtala Muhammed International Airport, at Ikeja Lagos with a view to traveling to The Hague in the Netherlands. However, he could not board the plane because he was stopped by officers of the Nigerian State Security Service (SSS) who impounded his passport without giving any reason for the seizure. After fruitless efforts to regain the passport, the Respondent instituted a suit under the Fundamental Rights (Enforcement Procedure) Rules seeking inter alia:

“1. A Declaration that the forceful seizure of the applicant’s passport No. A 654141 by agents of the State Security Services (Sic) (1st Respondent herein) on April 21, 1992 is a gross violation of the applicant’s right to personal liberty, freedom of thought, freedom of expression and freedom of movement respectively guaranteed under Section 32, 35, 36 and 38 of the Constitution of the Federal Republic of Nigeria 1979 (as amended) and is accordingly unconstitutional and illegal.
2. An order of mandatory injunction directing the respondents to release applicant’s passport No. A 654141 to him forthwith.”

The application which was filed in the High Court of Lagos State went before Akinboboye J. who refused it on the ground that the Respondent failed to satisfy the court that the passport was his personal property, and that the passport referred to the holder as “the bearer” and not “the owner”. Aggrieved by the decision, the Respondent appealed to the Court of Appeal which allowed the appeal and granted the two reliefs earlier set out. Being dissatisfied with the Judgment, the Appellants appealed to the Supreme Court. The important issue which the court has to determine in the case was whether the seizure of the Respondent’s passport by officers of the S.S.S. was in contravention of his right to freedom of movement as guaranteed by Section 38 (1) of the 1979 Constitution which was then in force in Nigeria. In determining this issue the court necessarily had to decide whether possession of a passport is a right or a mere privilege which could be withdrawn by the Government in view of the decision of the trial court that the Respondent did not satisfy it that the passport was his personal property. At the Court of Appeal, Ayoola J.C.A (as he then was) who delivered the leading Judgment of that court had this to say on the point:

“In so far as passport is a certificate of identity and nationality and at the same time a request from one state to another to grant entry to the bearer, it stands to reason that a passport is normally an essential document in the exercise of the discretion by a foreign state, which at International law it has in the reception of aliens into its territory. To that extent a passport is normally an essential document for entry into foreign countries….I also hold that the possession of a passport in modern times makes exit out of Nigeria possible … the issue that follows from this conclusion is whether the possession of a passport or its withdrawal has any relevance to the constitutionally guaranteed freedom of movement, including the right of exit from Nigeria, with which this case is directly concerned….it can thus be seen that while the seizure of passport by a government agency such as the 1st Respondent can be interpreted as a direct expression of refusal of exit to the citizen, it is also a potent curb on the desire of the citizen to travel abroad and an evident clog on the exercise of his right of freedom of movement.”

Thus in the view of His Lordship there is a conflict in the statement endorsed on Nigerian Passports that the Passport remains the property of the Government of the Federal Republic of Nigeria and the right which accrues to every citizen to hold such a Passport. The consequence of a passport being the property of the Government is, according to His Lordship, that the holder cannot deal with it as he pleased. He cannot transfer, sell or otherwise dispose of it. If for instance he ceases to be a citizen of Nigeria, he has an obligation, if requested, to return it to the ‘owner’, and the Nigerian Government as the owner of the passport has a right to recover the passport from anyone else who is not entitled to hold it. His Lordship then concluded that:

“The freedom of exit guaranteed by our constitution cannot be exercised without a passport and that freedom enshrined in Section 38 (1) of the Constitution carries with it a Concomitant right of every Citizen of Nigeria to a passport.”

Although the Judgment of the Court of Appeal that the seizure of the Respondent’s Passport amounted to a violation of his right to travel abroad guaranteed by Section 38 (1) of the Constitution was upheld by the Supreme Court, the leading Judgment of the apex court delivered by UWAIS C.J.N walked through a different route to arrive at the same answer. At page 352 of the report UWAIS, C.J.N said:

“In determining the issues in the present case, it is not, with respect, necessary to indulge in the academic exercise of whether the right to travel abroad is concomitant with the right to hold a passport. The real issue in contention here is not whether the respondent had a right to hold a passport. He in fact had a passport already but which was impounded by an official of the SSS. It is whether such an act by the official was legal and constitutional.”

After an exhaustive review of the arguments of Counsel in the case and the passage in the Judgment of the Court of Appeal quoted above, the C.J.N concluded that the official of the SSS concerned in the case had no power to impound or withdraw the Respondent’s passport in the manner he did. The impounding was, illegal since it offended the provisions of Section 38 Subsection (1) of the Constitution and Section 5 Subsection 1 of the passport (Miscellaneous Provisions) Act. The right to have freedom of movement and the freedom to travel outside Nigeria is, according to His Lordship, guaranteed by the Constitution but the right to hold a passport is subject to the provisions of the Act. Although the leading Judgment of the court considered the question whether the right to travel abroad was concomitant with the right to hold a passport as posited by the Court of Appeal to be an academic exercise for the purpose of the case, the concurring Judgments of Ogundare, Ogwuegbu, and ONU, JJ.S.C agreed with the Court of Appeal (per Ayoola, J.C.A as he then was) that the right to hold a passport is concomitant with the guaranteed right to travel abroad. Thus, to the extent that only three out of the seven Justices of the court that sat on the case agreed with the Court of Appeal on this point, the view that the right to hold a passport is concomitant with the right of exit from Nigeria which was guaranteed by Section 38 (1) of the 1979 Constitution (now Section 41(1) of the 1999 Constitution) was an obiter dictum.

It is respectfully submitted that the minority approach to the resolution of the issue at stake in the case is preferable. Although it is true, as has been said in the leading Judgment of the Supreme Court, that the Respondent had a Passport already but that fact cannot, without more, diminish the importance of the need to make a pronouncement on the right to hold a passport in a case of this nature. It is from such a pronouncement that the principle would emerge which would furnish the basis for the consideration of the facts of the case. As OPUTA, JSC put it in Ojegele V. The State (II), principles are broader statements of conduct and they do not necessarily decide the outcome of the dispute. They merely incline the decision one way or the other depending on the facts and surrounding circumstances of the case in hand.

As has been shown earlier, both the Supreme Court and the Court of Appeal arrived at the same decision that the seizure of the Respondent’s Passport was in contravention of Section 38 (1) of the 1979 Constitution and therefore was unconstitutional, however, no principle can, with respect, be deduced from the leading Judgment of the Supreme Court which could be said to have inclined the decision towards the direction of the conclusion arrived at in the case. The provisions of the Passport (Miscellaneous Provisions) Act which formed the main plank of the leading Judgment of the court cannot be construed in vacuo or in isolation of other issues which arose from the contentious positions taken by the opposing sides in the case. The Act deals specifically with the power of the Minister of Internal Affairs to cancel, or withdraw any passport issued to any person. The Act did not however provide that the power of cancellation or withdrawal which was vested in the Minister shall be exclusive of other general power of cancellation or withdrawal which the Federal Government, the avowed “owner” of the passport or any of its other agencies, may wish to exercise. It is this latter fact that, in our view, justifies the consideration of the question whether the Federal Government or any of its agencies, to wit, the State Security Service, can in exercise of its general right of “ownership” of the passport issued to a citizen withdraw same from the ‘bearer’ of it. A pronouncement made by the court on such a point, cannot, with respect, be said to be academic.

Conclusion:

From the analysis of the entire Judgment in Agbakoba’s case, it can safely be concluded that the case would be a good authority for the following proposition; that is:
(a) The right to travel outside Nigeria is constitutionally protected.
(b) The right to hold a Passport is not absolute as it is subject to the provisions of the Passport (Miscellaneous Provisions) Act which empowers, in its Section 5, the Minister of Internal Affairs to, at any time, cancel or withdraw any passport issued to any person if:

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(a) The passport is obtained by fraud;
(b) The passport has expired;
(c) A person unlawfully holds more than one passport at the same time;
(d) It is in the public interest so to do.
The obiter dictum that possession of a passport is concomitant with the guaranteed right of exit from Nigeria would appear to provide a persuasive authority for the proposition that a Citizen of Nigeria who has been denied the issuance of a standard Nigerian Passport can compel its issuance if he desires to travel abroad. The argument in such a case would be that the right to exit from Nigeria which is constitutionally protected by Section 41 (1) of the 1999 Constitution carries along with it a concomitant right to hold a passport and that Section 5 of the Passport (Miscellaneous Provisions) Act even though it authorizes the withdrawal of a passport subject to certain conditions does not authorize the refusal to issue one in the first instance.

Notes
1. See Section 235 of the Constitution of the Federal Republic of Nigeria 1999.
2. (1987) 3 NWLR (Part 59) 42
3. Ibid at page 46.
4. Adigun V. Attorney-General of Oyo State No. 2 (1987) 2 NWLR (Part 56) 197.
5. Ibid at page 215
6. Ibid at page 215
7. (1988) 1 NWLR (Part 71) 414
8. Ibid at page 423
9. (1999) 3 NWLR (Part 595) 314
10. Agbakoba V. Director, SSS (1994) 6 NWLR (PT. 351) 475
11. Supra at 423

ABOUT THE AUTHOR: Tayo Oyetibo, SAN
Tayo Oyetibo is Chief Counsel at the law firm of Tayo Oyetibo & Co.

 

Nigeria Set to Reform the Regulatory Framework of the Investment and Securities Act (ISA) 2007

In the aftermath of the meltdown of Nigeria’s capital market, the absence of strong regulatory framework has been recognized as one of the contributory factors in the unusual downturn in the capital market.

Unavoidably, Nigeria’s weak regulatory procedures have become the subject of scrutiny and criticism.
Hence, it is expedient that adequate steps be taken to sustain investor confidence and build a Nigerian market hinged on full disclosure. More importantly, as we gradually emerge from a traumatized investor period, it is necessary to position our regulators to protect investors.

t must be noted that unless the regulatory and enforcement framework of the Investments Securities Act (ISA) is strengthened, there would be a continued breach of securities law. In view of this, the Federal Government of Nigeria has resolved to transform the capital market to a reference point in Africa where there is investor confidence, market integrity, sound regulatory framework and international standards of corporate governance. To achieve this purpose, two committees have been set up: to review the Investments Securities Act 2007 and; to design a code of governance for capital market   regulators.
The terms of reference for the committee to design the code of corporate governance include:
1. to review current ethical and corporate governance practices of capital market regulators,
2. to review international best practices regarding code of corporate governance for capital market regulators, and
3. to draw appropriate and relevant code of corporate governance for capital market regulators in Nigeria covering all relevant areas including their roles, principles, ethics, guidelines and relevant implementation of the governance plan. For the committee that would review the Investments and Securities Act (ISA) 2007, the terms of reference are:
1. To review the ISA 2007 and draw out areas requiring amendment.
2. To review international best practices regarding statutes governing the operations of the capital market and to prepare a draft Investment and Securities Bill for presentation to the National Assembly.

It is expected that the outcome of these committees work would introduce high standards and a strong, fair, efficient and robust Nigerian market.

ABOUT THE  AUTHOR: Ms.Nkay Onyeaso
Ms. Nkay Onyeaso is a Partner of Blackfriars Solicitors

 

Proposed Industrial Property Commission Bill Reduces Duration of Trademarks from 14 Years to 7 Years – Nigeria

By section 23 of the Trademarks Act, CAP T13 Laws of the Federation of Nigeria, the registration of a trademark shall be for a period of seven years in the first instance. However the registration may be renewed from time to time. Upon application by a proprietor, the registrar may renew the registration of the trademark for a further period of fourteen (14) years from the date of the expiration of the original registration or of the last renewal of registration.

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However, the Industrial Property bill in section 51 provides that the registrar shall on application made by the proprietor of a trademark in the prescribed manner and within the prescribed period, renew the registration of the trademark for a period of seven (7) years from the date of expiration of the original registration or of the last renewal of registration.

The procedure under the bill is for the Registrar to send notice to the proprietor at a prescribed time before the expiration of the last registration of a trademark, the notice shall also state the conditions as to payment of fees and otherwise upon which a renewal of registration may be obtained.

Where the conditions are not complied with before the expiration of the prescribed time, the registrar may remove the trademark from the register and also state the conditions for its restoration.

A trademark removed from the register for nonpayment of the renewal fee shall for the purposes of any application for the registration of a trademark, be deemed to be a trademark that is already on the register.

In practice, trademarks due for renewal but which are not renewed are hardly removed from the trademark register. Apparently, this is a result of the registrar’s failure to send the notice require under the trademarks Act. The practice is that the registrar would renew the trademark once the payment for late renewal as well as payment for the present renewal is made.

ABOUT THE AUTHOR:

Ms. Chinwe Uwakwe Blackfriars LLP is a first class Nigerian law firm with special expertise in trademarks registration and and patents prosecution, commercial Litigation, energy law, and capital markets transactions, respectively. A fundamental principle underpinning our success is our unshakeable conviction that the practice of law is a privilege that carries with it the solemn responsibility to apply our talents for the benefit  of  our clients.
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Beyond Remembering our Fallen Heroes

January 15 of every year is commemorated as the Armed Forces Remembrance Day in Nigeria. It is a day dedicated to acknowledge and appreciate the supreme sacrifice paid by members of the Nigerian Armed Forces in their quest and resolve to protect and preserve the territorial integrity of Africa’s most populous nation and the global capital of the black race. This year’s celebration is unique for a number of reasons. First, it coincides with a period when there is resurgence in the activities of the Boko Haram terrorist group in the North-Eastern part of Nigeria; a resurgence that has inflicted considerable casualty on the Nigerian military in recent times.

Second, it is coming at a time when the Nigerian military is almost stretched to the limit with her involvement in tackling other myriad of threats to our internal security such as banditry in the North-West and herdsmen killings in the North-Central.

Third, it is just a few weeks to the 2019 general elections with attendant security concerns and the controversy over the role of the military in addressing such concerns.

Besides, it is coming at a time of lingering lack of appreciation of the role and contributions of the military in fighting these national security threats by some local and international non-governmental organisations. For instance, Amnesty International has curiously accused the Nigerian Army authorities of human rights abuses in their counterinsurgency operations in the North-East.

The truth is that such reports may be a result of lack of understanding of the changing dynamics in the definition of internal security and the role of the military in our internal security architecture. In today’s world, a country’s internal security has regional and at times, global dimensions and therefore, the involvement of the military in internal security is no longer an aberration. For example, the United States of America occasionally deploys the National Guard to quell certain unrest like the one witnessed in Georgia in 2018.

Therefore, it is important for every Nigerian to soberly reflect on the sacrifices made by our fallen heroes and our retired servicemen and women. This will go a long way in motivating those who are still in active service of their nation and an incentive for young Nigerians to offer to serve their fatherland in the various services.

Government, corporate bodies, non-governmental organisations and individuals must develop a culture of recognition and appreciation of not only our fallen heroes but also retired and serving military personnel as obtainable in other climes. We must go beyond the annual tokenism of laying wreaths in memory of the dead by honouring the living.

Something remarkable struck me in November 2014 while travelling on a Greyhound bus from Atlanta to Dallas in the US. There was a certain elderly black male passenger who always got preferential treatment on the bus. During stops, he always disembarked first unless he chose not to. On enquiry, I learnt that he was a military veteran and that it was the culture in the US to extend such courtesies to serving and retired military personnel. Other benefits including discount cards for purchases and a healthy pension are also extended to them.

Courtesies such as this should become part and parcel of our culture in Nigeria. The starting point is to smoothen the rough edges in military-civil relations. This frosty relationship emanated largely from the long years of military rule in our political governance leading to a situation of mutual distrust and fear. Sadly, the long years of military rule did not translate to better welfare for officers and men of the Armed Forces.

It is instructive to note that the current pension scheme of the military which was put in place by a civilian administration is a huge improvement on what obtained during the military era.

Furthermore, due to the increasing involvement of the military in internal security, there is the need to review their training regime to include skills and techniques for managing engagements with the civil populace. Similarly, our educational curriculum especially at the basic level, should include some military training. The combined effect of these is a better civil-military relationship.

As we mark the 2019 Remembrance Day, I recommend to the Federal Government that another Veterans’ Day should be instituted to honour ex-servicemen who are still living. Many developed nations of the world already have similar arrangements in place.

It is my considered opinion that mechanisms should be put in place to ensure that only passionate and committed people are recruited into the rank and file of the armed forces. The unemployment situation in Nigeria should not be allowed to result in the recruitment of characters who are only seeking for job but do not also possess the requisite qualities for military calling. This will enhance professionalism and discipline in the services.

Mr Yemi Mapaderun